Case No: C/2000/2480
 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
(CROWN OFFICE LIST)(MR JUSTICE RICHARDS)
Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday 13th December, 2000 

B e f o r e:

LORD JUSTICE WARD
LORD JUSTICE SEDLEY
and 
LORD JUSTICE JONATHAN PARKER

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	IN THE MATTER OF AN APPLICATION BY ROBERT AND SONIA BURKETT FOR PERMISSION TO APPLY FOR JUDICIAL REVIEW			
			
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr. C. Katkowski QC and Mr. R. Harwood (instructed by  Richard Buxton for the Applicants)
Mr. T. Straker QC (instructed by  Legal Services, London Borough of Hammersmith and Fulham for the Respondent)
Mr. R. Purchas QC and Miss J. Clayton (instructed by Masons on behalf of the Interested Party)
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Judgment
As Approved by the Court

Crown Copyright ©
Judgment of the Court

1.	This matter came before us as an application by Mr and Mrs Burkett for permission to appeal against the order of Richards J. made on 29th June 2000 whereby he refused permission to apply for judicial review of the resolution passed on 15th September 1999 by the London Borough of Hammersmith and Fulham, who are the first respondent, to authorise the Director of the Environment Department to grant outline planning permission to St. George West London Ltd. for the mixed use development of land at Imperial Wharf, London, SW6. After an oral hearing, Richards J. refused leave to apply on the grounds of delay, which was the reason advanced by Newman J. when he dismissed the application on the papers.  By the direction of Pill L.J. this application was limited to that question of delay.  We granted permission and have dealt with the appeal on that limited basis.
2.	Mr and Mrs Burkett live in a ground floor maisonette in a three storey block adjacent to the proposed development at Imperial Wharf.  Mr Burkett is in poor health being a chronic diabetic who also suffers a liver complaint.  He is housebound for much of the time.  His daughter is asthmatic.  They are fearful that the large scale disturbance of the contaminated ground at the site will further injure their health.
3.	The site lies on the northern bank of the Thames between Wandsworth Bridge and Battersea Bridge.  It is about 32 acres in area.  It was formerly owned by British Gas and had been used by them for operational purposes, other parts being let out for general industrial uses.  The ground at the site has been contaminated over a number of years as a result of its use which has included the town gas manufacturing works, petroleum and oil storage and blending and various industrial and open site uses.  Development will involve the removal of contamination-containing tanks and other underground structures.  Remediation work will be essential to ensure that the site is fit for the purpose for which it is intended by the development.
4.	Proposals for development began in June 1996 when duplicate planning applications were submitted to the London Borough by British Gas.  In February 1998 outline planning applications were submitted by St. George West London Ltd.  The scheme, like the White City development, involves huge urban regeneration and will provide for some 1600 mixed units of affordable public sector and private housing, also community use accommodation, considerable business accommodation, restaurants, a tourist hotel, a health club, a large area of public parks and riverside walks.  Not surprisingly in March 1998 the local authority called for an environmental statement and over the months there were meetings to identify the key areas for assessment in that statement which was formally submitted in May 1998.  In March and in August there were public exhibitions and the development was advertised in the local press.  In January 1999 the proposals were submitted to the Local Ward Planning Consultative Committee.  As it happens the applicants’ solicitor, then acting for another interested party, suggested in July 1999 that the environmental statement was inadequate and that it would, therefore, be unlawful to approve the application.  Nonetheless on 15th September 1999 the local authority resolved to accept the recommendation of Director of Policy and Administration:- 
“Subject to there being no contrary direction from the Government Office for London, the Committee resolve that the Director of the Environment Department be authorised to grant outline planning permission upon the completion of a satisfactory proposed Section 106 Agreement subject to the following conditions: ...”

