Key Points

  • The recent Court of Appeal decision in Andrew Finn-Kelcey v Milton Keynes Borough Council [2008] EWCA Civ 1067 has emphasised that the High Court's procedural requirements that claim forms in judicial review cases be filed (1) promptly and (2) in any event not later than three months after the grounds to make the claim first arose, are separate and independent of each other. It is not to be assumed that filing within three months amounts to prompt filing. Whether the claim form is filed promptly depends on the circumstances of the particular case. 
  • The importance of filing a judicial review claim form promptly applies particularly to cases where it is sought to challenge the grant of planning permission. 
  • There is a particular need to file claim forms promptly in respect of renewable energy projects, in that delay in challenging decisions in respect of such projects is more than usually prejudicial to good administration.

Background

In Andrew Finn-Kelcey v Milton Keynes Borough Council [2008] EWCA Civ 1067 the appellant, Mr Finn-Kelcey, appealed to the Court of Appeal against a decision of Collins J refusing him permission to apply for judicial review of the grant of planning permission by Milton Keynes Borough Council for a wind farm on land in Buckinghamshire. Collins J had refused Mr Finn-Kelcey (a local landowner and farmer) permission to seek judicial review on the grounds both of a lack of promptness in commencing proceedings and on the merits of the proposed claim.

The requirement to file a judicial review claim form promptly

Collins J had made it clear in his judgment that he refused permission on the grounds of delay as well as on the claim's lack of substantive merit. Civil Procedure Rule 54.5(1), which governs judicial review claims, provides that a claim form must be filed (1) promptly and (2) in any event, not later than three months after the grounds to make the claim first arose. In the instant case the Council granted planning permission on 14 January 2008 and Mr Finn-Kelcey filed his judicial review claim form on 10 April 2008 i.e. a few days before expiry of the three month limit.

The Court of Appeal referred with approval to the Court's decisions in R v Independent Television Commission ex parte TV Northern Ireland Limited [1996] J.R. 60 and R v Cotswold District Counci, ex parte Barrington Parish Council [1997] 75 P. and C.R. 515, which held that the two requirements in CPR 54.5(1) are separate and independent of each other and that it is not to be assumed that filing within three months necessarily amounts to filing promptly. The Court noted that the need for a claimant seeking judicial review to act promptly arose in part from the fact that a public law decision by a public body normally affected the rights of parties other than just the claimant and the decision-maker.

The Court stated that the importance of acting promptly applied with particular force in cases where a claimant sought to challenge the grant of planning permission. This was because, once a planning permission had been granted, a developer was entitled to proceed to carry out the development and would usually wish to implement the permission without delay given that there were time limits on the validity of a planning permission.

The Court of Appeal agreed with the approach taken by the House of Lords in R (Burkett) v Secretary of State for the Environment [2002] UKHL 23, namely that the three month limit had not been replaced by a six week limit in the context of challenges to planning decisions. However, the Court commented that the six week time limit prescribed by Parliament in cases where a planning permission is granted by the Secretary of State rather than by a local planning authority may often be of some relevance, if only because it indicated a recognition by Parliament of the necessity of bringing challenges to planning permissions quickly.

The Court continued that the requirement of promptness would vary from case to case and would depend on all the relevant circumstances. Knowledge of a decision to grant planning permission would often be relevant even though time does not begin to run until the formal grant of the permission. In the present case, Mr Finn-Kelcey was aware of the Council's decision on 17 December 2007 to grant permission as soon as that decision was made.

Finally, the Court observed that there was in the present case a particular consideration because of the nature of the proposed development. The Government's Planning Policy Statement 22 stressed the importance of renewable energy projects, referring to the UK target of generating 10 per cent of electricity from renewable energy sources by 2010, so as to comply with international obligations entered into by the Government. The Court noted that previous cases had emphasised the "acute" need for promptness in challenging planning decisions within this policy framework, in that delay in challenging decisions in respect of renewable energy projects was more than usually prejudicial to good administration. The Court noted that this policy context was known to Mr Finn-Kelcey since it was summarised in the planning officer's report to committee.

The Court of Appeal concluded that Collins J was correct in finding that the claim had not been lodged promptly.

Comment 

The Court of Appeal's decision in Andrew Finn-Kelcey v Milton Keynes Borough Council strongly reiterates the need for claimants to act promptly in commencing judicial review proceedings. The three month time limit specified in the Civil Procedure Rules is very much a "long-stop" date and the emphasis is on the need for promptness in any event. The Court will be particularly vigilant in policing this requirement in circumstances where a third party (in this case, the wind farm developer) is likely to be prejudiced by any delay in commencing proceedings.

The Court of Appeal added that, even had there been the necessary promptness in lodging the claim for judicial review, they would not have granted permission to proceed on the substantive merits of the claim, and it followed that Mr Finn-Kelcey had fallen far short of establishing the sort of clear-cut case which would be necessary to persuade the Court to override the failure to file the claim promptly. This indicates both the emphasis placed by the Court on the need to file proceedings promptly, and the fact that consideration by the Court of delay arguments are inextricably linked with the merits of the claim. That is, if the Court considers that the substantive merits are strong, it is more likely to also conclude that there has not been a lack of promptness in commencing proceedings.