Case note – the time limit for bringing a judicial review claim: Arnold White Estates Limited v The Forestry Commission [2022] EWCA Civ 1304

CPR 54.5 provides that judicial review proceedings must be started “promptly” and “in any event not later than 3 months after the grounds to make the claim first arose”. Delay in bringing a claim can be a basis upon which permission to proceed with a claim can be refused or on which, even if permission has been granted, relief can be refused. It is therefore of great importance to claimants to ensure that claims are issued in time. The Court of Appeal has recently considered – and firmly rejected – a claimant’s attempt to ‘manufacture’ a new decision of a public body (i.e. create new “grounds to make the claim”) as a way of setting a new limitation period and so avoiding being out of time to bring a claim.

Background facts

The case arose out of the exercise by the Forestry Commission of its powers to control the felling of trees. In October 2018, the Forestry Commission had granted Arnold White Estates Limited (“AWEL”) a felling licence, permitting it to fell trees on a site which AWEL intended to develop (and for which it had outline, but not full, planning permission). A condition of the licence was that the land on which the felling was to take place had to be restocked with trees and the replanting maintained for a period of 10 years.

Trees were duly felled from the site, but not restocked and so on 28 July 2020 the Forestry Commission served an enforcement notice under section 24 of the Forestry Act 1967 for breach of the felling licence. There is a right of appeal (on limited grounds) against such notices, but AWEL did not appeal. Instead, beginning in January 2021, it entered into correspondence with the Forestry Commission, seeking to persuade it to withdraw the section 24 notice. AWEL’s basis for doing this was that in September 2020 it had been granted full planning permission for the site and that consequently the requirement in the original felling licence to restock had become redundant. The Forestry Commission disagreed and, in a letter dated 15 January 2021, informed AWEL that the grant of planning permission did not make non-compliance with either the felling licence or the enforcement notice lawful. That position was maintained in further letters dated 16 February 2021 and 1 April 2021(and in the latter the Forestry Commission also recorded its view that it had no statutory power to amend or revoke and enforcement notice once it had been served).

On 18 June 2021 AWEL issued a judicial review claim seeking to challenge the “decision communicated by way of letter dated 1 April 2021…”. Permission to bring judicial review proceedings was refused both on the papers and at a renewal hearing, in each case because of delay as well as on the underlying merits of the claim. AWEL then appealed to the Court of Appeal.

Arguments in and Decision of the Court of Appeal

In the Court of Appeal, AWEL essentially made two arguments in relation to the delay argument: first, that the letter of 1 April was when it “was finally made aware of the Forestry Commission’s decision”; and, second, that “the decision not to withdraw the section 24 notice represented a continuing state of unlawfulness which could properly be challenged by a claim for judicial review when it was, and indeed for as long as it might persist”. Both arguments were comprehensively rejected by the Court of Appeal.

The Court of Appeal’s starting point was its assessment that AWEL’s “real grievance here is with the decision to issue the section 24 notice itself on 28 July 2020, and to maintain the notice when a planning permission incompatible with it was granted on 14 September 2020”. In other words, AWEL’s claim hinged on a decision the Forestry Commission had made on 28 July 2020, nearly a year before AWEL started proceedings. Against that backdrop, the correspondence between AWEL and the Forestry Commission in January – April 2021 was simply a “protracted clarification of the parties’ respective positions” and “None of the Forestry Commission’s letters can realistically be seen as formal decision-making under any provision of the 1967 Act. They were not in themselves amenable to judicial review. In short, they were not a ‘decision’. To describe them as such is, in my view, to create an artificial target for a belated challenge to the section 24 notice itself and its being maintained”. Accordingly, the Forestry Commission 1 April 2021 letter was not the time at which grounds to make the claim first arose and so the claim had been issued many months after the limitation had expired.

In support of its second argument – that the section 24 notice represented a continuing state of unlawfulness that could be challenged at any time – AWEL relied on a decision of Mr Justice Kerr in R (Fire Brigades Union) v South Yorkshire Fire and Rescue Authority [2018] EWHC 1229 (Admin), in which he had said “the case for relief is stronger where there is no plan to put an end to the unlawful conduct and every intention of continuing with it”. The Court of Appeal held that the Fire Brigades Union case was simply not comparable to the position in the AWEL case. In the Fire Brigades Union case, the public body defendant had (in unusual circumstances) taken “a conscious decision to commit a continuing and systematic breach of the law”. That was not the position of the Forestry Commission which, the Court of Appeal held, “...had acted in good faith as a public body in the exercise of the statutory functions conferred upon it…and, when called upon to do so, in explaining the position it took.”.

Key lessons

What lessons are to be learned from this? Clearly, that the Courts (and defendants) will be astute to ensure that the time limit for bringing a judicial review claim is not circumvented by attempts to create a new decision that can be challenged. That said, the Court of Appeal's decision on delay was taken in the context of it also being satisfied that AWEL’s substantive claim should be dismissed on the merits. If the Court of Appeal had thought otherwise – if it had been of the view that the Forestry Commission had been acting unlawfully – then it might have wished to find a way to avoid the limitation point preventing the Court from exercising its core judicial review function of ensuring that public bodes act lawfully.

FURTHER INFORMATION

For further information on the issues raised in this blog, please contact our Public Law team.