Much ado about timescales - planning challenges
A High Court judge recently dismissed a statutory challenge brought by a town council over permission for a 146-home scheme, saying he did not have power to extend time for service. Alex Minhinick and Emily Kell-Rowan analyse the judgment.
The recent judgment in Farnham Town Council v Secretary of State for Levelling Up Housing and Communities and another [2024] EWHC 2458 (Admin) addresses the timescales for the filing of claims with the Administrative Court and service of documents upon other parties. It will be of assistance to practitioners leading on statutory challenges in the Planning Court, where nervous calculations of time often feature.
Here, the High Court considered whether it had the power to extend the time for service of a statutory challenge brought under section 288 of the Town and Country Planning Act 1990.
Facts
Farnham Town Council sought to quash the Secretary of State's decision to allow an appeal for the development of 146 dwellings on a greenfield site close to an area of outstanding natural beauty and filed its challenge with the Administrative Court within six-weeks of the Secretary of State’s decision. However, by reason of its legal team's misreading of the rules, the challenge was served on the Defendant four days after the six-week statutory period had expired.
One of the issues before the High Court was whether it had the power to extend time for service. The High Court held that it could not extend time for service. Section 288(4B) of the TCPA 1990, Part 54 of the Civil Procedure Rules (CPR) and CPR Practice Direction (PD) 54D state that a section 288 challenge must be issued and served within six weeks of the decision letter. The time-limit for issue was absolute, save in exceptional circumstances.
In such circumstances, an application to extend time for service could be made under CPR 3.1(2)(a), and the court would apply the criteria in CPR 7.6 by analogy.
CPR 7.6 requires claimants seeking extensions of time to demonstrate that it had taken all reasonable steps to serve in time and had acted promptly in applying for an extension of time. It was determined that Farnham Town Council could not demonstrate such steps had been taken and their application was dismissed.
All’s well that ends well
So, where does this leave those wanting to challenge planning decisions?
Section 288(4B) of the 1990 Act is clear, “An application for leave for the purposes of subsection (4A) [that is to bring an application for a statutory challenge], must be made before the end of the period of six weeks beginning with the day after” the date of the decision/action being challenged. But what does “made” mean?
CPR PD54D provides clarity at paragraph 4.2 providing, “A Part 8 claim form must be used and must be filed at the Administrative Court within the time limited by the statutory provisions…” and paragraph 4.11 prescribes, “The claim for must be served within the time limited by the relevant enactment for making a claim for planning statutory review…”
It is therefore clear that to comply with the Civil Procedure Rules and bring an application for statutory challenge under section 288 of the 1990 Act, two actions must be completed:
- Filing the application with the Court; and
- Serving the challenge on the Defendant
both within the six-week statutory period.
No doubt this decision will be viewed positively by developers and decision-makers who, above all, want certainty about when the challenge period has passed. The High Court has given a clear steer that it will not entertain challenges which are not served in time, and, except in exceptional circumstances, planning decisions will be safe from challenge under ss.288 and 289 once the six-week period has passed. It does, however, serve as a warning to practitioners that the High Court will hold claimants strictly to the CPR, and the detailed rules cannot be applied ‘As You Like It’.
Alex Minhinick is a Partner and Emily Kell-Rowan is an Associate at Burges Salmon.
