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

This is an appeal against refusal of permission to bring judicial review proceedings in respect of a planning permission given on 26^th January 2011 by Newport City Council (“Newport”). The permission was for mixed development including the construction of a food store, and the restoration of a former workingmen's institute “the Institute”, on land at Lliswerry, in the eastern part of Newport. It was granted on an application by Linc Cymru Housing Association and W. M. Morrison Supermarkets plc (“Morrisons”), who are now the landowners and operators of the foodstore. The claimant is a local resident, who also claims to act in the name of a local group known as “Say No To Morrison’s Group”. Permission was refused in the High Court by HH Judge Cooke QC.

I should note that the legal status, and even the membership of the “group”, remain obscure, for reasons that have not been satisfactorily explained. However, for the limited purpose of deciding the appeal (and without prejudice to any other issues, for example as to costs), it is enough that Mr Berky has standing to proceed in his own right.

There was an issue as to the timing of the application for judicial review, having regard to the requirement of CPR 54.5(1) for the claim to be brought “promptly” and in any event within three months from the time when the grounds first arose. It was lodged on 26^th April 2011, which was the day following a Bank Holiday. It was not preceded by any form of letter before action. Work had by then started on site on the foodstore (shortly after 14^th March 2011), and also on the refurbishment of the Institute by the Housing Association. The store opened for business on 17^th October 2011, and now employs 245 people. The judge held that the application had been brought neither promptly nor within 3 months, and refused permission on those grounds, as well as on the merits.

The site is 2.8 hectares and is bounded by two highways, a watercourse and the site of an existing B&Q store. The area is in mixed commercial use. The disused Institute was a former workingmen’s institute built in 1928. Although not a listed building it was regarded as having architectural merit and significant community cultural associations. The site had been vacant for around 6 years and had extant planning permission for 350 to 450 residential units, and the redevelopment and reuse of the Institute. The proposed foodstore was to be of about 5,500 m2 gross floorspace.

On 17 December 2009 GVA Grimley, as agents for the intended applicants, submitted a request to the Council for a screening opinion to ascertain whether the proposed development of the application site required an Environmental Impact Assessment (“EIA”). On the 7^th January 2010 the Council replied that no EIA was needed.

Following the submission of the application, on 23 August 2010 an Environmental Assessment Checklist was completed by the planning case officer, which confirmed that an EIA was not required. The planning officers’ detailed report also confirmed that the project was “unlikely to have significant effects on the environment” so that an EIA was not required, and that it was also acceptable on highway grounds. However, the report recommended refusal because the proposed development was contrary to the retail planning policies of the development plan:

“On this basis it must be considered whether there are compelling other material considerations to justify a decision contrary to the development plan. Having considered the merits of the application … it is concluded that the regeneration merits of the proposal do not justify a decision contrary to the development plan. They are not considered compelling. So although there is merit in the scheme and the restoration of Lysaghts is welcomed, it does not outweigh the very significant Policy objections to the scheme.”

At the Council’s Planning Committee meeting on 13 October 2010, it was resolved by 8-1 to grant planning permission, subject to a section 106 agreement. The minutes recorded the following reason:

“The regeneration benefits of the proposal including the restoration, refurbishment and change of use of Lysaght Institute and the development of a vacant, urban site in a prominent location were compelling material planning considerations that outweigh the policy objections to the scheme.”

As a significant departure from the development plan, the application was referred to the Welsh Assembly Government but was not called in for decision. Following completion of the section 106 Agreement, the Council formally granted planning permission on 26 January 2011, notifying objectors between 28 January and 3 February 2011.

The applicant sought to challenge the Council’s decision on three grounds, in summary:

The judge rejected each of these grounds:

The main points advanced by Mr Harwood for Mr Berky can be summarised in accordance with the grounds of appeal, relating first to timing and secondly to substance.

Timing The application was made in time:

Substantive grounds.

It will be convenient to deal first with the substantive issues.

Mr Harwood’s submissions raised two questions under this head:

As already noted, the response to the request for a Screening opinion was given in a letter from the Council dated 7^th January 2010. This followed consultations with the Council’s Environmental Health and Highways Services, Glamorgan Gwent Archaeological Trust, Welsh Water, the Countryside Alliance for Wales and the Environment Agency. The Council’s letter stated:

“1.

I refer to your correspondence dated 17th December 2009 regarding the above.

2.

This represents a formal screening opinion in accordance with the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 in relation to the above works.

3.

As an urban development project, the proposal falls to be screened for Environmental Impact Assessment purposes on the basis that it exceeds the thresholds contained in Schedule 2 section 10b of the above Regulations and those of Circular 11/99.

4.

Having consulted relevant parties in relation to your request and having considered the information provided in your correspondence and Schedule 3 of the Regulations, I am of the opinion that in accordance with the Town and County Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 an Environment Statement is not required.”

It is common ground that the reasons expressed at the time can be supplemented in response to a request. It is relevant therefore to refer to what was said in evidence by the planning officer, Ms Davidson (para 7):

“Although my letter providing the Council’s screening opinion did not detail the reasons for taking the decision it did reference the consultation with relevant parties, consideration of Schedule 3 of the EIA Regulations and consideration of the information provided with the screening request in the first instance. Copies of all consultation responses received in relation to the request were attached to the Council’s opinion on the public register. Taken as a whole record, it was clear why it was considered that an EIA was not required.”