5.	The application had to be referred to the Secretary of State because it involved a departure from the unitary development plan.  On 24th February 2000 the Government Office of London, on the Secretary of State’s behalf, notified its decision that it declined to call in the outline planning application.  On 28th March the applicants’ solicitors sent what was effectively a letter before action raising, in very summary form, the matters of complaint and threatening judicial review.  That application for judicial review was made on 6th April 2000 and it took nearly a fortnight to come to the attention of the local authority and the developer.  On 12th May 2000 outline planning permission was granted.
6.	Three grounds were advanced to challenge the legality of the decision.  It will be sufficient to state them in summary only.  The first complaint is that the environmental statement fails to provide the information required by the 1988 Regulations then in force.  The second ground is that the statement failed to identify the mitigation measures necessary to protect the local population from residual contamination from the reconstruction work.  The third ground is that the developers failed to follow the procedures necessary to secure proper publicity of all matters which needed to be set out in the statement thus giving the applicants insufficient opportunity to consider the information and make appropriate representation.  Richards J. unlike Newman J. was prepared to accept (though he deliberately observed that he had not heard argument from the respondents) that there was an arguable case on the merits. 
7. 	Mr Christopher Katkowski QC, in an attractively reasoned submission, contends that Richards J has approached the exercise of his discretion as to time on a false basis of law and of principle. The error of law, he submits, was to regard the “date when grounds for the application first arose” as being the date of the local authority’s resolution to grant planning permission rather than the date of central government’s decision not to call in the application – or even, arguably, of the eventual grant of planning permission. The error of principle was to apply a six-week rule, or something close to it, to the issue of promptness. But for these errors, Mr Katkowski is entitled to say, the judge’s finding that his case is arguable on its merits entitles him, if not to permission to apply for judicial review, at least to a fresh consideration of the time issue. Having heard Mr Katkowski we gave him permission to appeal and went on to hear Mr Timothy Straker QC for the local planning authority and Mr Robin Purchas QC for the developer.

8. 	The applicants’ argument, as Mr Straker amply demonstrated, faces two initial hurdles. One is that their Form 86A, lodged on 6 April 2000, specifies the resolution of 15 September 1999 as the decision to be challenged. The other is that, on the face of it, it is right to do so, since Order 53 rule 4(1) of the Rules of the Supreme Court, which were then in force, in terms required an application for leave to be “made promptly and in any event within three months from the date when grounds for the application first arose”. Since the impugned environmental impact statement was as necessary to the resolution as to any subsequent steps, the logic of measuring time from the resolution seems inescapable.

9. 	Although in its final section the Form 86A asserts that the application is made within time because any challenge brought before the call-in decision of 24 February 2000 would have been premature, this cannot on any view be right. If time ran from the resolution, an enlargement of time was needed. If time ran from the call-in decision, it was that which ought to have been specified as the decision under challenge. But for reasons to which we will come, this distinction, though real, is not critical. 

10. 	Mr Katkowski’s essential argument is that both statutory provision and case-law in this particular field make it clear that neither the resolution nor the call-in decision but the final grant of planning permission is the single event from which all rights and remedies flow. The Council Directive (85/337/EEC) on the Assessment of the Effects of Certain Public and Private Projects on the Environment focuses entirely on the measures, including environmental impact statements in cases such as the present, which are required  “before consent is given” (Article  4(1)). The implementing regulations (then the Town and Country Planning (Assessment of Environmental Effects) Regulation 1988) by Regulation 4(2) follow suit by forbidding the grant of planning permission without taking the environmental impact statement into consideration. The House of Lords in Berkeley v Secretary of State for the Environment [2000] 3 WLR 420 has made it clear that this is an effectively indispensable requirement of the law. And even without the Directive’s regime, the decision of Woolf J in R v West Oxfordshire DC, ex parte Pearce Homes Ltd [1986] JPL 523 establishes that nothing in a resolution is irrevocable until planning permission is actually granted – in that case because of the discovery of archaeological remains in the interim.

