51 - Extensions of time and the Aarhus Convention

In planning judicial reviews time really waits for no one. Indeed we are often told that a challenge to a planning permission must be brought with the “greatest possible celerity”.

In R. (Amalgamated Smart Metering Ltd) v Rotherham MBC [2025] EWHC 97 (Admin) (Robert Palmer KC, sitting as a Deputy High Court Judge) an application for an extension of time was refused where a claim form for judicial review had been filed 15 weeks after the time limit had expired in breach of CPR r.54.5(5).

Among the arguments made for an extension of time the claimant company relied on the Aarhus Convention.

The case concerned a planning permission granted for a housing scheme of up to 120 homes on a former bus depot site and challenged by an energy company. The claimant company was a wholly owned subsidiary of Mercia Power Limited (“Mercia Power”), and held a leasehold interest in, and is the operator of, a gas-fuelled, back-up electricity generation facility located close to the site of the proposed new housing. The Judge recorded that “The Claimant is concerned about the potential for noise disturbance to the new residential development which is the subject of the outline planning permission under challenge. It is concerned that the introduction of a large scale housing development so close to the Facility would risk its existing operations and limit the scope for the future development of the Facility” and that “It is ultimately concerned that in due course it will be required to scale back or cease its operations so as to avoid causing a nuisance to the residents of the development, once it is built and occupied”

The Judge noted at 51(vii) of the judgment that:

“In its grounds of claim, although not pursued in oral argument, the Claimant also developed an argument to the effect that it would be inconsistent with the United Kingdom’s obligations under the Aarhus Convention … to refuse to extend time. The premise of the Aarhus Convention argument was that time should be taken to begin to run from the date when the decision became known to the public, and not from the date when the decision was taken.”

The background to this is set out in the Government’s recent call for evidence on the Aarhus Convention: https://www.gov.uk/government/calls-for-evidence/access-to-justice-in-relation-to-the-aarhus-convention:

“The ACCC also found that the UK’s rules regarding the time limit for bringing an application for judicial review of any planning related decisions in scope of the Convention are overly restrictive. The ACCC recommends that the rules should be changed so that this time limit begins when the contested decision is made known to the public instead of when the decision is taken, as is currently the case …

The ACCC’s recommendation

66.Paragraph 2(c) of Decision VII/8s “requests (the UK) to, as a matter of urgency, take the necessary legislative, regulatory, administrative, and practical measures to:

“(c) Further review its rules regarding the time-frame for the bringing of applications for judicial review in Northern Ireland to ensure that the legislative measures involved are fair and equitable and amount to a clear and transparent framework”

67.Paragraph 5(d) endorses the findings of communication ACCC/C/2015/131 that:

“(d) By maintaining a legal framework in which the time limit to bring judicial review is calculated from the date when the contested decision was taken, rather than from when the decision became known to the public, the Party concerned fails to comply with the requirement that review procedures in article 9(2) be fair in accordance with article 9(4) of the Convention”.

68.Paragraph 6(a) “recommends that (the UK) take the necessary legislative, regulatory, administrative, and practical measures to ensure that:

“(a) The time-frame for bringing an application for judicial review of any planning related decision within the scope of article 9 of the Convention is calculated from

the date the decision became known to the public and not from the date that the contested decision was taken”

69.Although the wording of Article 2(c) refers specifically to Northern Ireland, the finding and associated recommendation apply equally to England and Wales and to Scotland where similar rules are in place …

71.CPR rule 54.5 (1) provides that “the claim form must be filed promptly and within three months after the grounds to make the claim first arose”. This default does not

apply to judicial reviews related to a decision made by the Secretary of State or local planning authority under the planning acts,22 where the deadline is six weeks after the grounds to make the claim first arose. 

72.As to when "the grounds to make the claim first arose", this is usually the date on which the decision under challenge was taken, not when the claimant knew (or ought to have known) enough information to make an application for judicial review. However, the latter is material to the question of whether the application was brought promptly or whether an extension of time for bringing the claim should be granted. Where time limits are imposed on statutory review challenges such as under s.288 of the Town and Country Planning Act 1990, they are in general treated as absolute, and the court has no discretion to extend those time limits. There is no derogation from the rules on time limit for Aarhus Convention claims”

The application to extend time failed.

The claimant company's evidence was set out in a witness statement from a Mr White, the Chief Executive Officer of Mercia Power Response Limited.

He said that none of the employees of the claimant company (or those of Mercia Power) noticed the site notices at the time they were displayed, nor any of the local press coverage in October 2023.

Mr White's evidence is that the claimant only became aware of the grant of planning permission on 11 June 2024.

Mr White also said that, “following email correspondence with the council, it acknowledged on 14 June 2014 that there had been a fault with [its planning application] map search facility, in that the outline application had not been correctly captured by the planning software”.

But the judge noted that, in February 2024, key staff at the company were aware of a local press story which stated that, alongside permission already being granted for the demolition of the bus depot, a planning application had been submitted for the housing development.

The judge said that this article was “entirely clear – indeed [it] could not have been more explicit – that an outline planning application had been made. Further, the article had provided significant detail as to the basis of the application.”

The Judge found that “It is difficult to understand why anyone [who had read the article] could have been left in any doubt as to the existence of a recent outline planning application, which represented a separate and new application to the demolition application that had been previously approved.”

The judge said that it “the application would have been capable of discovery with minimal effort, had suitable searches been conducted at an earlier stage”, adding that, by February 2024, the claimant company had had “a fair opportunity to become aware of the proposed development, and could subsequently have objected to it”.

On Aarhus the Judge said this:

“122. Finally, I note also the arguments made on paper as to the need to comply with the Aarhus Convention …”. The Judge noted that the matter was not pressed before him and that there was no merit in it.

“i) There is no arguable conflict with the Aarhus Convention by virtue of there being a requirement to bring a challenge within six weeks. The grant of planning permission was a matter of public record, and discoverable by the Claimant at any time after its grant on the Planning Portal. It further became known to the public when the grant of planning permission was publicised in the media, including on BBC News on 29 February 2024. Nothing in the Aarhus Convention requires an extension of time of 15 weeks”

This blog post was written by James Maurici KC

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Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.