The reference to an “urban development project” is explained by the regulations and the Circular. An urban development project, including a shopping centre, where the site exceeds 0.5 ha, is identified in the regulations as a category of “schedule 2 development”, which must be screened in order to determine whether an EIA is required, on the basis that it would be likely to have significant effects on the environment. Schedule 3 sets out the factors which must be taken into account, including the size of the development, and the environmental sensitivity of the area in which it is to be located.

Annex A of Circular 11/99 sets out “indicative thresholds and criteria” to identify schedule 2 developments likely to require EIA. For urban development projects it is stated:

“In addition to the physical scale of such developments, particular consideration should be given to the potential increase in traffic, emissions and noise. EIA is unlikely to be required for the redevelopment of land unless the new development is on a significantly greater scale than the previous use, or the types of impact are of a markedly different nature or there is a high level of contamination.” (para A18)

For sites not previously developed intensively, EIA is more likely to be required if the site area is more than 5 ha or there is more than 10,000m2 of new commercial floorspace (A19).

Apart from the general point about inadequacy of reasons, Mr Harwood makes two more specific points. The first is based on the terms in which the Highways Department responded to consultation on the need for an EIA (by email dated 22nd December 2009):

“We have requested a Transport Assessment as part of the justification for what is proposed. As far as I am concerned there is no requirement for an EIA as the TA should cover everything from our point of view.”

The judge accepted the submission that this showed an erroneous approach, in so far as it appeared to indicate that a later transport assessment could be treated as a substitute for an environmental statement, but he was unwilling to infer that this defect was adopted by the author of the screening opinion.

The other point arises from the last section of GVA Grimley’s letter. Under its “Commentary on the need for EIA” the letter stated:

“… the site benefits from a ‘fall back’ outline planning permission (reference 09/0180) … It is considered that the mixed use redevelopment of the site detailed herein represents a form of development that would have less of an impact than the approved residential development and comprises less sensitive land uses than the approved residential development. It is therefore considered that the proposed uses at the site are fairly conventional …”

The letter is said to make the error of comparing two proposed impacts, rather than asking whether the current application is likely to have a significant effect on the environment. The judge rejected this criticism. He read the paragraph as “fairly re-enforcing the point that this site would not appear from the planning history to be a particularly sensitive or vulnerable location, in the context of the type of development proposed”.

I confess to finding this whole discussion somewhat sterile. The issue at this stage is not the validity of the screening opinion as such, but whether a flawed screening opinion led to failure to conduct an EIA, and accordingly undermined the legality of the planning process. The screening letter could and should have been more fully reasoned, and I find it difficult to understand why the opportunity was not taken to fill the gap more clearly in the planning officer’s witness statement. However, I agree with the judge that the only reasonable interpretation is that the officer broadly accepted the reasoning of GVA Grimley’s letter. I am unconvinced that there was any serious doubt about this among those interested.

The two particular points depend on a very literal reading of the documents. A fair reading of the Highway Department’s response, taken with the GVA Grimley letter, makes sufficiently clear that the site was regarded as well related to a highway network with capacity to accommodate expected flows, and that the Transportation Assessment would confirm its acceptability. It is not clear to me what environmental consequences Mr Berky felt had been left out of account. The reference in the GVA Grimley letter to the previous planning permission, as the judge said, is readily understandable as a general comment on the lack of any special features of the proposal. The development was well below the indicative criteria suggested in the circular, and there is no indication on Mr Berky’s part what other factors should have been regarded as requiring specific assessment.

If there was any doubt about the officers’ views on these points, they would have been dispelled by the very full report which went to committee, and has not been criticised. The concerns revealed by that report were not related to possible environmental effects, but to conflict with retail policies. There is nothing in that report, or in the evidence in this court, to cast doubt on the correctness of the decision that an EIA was not necessary. Nor is there anything to indicate that Mr Berky or his colleagues have been in any way prejudiced by the terseness of the reasoning at the earlier stage.

The case against Councillor Richards was based on several strands of evidence:

Mr Harwood submits that Councillor Richards showed at least the appearance of bias, and (relying on Bovis Homes Limited v New Forest DC [2002] EWHC 483 (Admin) at para 103 per Ouseley J) that appearance of bias by even one member of a committee can vitiate the decision.

Councillor Richards made a written statement denying any direct involvement in promoting the petition. He was not cross-examined. In those circumstances, although the judge was understandably a little sceptical about the explanations offered for the appearance of his name on the copies of the petition, he felt unable to make a firm finding on this point. That Councillor Richards was inclined to support the development, and that this was known in the area, was not itself objectionable since such a state of affairs “is not uncommon in the world of local politics”. Nor was it significant that his name appeared on a ward newsletter supportive of the proposal. He was more concerned by the Councillor’s words at the meeting which were not only unfair to the officers, but were capable of creating the impression of bias.

