Court of Appeal reinforces strict six-week planning challenge time limit

Out-Law News | 12 Feb 2019 | 3:48 pm | 3 min. read

The Court of Appeal has refused to extend the six-week statutory time limit for challenging a planning inspector's decision, in a case where the individual had been prevented from filing on the day of the deadline.

John Croke had intended to file his challenge on 23 March 2016, the last day permitted by the six-week time limit set out in the 1990 Town and Country Planning Act (TCPA), but had sent an agent in his place when he missed his train and realised he would not make it before the court closed at 4.30pm. The agent, who had not received the message until late as Croke had initially mistyped his email address, arrived at 4.25pm, to be told by a security guard that the court's counters were closed.

Croke returned to the court the following day at 3.25pm, but there was a queue and he was not seen until 5pm. He was told that he had used the wrong form, and instructed to return to the court the next working day. This was 29 March 2016, due to the Easter bank holidays. He sought an extension of time of one working day, to 24 March 2016, due to the agent's error; followed by a further extension of time of one working day, to 29 March 2016.

Lord Justice Lindblom, following the High Court's judgment, refused to grant the extension sought. He held that granting an extension of time in the circumstances of this case would undermine parliament's intention in creating the statutory time limit and lead to "uncertainty, unpredictability and unfairness".

"This case reinforces the advice we give to clients: that early preparation and submission of the papers for a statutory challenge is key," said planning law expert Mike Pocock of Pinsent Masons, the law firm behind Out-Law.com.

"The courts have been consistent in upholding the strict time limits imposed for planning challenges, and do not look favourably on a failure to act promptly. The very clear message here is don't leave filing a claim until the last day," he said.

In the 1973 case of Kaur v S Russell & Sons, the High Court ruled that a claim could be brought on the next working day if the time limit for making it expired on a non-working day. Croke attempted to argue that this principle should be extended to cover his circumstances, as the failure to file on time was not wholly his fault. He said that this case was authority for the exercise of judicial discretion where a time limit had been missed.

Lord Justice Lindblom disagreed. The principle in the Kaur case was "not conceived as a principle to guide the exercise of judicial discretion in the various circumstances in which a litigant might fail to begin proceedings within a statutory limitation period". Rather, it was a "narrow principle", which was "founded on the certainty and predictability of the calendar, and the particular days on which court offices would not be open for business".

"Inherent in [this] was that all parties to potential litigation would know, or easily be able to find out, when court offices would be open, when and where a relevant claim could be issued, and whether the limitation period would be extended so that it did not end on a 'dies non' [non-working day]," the judge said. "It conceded nothing to uncertainty and inconsistency."

"In my view, the alteration of that principle urged on us by Mr Croke would go against the approach taken in the relevant authorities. It would stretch the principle beyond calendar events, which are fixed and certain, to circumstances that are unexpected and unpredictable, including not only the acts of third parties but also the actions or inaction of the litigant himself over which the court has no control. And it would include parts of days, as well as full days, when a litigant finds himself unable to get to the court office in time," he said.

In Lord Justice Lindblom's view, the only basis for an extension of time in this case was "in exceptional circumstances, on human rights grounds". Croke did not suggest there had been a breach of his rights here, and the judge said that he had been "right not to do so". Croke had had ample opportunity to file his claim in the preceding six weeks, and the consequences of his failure to do so were not particularly serious, the judge said.

Having refused to grant the first extension of time sought, the question of whether a second extension was permissible was "academic", the judge said. That said, there was "force" in Croke's submission that the refusal of the court office staff to permit him to submit his claim using a standard claim form rather than the new planning claim form justified an extension of time, as the form had only recently changed, the judge said.