11. 	We do not doubt the legal accuracy of any of this, but it fails in our judgment to disturb the proposition that where the same objection affects the initial resolution as will affect the eventual grant of permission, it is as a simple matter of language at the date of the resolution that the  objection and therefore the grounds for the application first arise. We do not accept Mr Katkowski’s submission that to give effect to this construction of Order 53 rule 4(1), any more than to its successor provision in Part 54 of the Civil Procedure Rules, disrupts the statutory environmental impact regime. What it does is require an objector to strike at the earliest reasonable moment at a process which, if the objection is sound, will otherwise end in an unlawful grant of planning permission. By doing so it supports the objectives of the Directive and the Regulations and attempts to keep disruption to a minimum.

12. 	In support of his argument Mr Katkowski cites R v Somerset County Council, ex parte Dixon [1997] JPL 1030, 1032-3, where a similar point arose on the computation of time. Sedley J, without deciding the issue, was prepared, subject to evidence of prejudice, to allow the application to proceed on the ground that to have moved before the s. 106 agreements referred to in the resolution were signed might well have resulted in an argument that the application was premature. He said: “I do not think that the applicant can be criticised for waiting until the grant of planning permission became effective and moving within three months of that date.” Whether or not that was strictly right (leave was in the event refused on the merits), the editorial comment which follows the report contrasts it with what Popplewell J said in Ex parte Garnett [1997] JPL 1015: “The fact that this is a resolution to grant permission and not the actual grant is in my judgment irrelevant. Once the s. 106 conditions had been agreed, planning permission was inevitable.” In our view neither approach is quite right. The fact that an applicant who moves promptly to quash the resolution may be attacked for prematurity no doubt reflects the tactical opportunism of some respondents, but it does not answer the proposition that time began running when the resolution was passed. Nor does it require inevitability in the grant of planning permission to compel an objector to move early. It is simply that Order 53, now Part 54, sets the clock ticking when the resolution is passed. What matters, and what will generally answer the prematurity objection, is that this by itself does not require a rush to judgment, for reasons to which we will shortly come.

13. 	It follows that the application before Richards J was necessarily an application for the enlargement of time by almost four months from the end of the 3-month limit. The judge rightly treated it as such; but in the alternative he looked at it as if it were within time and the issue were promptness. On either basis his conclusion was the same. He said:

“I turn to consider the circumstances of the present case, in the light of the line of authority to which I have referred but recognising, of course, that the requirement of promptness will depend on the particular features of the case.  When did grounds for the application first arise?  Mr. Jay (who then appeared for the applicants) submits that it was reasonable to wait until the Secretary of State’s decision not to call the application in.  Alternatively, he would, if necessary, contend that the relevant date is the date when planning permission was actually granted.  In my judgment, however, the relevant date was the date when the respondent passed its resolution to grant outline planning permission.  That was the operative decision.  That – not some later event – is what is challenged in the Form 86A.  The fact that there were still a number of contingencies before the formal grant of planning permission does not mean that grounds for the application arose only at some later date.  The existence of those contingencies is a matter to be considered in relation to the discretion to extend time, if there was a failure to apply promptly.  It does not, in my view, lead to the conclusion that time did not begin to run at the date of the resolution.”

“I appreciate that to focus on the resolution rather than the formal grant of permission has not been the universal approach of the courts, and that it has again been subject to some criticism.  But, in my view, it is an approach supported by the preponderance of authority, and is certainly the appropriate approach in the present case.  It accords, moreover, with the principles expounded by Laws J. in R. v. Secretary of State for Trade & Industry ex p. Greenpeace [1998] ELR 415, to the effect that:

“…a judicial review applicant must move against the substantive act or decision which is the real basis of his complaint.  If, after that act has been done, he takes no steps but merely waits until something consequential and dependent upon it takes place and then challenges that, he runs the risk of being put out of court for being too late…”

Did then the applicants make their application for judicial review promptly?  In my judgment, clearly not.