In reaching his conclusion on this issue, he took guidance from the words of Pill LJ (agreed by the other members of the court) in R (Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746:

“69 Central to such a consideration... must be a recognition that councillors are not in a judicial or quasi-judicial position but are elected to provide and pursue policies. Members of a planning committee would be entitled, and indeed expected, to have and to have expressed views on planning issues. The approach of Woolf J in the Amber Valley case [1985] 1 WLR 298 to the position of councillors, in my judgment, remains appropriate.

...

71 It is for the courts to assess whether committee members did make the decision with closed minds or that the circumstances did give rise to such a real risk of closed minds that the decision ought not in the public interest to be upheld. The importance of appearances is, in my judgment, generally more limited in this context than in a judicial context. The appearance created by a member of a judicial tribunal also appearing as an advocate before that tribunal (Lawal v Northern Spirit Ltd [2003]ICR 856) may make his judicial decisions unacceptable, but the appearance created by a councillor voting for a planning project he has long supported is, on analysis, to be viewed in a very different way.”

He took account of the lack of any “persuasive material” that the attitude of the other members was tainted by Councillor Richards’ actions or words, and the fact that the resolution was carried by 8 votes to 1. Of the Councillor’s remarks at the meeting, he said:

“Although regrettable I do not consider it enables a submission of bias, apparent bias or pre-determination on the part of the decision maker - the whole planning committee - to be made good. Rather it should be seen as an example of an ill considered remark by a single member of a democratically accountable political decision maker made in the heat of the moment.”

In so far as this was a conclusion on the evidence, I see no reason to go behind the judge’s findings. Having chosen not to cross-examine Councillor Richards, it was not open to Mr Harwood to allege actual bias. His case therefore depends on asserting that the appearance of bias by even one member of a planning committee was enough to vitiate the decision. He does so in reliance on a dictum of Ouseley J in Bovis Homes Limited v New Forest District Council [2002] EWHC 483 (Admin) at para 103. However, the judge was right to prefer the recent guidance of this court in Lewis, based on a full consideration of the previous authorities. (I note that Bovis was referred to in argument, but not cited in the judgments.) In my view, the judge’s reasoning on this issue is unimpeachable.

This in my view is the weakest of the grounds advanced before the judge, and the judge was right to reject it. As the minutes made clear, the permission was granted because the council thought that the regeneration benefits outweighed the planning objections. Although they differed from the officers, the decision was ultimately for them, and there was nothing irrational about it. There was no obligation on them to give detailed reasons, let alone (as Mr Harwood argued) to respond point by point to every issue in the officers’ report. The judge was also right to regard as immaterial the question whether the Institute could be protected from demolition. That was not a live issue in the officers’ consideration. The only issue was the weight to be given, in the overall planning balance, to the prospect of its restoration, given the absence of listed status.

The judge dealt with this issue relatively shortly by reference to the guidance in R(Hardy) v Pembrokeshire CC [2005] EWHC 1872 Admin (Sullivan J), approved [2006] EWCA Civ 240. He held that applications were brought neither within three months, nor promptly as required by CPR 54.5(1). On the basis of the Court of Appeal judgment in Pritam Kaur (to which he may not have been referred) Mr Harwood submits that he was wrong on the three months limit. The three months should have been taken as starting with the day following the grant of permission, and in any event the Bank Holiday should have been disregarded. Although we did not hear detailed argument, that seems correct. The issue of the timing therefore turns on the separate requirement for “promptness”, and the general discretion under Senior Courts Act 1981 s 31(6) to refuse relief for undue delay.

Section 31 provides:

“(6)

Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant - (a) leave for the making of the application, or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(7)

Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made.”

For this purpose it is necessary to distinguish between ground 1 (EIA), which turns on a requirement derived from a European directive, and grounds 2 (bias) and 3 (irrationality) which depend on purely domestic law. Under Uniplex (confirmed in Commission v Ireland [2010] PTSR 1403) it was held, in the field of public procurement, that an undefined test analogous to that of promptness offends the European principles of certainty and effectiveness. It has been held at High Court level, respectively by Judge Thornton QC and Collins J, that the Uniplex principle applies also to a challenge on EIA grounds,: see R(Buglife) v Medway Council [2011] EWHC 746 (Admin) [2011] Env L.R. 27 at para 61-63; R(U & Partners (East Anglia) Ltd) v Broad Authority and Environment Agency [2011] EWHC 1824 (Admin) [2011] J.P.L. 1583 at para 37-47.

Mr Harwood submits that the same approach should apply also to the grounds based on purely domestic law. As he put it, “there is simply one claim against one decision and so it is in time with respect to the European and domestic grounds”. Alternatively, he says, if the proceedings are in time in respect of the EIA grounds, other grounds could be added later by amendment with permission. I find this unconvincing. I see no reason why the court’s approach to domestic law challenges should be materially affected by the inclusion of a European point. The importance of the “promptness” requirement in relation to challenges to planning permission on domestic law grounds was confirmed by this court in Finn Kelcey v Milton Keynes Council [2009] Env LR 17 [2008] EWCA Civ 1067. Although that preceded Uniplex, its authority in the domestic context is in my view undiminished.

