R. v. North West Leicestershire District Council and East Midlands International Airport Ltd. exp. Moses

Transcript date:

Wednesday, April 12, 2000



Court of Appeal

Judgement type:



Simon Brown, Hale LJJ, Sir Christopher Staughton

Case No: FC3 1999/7311/C



Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday 12 April 2000

B e f o r e :




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ex parte MOSES


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(Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited, 180 Fleet Street

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Lord Kingsland QC and Mr M. Hutchings (instructed by Richard Buxton, Esq. of Cambridge CB1 1JX, solicitor) for the Applicant

Mr P.Village and Mr M. Chamberlain (instructed by N.W. Leicestershire D.C. Legal Dept of Leicester LE67 3FJ, solicitors) for North West Leicestershire DC

Mr J. Howell QC (instructed by Pinsent Curtis of Birmingham B4 6BH, solicitors) for East Midlands International Airport Ltd. (Mr D Abraham attended to receive judgment)

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As Approved by the Court

Crown Copyright ©

Lord Justice Simon Brown:

This is a renewed application for permission to move for judicial review in connection with the extension of the runway at East Midlands International Airport from 2280 metres to 2890 metres. As with any such extension, it has inevitably raised a number of noise and safety concerns and attracted a good deal of local hositility.

The application was initially refused on the documents by Collins J on 7 June 1999 on the ground of delay - the delay between 1 February 1999 when contract works began and 26 April 1999 when the proceedings were begun.

It was then refused by Scott Baker J on 14 September 1999 following a two day inter-partes hearing on the ground that the applicant lacked standing: having moved on 4 August 1999 from Kegworth to Loughborough she was held no longer to have a sufficient interest.

Despite the sustained skill and ingenuity of Lord Kingsland QC's written and oral argument, I too would unhesitatingly refuse this application. In my judgment, however, the better ground for doing so is that provided for by s.31(6) of the Supreme Court Act 1981:

"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; ...

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."

The "undue" delay here is (save for the initial six weeks or perhaps three months) the entirety of the period since the planning permission for this extension was granted on 14 July 1994 (if not, indeed, since 18 February 1993 when the respondent District Council (DC) resolved to grant it) - see ex parte Caswell [1992] AC 738 and R v Criminal Industries Compensation Board ex parte A [1998] QB 659. And were the relief sought granted - essentially the quashing of the 1994 consent - there would be the clearest and most substantial hardship and prejudice to the rights of third parties and no less clear detriment to good administration.

The proposed ground of challenge is that the DC breached its obligation under the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (the 1988 Regulations) - the Regulations by which the UK implemented EC Directive 85/337/EEC - by granting the 1994 consent without first considering "the environmental information" and to that end requiring an environmental statement. Before considering this ground and examining the applicant's arguments for being permitted to bring it despite the delay and resulting prejudice, it is convenient first to sketch in a brief chronology of events:

14.10.92 The second respondents (EMA) apply for consent to extend the runway (the 610 m. extension). (There had been an earlier consent for an almost identical scheme following a public enquiry in 1983.)

18.2.93 DC resolve to grant consent subject to a s.106 agreement.

14.7.94 Notice of grant of consent.

8.12.95 Letter from DC to vice-chairman of Kegworth Village Association stating:

"Neither the runway extension nor the extension of the terminal building required a formal environmental impact assessment under the Regulations."

20.6.96 EMA apply for consent for a further extension of the runway (the 130 m. extension).

27.7.97 Contract for the works involved in the 610 m. extension advertised in the Official Journal of the European Communities.

31.7.97 DC tells EMA that the proposed 130 m. extension would be a Schedule 2 development within the meaning of the 1988 Regulations so that an environmental statement is required.

10.10.97 The Secretary of State confirms to EMA that an environmental statement is required for the proposed 130 m. extension.

25.11.97 EMA obtain all approvals required to enable works to commence pursuant to the 1994 consent.

-.12.97 EMA invites tenders for the works.

25.9.98 (1) EMA and DHL Aviation (UK) Limited (DHL) enter into a contract for the construction of a cargo handling facility and associated infrastructure at the airport. The total cost of the project is upwards of £60 million.