Taking the date of the resolution as the date when grounds first arose – that is 15th September, 1999 – the application lodged on 6th April 2000 was well outside the three month period in Order 53, Rule 4, let alone made promptly.  Even if I accepted, which I do not, that it was reasonable for the applicants to wait until the Secretary of State decided not to call the application in – that is until 24th February 2000 – in my judgment, there was still a failure to apply promptly after that date.  The application was filed at the very end of the period of six weeks following the Secretary of State’s letter.  Against a background where the respondent’s resolution had been passed in September 1999, it was incumbent on the applicants to move much faster than that after the Secretary of State’s decision if they were to wait for that decision before making their application.

Whether it was reasonable to wait falls more appropriately, in my view, to be considered under the head of extension of time, which I turn to consider.  I accept that in some cases it may be appropriate and reasonable to wait for the Secretary of State’s call in decision, and that this may affect the court’s view as to whether to exercise its discretion to grant an extension.  In R. v. Selby District Council ex. p. Samuel Smith Old Brewery, an unreported decision on a permission application dated 29th November, 1999, Sullivan J. drew a distinction between the case of resolutions to grant planning permission that were not subject to call in, and those which were subject to call in.  He seems to have taken the view that in the latter case – that is those subject to call in – it would be appropriate to await the decision on call in.

In the present case, the papers originally filed by the applicants contained no explanation whatsoever for the delay.  In a very late witness statement, served only yesterday, the applicants’ solicitor does provide an explanation.  The witness statement indicates that the view was taken that, because the resolution to grant planning permission was conditional on the absence of a direction from the Secretary of State, it was not necessary or appropriate to apply for judicial review until after the Secretary of State’s decision.  That view, it is said, was reinforced by the decision in ex.p. Samuel Smith Breweries, supra, which the applicants’ solicitor was fortunate to hear while in court when the decision was made.  Only after the Secretary of State’s decision not to call the application in were arrangements made to inspect the file, instructions taken and an application made for legal aid, with a view to bringing judicial review proceedings.  It is said that the application ultimately lodged was lodged on a protective basis, taking the view that the respondent still had a chance to remove the formal grant of planning permission.

I take full account of that explanation, which I have done no more than summarise.  I take account of the fact that for a long time the solicitors were acting pro bono and thought it inappropriate to apply for legal aid in circumstances where the Secretary of State might call in the scheme.  I also take into account the limited size and resources of the solicitors.  But there are factors telling strongly in the other direction.  I have not been shown any evidence to suggest that there was a likelihood that the Secretary of State would call the case in.  The respondent and developers, for their part, proceeded in the expectation that there would be no call in.  The applicants did not make any submissions to the Secretary of State that he should call the matter in, though it is fair to say that their present solicitors – when acting for a different client – had sent a letter, dated 30th July, 1999 to the Government’s office in London, inviting a call in.

It seems to me that in the circumstances, the fact that the resolution was subject to the Secretary of State’s decision as to call in – and therefore that the formal grant of planning permission would not be made until after the Secretary of State had decided

not to call the application in -–did not provide a good reason for waiting, nor does it provide a good reason for extending time.

Moreover, I consider it very important that during this period the applicants gave neither the respondent nor the developer any warning of an intended application for judicial review, in the event of their being no call in, or any indication that they were waiting for the Secretary of State’s decision on call in before bringing legal proceedings.  That was despite the fact that their present solicitors had been involved, albeit on a limited basis and for a different client, prior to the resolution of 15th September 1999, and plainly had some familiarity with the case.  Moreover, there was no such notification, despite the fact that work was done to prepare a judicial review application, after the Secretary of State’s decision not to call the matter in.  Only on 28th March 2000, as I have said, was a letter sent threatening legal proceedings.  Further, there was no question of the applicants being unaware either of the resolution or thereafter of the Secretary of State’s decision on call in.  Both, in any event, received wide publicity in the area.

Looking at all the circumstances, and bearing in mind, in particular, the failure to provide a clear warning of the prospective judicial review application, I do not think that the explanation that has been given for the delay is a satisfactory explanation, or that the applicants’ conduct during the period of delay was satisfactory or can provide a proper basis for an extension of time.  In my judgment, there is no good reason to extend time.”