On the other side, Mr Fordham for Morrisons argues that the Uniplex principle should not apply to cases involving third party interests. He refers to paragraphs 33 and 34 in the Opinion of A-G Kokott, where a distinction is drawn between “primary legal protection”, in which the remedy is aimed at having a contract already concluded with a successful tenderer declared void, and “secondary legal protection”, where the remedy is directed merely at a declaration of infringement and possibly an award of compensation. In the former case, the particularly severe legal consequence makes it reasonable to lay down “an absolute limitation period of comparatively short duration”. The remedy sought in Uniplex was in the latter category, not affecting the existence of the contract already concluded with a successful tenderer, or their “need for certainty of planning and their interest in performing the public contract swiftly”. Accordingly the aim of “effective review” justified more generous limitation periods which “do not start running until the person concerned knows or ought to know of the alleged breach of procurement law”.

Mr Fordham submits, rightly as it seems to me, that the remedy sought in the present case falls into the first category of “primary legal protection”, given that it challenges directly the validity of the Morrisons permission. However, I am not convinced that this assists his argument. The Advocate-General’s comments were directed to the choice between an absolute time-limit, running from the date of the impugned action, and one running from the date of knowledge. The requirement for “promptness” was addressed separately (paragraphs 64-71), where it was held to offend the requirements of “clarity, precision and predictability”, and no distinction was made depending on the nature of the remedy. At best this is an uncertain point of European law which I would be reluctant to adopt as the basis of a decision, even at this level, without a reference to the CJEU.

Mr Fordham is on stronger ground, in my view, when he submits that the Uniplex principle does not limit the court’s discretion in relation to the grant of relief under SCA s 31(6). Collins J thought otherwise, on the basis that, if the claim were brought within the three months permitted by Uniplex, there would have been no “undue delay” for the purposes of s 31(6) (R(U & partners) above para 47). He had in mind, I assume, the link between the two provisions as explained by Lord Goff in R(Caswell) v Dairy Produce Quota [1990] 2 AC 738. However, those comments were not of course directed to the position arising from Uniplex. The CJEU’s reasoning is directed to the commencement of proceedings, and should not in my view be read as limiting the discretion conferred by statute in relation to remedies. As Lord Goff said:

“Section 31(6) simply contains particular grounds for refusing leave or substantive relief, not referred to in rule 4(1), to which the court is bound to give effect, independently of any rule of court.” (p 747)

Relevant also are the comments of Lord Hope in R(Burkett) v Hammersmith and Fulham LBC [2002] 1WLR 1593. He accepted that the obligation to apply "promptly" might be “too uncertain to satisfy the requirements of Convention law”, but did not think it objectionable -

“... for an applicant who must be taken to have acquiesced in the decision which he seeks to bring under review, or whose delay has been such that another interested party may be prejudiced, to be told that his application cannot proceed because he has delayed too long in bringing it.” (para 66)

These considerations in my view apply with force in the present case. The claimants would have been well aware of the economic significance of the proposal, and the importance attached to it by a majority of the Council and many others, as well as its significance to the planning of the area. They would have been aware of work commencing on site by the middle of March, and of the prejudice which would result to those interested in the development (including not only Morrisons but also the Housing Association). There is no convincing explanation for their failure to commence proceedings, or even send a letter before action, until the very end of the three month period.

Mr Harwood makes two points: first, that there was a failure to give practical information on access to administrative and judicial review procedures in breach of Article 10a of the EIA Directive; secondly, that Morrisons started work on site in breach of planning control, as pre-commencement conditions were not finally discharged until 3rd June 2011. Neither is a convincing excuse. As to the first, there is no evidence that the claimant (or the other unidentified members of his group) was ignorant of the potential remedies. The second point is contested by Morrisons, but in any event is irrelevant to the claimants’ knowledge of the works and the consequent need to proceed urgently.

Neither is Mr Harwood able to give any clear indication of what the claimants now expect to achieve in practical terms. Realistically, he does not suggest that quashing the permission can, or should, bring the activity at the site to a halt, pending reconsideration. Nor does he offer any convincing reason why, following reconsideration on a proper basis, the decision on the planning merits should be any different. On the contrary the planning arguments in favour of retaining what has already been built, including the works to the Institute, are likely to be seen as even stronger.

In conclusion, the proceedings were not commenced promptly. The judge was entitled to hold that in respect of the domestic grounds, permission should be refused on these grounds alone. Even if that is not a sufficient ground for refusing challenge on the EIA argument, I would have refused permission on the basis that it did not provide a realistically arguable basis for challenging the validity of the permission. I would hold further that, in respect of all three grounds, relief should be refused in any event, first, because there has been undue delay leading to prejudice both to other interests and to good administration, and, secondly, because it has not been shown what benefit in practical terms the claimants expect to gain from the quashing of the permission.

For all these reasons I would dismiss the appeal.

