HIGH COURT CONFIRMS THAT THERE IS NO REQUIREMENT FOR PROMPTITUDE IN JUDICIAL REVIEWS BASED ON EU LAW

The High Court (U & Partners (East Anglia) Ltd v The Broads Authority & The Environment Agency [2011] EWHC 1824 (Admin)) has quashed the grant of planning permission for a flood defence wall for breaches of the environmental impact assessment (EIA) Directive, in particular Collins J held that the planning authority should have considered the impact of the crosswall on land protected by existing defences that would be abandoned were the new wall constructed.  He also held that the grant of permission was unlawful on domestic planning grounds.

The claim had been brought just within the three month time limit but the Environment Agency, which was constructing the crosswall, was not notified until after it had spent considerable resources on the crosswall.  Collins J considered that the claim was not brought promptly, however he allowed the claim because of its strong merits and, importantly, because decisions of the Court of Justice of the European Union have held that time limits "must be certain since otherwise the protection of rights derived from Community Law would not, it is said, be effective" (at [37]).

The decisions the judge was referring to are Uniplex (United Kingdom) Ltd v NHS Business Services Authority [2010] PTSR 1377 and Commission v Ireland [2010] PTSR 1403.  Both cases related to the EU Directive on public procurement.  However the ratio of those cases was based upon the overarching principle of effectiveness and Collins J held that limiting its application to public procurement situations "cannot be justified" (at [44]).

The decision therefore establishes (consolidating HHJ Thornton QC's earlier decision in R (Buglife) v Medway Council [2011] EWHC 746 (Admin)) that claims involving breaches of the EIA Directive may be brought at any point within 3 months from the date of the decision. It is likely that claims under the IPPC Directive and other European legislation will be treated similarly.  Collins J reached the conclusion with clear reluctance and suggested ways that the law may be reformed to take account of the European jurisprudence.  He rejected the submission that the same principle should apply to judicial reviews brought on domestic grounds only (at [46]), although this is an argument that will undoubtedly be taken by claimants in future cases.

Gregory Jones QC and Ned Westaway appeared for the Claimant