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London Borough of Hammersmith and Fulham and Others, R v.
Factual and Procedural Background
The dispute concerns a major development proposed at Imperial Wharf in The City. On 15 September 1999 the planning committee of the Respondent resolved that outline planning permission should be granted to the Interested Party, subject to (i) a satisfactory agreement under section 106 of the Town and Country Planning Act 1990 and (ii) the absence of a call-in direction by the Secretary of State. Both conditions were satisfied on 12 May 2000, and formal planning permission was issued on the same day.
The Appellant, whose home adjoins the site, filed for judicial review on 6 April 2000, initially challenging only the committee resolution. Richards J refused permission for being out of time. The Court of Appeal, having granted leave to appeal, likewise dismissed the application on timeliness grounds. The House of Lords subsequently granted leave to appeal. A preliminary objection that the House lacked jurisdiction—based on In re Poh—was also raised.
Legal Issues Presented
- Whether the House of Lords possessed jurisdiction to hear an appeal from a Court of Appeal refusal of permission to seek judicial review.
- For the purposes of RSC Order 53 rule 4(1) (now CPR 54.5(1)), does time start to run from the date of the committee resolution (15 September 1999) or from the date of the actual grant of planning permission (12 May 2000) when the substance of the challenge is directed at the grant itself?
Arguments of the Parties
Appellant's Arguments
- The House has jurisdiction because the Court of Appeal granted and heard an appeal; In re Poh is distinguishable and/or wrongly decided.
- Under Order 53 rule 4(1) the “grounds” for challenging the grant could not arise until permission was actually granted on 12 May 2000; therefore the application was within three months.
- Even if the original claim targeted the resolution, it can and should be amended to focus on the grant.
- European principles of legal certainty and effective judicial protection support the later start-date.
Respondent's Arguments
- In re Poh deprives the House of Lords of jurisdiction to entertain the appeal.
- The three-month period began with the committee resolution because the alleged deficiencies in the environmental statement were already known.
- Allowing later challenges would undermine good administration and create uncertainty for planning authorities and developers.
Interested Party's Arguments
- Adopted and reinforced the Respondent’s submissions on both jurisdiction and delay.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| In re Poh [1983] 1 WLR 2 | Suggested that House of Lords lacks jurisdiction over refusals of permission for judicial review | Distinguished and effectively disapproved; House held it has jurisdiction in the present circumstances |
| Lane v Esdaile [1891] AC 210 | Finality of decisions on leave to appeal | Discussed as the foundation for In re Poh; held not to apply here |
| Ex p Stevenson [1892] 1 QB 609 | Explained scope of the Lane v Esdaile principle | Cited to show that refusal of leave is not always immune from further appeal |
| Kemper Reinsurance Co v Minister of Finance [2000] 1 AC 1 | Cast doubt on In re Poh | Relied upon to support jurisdiction |
| R v Secretary of State for Trade and Industry, Ex p Eastaway [2000] 1 WLR 2222 | Jurisdictional limits where CA refuses permission following a first-instance refusal | Distinguished; present case involved a full appeal in the CA |
| WWF v Autonome Provinz Bozen (C-435/97) [2000] 1 CMLR 149 | Environmental Assessment Directive confers enforceable rights | Cited to underline importance of access to judicial review in environmental matters |
| Berkeley v Secretary of State for the Environment [2001] 2 AC 603 | National courts must protect Directive rights effectively | Used to reinforce the need for effective remedies |
| R v Rochdale MBC, Ex p B C and K [2000] Ed CR 117 | Section 31(6) as reserve power to refuse relief despite timely filing | Illustrative; not decisive of limitation question |
| R v West Oxfordshire DC, Ex p Pearce Homes Ltd (1986) 26 RVR 156 | Duty of local authority to reconsider if flaws emerge | Supports view that a resolution is revocable and provisional |
| R v SSTI, Ex p Greenpeace Ltd [1998] Env LR 415 | Time should run from the “real decision”; emphasis on good administration | Court of Appeal followed this reasoning; House rejected it |
| R v SSTI, Ex p Greenpeace Ltd [2000] Env LR 221 | Subsequent approach diverging from earlier Greenpeace ruling | Mentioned as illustrating inconsistency |
| Clark v University of Lincolnshire & Humberside [2000] 1 WLR 1988 | Permission-stage decisions are not usually authoritative | Cited when reviewing lower-court practice |
| O’Reilly v Mackman [1983] 2 AC 237 | Need for speed in public law litigation | Referenced in discussion of good administration |
| R v Dairy Produce Quota Tribunal, Ex p Caswell [1990] 2 AC 738 | Detriment to good administration as factor in delay | Cited in comparative analysis of Scottish practice |
| Sunday Times v UK (1979) 2 EHRR 245 | Legality requires rules to be sufficiently certain | Used in critique of “promptly” requirement |
| Singh v SSHD 2000 SLT 533 | Scottish view that delay alone is insufficient to bar review | Referenced in comparative discussion of promptitude |
| Uprichard v Fife Council 2000 GWD 14-514 | Same principle as in Singh | Cited for Scottish approach |
| Bett Properties v Scottish Ministers 2001 SLT 1131 | Delay, acquiescence and prejudice criteria | Referenced for comparative purposes |
| West v Secretary of State for Scotland 1992 SC 385 | Scope of Scottish supervisory jurisdiction | Cited in discussion on Scottish procedures |
| Brown v Hamilton DC 1983 SC (HL) 1 | Need for procedural reform in Scotland | Used historically; not central to ratio |
| Swan v Secretary of State for Scotland 1998 SC 479 | Contextual assessment of delay | Cited in comparative analysis |
| R v Ceredigion CC, Ex p McKeown [1998] 2 PLR 1 | Misconception of a judicially-created “six-weeks rule” | Mentioned in critique of promptitude requirement |
Court's Reasoning and Analysis
Jurisdiction. The House, led by Judge Steyn, rejected the Respondent’s preliminary objection. In re Poh was distinguished because, unlike that case, the Court of Appeal here had granted leave and conducted a full hearing. Earlier authorities (Kemper Reinsurance, Lane v Esdaile, Ex p Stevenson) were analysed and found not to bar a further appeal. The dictum in In re Poh was declared “not correct” and should “be laid to rest.”
Running of Time under Order 53. The central interpretive task was the meaning of “the date when the grounds for the application first arose.” The House concluded that:
- The committee resolution created no legal rights; it was conditional, revocable and could lapse.
- Only the grant of planning permission on 12 May 2000 created binding rights and obligations; therefore the legal “grounds” arose on that date.
- Requiring litigants to challenge provisional resolutions would produce uncertainty, excessive cost and potentially premature litigation, contrary to the purpose of the rule.
- Policy considerations of certainty and fairness favour a clear, predictable start-date, achievable by tying time to the grant itself.
- The Appellant was permitted to amend her claim to target the grant, any procedural defect thereby cured.
Promptitude. Although not determinative, the House voiced doubts about the compatibility of the open-ended “promptly” requirement with principles of legal certainty under both domestic and European law.
Holding and Implications
APPEAL ALLOWED. The matter is remitted to the High Court for determination of the substantive grounds of judicial review.
By ruling that the three-month limitation period runs from the grant of planning permission rather than from an earlier resolution, the House clarifies the temporal framework for judicial review in planning cases and rejects contrary dicta in lower-court authority (notably Greenpeace). The judgment also affirms the House’s jurisdiction in appeals from Court of Appeal refusals of permission, effectively overruling In re Poh. No new statutory precedent is created, but the decision provides authoritative guidance likely to influence future planning-law litigation and broader judicial-review procedure.
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