Judicial review bid over permission for 120-unit residential development dismissed as out of time
An electricity supplier has been refused permission to take Rotherham Metropolitan Borough Council to judicial review despite the council’s failure to publish a local press notice concerning a planning application.
Robert Palmer KC, sitting as a deputy judge of the High Court, said in his judgment that he also refused to extend the time to file a claim form, saying claimant Amalgamated Smart Metering (ASM) had not acted “with all possible celerity”.
The dispute concerned an application by interested party Prospect Estates to build 120 homes on a former bus station site in Masbrough.
In July 2024, ASM sought permission to apply for judicial review of Rotherham’s decision in February 2024 to grant Prospect outline planning permission for the new homes.
ASM is wholly owned by Mercia Power and operates a gas-fuelled, back-up electricity generation facility a nearby site.
It feared that if residential development went ahead there would eventually be complaints from residents about noise and its operations would be limited and future expansion questioned.
The deputy judge noted the judicial review claim form was filed substantially after the six week limit and ASM told the court it had been very concerned to discover the existence of the planning permission in June 2024.
It said it did not discover this earlier because Rotherham failed to carry out a lawful consultation exercise, and an error in the council's planning software meant neither the application nor outline planning permission was visible on its website when ASM staff searched.
In August 2024, Rotherham and Prospect each filed an acknowledgement of service but no summary grounds of defence, instead saying they wanted the court to declare it had no jurisdiction.
Both did though in October 2024 file summary grounds, seeking an order extending the time limit to file them, though arguing permission to apply for judicial review should be refused.
ASM said these summary grounds should have accompanied the acknowledgement of service and permission to apply for judicial review should now be granted.
Mr Palmer said he had to determine whether he should make an order pursuant to CPR 11(1) declaring the court lacked jurisdiction.
If he did not, should he grant permission for reliance on the late summary grounds of defence, extend time for the claimant to file the claim, or grant permission to apply for judicial review?
He said the correct course would have been for Rotherham and Prospect to have filed summary grounds of defence in accordance with CPR 54.8(4).
“There was nothing to be gained from making a Part 11 application in addition to or in lieu of such a course,” he said. “The Part 11 applications are accordingly dismissed.”
The deputy judge said there was no prejudice to ASM arising from the late submission of the summary grounds of defence and he would extend time for them to be filed, but Rotherham and Prospect would have to bear their own costs for these.
ASM said it had been late in discovering the planning permission because of the software issue and Rotherham’s failure to consult it.
The court heard Rotherham did not publish notices of the planning application in any local newspaper although an article on the Rotherham Advertiser's website in October 2023 reported on it.
Rotherham’s website map search facility carries a warning to users that it "offers no warranty to its accuracy or completeness”, and a software fault meant Prospect’s application did not appear on the map in mid-February 2024, when an ASM employee looked for it. Information was though elsewhere on the council’s website.
Site notices were posted and Mr Palmer said it was not necessary for the council to also serve the notice on adjoining owners such as ASM.
He said: “The fact that the council did serve such notice on most adjoining owners or occupiers (but not the claimant) does not alter that position.
“Although local authorities may have informal schemes for discretionary notification, this does not generally give rise to any legitimate expectation of notification.”
The judge said the map facility was “a convenient port of call, [but] it was no substitute for checking the planning portal itself, where the application could easily have been located”.
This meant ASM could have discovered the application “with minimal effort, had suitable searches been conducted at an earlier stage”.
No adequate evidence showed ASM conducted any searches between 16 February and 11 June 2024. Had they been, material on Rotherham’s Planning Portal and a BBC news report would have been apparent.
Mr Palmer said: “The council's failure to publish a notice in the local press in accordance with Article 15(4)(b) of the 2015 Order cannot lightly be dismissed.
"However, the claimant cannot make any suggestion that it was this failure that meant that it did not become aware of the application when it was first made.
“[ASM employee] made no suggestion that the claimant had been actively reviewing local newspapers to look out for any planning applications which may affect it.”
Local media ran a story about the application in October 2023,”but perhaps unsurprisingly given the absence of any evidence that the claimant was monitoring local media to any degree at all, the claimant was not alerted to the existence of the planning application by this means either,” the deputy judge said.
"It is clear that had the council published a notice in the local press, it would have made no difference to the time when the claimant became aware of the application.”
He said ASM "did not act promptly or with the greatest possible celerity following 16 February 2024…it made no or no adequate enquiries following its discovery of the press report of 9 October 2023, and failed either to contact the council, or to check the Planning Portal, or to monitor press reporting until 11 June 2024, despite being in possession of information which clearly explained the existence and basis of the application for outline planning permission on the development site”.
ASM argued as its first ground that Rotherham’s failure to consult it was conspicuously unfair and the reason given for not consulting was irrational.
Its second ground was that Rotherham relied on an erroneous noise impact assessment and its third that misleading information was provided about noise mitigation.
The final ground was that the officer's report materially misled members by relying upon a noise impact assessment that was obviously flawed.
Mr Palmer said: “The points in Ground 1 do not seem to me to be strong.
"Rather, they amount to an attempt to place the blame on the council for the fact that the claimant was not itself diligent in monitoring nearby developments, or accessing the records that the council held on its planning portal or other media reports in circumstances where it would have been straightforward for it to have done so.”
He said the second and third grounds might be strongly arguable but did not justify a time extension for judicial review since “they do not appear to me to identify insuperable difficulties with the grant of outline planning permission which suggest that the public interest is best reflected by extending time”.
The fourth ground “may be arguable, [but] it is not so strongly arguable as to weigh heavily in the balance when considering the application to extend time”.
Mr Palmer concluded: “I should not extend time for filing the claim form. The claimant failed to act with all possible celerity, and instead delayed its enquiries following receipt of information that the application had been made (but not yet determined) on 16 February 2024.
“To extend time would cause substantial and unfair prejudice to [Prospect] and detriment to good administration.“
He added: “Since the claim form was not filed within the required time in breach of CPR 54.5(5), and in light of my refusal to extend time, permission to apply for judicial review must also be refused.”
Mark Smulian
