Mora no more?

How late is too late for judicial review of the decisions of public authorities? The decision last year of the Court of Justice of the European Union (CJEU), C-406/08 Uniplex (UK) Ltd v NHS Business Services Authority, cast doubt on the present Scottish rule, and a number of recent English planning cases illustrate the difficulties that might arise in Scotland.

All jurisdictions have a rule limiting challenge to administrative decisions. It is in the public interest that people should be able to proceed on the basis that a decision is valid and can be relied upon. In a planning context, the limitation on judicial review is of interest both to objectors who might want to challenge a grant of planning permission, and to developers who want to know when they can proceed with their development (or conclude an acquisition) safe from the prospect of challenge.

The risk of judicial review in planning arises where permission was granted at first instance by the planning authority. If permission is granted by the Scottish Ministers or a local review body, the parties, including any objectors, have six weeks to appeal on a point of law to the Court of Session, and judicial review is not available if an appeal route exists.

Scotland: at discretion

There is at present no statutory time limit in Scotland for judicial review. Instead, the Scottish rule is that a petition for judicial review must be brought without mora, taciturnity and acquiescence, i.e. delay, a failure on the part of the petitioner to speak out or assert rights, and silence or passive assent to what has taken place.

Delay is not by itself a reason for refusing a petition. The court will assess any delay in the context of all the surrounding circumstances, including adverse effects on good administration, factors indicating acquiescence, and any prejudice to the developer.

The application of this rule leaves much to the court’s discretion. In Uprichard v Fife Council [2001] Env LR 8, the court refused a petition on the grounds of mora etc, which the petitioner had brought 19 weeks after the grant of permission. However, 16 months after grant of permission was not considered too long in Bova v Highland Council [2011] CSOH 140. Key factors appear to include how much preparatory work for the petition was done during the period, whether the other parties knew of the intention to submit the petition and were kept informed of progress with its preparation, and whether expense had been incurred based on the permission. In Uprichard, the developer had incurred £1 million in costs before receiving notice of the petitioner’s intentions, while in Bova the developer was kept apprised of the petitioner’s intentions from soon after grant of permission. There is a further complication where the authority has made a minded-to-grant decision subject to conclusion of a planning agreement – i.e. does time run from this decision or from the actual grant of permission?

Uniplex and English law

Uniplex was a challenge to an NHS procurement decision under the Public Contracts Regulations 2006, which were adopted in implementation of a European Community directive. The rules required that a challenge must be brought “promptly and in any event within three months from the date when grounds for the bringing of the proceedings first arose”. The CJEU found that, since a limitation period that gave discretion to the court was not predictable in its effects, the requirement to bring a challenge “promptly” did not meet EU standards of legal certainty.

The same time limit is found in the English civil procedure rule (CPR) 54.5, which applies to judicial review proceedings. The High Court has consequently applied Uniplex in two planning judicial reviews raising EU law issues, R (Buglife) v Medway Council [2011] EWHC 746 (Admin), and R(U & Partners (East Anglia) Ltd) v The Broads Authority [2011] EWHC 1824 (Admin).

The facts in U & Partners have some similarity to Uprichard. The English Environment Agency had already expended £130,000 on flood prevention works on the strength of planning permission it had been granted by the Broads Authority before the claim was made. The claimant firm argued that an environmental impact assessment, as required by EU law, should have been carried out before grant of the permission. The claimant had not acted promptly in bringing the judicial review, and had only indicated it would challenge the grant of permission two months after the grant, even though it knew the Environment Agency had started work.

The court, applying Uniplex, decided that EU law required it to set aside the requirement that a challenge be brought “promptly”. The claimant was therefore entitled to bring the action at any time within three months of the grounds first arising, whether or not it was brought promptly.

This ruling is particularly important in planning, as many major decisions on development plans and planning permission are subject to EU law requirements for environmental assessment, or assessment of the impact on protected habitats or species.

The court in U & Partners emphasised that its decision did not go beyond those cases where EU law applied (as confirmed in the subsequent case of R (Macrae) v Herefordshire [2011] EWHC 2810). The English courts will therefore apply the domestic promptness requirement in cases where EU law does not apply.

Implications for Scotland

There must now be doubt about the mora rule in cases involving issues of EU law. However, there is no Scottish “longstop” equivalent to the three-month rule in England. A Scottish judge therefore has no obvious remedy to grant in an individual case, and legislation may be needed to sort this out. The Gill review proposed that a rule in similar terms to CPR 54.5 should be introduced in Scotland. No doubt the position in EU law cases would then be the same as in England.

The Aarhus Convention

England’s “promptly” rule has also been criticised by the compliance committee overseeing implementation of the Aarhus Convention (1998), which guarantees access to justice in environmental matters. The committee found that in the interest of fairness and legal certainty, (i) it is necessary to set a clear window within which a claim should be brought; and (ii) time limits should start to run from the date on which a claimant knew, or ought to have known, of the relevant act or omission (see case 2008/ACCC/33).

It would therefore appear that any reform of the Scottish rules on delay in judicial review cases should apply to all environmental matters, and not just to those areas where EU law applies. In the interim, Scottish courts may wish to give the benefit of the doubt to any member of the public who brings a petition for judicial review of a decision on environmental matters.