Berky, R (on the application of) v Newport City Council & Ors

Factual and Procedural Background

An appeal was brought against the refusal of permission to initiate judicial review proceedings concerning a planning permission granted on 26th January 2011 by Newport City Council ("the Council"). The permission authorized a mixed development including a food store and the restoration of a former workingmen's institute ("the Institute") on land in Lliswerry, Newport. The application was made by Company A and Company B, who are now the landowners and operators of the foodstore. The claimant, a local resident acting also on behalf of a local group opposing the development, was refused permission by the High Court. The legal status and membership of the local group remain unclear, but the claimant was accepted as having standing in his own right.

The application for judicial review was lodged on 26th April 2011, after work had commenced on site in mid-March 2011, and the store opened in October 2011. The judge refused permission on grounds of delay and on the merits.

The site, approximately 2.8 hectares in a mixed commercial area, included the disused Institute, regarded as architecturally and culturally significant but not listed. The site had prior permission for residential development and Institute reuse. The proposed foodstore was approximately 5,500 m² in gross floorspace.

Prior to application, the Council issued a screening opinion on 7th January 2010 concluding no Environmental Impact Assessment (EIA) was required. An Environmental Assessment Checklist and officers’ reports supported this conclusion, though the officers recommended refusal based on retail planning policy conflicts. However, the Planning Committee resolved to grant permission on 13th October 2010, citing regeneration benefits outweighing policy objections. The application was referred to the Welsh Assembly Government but not called in. The permission was formally granted on 26th January 2011.

The claimant challenged the Council’s decision on three grounds: the alleged legal error in not requiring an environmental statement, apparent bias by a committee member, and irrationality in granting permission contrary to officers’ advice, particularly regarding the protection status of the Institute.

Legal Issues Presented

1. Whether the Council lawfully decided that an Environmental Impact Assessment was not required and provided adequate reasons for that decision.
2. Whether there was real or apparent bias on the part of a Planning Committee member, vitiating the decision.
3. Whether the decision to grant planning permission contrary to officers’ advice was irrational or inadequately reasoned.
4. Whether the judicial review claim was brought promptly and within the statutory three-month time limit.
5. Whether the requirement for promptness in bringing proceedings is compatible with European Community law principles.

Arguments of the Parties

Appellant's Arguments

• Timing: The claim was made within time because the three-month period should exclude the date the grounds arose and disregard the Bank Holiday, citing precedent. European law requires the limitation period to run from knowledge of the right to challenge, rendering the promptness requirement unlawful.
• Environmental Impact Assessment (EIA): The screening opinion was legally flawed, relying on inadequate information and failing to provide sufficient reasons.
• Bias: Evidence suggested that the councillor showed bias and pre-determination, which could vitiate the committee’s decision.
• Rationality: The decision was irrational as the council failed to adequately explain why it departed from officers’ advice, particularly regarding the protection of the Institute.