(2) EMA place a letter of award of contract for the carrying out of most of the infrastructure works required by the DHL contract with Fitzpatrick Contractors Limited (Fitzpatrick)

29.9.98 EMA issue a letter of intent to AMEC Civil Engineering (AMEC) for the 610 m extension. Under the letter EMA were legally committed to works costing up to £100,000. It was those works which began on 1 February 1999.

18.12.98 EMA submit to DC an environmental statement in respect of the cumulative effects of the 610 m. extension and the 130 m. extension.

14.1.99 EMA enter into a formal contract with Fitzpatrick for most of the infrastructure works required by the DHL contract.

1.2.99 AMEC begin work on the runway. But for inclement weather it would have begun earlier.

4.2.99 Applicant's solicitor first questions the validity of the 1994 consent given that there was no environmental statement.

16.3.99 EMA and AMEC enter into formal contracts for the runway works and certain other works.

26.4.99 Judicial review application made.

20.8.99 Eastern extension of the runway completed.

-.10.99 Western extension of the runway completed.

Can the 1994 consent be impugned for want of an environmental statement?

The first question arising on this application is whether an environmental statement should have been obtained before the 1994 consent. Under the 1988 Regulations it was required only if the DC itself regarded the development as falling within schedule 2. The applicant advances two arguments as to this. First she contends that the DC asked itself the wrong question, namely "would the proposal have greater adverse environmental effects than predicted at the time of the public enquiry in 1983?", instead of the correct question which was whether or not the development was "likely to have significant effects on the environment by virtue of factors such as its nature, size or location." Second, it is submitted that the DC could not reasonably have concluded other than that the 610 m. extension was likely to have significant environmental effects, not least given that this was its view in 1997 with regard to the proposed additional 130 m. extension.

The first argument is based on nothing more than a paragraph in the planning officer's 25 page report to the DC on the 1992 application:

"That earlier grant of planning permission [following a public enquiry in 1983] lapsed in 1988, hence the need for the Airport company to re-apply. Whilst the fact that planning permission has been granted for an almost identical scheme in the past is a material consideration, it is important when determining this current application to consider whether or not circumstances have changed since that earlier decision."

That seems to me a wholly insufficient basis on which to infer that the DC asked itself the wrong question with regard to the need for an environmental statement: the quoted paragraph addressed a different consideration.

The second argument is perhaps more promising although to my mind it gains little from the DC's view of the 130 m. extension expressed in their letter to EMA of 31 July 1997, and still less from the Secretary of State's letter of 10 October 1997 confirming that view. The letter of 31 July 1997 gave as the DC's reasons for requiring an environmental statement:

"The development would be likely to have significant effects on the environment in view of its nature and location in that it would be likely to facilitate and encourage the operation of large, noisy aircraft which would be likely to cause noise and disturbance to the residents in nearby settlements, particularly at night."

It by no means follows, however, that the 610 m. extension, would necessarily have had comparable effects. The first respondents suggested to the contrary that the additional shorter extension was intended to accommodate long-haul aircraft to the Pacific Coast which would have involved a quantum leap in noise and disturbance.

The Secretary of State's letter of 10 October 1997 must be quoted at a little length since the applicant relies heavily upon it not only for this part of her case but also to suggest that everything the respondents did thereafter was done in full recognition of the 1994 consent having been granted in breach of the Directive and the Regulations. The 10 October 1997 letter stated:

"... in the opinion of the Secretary of the State the proposed development [the 130 m. extension] would be likely to have significant effects on the environment, because of its nature and location, having regard, in particular, to the following points:

i. The effects of increased activity or changes in the kind of aircraft used on noise levels, particularly at night, ...

Planning permission for a runway extension of 610 m. and related works was granted by the Council on 14 July 1994. In determining the application for a direction [as to whether the DC were right to require an environmental statement for the proposed 130 m.] it is relevant to take into account not only the cumulative effects of the implementation of both the 1994 permission and the current application for planning permission but also the proposed extension of the airport operational area as set out in [another] planning application. Assessing parts of the airport or any relevant extension in isolation could be construed as inconsistent with article 3 of the 1985 Directive."

The DC, I may note, in a letter to the applicant's solicitor dated 1 April 1999:

"agreed that in considering the 1996 planning application it would be necessary for the Council to consider the cumulative effect of the entire development (i.e. including the development permitted in 1994) having regard to the environmental information made available to us ..."