14. 	As to delay, Mr Katkowski submits that it is perfectly reasonable for private individuals such as the applicants not to rush into litigation when a resolution of the present kind is passed – indeed they are unlikely to have the funds and the Legal Services Commission is unlikely to provide them – but to wait and see whether the Secretary of State, who is automatically seized of the question, decides to call the application in. If he does so, all the arguments about the environmental impact statement can be put before him, more fully in fact than before a court, and the resolution becomes history. Any further objection will be to the fresh decision made by the Secretary of State. So far, in principle though subject to a caveat to which we will come, we agree. Judicial review is in principle a remedy of last resort. It follows, as it always does when a potential applicant for judicial review expeditiously seeks a reasonable way of resolving the issue without litigation, that the court will lean against penalising him for the passage of time and will where appropriate enlarge time if the alternative expedient fails. Thus potential applicants should not overlook the possibility of going first to the local authority’s monitoring officer under s.5 of the Local Government and Housing Act 1989; though they need not put up with undue delay in obtaining a response. Equally, an arguably premature application can often be stayed or adjourned to await events.

15. 	Richards J, adopting the reasoning of Sullivan J to this effect in R v Selby DC, ex parte Samuel Smith Old Brewery (unrep., 29 November 1999), took this approach. But he noted that the possibility of a call-in was not the reason given for the delay: the applicants’ case was that there had been none, with the consequence that, as the judge also noted, no intimation had been given following the passing of the resolution of any intended or potential challenge to it. It is true that in their solicitor’s affidavit the applicants refer to the possibility of a call-in as a reason for not applying to the court sooner; though this does not sit well either with the want of any early indication of the grounds of challenge or with the subsequent legal assault on the initial resolution. Nor had any submission been made by the applicants to the Secretary of State in favour of calling in the application.

16. 	If it stood by itself, we would not accept the judge’s finding that “the fact that the resolution was subject to the Secretary of State’s decision as to call-in – and therefore that the formal grant of planning permission would not be made until after the Secretary of State had decided not to call the planning application in – did not provide a good reason for waiting, nor does it provide a good reason for extending time.” For reasons we have given, such factors may well tell in favour of waiting and therefore of enlarging time in many cases. But the finding is prefaced with the words “in the circumstances…”, and these, as often, are critical. So here, Richards J was right to weigh the delay against the reasons for it and the effects of it. Without reaching the question of prejudice, he concluded that the applicants’ advisers had approached time on a false basis of law; that there had consequently been no warning about the potential challenge while time ran out; and that the difficulties of funding and representation, including the fact that the applicants’ solicitors were acting pro bono, did not answer or excuse these failures. As to the last matter, Mr Katkowski’s instructing solicitor has honourably accepted through him that the requisite standard of representation and advice is no lower once a client is taken on pro bono than it is for a fee-paying or assisted client.

17. 	These circumstances, in our judgment, are capable of justifying the conclusion which Richards J reached. We are not called upon to decide whether another decision was equally open to him, but it should be said that the judge’s reasoning reflects the emphasis in planning cases on the need for speed in seeking judicial review which is to be found in the judgment of Simon Brown J in R v Exeter City Council, ex parte J.L.Thomas & Co Ltd [1991] 1 QB 471, 484:

“I cannot sufficiently stress the crucial need in cases of this kind of significance  to proceed with the greatest possible urgency, giving moreover to those affected the earliest warning of an intention to proceed.”

It may be, as Mr Katkowski suggests, that this emphasis is in some measure a judicial response to the discovery by commercial lawyers in recent years that wherever central or local government happens to have become involved, judicial review can become a way of conducting a trade war by other means. Here, it is true, an insistence that any challenge must be swift makes good sense; but for self-evident reasons the principle, though variable in its application, is a general one in planning cases.

