Challenging Planning Consents - In Business Spring 2003

01 April 2003

The importance of preserving the benefit of a planning permission is crucial to any developer. Those third parties that wish to object are able to seek judicial review of the consent assuming they have sufficient legal standing as an objector. However, there has been some doubt as to the time limits within which any application for review must be made. According to the court rules any application must be made promptly and in any event within three months from when the grounds for the application arose.

But when does a reasonable objection arise? What is the relevant date, the resolution to grant consent or the actual issue of the permission itself? Even if that can be determined there had been a line of cases in the late 1990’s which suggested that any objector must apply within six weeks of the relevant date. This equates with the statutory provisions by which the planning applicant must apply to the High Court if it wishes to challenge any consent because of refusal or unacceptable conditions.

The House of Lords has finally reviewed the criteria in the case of Hammersmith & Fulham LBC ex parte Burkett. The decision is that the relevant date is the actual grant of the consent. Also the six weeks rule is a misconception but given the facts of the case, the Lords could not convincingly determine whether the application can be made up to three months after the grant. However, it is doubtful that the requirement to act promptly may comply with European Community Law or the European Convention on Human Rights. The inference would appear to be that an objector has a full three months within which to make an application.

All this seems very straightforward. But how does a developer feel when there is such uncertainty between the resolution and the grant perhaps during which time a planning agreement may have to be negotiated? No doubt these principles will also apply to other applications for consents such as under other environmental legislation.

For more information please contact Andrew Gough, Partner.
 

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