There is room for doubt as to whether a cumulative assessment was strictly appropriate but, whichever view is taken, it is quite impossible to read those letters as implying that either the Secretary of State or the DC regarded the 610 m. extension as one which, considered in isolation, must itself have required an environmental statement. As both respondents point out, no one ever suggested to them that the 1994 consent was vunerable to challenge on this, or indeed any other, ground until 4 February 1999 when the applicant's solicitor first raised the point. Nor do I find in the papers any basis for supposing that they themselves had any doubts as to its validity. I therefore reject the contention that the respondents consciously took the risk of implementing an invalid consent.

Let me, however, assume for the purposes of this application that an arguable (although in my view not strong) case exists for saying that the DC should have obtained an environmental statement before granting the 1994 consent. What then of the prejudice and delay?

Hardship, prejudice and detriment to good administration.

I can deal with this part of the case quite shortly; much of it, indeed, is self-evident from the merest glance at the chronology.

EMA and DHL between them have expended to date some £67.41 million on the cargo handling facility and associated infrastructure. They are committed to a further £2.5 million expenditure. Quashing the 1994 consent would entitle DHL to terminate their lease and claim compensation from EMA.

If EMA were required to remove the works constructed pursuant to the 1994 consent, that would involve further expenditure of £12 million and significant disruption to the airport for a year. The airport would be unable to accommodate long-haul flights with consequential loss of income to EMA. The new cargo handling facility would lose one of its two accesses which in turn could cause operational difficulties.

Hardship and prejudice apart, to quash the 1994 consent would involve substantial detriment to good administration. As Pill LJ stated in R v Newbury District Council ex parte Chieveley Parish Council [1999] PLCR 51, 67:

"It is important to good administration that, once granted, a permission should not readily be invalidated. As confirmed in the House of Lords, s.31(6) recognises that there is an interest in good administration independent of hardship, or prejudice to the rights of third parties. The court is entitled to look at the interest in good administration independently of those other matters. It is important that citizens know where they stand and how they can order their affairs in the light of the relevant decision ..."

Laws J had made the same point - in the context, be it noted, of alleged non-compliance with an EC Directive - in R v Secretary of State ex parte Greenpeace [1998] Env LR 415, 440:

"... there is ... every detriment to good administration, if the legal system is seen to contemplate and accept challenges of the validity of this licensing process at a stage when licensees have accepted the risks of a venture on the faith of what must have seemed a firm decision to grant the licences in question. ... the promotion of this challenge now would generate a severe and undesirable uncertainty within the whole process of the licencing regime, and potentially within other analagous systems."


The rule that any application for judicial review must be made promptly applies with particular force when seeking to challenge the grant of planning permission by a local authority. As I stated in R v Exeter City Council ex parte J.L. Thomas & Co. [1991] 1 QB 471, 484:

"I cannot sufficiently stress the crucial need in cases of this kind for applicants to proceed with the greatest possible urgency, giving moreover to those affected the earliest possible warning of an intention to proceed. In this connection it should be remembered that there is conspicuously absent from the legislation any right to appeal in fact or law from a planning authority's grant of planning permission. And even when a right of challenge is given - the right of statutory application ... to challenge a ministerial decision - it must be exercised within six weeks. Only rarely is it appropriate to seek judicial review of a ... permission [granted by a local planning authority]; rarer still will be the occasions when the court grants relief unless the applicant has proceeded with the greatest possible celerity."

In R v Ceredigion County Council ex parte McKeown [19989] 2 PLR 1,2 Laws J cited that passage and continued:

"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 time scale 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 there cannot be such a case, but, in my judgment, it would be a wholly exceptional one."

The Court's discretion under S.36

On what basis, then, does Lord Kingsland submit that this is a "wholly exceptional" case, so exceptional indeed that the court should allow it to go forward despite the long years of delay and despite the obvious prejudice that the grant of relief would occasion?