18. 	Our decision thus far means that the alternative ground of Richards J’s decision on time, based on the assumption that – contrary to his correct view – time ran only from the decision against call-in, was otiose. But it is relevant to consider it because it touches upon what has shown signs of becoming a talismanic 6-week period within the governing 3-month provision for applying for permission to seek judicial review. In R v Ceredigion County Council, ex parte McKeown [1998] 2 PLR 1, 2, Laws J cited the passage of Simon Brown J quoted above and said:

“I would go further. I find it nearly impossible to conceive of a case in which leave to move for judicial review will be granted to attack a planning permission when the application is lodged more than six weeks after the planning permission has been granted. I can see no rhyme or reason in permitting the common law remedy of judicial review to be enjoyed upon a timescale in principle more generous to an applicant than Parliament has seen fit to fix in relation to those who desire to challenge a refusal of permission or its grant subject to conditions. I do not say that there cannot be such a case, but in my judgment it would be a wholly exceptional one.”

19. 	Mr Katkowski submits that there is no true parity between the citizen who receives a fully reasoned decision letter which includes advice on the exclusive procedure for challenging the Secretary of State and spells out the 6-week time limit under s. 288 of the Town and Country Planning Act 1990 for doing so, and the citizen who is faced with a local authority decision indistinguishable in principle from the mass of other decisions for which the law sets an (already stringent) 3-month limit.

20. 	Richards J, although  in the passage quoted above he  spoke of the application as coming “at the very end of the period of six weeks following the Secretary of State’s letter”, had earlier directed himself with care about the significance of Laws J’s judgment. He said:

“It is not that the period of six weeks referred to is substituted for the period of three months contained in the rules. The point is that the primary obligation is to apply promptly.”

For our part, in view of the somewhat mathematical emphasis which is sometimes placed by respondents’ counsel on Laws J’s dictum, we would commend what Richards J said about it. Six weeks may be quite long enough in some cases to meet the demands of promptness; in others it may not be; and in yet other cases – both applicants and respondents should remember – it may be too long.  At most, in our judgment, the time set for statutory challenges by s. 288 should be kept in mind as a touchstone of varying usefulness.

21. 	This being so, the matters affecting the enlargement of time and those affecting promptness may not differ greatly; nor therefore the answers. There are cases in which it is harder than in the present case to determine the point at which time started running. In such cases it may well be a recognition of legal reality, not simply corner-cutting, to decide on the grant of permission on both hypotheses, as Richards J did here: that is to say, on the hypothesis that what is at issue is an enlargement of time, and that what is at issue is promptness. If the answers converge, well and good. If they diverge, the reason will be an identifiable question of law, namely when did the grounds of the claim first arise?

22. 	So far we have said nothing about s. 31 of the Supreme Court Act 1981. The purpose of this section was to put beyond doubt the vires of rules which since 1977, with an amendment in 1980, had been contained in Order 53 of the Rules of the Supreme Court. But the opportunity was taken in Whitehall to single out two of the many principles which the Divisional Court of Queen’s Bench had developed for the exercise of its common law powers and discretions, and to enshrine them as subsections (6) and (7). They do not alter the substantive pre-existing law, since subsection (6) is couched in permissive form and subsection (7) simply restates a principle known to every law student. The subsections read:

“(6)	Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant  -

(a)	leave for the making of the application;  or
(b)	any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration

(7)	Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made.

23. 	The inept dovetailing of subsection (6) with the existing Rule created the problem which the House of Lords had to address in Caswell v Dairy Produce Quota Tribunal [1990] 2 AC 738. It was described in the Court of Appeal by Lloyd LJ [1989] 1 WLR 1089, 1094 as a circulus inextricabilis, and more recently by Lord Slynn of Hadley in R v CICB, ex parte A [1999] 2 AC 330, 340, as “perhaps curious”. A subclause in the Administration of Justice Bill 1985 which would simply have repealed the two unfortunate subsections was dropped for no better reason than that the preceding and unrelated subclause was dropped. And so, despite copious judicial and academic criticism, the two subsections remain on the statute book. It was perhaps over-sanguine of Richards J to say, as he did, that the relationship between the two provisions had now been “fully resolved” by Lord Slynn’s speech in ex parte A; but perhaps more importantly, if we may respectfully say so, the material passage of Lord Slynn’s speech (at 341) charts a course among the reefs for which practitioners and judges alike will be grateful.