I agree that the appeal should be dismissed for the reasons given by Carnwath L.J. The only substantive ground of challenge to the grant of planning permission that has given me any real pause for thought is that relating to the Environmental Impact Assessment screening opinion. The authorities make it clear that the planning authority is required to give sufficient reasons for its decision to enable a potential objector to understand the basis of its decision. The Council’s letter of 7^th January 2010 itself tells one very little about its reasons for concluding that an EIA was not required and the responses to the consultations do not in my view adequately fill that gap. However, I agree that the letter must be read in the context of G.V.A. Grimley’s letter of 17^th December 2009 which contained information about various investigations into the site that had been carried out within the recent past. I agree that, when the letter of 7^th January 2010 is read in the context of that letter (to which it expressly refers), the only reasonable conclusion is that the officer accepted the information and arguments it contained.

There is nothing I wish to add to what Carnwath L.J. has said about the two additional arguments put forward in relation to the screening opinion or the submission that the planning committee’s decision was irrational. As to the submission that apparent bias on the part of Councillor Richards vitiated the planning committee’s decision, I agree that we cannot go behind the findings of the judge. In any event, however, I doubt whether the existence of a closed mind on the part of one member of a body of this kind (assuming it can be proved) is sufficient of itself to render the decision unlawful. In the present case the decision of the planning committee was made by a majority of 8 to 1 and there is nothing to suggest that Councillor Richards exercised an undue degree of influence over the other members. With all due respect to Ouseley J., I doubt that the view expressed in Bovis Homes Ltd v New Forest District Council [2002] EWHC 483 is correct.

It follows from this that the challenge to the planning committee’s decision fails on the merits and that the appeal must therefore be dismissed. In those circumstances it is unnecessary to decide whether, as the judge held, the claimant failed to commence proceedings within the prescribed time. However, since the question is of some general interest and is one on which there is a difference of opinion, I shall briefly state my own view on it.

CPR 54.5(1)(a) provides that the claim form seeking judicial review must be filed “promptly and in any event not later that 3 months after the grounds to make the claim first arose”. In my view the natural meaning of that expression is that the three months begins to run on the day after the grounds arose, a conclusion which is supported by the decision of this court in Pritam Kaur v S. Russell & Sons Ltd [1973] Q.B. 336. In the present case planning permission was granted on 26^th January 2011, so the three month time limit expired on 26^th April 2011. In any event 25^th April 2011 was a Bank Holiday and is to be disregarded for these purposes. The claim was therefore filed just within time, but the judge held that it had not been filed promptly.

In Uniplex (United Kingdom) Ltd v NHS Business Services Authority (C-406/08) [2010] P.T.S.R. 1377 the Court of Justice of the European Union held that the requirement in regulation 47(7)(b) of the Public Contract Regulations 2006 that proceedings under the Regulations be brought “promptly” was contrary to the Community law principles of certainty and effectiveness. As Carnwath L.J. notes, the decision has since been applied to challenges to planning decisions based on the failure to obtain an EIA. In principle that is in my view correct, because there is no distinction for these purposes between the cases, each of which involves the application in the domestic context of rights deriving from Community legislation. However, that raises the question whether, if there has been undue delay in commencing proceedings, the court can decline to grant relief in the exercise of its power under section 31(6) of the Senior Courts Act 1981. In R (U & Partners (East Anglia) Ltd) v The Broads Authority and The Environment Agency [2011] EWHC 1824 (Admin), [2011] J.P.L. 1583, Collins J. held that it cannot, because there cannot be said to have been undue delay if the claim is brought within three months.

On this issue Carnwath L.J. and Sir Richard Buxton (whose judgment I have had the privilege of reading in draft) have expressed differing opinions. It is unnecessary to reach a final conclusion on this question in the present case, but I prefer the view of Sir Richard Buxton. The principle to be derived from Uniplex is that rules limiting the period within which proceedings may be brought to vindicate rights deriving from Community law must be certain in order to ensure that the law is capable of effective enforcement. A requirement that proceedings be brought “promptly” is considered by the Court of Justice to render the limitation period discretionary and thus to undermine the effectiveness of the transposition into domestic law of the relevant Community legislation.

In R (Caswell) v Dairy Produce Quota Tribunal [1990] 2 A.C. 738 the House of Lords considered the relationship between R.S.C. Ord. 53, r. 4(1), which provided that an application for leave to apply for judicial review should be made promptly and in any event within three months from the date when grounds for the application first arose, and section 31(6). Lord Goff, with whom the other members of the House agreed, approved the dictum of Ackner L.J. in R v Stratford-on-Avon District Council, Ex parte Jackson [1985] 1 W.L.R. 1319 that whenever there was a failure to act promptly or within three months there was “undue delay” within the meaning of section 31(6). He explained, however, at page 747 that the two provisions could be reconciled because section 31(6) is not directed to the time within which an application for judicial review may be made; rather, it provides particular grounds on which the court may refuse leave to proceed or to grant substantive relief.

Carnwath L.J. is of the view that the decision of the Court of Justice in Uniplex is concerned only with the time allowed for commencing proceedings and does not affect the court’s power under section 31(6) to withhold remedies. However, I am unable to accept that distinction. The power to withhold relief arises whenever there has been undue delay, which, on the basis of Lord Goff’s speech in Caswell, occurs whenever there has been a failure to comply with the requirement of the rules to commence proceedings promptly. Moreover, the power under section 31(6) to withhold a remedy on the grounds of undue delay is one to be exercised in accordance with the judgment of the court in the individual case. As a result, relief may be refused on the grounds of delay in commencing proceedings, if the court thinks that appropriate, despite the fact that the three-month time limit has not been exceeded. That seems to me to infringe the Community law principles of certainty and effectiveness just as much as a rule which requires proceedings to be brought promptly.

