Objectors winded by day late claim
Published on 7th May 2015
A 32 turbine wind farm has been given the go-ahead after an objector failed to file his claim for judicial review of a development consent order within the strict 6 week statutory time period*. In an unusual turn of events, the technicality was only brought to light after the judge had heard 2 days of substantive arguments. Once the issue was raised, however, Mr Justice Lindblom found unequivocally that the statutory time period was “fixed and certain” and that the court had no discretion to extend the time period.
The £100m development is Clocaenog Forest Wind Farm in north Wales and the claimant was a local resident and objector, Mr Williams. He alleged that in making the development consent order, the Secretary of State failed to comply with the Habitats Directive. The claim was heard in a “rolled-up” hearing which took place in February 2015 but, in March 2015, the developers, RWE Innogy UK, contended that Mr William’s claim was filed a day late and that the Court had no jurisdiction to hear and determine it. The developers asserted that the order was published on 12 September 2014 and Mr Williams’ claim was lodged out of time, 6 weeks and one day later, on 24 October 2014.
As part of their submissions, the Secretary of State and developer both drew on the recent Thames Tideway Tunnel case which also concerned a ‘day late’ claim, contending that the court should dismiss the claim solely as it was out of time. The judge agreed, finding that that the statutory period of 6 weeks* is not flexible or indefinite. The claim must be filed within the period of 6 weeks ‘beginning with’ (i.e. including) the day on which the order is published and the period for challenge cannot be enlarged, even when the court might wish it could do so to avoid injustice to a particular claimant.
This interesting case not only highlights the importance of not submitting claims at the last minute, but unlike a standard judicial review, there is clearly no discretion for the court to accept a claim after the challenge period has passed. It also introduces some further judicial consideration of the meaning of ‘published’ which is not prescribed by the statute*, but is an increasingly hot topic as technology advances and “publication” takes on wider meaning. ‘Published’ was held to mean the day on which the order, or the statement of the Secretary of State’s reasons for making it, were put into the public domain. Here, this was the placing of the order on the Planning Inspectorate’s infrastructure website, together with the Secretary of State’s decision letter and the examining authority’s report, with the notification emails and letters being sent on the same day.
R (on the application of Michael Williams) v Secretary of State for Energy and Climate Change Planning Court (Lindblom J) 30 April 2015