His first argument is that the delay is excusable having regard to the applicant's subjective lack of knowledge of the 1994 consent, let alone of any basis for challenging it, until she took advice from a solicitor in late 1998 and early 1999. I confess to the greatest difficulty with this argument for a number of reasons. In the first place, it seems clear on the facts that the applicant at least knew of the 1994 consent. Not only did she sign a petition in 1996 objecting to the proposed further extension but she accepts that she was aware of "plans for development" at the airport about which there was local concern "throughout the period I was living at Kegworth" (i.e. since November 1993). Secondly, this applicant's subjective state of knowledge seems to me to lose such relevance as it ever had once it is recognised that she has now left Kegworth and, because of the resultant doubts as to her standing (to put it no higher), is asking to be replaced by another Kegworth resident (no less eligible for legal aid), a Mr Gary Bolger whose witness statement is silent upon his state of knowledge. Thirdly, however, and altogether more importantly, it seems to me absurd to suppose that those hostile to a development can overcome the problem of delay by finding someone ignorant of the relevant facts to mount the challenge, and no less absurd therefore to suppose that any particular applicant's ignorance is material. The plain fact is that all the statutory requirements for publicity and consultation with regard to the 1994 consent were complied with. There had, indeed, been substantial additional public consultation. Moreover all planning applications and planning consents are kept by the local planning authority on a register which is available for inspection by the public at all reasonable hours and any environmental statement is also required to be placed on the register. That there had been no such statement was in any event clear from the DC's letter to the Kegworth Village Association, dated 8 December 1995.

In my judgment the long delay in this case is plainly inexcusable. It is therefore unnecessary to explore in detail the final period of delay which prompted Collins J's refusal of leave. Suffice it to say that I find the various excuses put forward for this wholly unconvincing.

Lord Kingsland's second and principal argument why this challenge should be allowed to go forward despite everything is that the public interest requires it. Indeed, his submission appears to be that EU law demands it.

So far as domestic law is concerned, there are of course cases which recognise that the importance of the substantive issue raised is material to the exercise of the court's discretion with regard to delay. The well known cases of R v Secretary of State for the Home Department ex parte Ruddock [1987] 1 WLR 1482 and R v Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement [1995] 1 WLR 386 are two such. In neither, however, was the delay remotely as long as here and nor was there any prejudice resulting from it. The high point of Lord Kingsland's argument under this head is perhaps this court's decision in R v Bassetlaw District Council ex parte Oxby [1998] PLCR 283 where some prejudice at least was recognised to result from the delay in challenging the grant of a planning permission. In that case, however, there had been clear manipulation of the planning system and the consents were successfully challenged on grounds of actual or apparent bias. Nor was the prejudice anything like so plain as here: that development had not even been commenced. Something of the differences between the two cases emerges from Hobhouse LJ's judgment at pp.302-303:

"The applicant has established what he needs to establish in order to demonstrate that the two relevant decisions were improperly arrived at and liable to be declared invalid. The counter arguments advanced on behalf of the [developers] come down to the critical submission that they ought not to be deprived of the fruits of the consents which they obtained, or certainly not without compensation, and not on the application of the Council itself made so long after the event. In my judgment the arguments of the [developers] are inadequate to lead to the conclusion that the applicant should not be granted the remedy for which he asks. If it has been clearly established, as it has in this case, that a planning consent was improperly and invalidly granted, then it should, in principle, be declared to be void. It is not appropriate that, other things being equal, the Council should be required to pay compensation as a condition of achieving that result. The answer would be different if the planning consent was one which should in any event have properly been granted or where at least it appears that that might be the case. Similarly, the position would be different if there had been a material change of position on the part of an affected party on the faith of the consent being valid. ... The planning consents ought, on the evidence available to us, never to have been granted. The planning consents which they obtained were not consents to which they were entitled. They were obtained by or through the person whom they selected as their agent ... who was intimately involved in the events which have given rise to the invalidity of the consents. ... nor has the lapse of time altered the balance of justice as between the Council and the [developers]."

I turn, then, to Lord Kingsland's argument with regard to EU law.

His starting point is Lord Hoffmann's dictum in R v North Yorkshire County Council ex parte Brown [1999] 2 WLR 452, 454:

"[The EA] Directive was adopted to protect the environment throughout the European Union by requiring member states to ensure that planning decisions likely to have a significant environmental effect were taken only after a proper assessment of what those effects were likely to be. It requires that before the grant of ‘development consent' for specified kinds of project, member states should ensure that an environmental impact assessment is taken."

This, he suggests, "leaves no doubt as to the importance of failing to respect the terms of the EC Directive".

