Court of Appeal Clarifies Rules for Planning Statutory Review Deadlines - The Legend of Hanuman

Court of Appeal Clarifies Rules for Planning Statutory Review Deadlines


The Court of Appeal highlights the importance of taking reasonable steps when filing a claim with the court to ensure that planning statutory review deadlines are met.

Overview

In the case of Secretary of State for Levelling Up, Housing and Communities v Rogers [2024] EWCA Civ 1554, the appellant, the Secretary of State for Levelling Up, Housing and Communities (Secretary of State), challenged the decision of the Deputy High Court Judge to grant an extension of time for service of a claim form.

In the Court of Appeal, Lord Justice Coulson concluded that the extension of time should not have been granted because Mr Bryan Rogers’ solicitors did not alert the Manchester Administrative Court Office of the relevant time limit for serving the claim form and did not pursue the court office to issue a sealed claim form prior to the expiry of the time limit. Moreover, Mr Rogers’ solicitors did not apply for an extension of time until ten weeks after the time limit expired.

The Court of Appeal found that the Mr Rogers’ solicitors failed to take all reasonable steps to serve the claim form for the planning statutory review, within the six-week time period and therefore were not entitled to an extension of time.

Extension of time for the service of claim forms has become a contested issue recently with six decisions in the last 18 months. This decision emphasises the importance of proactively communicating with the court so that service requirements can be met within the relevant time limit. This case also highlights the importance of seeking an extension of time before relevant the time limit has expired.

Facts

Mr Rogers appealed against an enforcement notice and refusal to grant planning permission by South Staffordshire District Council. The appointed Inspector dismissed Mr Rogers’ appeal on 23 March 2023.

Mr Rogers brought two challenges, the first challenge was to the Planning Inspector’s refusal of the enforcement appeal under section 289 of the Town and Country Planning Act 1990 (the 1990 Act) and the second challenge was the Planning Inspector’s refusal of planning permission under section 288 of the 1990 Act.

The time limit for service of notice of appeal of a section 289 appeal is 28 days from the date of the Inspector’s Decision Letter. The time limit for service of a claim form in respect of a section 288 review is six weeks from the date of the Inspector’s Decision Letter. In this case, Mr Rogers was required to complete service of the section 289 appeal by 20 April 2023 and the section 288 review by 4 May 2023.

On 18 April 2023, Mr Rogers filed a claim form and related documents with the court office for both the section 289 appeal and section 288 review.

On 2 May 2023, Mr Rogers’ solicitor emailed the court office, asking it to acknowledge receipt of the claim. The relevant time limits for the section 289 appeal and the section 288 review were not mentioned. From 11 May to 14 June 2023, there were various phone calls and emails between Mr Rogers’ solicitors and the court office regarding the applications. These communications highlight the confusion over which documents related to the section 289 appeal, which documents related to the section 288 review, and which documents applied to both. Also, the Part 8 claim form incorrectly referred to the section 289 appeal instead of the section 288 review. The time limit to serve the section 289 appeal and section 288 review expired on 20 April and 4 May 2023, respectively.

On 15 June 2023, the court office issued a section 289 appellant notice. The court office also purported to issue the section 288 review and incorrectly advised that the claim form could not be sealed until the appeal was granted permission.

On 21 June 2023, Mr Rogers served section 289 appellant notice and the unsealed claim form for section 288 on the Secretary of State. This was the first time that the Secretary of State became aware of section 288 claim. It is accepted that this was not good service. The Secretary of State responded to say that the service of the unsealed claim form was significantly out of time.

There was further communication between Mr Rogers’ solicitors and the court office between 6 July and 11 July in relation to the sealed claim form, further highlighting the confusion about whether the claim form applied to section 289 appeal or section 288 review.

On 13 July 2023, Mr Rogers filed an application seeking an extension of time for service of the claim form.

On 4 August 2023, the Secretary of State filed and served an acknowledgement of service and sought a declaration that the court had no jurisdiction to deal with the section 288 review because the time for service had expired. On 17 August, Mr Rogers’ solicitors confirmed that the section 289 appeal was being withdrawn.

