R (Lymington River Association Ltd) v Secretary of State for Communities and Local Government Wightlink Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan |
| Judgment Date | 17 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1190 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C1/2013/2220 |
| Date | 17 July 2014 |
[2014] EWCA Civ 1190
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE CRANSTON)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Sullivan
C1/2013/2220
and
Mr R Gordon QC (instructed by Richard Buxton) appeared on behalf of the Applicant
Mr J Maurici QC (instructed by Berwin Leighton Paisner LLP) appeared on behalf of the Respondent and the Interested Party
This is a renewed application for permission to appeal against an order dated 1 August 2013 of Cranston J, dismissing the claimant's renewed application for permission to apply for judicial review of the Secretary of State's decision contained in a letter dated 22 May 2012, not to use the revocation powers contained in Section 100 of the Town and Country Planning Act 1990 ("The Act"), in respect of two planning permissions that were granted by one of his inspectors on appeal in a decision that was dated 29 November 2011.
The two permissions were granted in respect of (i) shore works to include the replacement and upgrading of the existing berthing arrangements for the ferries at Lymington; and (ii) recharge and habitat creation works in Lymington river estuary at Boiler Marsh. The shore works have now been completed, as I understand, have the recharge works.
The background to the claim is set out in some detail in Cranston J's judgment, which is reported at R (on the application of Lymington River Association) v Secretary of State for Communities and Local Government [2013] EWHC 2810 (Admin). It is unnecessary to repeat that detail for the purpose of determining this renewed application for permission to appeal. It is only necessary to state that the inspector's decision granting the two planning permissions followed an inquiry in October 2011 at which the claimant was represented. The inspector concluded, contrary to the claimant's submissions at the inquiry, that the recharge works were part and parcel of the overall project rather than "compensatory measures" under the Habitats Directive.
The inspector also considered that the effects of the operation of the old C-class ferries which had been scrapped and replaced by W-class ferries by the time of her decision were outside the scope of the inquiry.
There had been argument and legal submissions at the inquiry as to the application of the Habitats Directive ("the Directive"). The inspector had not accepted the claimant's submissions. The claimant had hoped to challenge the lawfulness of those two aspects of the inspector's decision under section 288 of the Act, but by reason of administrative error failed to do so within the statutory 6 week time limit.
Accordingly, the claimant's solicitor wrote to the Secretary of State, on 11 January 2012, as follows:
"[…]
"We accept that today is outside the 6 week time limit so that a section 288 challenge cannot, as such, be made. That might in most cases be the end of the matter, but as set out in the grounds which we attached the decision of the inspector on behalf of the Secretary of State was plainly wrong. We believe there was a straightforward misapplication of principles of the habitat's directive.
"Accordingly, by direct analogy with the decision in case C/201/02 Wells v the Secretary of State for the Environmentwe invite the Secretary of State to consider revocation of the decision. We infer in particular to paragraphs 62 to 70 of Wells, which requires the Secretary of State to use all powers open to him under domestic law and plainly powers under section 97, and if necessary, Section 102 of the Act are available to rectify the unlawful application of EU law, in this case Article 6 of the habitat's directive."
The Secretary of State, as I have said, declined to accede to that request saying that the inspector's decision was immune from challenge under UK law so the permissions granted by the inspector were lawful. The inspector's decision was immune from challenge under UK law by virtue of section 284 of the Act, which materially provides as follows:
"Except in so far as may be provided by this part, the validity of [decisions such as that made by the inspector in this case] shall not be questioned in any legal proceedings whatsoever."
The submission that the Secretary of State was required to consider the exercise of the powers under section 100 or 102 of the Act "to rectify the unlawful application of EU law" is, in my judgment, wholly misconceived.
It is the clearest possible example of what I might call a "boot straps argument", that is to say, a claimant who seeks to pull himself up by his own boot straps. I say that for this reason: the assertion that there is a need to rectify an unlawful application of EU law, that is to say in this...
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Croyde Area Residents Association v North Devon District Council
...38 Mr Maurici relies by analogy on R (Childs) v First Secretary of State [2006] JPL 1326 and R (Lymington River Association) v SSCLG [2014] EWCA Civ 1190 as situations where the Court has rejected challenges as attempts to avoid the effect of the time limits in s.284 and s.288. Neither of ......