Next he refers to the judgment of the European Court of Justice in Kraaijveld v Zuid-Holland case [1997] Env LR 265, 301:

"If that discretion [under the Directive] has been exceeded and consequently the national provisions must be set aside in that respect, it is for the authorities of the Member State according to their respective powers, to take all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment." (para 61)

Finally he relies on World Wildlife Fund v Autonome Provinz Bozen [2000] 1 CMLR 149:

"The answer to the sixth question [asking essentially whether, if the Directive has been incorrectly transposed, the authorities of the Member State are required to subject the projects at issue to an environmental assessment] must therefore be that ... where the discretion conferred by [the Directive] has been exceeded by the legislative or administrative authorities of a member state, individuals may rely on those provisions before a court of that member state against the national authorities and thus obtain from the latter the setting aside of the national rules or measures incompatible with those provisions. In such a case, it is for the authorities of the member state to take, according to their relevant powers, all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment." (para.71)

These two judgments of the ECJ, I understand Lord Kingsland to argue, place the DC under a continuing duty in EC law to ensure that the development is subject to an environmental assessment and, he submits, until that duty has been discharged, the DC cannot rely on delay to resist the challenge.

I reject this argument. As Richards J said in R v London Borough of Hammersmith & Fulham ex parte CPRE (a decision of 26 October 1999 upheld by this court on 21 December 1999, both unreported) in the context of a delay of some 3½ years since the grant of outline planning permission:

"Mr McCracken on behalf of CPRE disputes, however, whether in this case I have an effective discretion [to extend time]. He says that as a matter of Community law I must extend time, or put it another way, I cannot refuse permission on the grounds of delay. He places particular weight on a passage of the judgment of the European Court of Justice in the case of Kraaijveld. C-72/95 [1977] ELR 265. In paragraph 60 of the judgment the Court states:

‘Where pursuant to national law a court must or may raise of its own motion pleas in law based on a binding national rule which were not put forward by the parties, it must for matters within its jurisdiction examine of its own motion whether the legislative or administrative authorities of the member state remained within the limits of their discretion under article 2(1) and 4(2) of the directive and take account thereof when examining the action for annulment.'

It is suggested that that passage shows that the Court is required, as a matter of Community law, to entertain a claim of the present kind and cannot refuse to do so on grounds of delay. I am totally unpersuaded by that submission. What paragraph 60 of the judgment in Kraaijveld shows is that where a court is entitled to take points of its own motion, as it undoubtedly is in public law proceedings, then it should take a point considering breach of a directive even if the parties to the case have not taken that point. If, for example, the challenge in the present case were brought on domestic grounds and the Court saw a point concerning breach of the environmental assessment directive, the Court could and should, raise that point of its own motion.

That to my mind does not touch upon the question of time limits or of the application of Order 53 rule 4 or of section 31(6) of the 1981 Act. I see nothing in Kraaijveld that would deprive the Court of its discretion in relation to time limits. The fact that there exists an arguable breach of Community law does not mean that normal procedural safeguards, including those that are there to protect legal certainty, have to be thrown out of the window. National time limits apply, reasonable time limits have been upheld as being compatible with the requirements of Community law. One instance of that, though it does no more than set out a principle repeatedly stated in the case law of the European Court of Justice, is to be found in Case C-188/95 Fantask [1977] ECR 1-6783 at 6838 paragraph 48 where it is stated:

‘The Court has thus acknowledged, in the interests of legal certainty which protects both the taxpayer and the authority concerned, that the setting of reasonable limitation periods for bringing proceedings is compatible with Community law. Such periods cannot be regarded as rendering virtually impossible or excessively difficult the exercise of rights conferred by Community law, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought.'

That principle applies as much to time limits in public law proceedings as to those in private law proceedings.

In my judgment there is no reason whatsoever to doubt the reasonableness of the time limit provisions of order 53 rule 4 and there is no reason to doubt the reasonableness of the decision to decline to exercise the discretion to extend time in this case. I see no problem whatsoever under Community law in adopting that course. I do not think that the contrary is arguable. I note that in R v Customs and Excise Commissioners ex parte Eurotunnel [1995] CLC 392 at 408B the Court took the view, in judicial review proceedings, that the fact that the case concerned the validity of Community measures provided no reason to disregard or modify the provisions of English domestic law concerning time limits.

Therefore, on grounds of delay, I refuse permission to challenge the grant of outline consent."

The present applicant's solicitor, one notes, was also acting for the applicants there.

