R v Stratford-on-Avon District Council, ex parte Jackson

CourtCourt of Appeal
Docket Number85/0558
JudgeLORD JUSTICE ACKNER
Judgment Date08 Oct 1985
JurisdictionEngland & Wales
Neutral Citation[1985] EWCA Civ J1008-2

[1985] EWCA Civ J1008-2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Before:

Lord Justice Ackner

Lord Justice O'Connor

and

Lord Justice Slade

85/0558

The Queen
and
Stratford-on-Avon District Council

and

International Stores Limited
Ex Parte Elsie Vera Jackson

MR. A.J.D. NICHOLL (instructed by Messrs Wallace & Partners; London agents for Messrs Needham & James, Stratford Upon Avon) appeared on behalf of the Applicant/Applicant.

MR. J.B. STEEL (instructed by Messrs Sharpe Pritchard & Company; London agents for the District Solicitor, Stratford Upon Avon District Council) appeared on behalf of the Respondent/First Respondent.

MR. A. D. DINKIN (instructed by Messrs D.J. Freeman & Company; London agents for Messrs Newsome Vaughan & Co., Coventry) appeared on behalf of the Respondent/Second Respondent.

LORD JUSTICE ACKNER
1

This is the judgment of the court.

2

These proceedings for judicial review arise out of an application for planning permission for a supermarket in part of a small, historic town, Alcester, in Warwickshire. The grounds of the application in essence are that when the Planning Committee which resolved to grant the planning permission were considering the application they were misled by the Planning Officer, who had to make a report to them, and as a result they failed to consider various highly relevant matters. It is on this basis that the court's supervisory jurisdiction is invoked. The notice of motion originally sought an order of certiorari to quash the grant of planning permission, but this was subsequently pointed out to be erroneous because no planning permission has yet been granted. This error has subsequently been corrected and, as stated above, it is the resolution to grant the planning permission which is the subject matter of the attack.

3

On 2nd June 1985 Mr. Justice Glidewell (as he then was) granted to Mrs. Jackson, who is the applicant before us, leave to apply for judicial review "without prejudice to the right of the respondents to argue that your application is out of time". He gave directions to the Crown office that the respondents should be told that if they wished to challenge the application as being out of time they should do so by interlocutory notice to be given within 21 days of service on them.

4

As a result of the directions given by Mr. Justice Glidewell the first respondents, the Stratford upon Avon District Council, and the second respondents, International Stores Limited (who are interested in the site as developers) sought to set aside the leave granted on 2nd June 1985. The application was heard inter partes by Mr. Justice Forbes on 17th July 1985. The learned judge was told in detail how it was that, notwithstanding that the resolution was passed on 30th August 1984, it was not until 10th May 1985 that Mrs. Jacksons's notice of motion applying for leave was lodged. The learned judge, expressing some regret, concluded that he should not exercise his discretion and extend the time for making the application. It was accordingly dismissed. Mrs. Jackson now renews before us her application for leave to apply for judicial review.

5

Order 53, rule 4(1) provides:

"An application for judicial review shall be made promptly and in any event within 3 months from the date when grounds for application first arose, unless the Court considers that there is good reason for extending the period within which the application shall be made."

6

It has been argued by the respondents that the words "an application for judicial review" mean the substantive application and not the ex parte application for leave to apply.

7

A literal reading of the wording appears to support this view, since other rules of Order 53 appear to draw a distinction between the application for leave under rule 3 and the substantive application for judicial review itself. Nevertheless, our understanding is that the practice which the courts have adopted is to treat the application referred to in rule 4 as being the application for leave. We think that this is the only sensible course from a practical point of view and the only sensible construction which can be given to the rule. It is not possible for an applicant to launch his substantive application for relief until the court has been able to dispose of his application for leave. We think that the draftsman of rule 4 cannot have intended that the operation of the three month time limit should be heavily dependent on the state of the court lists or that a request for any necessary extension of time under rule 4 should fall to be dealt with only when the substantive application is itself heard. We therefore conclude that Order 53, rule 4(1) confers on the court jurisdiction to make an order extending time on an application for leave; and indeed the precedent of a notice of application for leave which is to be found as Form 86A in Appendix A to the Supreme Court Practice 1985 specifically invites the applicant to include his reasons for any delay. We accept, however, that, as drafted, rule 4(1) is ambiguous and we recommend that the Rules Committee gives consideration to the need for its clarification.

8

The essential requirement of the rule is that the application must be made "promptly". The fact that an application has been made within three months from the date when the grounds for the application first arose does not necessarily mean that it has been made promptly. Thus there can well be cases where a court may have to consider whether or not to extend the time for making the application, even though the application has been made within the three month period. In this case, as is apparent from our brief reference to the dates, the applicant failed to make the application within the three month period.

9

We have been provided with a detailed schedule setting out the material dates. Within ten days of the resolution being passed on 30th August 1984, the applicant's solicitors received instructions on behalf of certain residents and immediately wrote to the first respondents protesting at the resolution. Within a fortnight thereafter the applicant's solicitors sent instructions to counsel to advise on the matter. His advice was received on 3rd October. On 9th October they informed the first respondent that counsel had advised that a letter should...

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