In England, an application for Judicial Review must be filed “promptly” and in any event not later than three months after the grounds to make the claim first arose.
The position in Scotland is that there is no strict time limit within which Judicial Review must be brought. However, the party whose decision is being challenged can argue that the merits of the Petition should not be considered because the petitioner has delayed in bringing the challenge, or has acquiesced in the decision.
To establish delay and acquiescence in a decision, three elements must be established:
- that there has been undue delay in bringing the challenge;
- there was a failure to speak out an assertion of one’s right or claim; and
- there has been silence or passive consent to what was taking place.
In the Portobello case the Court held that “the conduct and the correspondence of the Association would not entitle a reasonable observer to draw any inference that the Association at any stage acquiesced in the Council’s proposed intention” and that the Association’s regular statements of opposition “can scarcely be characterised as taciturnity”.
The full judgement is available here.
So as long as an objector is still actively objecting, there is a risk of a Judicial Review.
When buying a property subject to the grant of planning permission, it is obviously not enough to wait four months before completion, as now seems normal for significant projects. That figure was never certain, but a reasonably prudent estimate (some might call it a best guess) of a safe period. What are we to advise now? Six months? Nine months? What is the economic effect on Scotland of putting back developments another two or five months?
There is an obvious solution to this uncertainty. In 2009, Lord Gill launched his report of the Scottish Civil Courts Review. As part of his report he suggested that the position in Scotland should be changed to follow the example of England. His proposal has not yet been introduced. Implementing this part of the report could form part of a “relentless pursuit of economic growth”.