Like Carnwath L.J. I see no reason why Community and domestic law challenges should not be subject to different time limits, but, even if it is confined to Community law challenges, the Uniplex principle, as currently expressed, is capable of creating significant difficulties, particularly in the context of planning decisions. However, for the reasons given by Sir Richard Buxton, I agree that a resolution of the problem cannot be sought in this case.

I gratefully adopt the statement of facts and issues set out by my Lord. In deference to the argument that we received, and because on one issue I venture to take a different view from that of my Lord, I add some words of my own.

On the substance of the issue I respectfully agree with everything that has fallen from my Lord. I have to add, however, that if I had been of a different mind I would have had to consider carefully whether it was possible to escape from a quashing order. The present proceedings, identified by this court as meriting support through a Protected Costs Order, are in the nature of an actio popularis, to assert a public right that if it had been abused should be vindicated, in line with the normal practice as recognised for instance in the judgment of this court in Tata Steel v Newport City Council [2010] EWCA Civ 1626[15], by the sanction of a quashing order. Had the claimants in the present case been able to produce any argument at all to show that, if an EIA had been undertaken, it would have demonstrated environmental objections, then it would be difficult to say that Morrisons should on reconsideration obtain the benefit of the status quo from having proceeded in the face of those objections. But the best that the claimants can do is to complain about the procedure, not the substance, of the environmental enquiry. Therefore, even if those complaints had prevailed there would be no policy reason for requiring the whole scheme to be unravelled.

In §16 of his Judgment the judge found as facts that Councillor Richards had not promoted the application in the various ways suggested. I respectfully agree with my Lord that we should not go behind those findings. That left what occurred at the planning committee meeting on 13 October 2010. Although the point is not entirely clear, the judge seems to have found that Councillor Richards’ behaviour could have led a fair-minded and informed observer to think that there was a real danger that he had pre-judged the issue. It is of some importance to note that that was the only category of “bias” that could be laid at Councillor Richards’ door. He was not a party to the dispute, as Lord Hoffman through his association with Amnesty had been deemed to be in Pinochet; nor did he have any interest of his own to serve, as in Medicaments.

The judge however went on to find, §19 of the Judgment, that Councillor Richards’ actions had not tainted the “anticipatable correctness” of the approach of the other members of the committee. Since the resolution had been carried by 8 votes to one Councillor Richards had not influenced the eventual result either directly or indirectly.

The judge was much pressed, as were we, with the at least provisional view of Ouseley J in paragraph 104 of his judgment in Bovis Homes v New Forest District Council [2002] EWHC 483 (Admin) that the presence of even one biased member necessarily vitiates the decision of a determining body. I cannot agree with that view. First, as Mr Fordham pointed out, the authorities, such as they were, referred to by Ouseley J related to what might be called bias proper, in the sense of improper interest, rather than to the case of a closed mind. Different considerations might apply to those two different cases. Second, Ouseley J was much influenced by the decision in Pinochet (No2) to quash the decision in Pinochet (No1) even though, as he thought, the other members of the appellate committee had taken the same view as Lord Hoffman. But in fact Pinochet (No 1) was decided by a majority of 3:2. The disqualification of Lord Hoffman’s vote as part of the majority therefore necessarily led to the collapse of the decision. And, more generally, there is really no reason at all to assume that the mere presence of one member who is biased or has made up his mind in advance must automatically render a decision unlawful. Such a rule should certainly not be applied when, as in this case, the judge has made a specific finding of fact that the tainted member had no effect on the decision.

I would therefore uphold the judge’s conclusion on those grounds, rather than on the ground that he himself gave, that the decision of Ouseley J is inconsistent with the subsequent decision of this court in R(Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746. That latter decision is, with great respect, redolent with constitutionally acute and realistic observations about the position of local councillors, and the difficulty of applying to them the more general rules about bias. But that is what it was concerned with. It did not address, because it did not have to do so, the issue in Bovis Homes and in this case of what the effect is of one councillor, only amongst many, having nonetheless fallen foul of one or other aspects of the rules on bias.

Since the appeal fails in any event on the issues of substance anything said on this subject will necessarily be obiter. We did, however, receive substantial submissions, and I therefore follow my Lord in addressing the question. In order to put the matter in context it is necessary first to summarise some basic issues of Community law.

The Community legal order depends for enforcement and reparation on the machinery of domestic law. That means that national remedies must, if needs be, be adapted to meet the requirements of Community law. The overarching principle is set out in Cases C6/90 and C9/90 Francovich [1991] ECR 5357[43], and reinforced in paragraph 27 of the judgment of the ECJ in Case 261/95 Palmisani [1997] ECR I-4025:

Community law also stresses that the protection provided in the national order must be of a judicial and not merely an administrative nature. The UK government must therefore have thought that it was doing exactly what Community law required when it sought to transpose into domestic law the requirement in article 1(1) of Directive 89/665, public supply contracts, that decisions taken by awarding authorities should be reviewed effectively and in particular as rapidly as possible, by reciting in regulation 47(7)(b) of the Public Contracts Regulations 2006 the formula that by CPR 54(5)(1) governs all claims in domestic law: that the claim should be brought promptly and in any event not later than three months after the grounds to make the claim first arose.

