A challenge to a decision by a public body by way of judicial review must be brought "promptly and in any event within three months". The courts have been of the view that, in some circumstances, an applicant who waits until three months before bringing a claim may have waited too long. This is particularly the case in planning matters where a developer who has been granted planning permission for development will want to start development as soon as possible.
The Uniplex case (Uniplex (UK) Ltd v NHS Business Services Authority (2010)) - which related to a public procurement contract - held that the test of whether a claim had been made "promptly" was not compatible with the requirement for certainty in article 1(1) of the EU Procurement Directive (transcribed into UK law by the Public Contracts Regulations 2006).
The claim in Buglife (R (on the application of Buglife) v Medway Council (2011)) was brought two days before the end of the three month judicial review period. The respondents claimed that Uniplex related only to proceedings associated with the Procurement Directive, whereas the Buglife proceedings were related to the Environmental Impact Assessment Directive.
The judge said:
"I cannot accept the limitation of the Uniplex decision contended for by [the respondents]. The decision applied general and core principles of Community Law which are applicable to all directives. The requirement of certainty and the application of that requirement to limitation periods imposed on those seeking to enforce their rights arising under the directive in a national court have general application to such enforcement proceedings arising out of any directive. In those circumstances, it is clear that there was a failure of the legislature to transpose the Environment Directive into domestic law in a way which avoids uncertain time limits arising from the requirement of promptness. That requirement is not now enforceable in English courts following the Uniplex decision."
The court found that, in any event and in exercise of the court's discretion, on the facts Buglife did apply promptly, due to the lack of consultation immediately prior to the grant of planning permission.
This was a decision of the Administrative Court, and may be appealed. However, until it is determined otherwise, this case has the potential to create serious consequences for developers who take a commercial risk and implement authorised development before the end of the full three month judicial review period, in the anticipation that no claims will be brought. However, there is an argument that this decision only applies where there is an EU element to the case; if not then the requirement for "promptness" continues to apply.