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In R (Wallis) v North Northamptonshire Council, Block Industrial Corby 13 Ltd [2024] EWHC 3076 (Admin) Lang J heard a rolled up application to extend time to challenge permission granted on 8.9.22 made by claim filed on 11.4.24, to grant permission for the challenge and for JR. Though she found that one of the prospective grounds of challenge had merit, nonetheless she refused to extend time and therefore refused permission.
The judgment provides a number of important reminders: in terms of avoiding the carelessness of local authority to the location of the site here, and the due notification of residents who may be concerned, and to those wishing to challenge a long way out of time to ensure that as soon as they have reasonable cause to believe there may be a permission not notified to them they act with due speed and seek immediate advice and issue proceedings.
C brought a challenge on 11 April 2024 to two planning permissions granted on 22 September 2021 (for a change of use to B8) and on 8 September 2022 (for a new warehousing and distribution depot) in respect of the former Weetabix Site in Corby, one of 2 Weetabix sites on the Earlstrees Industrial Estate in Corby which also contained a number of dwellings including the C’s home which backed onto the site. Prior approval had been granted and implemented to demolish the old factory building in 2021. The IP purchased the site in February 2022, made the application for the 2022 permission and began developing the site with substantial groundworks in late September 2023. Two large marketing boards had been erected on site visible from public viewpoints in April 2023 showing a CGI of the proposed development. Due to errors by Council officers, who confused the two Weetabix sites, notification letters were only sent to residents living near the other Weetabix site and not to the C or her neighbours.
However, there were clear signs that development was being undertaken pursuant to planning permission, the demolitions months earlier, the marketing boards on site and importantly monthly newsletters sent out on behalf of the contractor, beginning before the start of development which drew attention to the existence of the permission and what it authorised.
Lang J dismissed the application to extend time and refused permission, applying well-known principles in R v Dairy Produce Quota Tribunal ex parte Caswell [1990] 2 AC 738, R (Gavin) v LB Haringey [2003] 1 WLR 2389, R (Gerber) v Wiltshire Council [2016] 1 WLR 2593 at [55], R (Thornton Hall Ltd) v Wirral MBC [2019] PTSR 1794, and Maharaj v National Energy Corporation of Trinidad and Tobago [2019] 1 WLR 983, and concluding:
“131. In my judgment, the Claimant has a good reason for the initial delay in commencing proceedings because of the Council’s failure to send neighbour consultation letters to her. However, she has not demonstrated a good reason for her subsequent delay, after the ground works commenced in September 2023 and the Project Manager for IP1’s contractors began to write to the residents. A reasonable landowner would have checked the Council website for details of the proposed development, or asked the Project Manager for more information, by October 2023 at the latest. In this case, the Claimant failed to act with “the greatest possible celerity” (Thornton Hall at [21]). Even once the Claimant was aware of the details of the proposed development, she unreasonably delayed for nearly 3 months before filing her claim for judicial review.
132. In deciding whether there is good reason to extend time, I have also taken into account the factors identified in Maharajat [38], namely the importance of the issues, the prospects of success in the claim, the prejudice to the parties, and the public interest. Overall, my conclusion is that the Claimant has not succeeded in showing good reason to extend time. Therefore the application to extend time is refused and the application for permission to apply for judicial review is refused.”
The 2021 permission, which was merely for a change of use, and which was superseded by the implementation of the 2022 permission was refused permission on the basis it was academic.
A copy of the judgment may be accessed here.
David Elvin KC represented the First Interested Party.