24. 	Richards J, having had s. 31(6) drawn to his attention and having pointed out early in his judgment that account must be taken of it, wisely made no further reference to it. It is by now clear from experience that it is only in the rare case where the rules are capable of producing one outcome and the Act another that the unfortunate parallelism of these provisions needs to be explored. It is much better in almost every case to proceed as Richards J did here to examine the history of the case in the light of the extant rule, which embraces principles developed over many years by the court to meet each case on its particular facts, and to turn to s. 31(6) only where one has to and then with Lord Slynn’s guidance to hand.

25. 	The oral argument in this court has shown the good sense of this course: neither Mr Straker nor Mr Purchas has had to fall back on the statute. Mr Straker has submitted, and we agree for the reasons we have given (which do not include all Mr Straker’s reasons), that there is no error of law or of principle in the judge’s approach to the question of time.  Mr Purchas, for the developer, went on to make brief submissions about prejudice, a topic entirely apt for consideration within the phrase “good reason” in Order 53 rule 4(1).

26. 	Richards J, having concluded that the insufficiency of good reason for the delay was enough to preclude an enlargement of time, turned to the question of prejudice as a discrete issue. Alongside prejudice he mentioned “detriment to good administration”, which of course echoes s. 31(6) but would still be relevant if s. 31(6) were not there. He held, in short, that the considerable expenditure of the developers on the project both before and after the call-in decision was a source of material prejudice, and that the work done in reliance on the resolution by the local authority itself and other public bodies interested in the development made the late application detrimental to good administration.

27. 	On the facts before him, both conclusions were open to the judge; but having heard leading counsel for both respondents we would say a cautionary word about each.

28. 	It is reasonably to be expected in a case like this that the main developer, knowing of the possibility of call-in but not of the possibility of judicial review, will incur continuing and possibly substantial expense prior to the eventual grant (or refusal by the Secretary of State) of planning permission. It may also be appropriate for the developer to say so in evidence to the court, if only to avoid a submission that there is no evidence of prejudice. As Mr Purchas has shown by his persuasive argument, the fact of expenditure may matter, though it is unlikely to be decisive, if the issue of time reaches the question of prejudice. But it does not, in our judgment, follow that the quantum of expenditure can by itself enhance this aspect of a respondent’s case. It would distort the ends of justice if the law or practice of the Administrative Court did anything to encourage developers to believe that the more money was poured into a project prior to the formal grant of planning permission, the stronger they could make their resistance to any application for permission to apply for judicial review, however well within the three-month period, on the ground that it was not prompt enough to outweigh the cash investment.

29. 	This consideration bears indirectly on the second matter, the interests of good administration. Administration beyond law is bad administration. The courts exist to protect the former as jealously as to stop the latter; but they cannot know which they are dealing with unless they can hear out and decide viable challenges to the legality of administrative acts. This cannot be regarded as a universal rule, since in England and Wales (in contrast to Scotland) not every viable challenge secures permission, but it heavily qualifies the availability of a “good administration” answer to a plea of promptness or an application to enlarge time, and it is doubtless the reason why public authorities rarely consider it appropriate to use it.

30. 	In the present case Richards J made it clear that he did not regard prejudice and detriment to good administration as freestanding grounds for refusing leave. He regarded them as “tell[ing] strongly against the extension of time” – in other words, as corroborative grounds. Again, for the reasons we have given, that was the right approach to the enlargement of time. Where it is promptness, on the other hand, which is at issue it may well be that the inevitability of prejudice to others after a certain point of time will help in deciding what, in the particular situation, was sufficiently prompt. Everything, in other words, depends on fitting familiar principles common to equity and the common law to infinitely varying  situations.

31. 	There being no justifiable error in Richards J’s decision to refuse permission to apply for judicial review, this appeal must be dismissed.