Challenges to grants of planning permission – ex parte Burkett

Introduction

When is a planning permission safe from a challenge by way of judicial review? The two issues are (1) whether the resolution to grant or the issue of permission is the key date and (2) within what time after the relevant trigger date must an application be made?

On 23rd May 2002 the House of Lords in R v. London Borough of Hammersmith and Fulham ex parte Burkett finally gave the development world the answers. However, whilst the answers are clear, it is a case of certainty at the expense of speed.

Burkett: the two main points

1. The "trigger date" for a challenge to the decision of a local planning authority ("LPA") to issue planning permission is the date of the permission itself. It is not the date of the resolution to grant that permission. It is also not (where relevant) the date from which permission could be granted by the LPA (for instance in the situation where the decision has been referred to the Deputy Prime Minister and he has subsequently notified the LPA he does not wish to call the application in).

2. There is no rule that for planning judicial reviews the word "promptly" in the Civil Procedure Rules ("CPR") means that a challenge should be made within six weeks of the decision being challenged. The recent decisions of the High Court (for instance ex parte McKeown [1998] 2 PLR1) that in most cases "promptly" in planning cases should usually be interpreted to mean within six weeks of the decision to be challenged was rejected by the House of Lords. Their Lordships saw no reason why planning cases should be treated differently from any other form of judicial review. The usual principles of the CPR test of "promptly and in any event within 3 months" (CPR 54.5.(1)) apply when considering delay between the decision date and the application for permission for a judicial review.

Implications of the House of Lords' decision

1. Over the last few years, some developers and more particularly vendors of development sites have emphasised the "six week rule" that stemmed from the McKeown case. Their lawyers have fashioned their "subject to planning" agreements accordingly. This practice should now be resisted. The more cautious three month conditionality period should be used in every contract.

2. That three month period must now be calculated from the date of issue of planning permission. A lengthy time may expire between the resolution to grant and the issue of planning permission (in Burkett for instance some eight months elapsed between the resolution and the issue of permission). In most cases this is because of Section 106 agreement negotiations.

3. Developers should consider in each case whether Section 106 negotiation commences at a much earlier stage. The risk of two sets of abortive legal costs (assuming the LPA make the developer pay for the LPA's own costs as well as the developer's) must be balanced against the advantages of obtaining an earlier planning permission, setting the time period for challenge running at an earlier stage.

4. As a note of caution to point 3, care must still be taken in negotiating the heads of terms for Section 106 packages. Developers should not be tempted to accede to LPAs demands in order to obtain an earlier permission. A package of planning gain that is overly generous (and not linked to the development) may itself be a ground for challenge. The package as described in the committee resolution should be mirrored in the final agreement to avoid another potential ground of challenge.

For further information please contact Richard Guyatt on +44 (0)20 7367 3545 or at [email protected].