Bozen to my mind alters the position not one whit: the challenge there had been a prompt one and questions of delay and prejudice simply never arose. Throughout his argument Lord Kingsland repeatedly invoked the well-recognised EC principles of legal certainty and proportionality. There comes a point, however, when these principles support the rejection rather than the admission of long delayed challenges where third parties have acted in reliance on apparently valid decisions. That point has long since been reached in this case.

There is one other authority which I would briefly notice at this point - Berkeley v Secretary of State for the Environment [1998] 3 PLR 39, currently under appeal to the House of Lords. The Court of Appeal held there that there is no requirement to quash a planning permission granted without an environmental statement required under the 1998 Regulations where it is not established that the planning authority has failed to take anything specfic into account. Pill LJ at p.52 said this:

"The court must be satisfied that the objectives of the Directive are met. However, the court retains a discretion, notwithstanding the absence (which I assume without deciding) of a Schedule 3 statement properly so called, to decline to quash a decision if the objectives are in substance achieved by the procedure followed. These objectives include: the provision of appropriate information in a comprehensible form; making the public aware of the environmental implications of a project; giving an opportunity to the public to express opinions about it; and the decision-maker taking account of opinions expressed and making an overall assessment when reaching a conclusion.

While an environmental statement should, of course, be provided in the form required by Schedule 3 of the Regulations, it is legitimate upon a s.288 application to have regard to all the circumstances. I am satisfied that community law does not require the elimination of the discretion available to an English court under s.288(5)(b) of the 1990 Act."

For present purposes I am not concerned whether here, as in Berkeley, the general objectives of the Directive were substantially achieved by the procedures undertaken prior to the grant of the relevant consent (although they may well have been). Nor am I concerned with whether Berkeley was rightly decided (although, of course, it binds this court). The point I wish to make is that Berkeley was concerned only with the court's residual discretion in the case of a statutory application under s.288(5)(b) where the challenge has necessarily been brought within six weeks of the decision and thus, by definition, there can be no question of delay or prejudice. Here, as I repeat, the delay and prejudice are enormous and (as was held in CPRE) there can be no argument but that the English court is entitled to apply s.31(6) even in the case of an alleged breach of community law. As the ECJ said in Peterbroek v Belgium [1996] AllER (EC) 242, 257:

"... the court has consistently held that, under the principle of co-operation laid down in art.5 of the Treaty, it is for the Member States to ensure the legal protection which individuals derive from the direct effect of community law. In the absence of community rules governing a matter, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of community law. However, such rules must not be less favourable than those governing similar domestic action nor render virtually impossible or excessively difficult the exercise of rights conferred by community law ..."

No one has suggested that our rules fall foul of those requirements.

Sections 97 and 102 of the Town and Country Planning Act 1990

Having disposed of the central challenge advanced against the 1994 consent, I turn altogether more briefly to consider the subsidiary challenge which is (or rather was) directed to the DC's refusal to exercise its power under s.97 of the 1990 Act to revoke or modify the consent. I say "was" directed to that refusal because, by s.97(3)(a), the power can only be exercised before building or other operational development has been completed and here, of course, it has been. But I should add this. Had the DC in fact exercised its s.97 power as it was invited to do during the course of the works, it would have been hugely expensive: s.107 of the Act provides for full compensation for those like EMA with an interest in the land.

In the course of the hearing before us, we refused an application to amend the proceedings to include a further challenge, this time directed to the DC's (assumed) further refusal to exercise its powers under s.102 of the Act to require, at the very least, the imposition of conditions on the continuation of the use of the airfield. The exercise of this power too would attract, under s.115, the liability to pay compensation and again would obviously prove very expensive. Although the main reason for refusing this application was that it came far too late, with no forewarning and no attempt to lay a factual foundation, I for my part would in any event regard it as doomed to fail. If in truth there is a need in the public interest for matters such as noise and safety now to be considered on the merits with a view to restrictions on use being imposed, there are ample powers outside s.102 enabling that to be done, most notably under s.78(3) of the Civil Aviation Act 1982 - see, for example, R v Secretary of State for Transport ex parte Richmond-upon-Thames London Borough Council (No. 4) [1996] 1 WLR 1460.

In a case like this, where the primary challenge fails on grounds of long delay and resultant prejudice, it would be absurd if the applicant could nevertheless succeed, at huge expense to the respondent District Council, by being held entitled to compel modification of the planning permission under s.97 or discontinuance of use under s.102 particularly when other powers exist to impose any necessary restrictions.