That was not the view of the CJEU in Case C-406/08 Uniplex [2010] ECR I-00817. The court held at § 42 of its Judgment that a limitation period the duration of which is placed at what the CJEU characterised as the discretion of the competent court is not predictable in its effects, and therefore a national provision providing for such a period does not ensure effective transposition of the Directive. Mr Fordham sought to persuade us that that rule should be seen as qualified by the distinction drawn by Advocate-General Kokott in §§ 33-34 of her Opinion between primary legal protection (which seeks to have a decision declared void) and secondary legal protection (which seeks a declaration of infringement and possibly damages). I however respectfully agree with my Lord, in his §37, that in those passages the Advocate-General was addressing the issue of the date from which the limitation period should be taken as running, and not the issue of the content of that period, which latter she clearly saw as applying indifferently to every case.

The applicant’s case builds on Uniplex to argue that a separate requirement of promptness is forbidden in any proceedings, such as the present proceedings, that involve any “Community” claim: a view that was fully accepted by HHJ Thornton QC in Buglife [2011] 3 CMLR 39. That approach, if extended throughout the planning field, gives rise to manifest inconveniences, both forensic and practical.

The practical difficulties can be seen from the timetable in this case. The only “Community” objection raised is as to the means whereby the decision was taken that an EIA was not required. That decision was taken on 7 January 2010 and duly publicised. The planning committee resolved to approve the application at its meeting on 13 October 2010. The planning permission was issued on 26 January 2011, and it is agreed that it was notified within the next week to objectors, including various of the present applicants. Once armed with the planning permission Morrisons were entitled to, and did, commence works that it must have been apparent would involve considerable expense as well as the commitment of the workforce engaged in the construction works. The considerations recognised by this court in Finn Kelcey were clearly present. If legal challenges were to be brought it was in everyone’s interest, including the proper interests of those objecting to the construction of the supermarket, that those challenges should be notified promptly, so that they could be resolved promptly. Instead of doing that, the applicants sent no letter before action, nor any other indication of their intentions, but simply filed the proceedings at the end of April 2011, effectively complaining of a decision that had been taken in January 2010.

That time ran from the date of the planning permission, and not from the date on which the decision complained of was taken, was decided by the House of Lords in Burkett [2002] 1 WLR 1593. The applicants were of course entitled to rely on that authority, but in practical terms the length of time for which the decision actually complained of had been before the public should have placed on them a particular obligation of promptitude once time did start to run.

The regime contended for by the applicants necessarily applies to any objector to a planning permission. If the objector in the present case had been not a citizens group but another supermarket operator, seeking to avoid competition for its own local store, under the approach in Uniplex as extended to this case it would have been entirely open to Morrisons business rival to have announced in January 2010 that it objected to the screening opinion, but that it would not reveal whether it was going to bring proceedings until two months and thirty days had elapsed from the date of the subsequent planning permission. The opportunity for commercial blackmail does not need to be emphasised.

As to the forensic difficulties, first, a judicial review application may be based on a series of objections. In the present case those included the “Community” point as to the screening opinion, but also the objection in relation to the alleged bias of Councillor Richards, which could not have less to do with the principles of Community law. But limitation applies in relation to the relief sought, and not severally in relation to the various grounds on which that relief is based. In the present case, following Burkett, the relief for the purposes of limitation has to be sought against the single act of issuing the planning permission, and not serially in relation to the separate substantive complaints, the screening opinion of January 2010 and the committee meeting of October 2010, that are made against that permission. Mr Harwood was therefore entitled to submit that, on the assumption that fidelity to Community law prevented the challenge to that planning permission from being rejected on grounds of lack of promptness, so the requirement of promptitude could not be separately applied to complaints about the conduct at the committee meeting whose status was only of being part and parcel of the challenge to the planning permission. That meant that no objection could be taken to the fact that although the conduct of Councillor Richards at the planning committee meeting had been observed as it occurred by two of the applicants, Messrs Mehmi and Noor, they had delayed for five and a half months from that event before these proceedings were eventually issued.

This ability to rely on a “Community” point to change the limitation rules applying to the whole application also requires consideration of what would count as such a point. The Community issue in this case cannot be said to be frivolous, but it is not well-founded. But the court cannot, and certainly should not, conduct a satellite trial of the merits in order to decide whether the rules of limitation prevent an actual trial of those merits. The prospect must therefore be that any assertion of a Community point that is not plainly unarguable will attract the jurisprudence contended for by the applicants.

