R (Burkett) v Hammersmith and Fulham London Borough Council (No 1)

JurisdictionUK Non-devolved
JudgeLORD SLYNN OF HADLEY,LORD STEYN,LORD HOPE OF CRAIGHEAD,LORD MILLETT,LORD PHILLIPS OF WORTH MATRAVERS
Judgment Date23 May 2002
Neutral Citation[2002] UKHL 23
CourtHouse of Lords
Regina
and
London Borough of Hammersmith and Fulham
(Respondents)

And Others

Ex Parte Burkett

and another (FC)

(Appellants)

[2002] UKHL 23

Lord Slynn of Hadley

Lord Steyn

Lord Hope of Craighead

Lord Millett

Lord Phillips of Worth Matravers

HOUSE OF LORDS

LORD SLYNN OF HADLEY

My Lords,

1

This appeal raises an important question in the context of planning law. The facts and the issues are set out in the speech of my noble and learned friend Lord Steyn to which I gratefully refer.

2

In summary, a committee of the local planning authority decided on 15 September 1999 that planning permission should be granted for a large scale development in Fulham subject to certain conditions being fulfilled. On 6 April 2000 the appellant applied for leave to move for judicial review of that decision. On 12 May 2000 planning permission was actually granted.

3

At that time Order 53 r 4(1) of the Rules of the Supreme Court provided that an application for leave to apply for judicial review should be made "promptly and in any event within three months from the date when grounds for the application first arose". If the relevant date was 15 September 1999 the application was clearly out of time. Richards J and the Court of Appeal refused permission on the ground that the application was out of time.

4

It is clear that if the challenge is to the resolution (as it may be) time runs from that date, but the question on the present appeal is whether, if the application is amended to challenge the grant of planning permission rather than the resolution, time runs from 15 September 1999 or 12 May 2000.

5

In my opinion, for the reasons given by Lord Steyn, where there is a challenge to the grant itself, time runs from the date of the grant and not from the date of the resolution. It seems to me clear that because someone fails to challenge in time a resolution conditionally authorising the grant of planning permission, that failure does not prevent a challenge to the grant itself if brought in time, i e from the date when the planning permission is granted. I realise that this may cause some difficulties in practice, both for local authorities and for developers, but for the grant not to be capable of challenge, because the resolution has not been challenged in time, seems to me wrongly to restrict the right of the citizen to protect his interests. The relevant legislative provisions do not compel such a result nor do principles of administrative law prevent a challenge to the grant even if the grounds relied on are broadly the same as those which if brought in time would have been relied on to challenge the resolution.

6

The question whether an obligation to apply "promptly" is sufficient to satisfy European Community law or Convention rights as to certainty does not arise in this case and I do not comment on it.

7

As to the preliminary objection to the House's jurisdiction this case is plainly distinguishable from In re Poh [1983] 1 WLR 2 since the Court of Appeal here gave leave to appeal from the judge and heard the appeal. It is wholly unacceptable that the House should not have jurisdiction to hear such an appeal. I consider in any event that the dictum in In re Poh which is relied on for the contrary result should be laid to rest.

8

I would accordingly allow the appeal and remit the substantive question to the High Court for decision.

LORD STEYN

My Lords,

9

This appeal raises important questions of law in regard to delay in launching judicial review proceedings. The context is town planning. The proposal concerns a large development at Imperial Wharf, Fulham, London. The appellant is Mrs Burkett who lives in a ground floor maisonette adjoining the site. She believes that the development will have an adverse effect on her quality of life and the health of her family. The respondent is the London Borough of Hammersmith and Fulham ("the local authority"). St George West London Ltd is the developer and is joined in the proceedings as an interested party ("the developer"). It will be necessary to explain the circumstances of the case in some detail. There is, however, an anterior legal question to be considered.

I. Jurisdiction.

10

The issue arises in this way. Mrs Burkett and her late husband applied for judicial review. The matter came before Richards J. He refused permission on the grounds of delay. The Court of Appeal granted permission to the applicants to appeal from the decision of Richards J. After a full inter partes hearing the Court of Appeal refused permission to seek judicial review on grounds of delay and dismissed the appeal. The Court of Appeal refused leave to appeal to the House of Lords. An Appeal Committee granted leave to appeal.

