The Civil Procedure Rules require an application for judicial review to be made “promptly and in any event within three months”. What is “prompt” will depend on the particular circumstances, but it is clear from the cases that it can be less than three months.
Last year the European Court of Justice ruled, in a case dealing with public procurement, Uniplex (UK) Ltd v NHS Business Services Authority, that the requirement that a challenge must be made promptly was not compatible with the principle of certainty in the Procurement Directive and therefore a fixed three month time limit should apply. However, it was not clear whether the principle was restricted to public procurement cases or whether it applied more generally.
The Administrative Court has now answered that question in a case concerning the Environmental Impact Assessment Directive, R (Buglife) v Natural England. Buglife – The Invertebrate Conservation Trust was challenging the grant of outline planning permission for the development of a business park by National Grid Property Holdings Ltd on the Isle of Grain in the Thames Gateway. The site provides habitats for rare and protected invertebrates and Buglife considered the environmental statement submitted with the planning application to be inadequate.
Buglife’s application for permission to bring judicial review proceedings was made two days before the end of the three month period. National Grid and the local authority argued that the application had not been made promptly. Buglife claimed that the Uniplex decision applied so that the application was in time as long as it was made within three months but National Grid and the local authority responded that the Uniplex decision was limited to public procurement cases.
The court decided that the Uniplex decision applies to proceedings arising out of any EU directive, not only the Procurement Directive. Therefore it did apply in this case. However, the court took the view that in the circumstances of this case the application had in fact been made promptly.
It appears that a challenge on planning, rather than environmental, grounds will still have to be made promptly because it is not based on a directive. This gives rise to the possibility that an applicant seeking to challenge a decision on planning grounds might try to include an environmental challenge too in order to extend the time limit to the full three months. It is not clear whether in such circumstances the challenge based on planning grounds could be struck out as being out of time, leaving the environmental challenge to go ahead alone.