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Articles Environmental Law 13th Jan 2017

Environmental Judicial Review: Case round-up

Having considered the government’s proposed rule changes, we summarise some recent cases of particular relevance to environmental challenges.

Time limits and discretion

The Court of Appeal in the following case has confirmed that the requirement to commence a claim “promptly” and the court’s discretion not to allow a remedy in cases of undue delay still apply to challenges based on EU obligations, such as those relating to environmental impact assessment:

The Civil Procedure Rules provide that a judicial review challenge must be commenced “promptly” and “in any event not later than 3 months after the grounds to make the claim first arose”. For challenges to decisions made under planning legislation, the time limit is reduced to 6 weeks.

On the one hand, the court has the power to extend the time limits of 6 weeks and 3 months respectively, although it will only do so in exceptional circumstances. On the other hand, the challenge must still have been brought “promptly”. The court may refuse to grant permission to proceed, or may refuse the remedy sought by a Claimant (say, to quash a planning permission), if it considers (i) there has been undue delay in bringing the claim and (ii) granting the remedy sought would cause substantial hardship or prejudice or would be detrimental to good administration [1].

In the 2016 case of R (on the application of Gerber) v Wiltshire Council [2016] EWCA Civ 84, the High Court granted the Claimant, Mr Gerber, an extension of time to bring a claim challenging the grant of planning permission for development of a solar farm on agricultural land. The extension was allowed largely due to assurances that had been given in the Local Planning Authority’s Statement of Community Involvement that owners of properties neighbouring the development site would receive a letter of notification of the planning application. Mr Gerber had not received a letter and first realised that a planning application had been made and granted when development began on site. Other issues related to advice Mr Gerber had (or had not) been given which he said caused him to delay the commencement of proceedings.

In upholding Mr Gerber’s challenge, the judge in the High Court found that there had been serious legal errors in the decision making process. Errors included a failure to give proper consideration to the interests of a nationally protected heritage asset and a failure to observe requirements of EU environmental law, by failing properly to screen the development to decide whether an environmental impact assessment should be carried out.

The Court of Appeal overturned the decision of the High Court, setting aside the extension of time that had been granted for Mr Gerber to commence his claim. Having done so, the appeal judges concluded that even if the case had been allowed to proceed, it was one in which discretion should have been exercised in favour of not quashing the planning permission. It was material to the decision that the site operator had presented evidence of prejudice and financial hardship if the planning permission was quashed after such a length of time.

Earlier cases have rejected arguments that the discretion to refuse relief should not apply to challenges based on a failure to meet EU legal requirements [2]. The court retains its discretion if the Claimant “has been able in practice to enjoy the rights conferred by European legislation, and there has been no substantial prejudice” [3]. In Gerber, the Court of Appeal confirmed that both the discretion itself and “the usual principles governing the exercise of discretion” continue to apply in challenges based on the EIA Regulations.

This case highlights once again the need for potential challengers to be proactive in keeping themselves up to date with the progress of a planning application (rather than relying on direct notifications, for example) and to act extremely quickly in all environmental judicial review cases. This is all the more so for decisions made under planning legislation – as in the case of Environmental Impact Assessment. The 6 week limit offers very little opportunity to properly assess the merits of a challenge, issue a letter before claim and allow time for the public authority’s response before making, and acting on, the final decision to issue a claim.

Reasons

A further appeal case from late 2016 highlights the importance of clear reasoning for decisions affecting sites, such as Areas of Outstanding Natural Beauty, which enjoy the highest levels of policy protection.

R (on the application of CPRE Kent) v Dover District Council [2016] EWCA Civ 936 involved planning permission for significant development on the western fringes of Dover and within the Kent Downs AONB.

Planning officers were in favour of refusing permission for the development in the form proposed, due to landscape harm, but recommended substantial modifications which, they felt, would “shift the balance in favour of the economic and other benefits of the application.” Notwithstanding significant levels of objection, the Council’s Planning Committee resolved, by a majority, to grant permission.

The decision was challenged. Grounds of challenge included that the Committee had failed to give adequate reasons for the grant of permission. As the development fell within the scope of the Town and Country Planning (Environment Impact Assessment) Regulations 2011, the Council was obliged to make and keep a statement containing the main reasons and considerations on which the decision was based. As it was, the appeal court observed, such reasons as were given had to be gleaned from the record of individual councillors’ contributions as recorded in the minutes of the Committee meeting.

In upholding this ground of challenge, the judgement first reiterates what it describes as the “mainstream” approach to reasoning as summarised in earlier caselaw:

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision … The reasons need refer only to the main issues in dispute, not to every material consideration” [4].

The appeal judge observed that the scale of development proposed in Dover was unprecedented in an AONB. As such, there was “a particular resonance” to the principle that “the degree of particularity required depend[s] entirely on the nature of the issues falling for decision”. In application of this principle, it was concluded that “a local planning authority which is going to authorise a development which will inflict substantial harm on an AONB must surely give substantial reasons for doing so”.

It was also significant in this case that the Planning Committee departed from the recommendations of planning officers. The appeal court accepted that, while the Committee has a duty to exercise its own judgement, “where a Planning Committee is disposed to disagree with the Council’s officers – especially in an AONB case – it must (“if but briefly”) engage with the officers reasoning”. Here, it wasn’t even clear whether the Committee had accepted the planning officers’ assessment of the degree of harm that would be caused by the development.

The appeal judge referred to the “pressing nature” of national policy relating to AONBs, as expressed in the National Planning Policy Framework, which states that an AONB has “the highest status of protection in relation to landscape and scenic beauty”. No doubt the same considerations will apply to other sites enjoying a similarly high level of protection, whether for reason of landscape, ecology or geo-diversity.

[1] S3(6) Senior Courts Act 1981.
[2] Walton v Scottish Ministers [2012] UKSC 44; R (Champion) v North Norfolk District Council [2015] 1 WLR 3710.
[3] Walton v Scottish Ministers paragraphs 139 & 155; R (Champion) v North Norfolk District Council paragraph 54.
[4] As per South Bucks v Porter (No 2) [2004] 1 WLR 1953.


The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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