Judicial Review Time Limits

The nightmare for every property developer is to receive planning permission from the local planning authority only then to have it challenged in the High Court by way of "judicial review". Challenge involves delay, expense and ultimately the possibility of losing the permission. If the consent is quashed, any work done in the interim that relied on permission will become unlawful. Consequently in many contracts which are conditional on planning consent, that consent is not deemed to exist and the contract cannot be completed until three months have elapsed from grant of consent without proceedings being initiated.

The three month period is significant because the High Court Rules state that any claim form to initiate judicial review proceedings must be filed "promptly; and in any event not later than three months after the grounds to make the first claim arose".

In considering that wording it is necessary to bear in mind that in the individual circumstances of a case the need to act "promptly" may mean that the court will expect action to be taken more quickly than simply by the expiry of the three month period. Additionally, the courts have power to extend the time limit, though they exercise that power very sparingly.

The recent attempt by one Judge in particular to establish a doctrine that any action will normally have to be commenced not within three months but within six weeks has been held by the House of Lords to be "a misconception". Despite these qualifications, the industry norm for property development and conveyancing documentation is to treat three months as the period which has to elapse before a planning consent can be considered safe.

A difficult conundrum which has occupied the minds of planning lawyers and has been of highly practical significance to those who are fearful of having their consents challenged, and indeed those with an interest in challenging such consents, is whether the three month period is measured from the date planning consent is granted or from the date of the committee resolution leading to it. A considerable time may elapse between those two dates. If the date of the resolution is the relevant trigger, then does an objector lose his opportunity to...

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