R (Gerber) v Wiltshire Council & Ors [2016] EWCA Civ 84
The point in plain English: Planning permissions need certainty. A person who wants to challenge one by judicial review must act very quickly, and a failure to notice a properly publicised application will not usually justify a lengthy extension of time.
What happened
Wiltshire Council granted permission for a solar farm near a Grade II* listed building. The owner of the listed property did not discover the development until work began many months later. He eventually brought judicial review proceedings and the High Court quashed the permission on several substantive legal grounds.
The developer and council appealed, focusing on delay and an alleged legitimate expectation that the neighbour would have been notified directly.
What the Court of Appeal decided
The Court of Appeal allowed the appeal and restored the planning permission. The council’s Statement of Community Involvement did not contain a clear and unambiguous promise to notify this non-adjoining neighbour individually.
The court stressed the need for the greatest possible speed in planning judicial review. Once proper statutory publicity has been given, a person will not normally obtain an extension simply because they did not notice the application. Nor will a later change of legal advice usually excuse delay, particularly where a developer has relied on the permission and incurred substantial expenditure.
Why Gerber matters
The case is useful on both consultation promises and the strict approach to delay in planning litigation. The procedural timetable considered arose during a period of transition in the judicial-review rules, so anyone considering a challenge today must check the current court time limit rather than relying on the historic dates in this judgment.
The substantive heritage errors were not pursued on appeal; the Court of Appeal’s decision turned on legitimate expectation, delay and remedy.
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