26th February 2016

Extension of time period for planning permission legal challenge now over-ruled

Some may recall the rather alarming case in Wiltshire of Gerber, R (on the application of) v Wiltshire Council [2015] EWHC 524 in March 2015 where the time period for a legal challenge to the grant of planning permission for a solar park was extended, in this case from three months to just short of a year. At the date of the challenge, the solar park had already been built.

The justification for this extension was that the claimant hadn’t been consulted and therefore was unaware of the application or the permission until construction started.

Although the Council was not required to write directly to the claimant, it had failed to consult with English Heritage; failed to properly consider the impact of the development on the setting of the Grade 11* Listed Gifford Hall, and failed to comply with the EIA Regulations in respect of screening.  Having considered the above, the Judge quashed the permission. 

However this judgement has now been overturned in the Court of Appeal.  In essence Lord Justice Sales ruled that there was no justification for extending the time period for bringing forward a challenge.  As the permission cannot be challenged so far outside the time period for Judicial Review, the Council’s failures outlined above did not merit consideration.

As a result, the planning permission has been reinstated, no doubt much to the relief of the developers and any funders, and the new set time period of six weeks for taking action is reinforced.

Dale Evans, partner at property and planning consultancy Alder King, said: “This is an important case in relation to all significant developments where developers are relying on the Judicial Review period to expire before deals are completed or funding secured.  But there are perhaps two other general points relevant for day to day application management.  

“Firstly, it is always worth checking that local planning authorities are indeed following their own “rules” and the law when it comes to publicity and consultation and that they follow the law and judicial authority in respect of the setting of Listed Buildings and the operation of the EIA Regulations.

“Secondly, it is also worth noting that the developers in this case did not comply with the planning permission. This in our experience is a significant issue for solar park funders but is a general issue when sites are being developed and sold on.  However, the Judge commented that the remedy for this was an Enforcement Notice via that regime if “expedient” to do so, and added that the developer should not be deprived of this “discretion” by the Courts. This was therefore not a significant matter related to the time period appropriate for legal challenge.”