Brendan Malkin
The unresolved issue of when an applicant can apply to judicially review a planning decision of a local authority will be put before the House of Lords on 4 March
Judicial reviews (JRs) are currently a hot topic because from 4 March, JR applicants will be subject to a new pre-action protocol. Matters such as evidence and lists of interested parties will be contained in a 'letter before claim', in order to reduce costs and delay in-court proceedings by placing everything in the open beforehand (see The Lawyer, 18 February).
Rules state that JR applications must be made promptly after the alleged unlawful incident, within three months. There is anecdotal evidence of applications being lodged in 24 hours.
In the Lords case R v Hammersmith & Fulham London Borough Council, ex parte Robert and Sonia Burkett, the local authority approved in September 1999 a planning scheme to build on one of London's largest development sites, subject to the matter going to the Secretary of State for the Environment, Transport and the Regions. However, the Burketts applied for the decision to be judicially reviewed some seven months later, way outside the three-month deadline.
The Lords will decide on whether time should run from the local authority's decision in September 1999 or from a later period, such as the time of the Secretary of State's response. The Court of Appeal decided that the Burketts would have applied in time had they sent a pre-action letter one month or so after the local authority's September 1999 resolution.
The Lords will also consider the Court of Appeal's decision that the Burketts should have applied in probably less than six weeks, or whether they should have been given longer.
Richard Harwood, a barrister at Eldon Chambers who is acting for the Burketts, said the law elsewhere in Europe is a lot clearer on all these points. The Burketts argue that the local authority's environmental statement was inadequate and that any approval of the planning application would be unlawful.
Harwood and Robert McCraken of 2 Harcourt Buildings, instructed by Cambridge law firm Richard Buxton, are acting for the Burketts. Timothy Straker QC and Andrew Tabachnik, both of 4-5 Gray's Inn Square, have been instructed by Hammersmith & Fulham London Borough Council. Robin Purchas QC and Joanna Clayton, both of 2 Harcourt Buildings, have been instructed by Masons for third party St George, the property developers.