11

Relying on the decision of the House of Lords in In re Poh [1983] 1 WLR 2 counsel for the local authority submitted that the House does not have jurisdiction to hear an appeal from a decision by the Court of Appeal refusing permission to seek judicial review. In In re Poh the judge had refused leave to apply for judicial review. The applicant appealed ex parte by originating motion to the Court of Appeal who refused leave. The applicant sought leave to appeal to the House. The House ruled that there was no jurisdiction to grant leave. Giving the brief reasons of the House Lord Diplock observed, at p 31:

"Their Lordships are not concerned with the procedure whereby this application moved from the Divisional Court to the Court of Appeal, because the question we have to consider is whether this House has jurisdiction to entertain the application. Counsel instructed by the Treasury Solicitor has taken the preliminary point that the House has no jurisdiction under the Appellate Jurisdiction Act 1876 to entertain an appeal from refusal of leave to apply for judicial review under RSC Ord 53. He relies upon the construction of section 3 of the Act of 1876 which was approved by this House in Lane v Esdaile [1891] AC 210…"

Three points need to be noted about this statement. First, Lane v Esdaile is only authority for the general proposition that whenever a power is given to a court or tribunal by legislation to grant or refuse leave to appeal, the decision of that authority is, from the very nature of the thing, final and conclusive: see In re Housing of the Working Classes Act 1890, Ex p Stevenson [1892] 1 QB 609 (Court of Appeal). Secondly, Lord Diplock extended this rule to an appeal from a refusal of leave to apply for judicial review. Thirdly, Lord Diplock gave no reasons for this extension of the Lane v Esdaile principle.

12

The decision in In re Poh has proved troublesome. In Kemper Reinsurance Co v Minister of Finance [2000] 1 AC 1 the Privy Council cast doubt on the reasoning in In re Poh. Lord Hoffmann observed, at p 18B, that a renewed application to the Court of Appeal under RSC Ord 59, r 14(3) is a true appeal with a procedure adapted to its ex parte nature. Referring to In re Poh Lord Hoffmann stated:

"It would not be right for their Lordships to make any comment upon this decision in its application to appeals from the English Court of Appeal to the House of Lords. But the judgment expressly disclaimed any expression of view upon the nature of 'the procedure whereby this appeal moved from the Divisional Court to the Court of Appeal'. The decision is therefore not inconsistent with their Lordships' opinion that the application to the Court of Appeal is a true appeal, not excluded by the principle in Lane v Esdaile. Their Lordships accept that this conclusion makes it difficult to identify the reasoning by which the House of Lords decided that the principle applied to a further appeal to the House of Lords …"

In R v Secretary of State for Trade and Industry, Ex p Eastaway [2000] 1 WLR 2222 the House considered In re Poh but did not have to rule on its status. The Eastaway case is only authority for the proposition that when the Court of Appeal has refused permission to appeal in the face of a first instance refusal of permission to seek judicial review the House has no jurisdiction to give leave to appeal: see at p 2228A-B.

13

Counsel for the local authority submitted that the decision in In re Poh [1983] 1 WLR 2, read with the observation that "[their] Lordships are not concerned with the procedure whereby this application moved from the Divisional Court to the Court of Appeal", appears to deprive the House of jurisdiction to entertain the present appeal. A material difference, however, is that in the present case the Court of Appeal granted leave to appeal and heard the appeal. It would be extraordinary if in such a case the House had no jurisdiction. Nothing in statute law or in Lane v Esdaile [1891] AC 210 provides any support for such a view. Moreover, as Lord Hoffmann pointed out in the Kemper case [2000] 1 AC 1, 18B-C, it has never been suggested either before or after the decision in In re Poh that appeals to the Court of Appeal against refusal by the High Court of leave to apply for judicial review is caught by the rule in Lane v Esdaile. In my view the conclusion is inescapable that Lord Diplock's extempore observation was not correct. It follows that the House has jurisdiction to grant leave to appeal against a refusal by the Court of Appeal of permission to apply for judicial review.

14

The jurisdictional objection to the hearing of the appeal must be rejected.

II. The Legal Background.

15

In order to make the case intelligible it is necessary to set out some of the legal background to the planning application. Environmental assessment pursuant to Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (85/337/EEC) is a fundamental instrument of European Community policy. The preambles of the Directive include the following:

"Whereas...

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