The Court of Appeal’s recent judgment in R(Gerber) v (1) Wiltshire Council and (2) Terraform Power Inc and Norrington Solar Farm Ltd is a blunt reminder on the importance of promptly filing judicial review applications.
Background
The claim concerned the grant of permission for a 22 hectare solar farm installation in Broughton Gifford. It was filed almost a year outside the relevant period. The Council had complied with the statutory publicity requirements. The High Court judge nonetheless granted an extension of time for bringing the claim. The claimant owned the Grade II* Gifford Hall near the site. The developer advertised and held two public exhibitions before submitting the application. The Council then publicised the application by posting newspaper, online and site notices (including at the end of the lane leading to Gifford Hall).
The claimant remained unaware of the application and so did not object. He only realised the site was being developed once works began and wrote to the Council to object to the impact on the setting of his property. His complaint was rejected and he waited five months to file a claim for judicial review (by which time the developers had spent about £10.5 million installing the solar farm).
High Court decision
Despite the exceptional delay in bringing the claim, the High Court granted an extension of time and quashed the grant of planning permission. Dove J held that:
- assurances given in the Council’s Statement of Community Involvement (SCI) had created a legitimate expectation that Mr Gerber would be personally notified of the planning application, which the Council breached. The fact that he needed time to assimilate all the issues and the supposedly incomplete advice received from his first legal advisors was treated as a reasonable explanation for the delay in bringing the claim; and
- he was required to quash the permission, given failures to consult English Heritage (as was), to properly deal with heritage impacts and to properly screen the application for EIA purposes.
Appeal decision
The first instance decision led to concern that a planning permission was not “safe” even when the challenge window had passed. The Court of Appeal unanimously rejected this approach and the judgment makes clear that once planning permission is granted a developer is entitled to rely upon it. There was no reasonable explanation for either the lengthy delay between the grant of permission and the claimant’s objection to the Council or his delay in bringing legal proceedings.
Gerber is nonetheless a blunt reminder that:
- Compliance with statutory notice procedures is essential, but the Courts will rarely impose more onerous requirements based on legitimate expectation. Care is needed to ensure that commitments in Statements of Community Involvement have been honoured though.
- Prompt legal action to challenge the grant of planning permission is required in all cases, unless very special reasons can be shown. Objectors who have been involved in the planning process throughout should act with “especial speed”.
- Extending time for bringing a legal challenge should not be allowed simply because an objector did not realise what has happening, where statutory notice requirements are met.
- Failure to deal properly with EIA and heritage issues can be fatal, where claims are brought in time. Even where there are acknowledged breaches of EIA and heritage duties, though, the effects of exercising the discretion to quash must be weighed up.
- Quashing of a permission is a discretionary remedy. The Court of Appeal did not need to decide whether the permission should have been quashed, but made clear that it would not have done so given: the significant delay in bringing the claim without good reason; the prejudice to the solar farm operator (including £1.5m to dismantle the development, plus the £10.5m invested in construction); the lack of real damage to the claimant’s own interests; and the need for good administration. In a difficult political climate, investors may also take some comfort from the importance given to renewable energy development and investor certainty.
- The longer the delay after the grant of planning permission the greater the risk and extent of hardship and prejudice to developers if the consent is subsequently set aside. Being able to substantiate the financial costs of development is essential to be able to rely on this prejudice.