Respondent's Arguments

• The Council’s screening opinion was reasonable, based on consultations and information, and the lack of detailed reasons did not undermine the lawfulness of the decision.
• Although some conduct by the councillor was questionable, there was no evidence of actual bias or improper influence, and the committee’s majority decision was not tainted.
• The decision to grant permission was rational, balancing regeneration benefits against policy objections. There was no obligation to give detailed reasons beyond those apparent in the report and minutes.
• The claim was not brought promptly or within three months, and delay caused prejudice to the developer and good administration. The promptness requirement remains valid for domestic law challenges despite European law considerations.
• The European law principle limiting promptness applies differently depending on the nature of the remedy sought and does not remove the court’s discretion to refuse relief for undue delay under domestic law.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R(SAVE) v Secretary of State [2011] EWCA Civ 311	Legal protection of buildings and planning law principles	Referenced regarding protection status of the Institute and its implications for planning decisions.
R (Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746	Approach to apparent bias and predetermination in planning decisions	Applied to assess whether councillor’s conduct amounted to apparent bias affecting the committee’s decision.
Pritam Kaur v S Russell & Sons Ltd [1973] QB 336	Calculation of limitation periods excluding the day grounds arose and public holidays	Considered in relation to timing of judicial review application and expiry of the three-month period.
Uniplex (United Kingdom) Ltd v NHS Business Services Authority [2010] PTSR 1377 (C-406/08)	European law on promptness requirement in public procurement and challenges	Discussed regarding compatibility of promptness requirement with principles of certainty and effectiveness in EU law.
R (Buglife) v Medway Council [2011] EWHC 746 (Admin)	Application of Uniplex principles to EIA challenges	Used to support argument that promptness requirement is unlawful in EIA-related challenges.
R(Caswell) v Dairy Produce Quota Tribunal [1990] 2 AC 738	Relationship between promptness requirement and court’s discretion to refuse relief for delay	Considered in relation to the court’s discretion under Senior Courts Act s31(6) and timing of judicial review claims.
R(Burkett) v Hammersmith and Fulham LBC [2002] 1WLR 1593	Effect of delay and acquiescence on judicial review claims	Discussed in context of timing and promptness of claim, with regard to prejudice and good administration.
Bovis Homes Limited v New Forest District Council [2002] EWHC 483 (Admin)	Effect of apparent bias by a single committee member on validity of decision	Considered but ultimately the court preferred the more recent guidance in Lewis regarding bias.
Tata Steel v Newport City Council [2010] EWCA Civ 1626	Public interest and actio popularis in environmental and planning challenges	Referenced regarding public interest nature of the claim and the use of quashing orders.
R v Stratford-on-Avon District Council, Ex parte Jackson [1985] 1 WLR 1319	Interpretation of “undue delay” in judicial review context	Referenced in relation to the interpretation of delay under section 31(6) of the Senior Courts Act.
Lawal v Northern Spirit Ltd [2003] ICR 856	Appearance of bias in judicial context	Cited in distinguishing the position of councillors from judicial decision makers regarding bias.
R (Finn Kelcey) v Milton Keynes Council [2008] EWCA Civ 1067	Importance of promptness in planning challenges under domestic law	Confirmed the significance of promptness requirement for domestic law challenges despite European law considerations.
Case C-406/08 Uniplex (United Kingdom) Ltd v NHS Business Services Authority [2010] ECR I-00817	European Court of Justice ruling on promptness and limitation periods	Key authority on incompatibility of discretionary promptness requirement with EU law principles.
Case 33/76 Rewe [1976] ECR 1989	Principle that national remedies must not make enforcement of EU rights impossible	Referenced in context of time limits and effective remedy under Community law.
Case 261/95 Palmisani [1997] ECR I-4025	Principles of equivalence and effectiveness in national remedies	Applied to assess compatibility of domestic time limits with Community law.
Case C-473/00 Cofidis [2002] ECR I-10875	Assessment of national remedies on a case-by-case basis for effectiveness	Considered regarding application of time limits and effectiveness in planning context.

Court's Reasoning and Analysis

The court first addressed the substantive issues. It found that the Council’s decision not to require an Environmental Impact Assessment was lawful. Although the screening opinion letter was terse, it was reasonably interpreted as adopting the detailed reasoning in the applicant’s own agent’s letter and supported by consultations with relevant bodies. The alleged flaws in the Highways Department’s consultation and the fallback planning permission were considered insufficient to undermine the lawfulness of the decision. The court emphasized that the development fell below indicative thresholds requiring an EIA and no significant environmental objections were demonstrated.

Regarding bias, the court acknowledged concerns about one councillor’s conduct but found no evidence of actual bias or that his participation vitiated the committee’s decision. The majority decision was by 8 to 1, and the councillor’s influence was not determinative. The court preferred the reasoning in the more recent Lewis case over earlier authority suggesting that bias by a single member necessarily invalidates a decision.

On irrationality, the court held that the Planning Committee made a rational decision to grant permission based on regeneration benefits outweighing policy objections. There was no statutory duty to provide detailed reasons for granting permission, and the question of the Institute’s protection status was not determinative.

On timing, the court considered the three-month limitation period and the requirement for promptness. It accepted that the claim was filed within three months when counting started the day after the permission was granted and excluding the Bank Holiday. However, the claim was not brought promptly. The court discussed the European Court of Justice’s decision in Uniplex, which held that a promptness requirement creates uncertainty incompatible with EU law principles of effectiveness and certainty. The court recognized a tension between this and domestic law, which allows courts discretion to refuse relief for undue delay to protect good administration and third-party interests.

The court concluded that the domestic law promptness requirement and discretion to refuse relief for delay remain applicable to domestic law grounds. The claimant’s delay caused prejudice and no satisfactory explanation was offered. The court also noted the claimant’s failure to demonstrate any practical benefit from quashing the permission. The European law principle did not compel a different result on the facts.

Two judges expressed differing views on the application of the Uniplex principle to the discretion to refuse relief for delay, with one judge preferring the view that the discretion should be limited by EU law and the other accepting the continued exercise of discretion under domestic law.

Holding and Implications

The appeal was dismissed.

The court upheld the refusal of permission to bring judicial review proceedings. It confirmed that the Council’s planning permission was lawfully granted, that the screening opinion on Environmental Impact Assessment was lawful despite terse reasons, and that the alleged bias did not vitiate the decision. The claim was not brought promptly, causing prejudice and undermining good administration, justifying refusal of relief. The decision clarifies that while European law challenges to planning decisions may affect the interpretation of time limits, domestic law requirements for promptness and the court’s discretion to refuse relief for delay remain significant. No new precedent was established beyond the application of existing principles to the facts.