The Deputy High Court Judge dismissed the Secretary of State’s application for a declaration. The Judge concluded that failure to serve the sealed claim form for section 288 review within the six-week time limit was due to delays by the court office and that Mr Rogers’ solicitors took reasonable steps to effect valid service but due to matters outside of their control, the solicitors were unable to do so. The Judge extended the time for service of the sealed claim form to 12 July 2023 – when service of the sealed claim form was finally completed – 69 days after the expiry of the time limit.

Court of Appeal judgement

The Secretary of State appealed the Deputy High Court Judge’s decision on two grounds:

  1. That the Judge’s conclusions relied on irrelevant matters that occurred after the 4 May 2023 deadline (when the time to serve the sealed claim form had already expired) and
  2. That the Judge failed to consider the prejudice to the Secretary of State caused by the loss of a limitation defence and the lack of promptitude by the respondent in making the application to extend time.

Lord Justice Coulson followed the reasoning in R (Good Law Project) v Secretary of State for Health and Social Care [2022] EWCA Civ 355, that Civil Procedure Rule 7.6(3) applies to section 288 reviews by analogy. Therefore, the Claimant had to show that:

  1. They had taken all reasonable steps to serve the claim form within the time limit but were unable to, and
  2. That they had acted promptly in making the application for an extension of time.

Did Mr Roger’s solicitors take all reasonable steps to serve the claim form within the time limit?

Lord Justice Coulson was critical of the delay by the court office in sealing and issuing of section 288 claim form and considered that the confusion created by filing of both applications together should have been resolved by a single phone call.

However, the fact that the documents were filed with the court in good time did not mean that all reasonable steps to serve the claim form had been taken.

Lord Justice Coulson explains that ‘taking all reasonable steps’ requires a person to:

  1. Alert the court of any deadlines when filing the application.
  2. Follow up with the court by email and telephone if documents are not issued within three working days and
  3. Reiterate the deadline to the court as it approaches.

In this case, Mr Rogers’ solicitors did not alert the court office of the relevant deadlines and did not follow up with the court until they asked the court to acknowledge receipt of the application on 2 May 2023 (at which point the deadline for service of section 289 appeal had passed and the deadline for service of section 288 review was two days away).

Lord Justice Coulson considered that the fact the claim form was filed with the court in good time did not demonstrate that Mr Roger’s solicitors had taken all reasonable steps to serve the claim form by the deadline.

Lord Justice Coulson went onto say that, after filing a claim form, a claimant cannot safely sit back, no matter how early the documents were filed and do nothing. In this case, Mr Roger’s solicitors did not set out the relevant time limits to the court office at the outset and then compounded that error by failing to react to the inactivity of the court office by energetically chasing the issue of the claim form. Therefore, Mr Roger’s solicitors did not take all reasonable steps to serve the claim form within the six-week time limit.

Did Mr Rogers’ solicitors act promptly in making the application for an extension of time?

Lord Justice Coulson considers that Mr Rogers’ solicitors clearly did not act promptly in applying for an extension of time. Generally, an application to extend time must be made before the relevant time limit has expired. In this case, the application was not made until 10 weeks after the deadline for serving the section 288 claim form. Mr Rogers’ solicitors should have made the application on 2 or 3 May when it became apparent that service within the deadline may not be possible.

Key messages for practitioners

  1. If multiple applications are being filed together, it needs to be clear to the court which documents apply to which part of the application.
  2. Solicitors should take the following steps when filing application documents with the court:
    a. Alert the court to any relevant deadline when filing the application;
    b. Follow up with the court by email and telephone if the claim is not sealed within three working days, and
    c. Reiterate the deadline to the court as it approaches.
  1. Any application for an extension of time should be made before the relevant time limit for the challenge expires.

Need advice?

Our independently ranked, eight-strong Planning & Environment team is dedicated to resolving planning issues swiftly and cost-effectively. For further advice or to discuss your project, get in touch with our team at online.enquiries@LA-law.com.




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