Secondly, the Community requirement of equivalence prevents various steps that might otherwise be taken to mitigate the effect of Uniplex. It would not be possible to introduce a shorter but finite (and therefore certain) period of limitation for Community claims, because that period might be seen as less favourable than the three month period, though infected by uncertainty, of domestic law. Nor, even more paradoxically, is it possible to take advantage of the ruling in § 32 of Uniplex itself that time in relation to Community breaches starts to run from the date on which the claimant knows, or ought to know, of the alleged infringement in order to argue that, to take the facts of this case as an example, the claimants knew or ought to have known of the alleged Community failure, in relation to the screening opinion, at some time in January or February 2010. To rely on that rule in order to require that time for challenging a decision on Community grounds should run from the date identified by the Advocate-General in Uniplex would, and even though the rule was laid down by the CJEU, place “Community” applicants in a less advantageous position than domestic applicants who, under Burkett, can hold off from counting time until the date of the actual planning permission.

It is with unfeigned regret that I am unable to accept the argument based on section 31(6) of the Senior Courts Act 1981 that was advanced by Morrisons and the council, and which is adopted by my Lord in §§ 38-41 of his Judgment. That provision gives the High Court power to refuse to grant permission if it considers that there has been undue delay in making the application, and the relief sought would cause hardship or be detrimental to good administration. However, in domestic law that provision is little if any different in its effect from CPR 54(5). The House of Lords undoubtedly decided in Caswell v Dairy Produce Quota Tribunal [1990] 2 AC 738 that “undue delay” in the section was to be interpreted in the terms of (what is now) CPR 54(5); and the requirement to demonstrate hardship or detriment to good administration is the mirror image of the power under CPR 3.1(2)(a), formerly found in RSC O 53 itself, to extend time if there is good reason to do so.

Both provisions therefore give the court power to prevent a valid Community claim, even if brought within the three-month time-limit, on policy grounds to be determined by the court. Both therefore equally involve an exercise of the “discretion” that the CJEU saw in Uniplex as fatal to the effectiveness of the national remedy. If the draftsman of regulation 47(7)(b) of the Public Contracts Regulations had copied out not the terms of CPR 54(5) but the terms of section 31(6), the result in Uniplex would have been exactly the same. It is said that the CJEU’s reasoning was directed at the commencement of proceedings, and did not limit the court’s discretion as to remedies. But that, with deference, is to put form above substance. The substantial effect is the same in both cases: that the applicant loses his remedy, even within the three-month period, if the court thinks that there are good reasons of practice for withholding that remedy.

I have considered with care what was said by Lord Hope of Craighead in §66 of his speech in Burkett. He suggests that the considerations that govern the making of the relevant judicial decision, such as the Scottish practice with regard to pleas of mora, acquiescence and taciturnity, provide sufficient certainty to meet the Convention requirements of certainty. I would, with great respect, very much agree, had I not read the judgment in Uniplex. It is quite clear from that that the CJEU does not have the confidence in judicial judgement that Lord Hope founded on judicial practice in the United Kingdom, and regards any intervention by a court as an impermissible exercise not of judgement but of discretion.

All of the foregoing assumes that the jurisprudence of Uniplex applies directly to the requirement in article 10a of Directive 85/337 that member states must ensure that, in accordance with the relevant national legal system, members of the public having a sufficient interest have access to a review procedure before a court of law to challenge the legality of acts affected by the Directive: so that judicial review can only qualify in that role if it is shorn of its requirement that applications should be made promptly There are some reasons for caution on that issue.

The court in Uniplex necessarily was not exposed to the implications in the national legal order of the extension of its ruling to all types of administrative acts. In another case greater emphasis on the effect on applicants for planning permission as well on the effect on objectors, and appreciation that the requirement of promptitude is indeed judicially-controlled, and only applied after judicial consideration of the circumstances of the case, might lead to a different view. Such an analysis, of the actual application of the provision in the context of the national legal order, is not excluded by Community law. As we have seen, the objection of the CJEU to the promptitude requirement is that it deprives the objector of an effective remedy. In case C-473/00 Cofidis [2002] ECR I-10875[37] the ECJ, addressing the second limb of the Palmisani formula, effectiveness, said that its judgments on national remedies and procedures are “merely the result of assessments on a case by case basis, taking account of each case’s own factual and legal context as a whole, which cannot be applied mechanically in fields other than those in which they were made”.

It must be admitted that a requirement that any time-limit must be for a period certain is less open to the complaint of mechanical application in other fields than was the more general issue of effectiveness addressed in Cofidis. Nevertheless, in the planning context, as exemplified by the present case, it would be difficult to say under the normal use of language that the applicants did not have an effective remedy, in the sense that the procedural rules, to adopt the language of Rewe, did not make it impossible for them to exercise their rights. All that they were required to do was to assert those rights with a promptitude appropriate to the administrative issues at stake. Whether adjudication on that issue of promptitude created the uncertainty and discretionary power perceived by the CJEU in Uniplex would need to be determined in the light of national judicial practice, in a manner exemplified by the speech of Lord Hope in Burkett.

The wider implications of the need for an effective remedy in the specific context of planning therefore merits reconsideration: but in view of the terms of the judgment in Uniplex that reconsideration cannot to undertaken without recourse to the CJEU. I regretfully agree with Mr Fordham that the parties in a case in which the point does not need to be decided should not be put to that trouble and expense.