Article 177 reference

The final application made to us, again completely unheralded, was that we should make a reference to the ECJ under Article 177 of the Treaty. The question proposed was this:

"Where a Member State fails to require environmental assessment (EA) pursuant to Directive 85/337/EEC and Domestic Implementing Regulations before development consent is given, is there a continuing duty to see that EA is carried out? If so, when does this duty end? Does it, for example, end when the normal period for judicial review of the grant of the development consent (in the UK, three months) has expired? Alternatively, for example, must the Member State use powers available to it which would have the effect of enabling it to require EA if use of such powers is still capable of having practical effect? If the use of such powers would involve costs to either the Member State or the developer or both, how should these be borne, do principles of proportionality apply, and if so how should they be applied?"

For the purposes of this application I would regard the Court of Appeal as the court of last instance within Article 177(3). As a court of last instance, we must, of course, refer to the ECJ any question which is not acte clair i.e. where the correct application of community law is so obvious as to leave no scope for any reasonable doubt as to how the question is to be answered. For my part I am entirely satisfied that Community law could not conceivably require either the quashing of the 1994 consent or an order now compelling the DC to condition that consent under s.102 of the 1990 Act.

The Applicant's standing

As stated, Scott Baker J refused this application on the basis that, once the applicant moved to Loughborough, some six miles from Kegworth, she no longer had a sufficient interest in the matter to give her standing. I have preferred to deal with the case on the assumption that standing presents no insuperable problem. After all, had the challenge from every other standpoint been soundly based, it would be unfortunate to have to reject it - rather, say, than substitute for Ms Moses another applicant who, as a resident of Kegworth, was equally concerned about the airport's extension - merely because of Ms Moses' move. That said, however, I should not be taken to be accepting that the applicant here retained a sufficient interest once she moved, still less that she would have had standing had she not at the outset lived in Kegworth.

Applications for permission to move for judicial review

S.31(6)(a) - and, indeed, RSC Order 53 rule 4(1) - self-evidently contemplate the refusal of permission to move for judicial review in certain cases involving delay. The whole object of rule 4(1) (as I suggested in ex parte A at p.674, in a passage expressly approved by Lord Mackay of Clashfern in the House of Lords at [1999] 2 AC 330, 347) is so that "both the court and the proposed respondent may be spared the need to deal with late challenges except only for good reason". If, of course, s.31(6)(a) is under consideration, then the respondents will probably already be involved if only to detail the likely prejudice. Still, however, it should be possible to decide the permission application in a comparatively short time and on the basis of substantially less material and argument than would be appropriate for a substantive hearing. And that is surely so too when the question is one of standing.

There seems to me a danger of such applications, however unpromising their ultimate prospects, being fought so full-bloodedly and in such detail as effectively to pre-empt the permission stage. It is, perhaps, a danger exemplified in this case. Certainly two days seems to me to be an excessive period in which to have pressed it at first instance. Judges must be astute to ensure that disproportionate time is not taken up at the permission stage: a reasonable relationship should be maintained between the time taken to weed out unarguable cases and the time thereby saved.

In this court, of course, due no doubt to the incisiveness of counsels' argument, the hearing took substantially less than one day, and it has plainly resulted in a substantial saving of time, not least because it is unnecessary to reach a concluded view as to whether, after all, there should have been an environmental statement before the 1994 consent. What lessons should be learned? Perhaps no more than that counsel should be ever fastidious in their choice of arguments, ever economical in their presentation.

At the conclusion of the hearing before us on 29 March, we refused this application. These are my reasons for doing so.

Lady Justice Hale:

I agree entirely that this application should be refused because of the delay, and resulting prejudice, since the decision under attack. I would not wish to express any view, either way, on whether there should have been an environmental statement and assessment beforehand.

Sir Christopher Staughton:

I agree that this application should be dismissed for the reasons given in the lucid judgment of Simon Brown LJ.

Order: Application dismissed. Detailed assessment of the applicant's costs. The applicant to pay the 1st Respondent's costs argument to be heard on Wednesday 19th April in relation to the applicant of 2nd respondent for costs against the applicant, the applicants of the 1st and 2nd Respondents for costs against the legal Aid board; and the application of the applicant to discharge Scott-Baker's order for the second set of costs.

Minute of order tbe produced by counsel.

(Order does not form part of the approved judgment)