Case Note – Time Limit for Bringing an Application for Judicial Review: Arnold White Estates Limited v The Forestry Commission [2022] EWCA Civil 1304

CPR 54.5 provides that judicial review proceedings must be initiated”rapidly” and “in any case no later than 3 months after the first appearance of the grounds for complaint”. Delay in making a claim may be a basis on which permission to proceed with a claim may be denied or on which, even if permission has been granted, relief may be denied. It is therefore very important for applicants to ensure that applications are issued on time. The Court of Appeal recently considered – and firmly rejected – a plaintiff’s attempt to “fabricate” a new decision of a public body (i.e. to create new “reason to make a complaint”) as a means of setting a new limitation period and thereby avoiding being out of time to bring an action.

Background Facts

The case arose from 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 permit, allowing it to fell trees on a site which AWEL intended to develop (and for which it had a summary building permit, but not complete) . A condition of the permit was that the land on which the felling was to take place had to be reforested with trees and the replanting maintained for a period of 10 years.

Trees were duly felled on the site, but not restocked. Thus, on July 28, 2020, the Forestry Commission served notice of enforcement under Section 24 of the Forestry Act 1967 for violation of the felling permit. There is a right of appeal (on limited grounds) against such notices, but AWEL has not appealed. Instead, beginning in January 2021, he engaged in correspondence with the Forestry Commission, seeking to persuade them to withdraw the notice under Section 24. In doing so, AWEL relied on the fact that in September 2020 it had obtained full planning permission for the site and therefore the requirement for the initial felling permit to repopulate had become redundant. The Forestry Office did not agree and, by letter dated January 15, 2021, informed AWEL that the granting of the town planning permit did not make non-compliance with either the felling permit or the of the formal notice. This position was maintained in further letters dated February 16, 2021 and April 1, 2021 (and in these the Forestry Commission also indicated that it had no legal authority to modify or revoke a notification of execution once served).

On June 18, 2021, AWEL filed an application for judicial review challenging the “decision communicated by letter dated April 1, 2021…”. Leave to commence judicial review proceedings was refused on the record and at a renewal hearing, in each case on the grounds of delay as well as on the underlying merits of the application. AWEL then appealed to the Court of Appeal.

Argument and decision of the Court of Appeal

Before the Court of Appeal, AWEL essentially advanced two arguments in relation to the delay argument: first, that the April 1 letter was when it “was finally informed of the decision of the Forestry Commission”; and, secondly, that “the decision not to withdraw the notice under section 24 represented a continuing state of illegality which could properly be challenged by an application for judicial review when it was, and in fact for as long as it might persist”. Both arguments were broadly rejected by the Court of Appeal.

The Court of Appeal’s starting point was its assessment that “the real grievance here is with the decision to issue the Section 24 notice itself on July 28, 2020, and to uphold the notice when a planning permit inconsistent with it was granted on July 14 September 2020”. In other words, AWEL’s request was based on a decision that the Forestry Commission made on July 28, 2020, almost a year before AWEL began the procedure. In this context, the correspondence between AWEL and the Forestry Commission in January-April 2021 was only a “prolonged clarification of the respective positions of the parties” and “None of the Forestry Commission letters can realistically be considered formal decision-making under any provision of the 1967 Act. They were not in themselves subject to judicial review. In short, it was not a “decision”. To label them as such is, in my view, to create an artificial target for a belated challenge to the notice itself and its maintenance”. As a result, the Forestry Commission’s letter of April 1, 2021 was not when the grounds for claim first emerged and the claim was therefore issued several months after the statute of limitations had expired.

In support of its second argument – ​​that the Section 24 notification represented a continuing state of illegality that could be challenged at any time – AWEL relied on a decision by Judge Kerr in R (Fire Brigades Union) v South Yorkshire Fire and Rescue Authority [2018] EWHC 1229 (administrator), in which he said “the case for redress is stronger when there is no plan to end the illegal conduct and any intention to continue with it”. The Court of Appeal held that the fire brigade union was simply not comparable to the situation in the AWEL case. In the fire brigade union case, the respondent public body had (under unusual circumstances) taken “a conscious decision to commit a continuous and systematic violation of the law”. This was not the position of the Forestry Commission which, according to the Court of Appeal, “…had acted in good faith as a public body in carrying out the statutory functions conferred on it…and, when asked to do so, in explaining the position it took.”.

Main lessons

What lessons can we draw from this? Clearly, courts (and defendants) will be astute to ensure that the time limit for filing an application for judicial review is not circumvented by attempts to create a new decision that can be challenged. That said, the Court of Appeal’s decision on the delay was made when it was also 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 opinion that the Forestry Commission had acted illegally – then it might have wished to find a way to avoid the point of limitation preventing the Court from exercising its function essential judicial oversight to ensure that public bodies act lawfully.