Associate solicitor Sabah Siddiq, in our Planning & Environmental Law team, looks at the recent case of Telford and Wrekin Council v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 2439.
This was considered in the case of Telford and Wrekin Council v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 2439, where the High Court held that para 4.11 of Practice Direction 54D was clear, in that an application under s288 of the Town and Country Planning Act 1990 (“the 1990 Act”), had to be filed and served within the six weeks from the decision in question.
Facts of the case
Planning permission for a solar farm on land was granted planning permission on appeal contrary to recommendation of the Planning Inspector. Telford and Wrekin Council (the Council) brought a challenge to the Secretary of State (SoS) decision made on 27th of March 2023 under s288 of the 1990 Act.
The claim form was filed on 4th of May 2023 and therefore within the six weeks of the decision by SoS. Monday, 8th of May was the Coronation Bank Holiday and was also the expiry of the six-week deadline for filing and the SoS case is that it also the expiry of the six-week period for service of the claim form. The High Court issued the claim on 15th of May 2023 and the Council served the claim on the 19th of May 2023, both of which were more than six weeks after the date of the decision by the SoS.
The judgement
Was the application served in time?
The Council argued that there is a lacuna in Part 2 of Civil Procedure Rules (CPR) 54 and in Practice Direction (PD) 54D, because paragraph 4.11 does not contemplate the situation where service of the claim form in time is impossible by reason of the failure of the court to issue the claim form within the six-week period. The Council further argued that the “effect of the lacuna can be to cause injustice and/or absurdity because a claimant who has filed the claim form within the permitted six-week period may be unable to comply with paragraph 4.11 through no fault of the claimant's own but because of delay on the part of the court”. The Council stated that the court should give a purposive reading to Part 54 and PD 54D, and that in circumstances such as in this case, it should apply to the timing envisaged by Rule 54.7, so that service within seven days of issue of the claim form was effective.
The SoS on the other hand argued that PD 54D provides a complete code and that a party that is seeking to bring a statutory review, must take account of the timings and the requirement to both file and serve in the six-week period.
Mr Justice Eyre agreed with the SoS and held that:
- “In my judgement PD 54D is clearly intended as a complete code to govern the filing and service of section 288 applications and, indeed, other statutory reviews, and I am satisfied that it can operate properly as such a code .
- The proper interpretation of PD 54D is to be undertaken having regard to the great importance of urgency in these matters and to the short time limits in statutory review cases concerned with planning decisions. Parliament, in imposing the six week limit in section 288 , and the Rules Committee, in making reference to that in the Rules and the Practice Direction, are to be regarded as having taken account of that public interest. It is to be remembered that delay in terms of challenges to planning decisions, such as that of the Secretary of State here, has an effect not just on good public administration but also on those who have been given permission, on those who have been refused permission and on those who wish to arrange their affairs on a particular basis.
- The provisions of paragraph 4.11 are clear. The application under section 288 must be filed and served within a six-week period. A claimant must proceed on the basis that he, she, or it needs to act sufficiently quickly so as to be able to do both, that is both file and serve, in the six-week period. The consequences are potentially harsh in the sense of being firm and causing severe consequences for a party who does not comply because such a party loses the opportunity to bring the statutory review, but they are not by any means unworkable and the position is clear. The situation is not one of absurdity even taking account of the wide interpretation which is to be given to absurdity by reference to the paragraph I have quoted in the decision in McCool . There is, in my judgement, simply no need to go outside the clear meaning of paragraph 4.11 of the Practice Direction”.
Should an extension be granted?
Rule 7.6(3) of CPR states that the court may only order an extension of time after the period for service had expired, where the claimant had taken all reasonable steps to comply with Rule 7.5 (which in these circumstances should be read as “to comply with PD 54D”), and had been unable to do so, and they had acted promptly in making the application.
Mr Justice Eyre held that the Council had not taken all reasonable steps within the six-week period. It had filed the claim on 4th of May, right at the end of the six-week period in circumstances where 6th and 7th of May were a Saturday and a Sunday and 8th of May was a bank holiday. The Council must have known that, for the claim form to be issued in time, the court would have needed to have done so by close of business on 5th of May.
Mr Justice Eyre further held that there was no evidence to suggest that anything had been done at the time of filing to alert the court of the need of urgent action, or that there had been any chasing up of the matter on 4th and 5th of May. Those were steps which could have been taken easily and which would have been reasonable. Further, Mr Justice Eyre held the Council had not acted promptly in making the application. It could have applied for an extension of time on 9th of May after the bank holiday weekend, or even on 15th of May when the issued claim form was received. Instead, the Council waited until 26th of July and therefore, the requirements of Rule 7.6(3) were not satisfied and there was no scope for an extension of time (paras 59-65 of judgement).
Conclusion
This case highlights that the time for filing and serving of the claim period for a planning statutory review under s288 of the 1990 Act is shorter and emphasises the importance of acting promptly and quickly to ensure that the filing of the application, issue and service is all done with the six weeks’ time limit. This differs from a claim for judicial review where the filing of the application is done within the six weeks’ time period, and once the claim has been issued by the court, you have seven days for serving the claim.
It is also worth noting that, where an application for extension of time needs to be made, that the period for service has to have expired, and you would need to show that you had taken all reasonable steps to comply with Rule 7.6(3) i.e. the court was notified of the urgency of the application, there was a follow up with the court, where the claim has not been issued by the court and that you acted promptly and quickly to make the application for the extension of time.
It is therefore, best advised that a Claimant ensures that any application for a claim under s288, is submitted, issued and served within the six weeks’ time period.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
