John Noel Croke v Secretary of State for Communities and Local Government

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Lindblom,Lord Justice Irwin,Lord Justice Baker
Judgment Date01 February 2019
Neutral Citation[2019] EWCA Civ 54
Docket NumberCase No: C1/2016/3929
Date01 February 2019

[2019] EWCA Civ 54

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

PLANNING COURT

HER HONOUR JUDGE ALICE ROBINSON

(sitting as a deputy judge of the High Court)

[2016] EWHC 2484 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Lindblom

Lord Justice Irwin

and

Lord Justice Baker

Case No: C1/2016/3929

Between:
John Noel Croke
Appellant
and
(1) Secretary of State for Communities and Local Government
(2) Aylesbury Vale District Council
Respondents

The Appellant was not represented and appeared in person.

Mr Zack Simons and Mr Alistair Mills (instructed by the Government Legal Department) for the First Respondent

The Second Respondent did not appear and was not represented.

Hearing date: 4 October 2018

Judgment Approved by the court for handing down

(subject to editorial corrections)

Lord Justice Lindblom

Introduction

1

Is the six-week time limit for bringing a challenge to a decision on a planning appeal under section 288 of the Town and Country Planning Act 1990 absolute, even when the applicant may not himself be entirely responsible for the late filing of the application? That is the central question in this appeal. It is not a question on which there is any lack of relevant authority.

2

With permission granted by Hickinbottom L.J., the appellant, Mr John Croke, appeals against the order of H.H.J. Alice Robinson, sitting as a deputy judge of the High Court, dated 11 October 2016, by which she refused leave under section 288(4A) of the 1990 Act for his application challenging the decision of an inspector appointed by the first respondent, the Secretary of State for Communities and Local Government, to dismiss his appeal under section 78 against the failure by the second respondent, Aylesbury Vale District Council, to determine an application for planning permission for development at “The Grange Barns”, Church Road, Ickford, near Aylesbury. The proposed development involved the alteration and extension of existing buildings to create two dwellings, with parking and a swimming pool. The inspector's decision letter is dated 10 February 2016. The six-week time limit for challenging his decision, under section 288(4B), ended on 23 March 2016. Mr Croke's application under section 288 was lodged with the court on 29 March 2016. The judge refused leave because the application was made too late, and the court therefore had no jurisdiction to hear it.

3

Two unsuccessful attempts were made by Mr Croke to lodge the application with the court – the first on 23 March 2016, the second on 24 March 2016 – after the six-week period had expired. The Secretary of State applied to strike it out on the grounds that the court had no jurisdiction. The strike-out application was resisted by Mr Croke, but granted by Ouseley J. on the papers. The matter came before H.H.J. Robinson at an oral hearing on 28 September 2016. The effect of her order was to confirm Ouseley J.'s decision to strike out.

The issues in the appeal

4

The appeal is on two grounds. It must succeed on both. To allow it, the court would have to extend the six-week time limit in section 288(4B) twice: first, from 23 to 24 March 2016, and, secondly, from 24 to 29 March 2016. Two issues therefore arise:

(1) whether the statutory period for challenging the Secretary of State's decision can be extended by a single day from 23 to 24 March 2016; and

(2) if so, but only if so, whether time can be further extended to 29 March 2016.

The statutory time limit

5

The relevant provisions in section 288 of the 1990 Act are these:

“(1) If any person – …

(b) is aggrieved by any action on the part of the Secretary of State … to which this section applies and wishes to question the validity of that action on the grounds –

(i) that the action is not within the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the High Court under this section.

(4A) An application under this section may not be made without the leave of the High Court.

(4B) An application for leave for the purposes of subsection (4A) must be made before the end of the period of six weeks beginning with the day after –

(c) in the case of an application relating to an action to which this section applies, the date on which the action is taken;

….”

6

There is ample case law on the effect of time limit provisions such as subsection (4B). Statutory time limits have traditionally been regarded by the courts as immutable. Even if the order or action under challenge is said to be a nullity, and even if the applicant was unaware of the action that might be challenged and could not reasonably have been expected to be aware of it, the six-week time limit has been held to be absolute (see Smith v East Elloe Rural District Council [1956] A.C. 736, Routh v Reading Corporation (1970) 217 E.G. 1337, Hamilton v Secretary of State for Scotland 1972 S.L.T. 233, R. v Secretary of State for the Environment, ex p. Ostler [1977] Q.B. 122, R. v Cornwall County Council, ex p. Huntingdon [1992] 3 All E.R. 566, Eco-Energy (GB) Ltd. v First Secretary of State [2004] EWCA Civ 1566, and R. v Secretary of State for the Environment, ex p. Kent [1990] J.P.L. 124). As Parker L.J. said in Kent (on p.127), “… Parliament has specifically provided for action” but “has limited that entitlement by a time limit of six weeks”.

7

Time starts to run on the day after the date of the decision letter itself, not the day on which it is received by the applicant (see Griffiths v Secretary of State for the Environment [1983] 1 All E.R. 439). It expires at midnight on the 42 nd day (see Okolo v Secretary of State for the Environment [1997] 4 All E.R. 242, R. (on the application of Blue Green London Plan) v Secretary of State for the Environment, Food and Rural Affairs [2015] EWCA Civ 876, and the note at P288.05 in the Encyclopedia of Planning Law and Practice). It continues to run over a weekend or Bank Holiday (see Stainer v Secretary of State for the Environment (1993) 65 P. & C.R. 310). But if the last day falls on a weekend or Bank Holiday, time is extended to the next day on which the court office is open (see Calverton Parish Council v Nottingham City Council [2015] EWHC 503 (Admin)).

8

Since 26 October 2015 the procedure for filing and serving applications under section 288 has been governed by Practice Direction 8C, “Alternative Procedure for Statutory Review of Certain Planning Matters”, which supplements CPR Part 8. CPR r.8.2 sets out the requirements for the “Contents of the claim form”. The note in paragraph 8.2.1 in the White Book Service 2018 says that “[if], in error, a claimant uses an incorrect claim form the Court will not strike out the claim but will make an order rectifying the position: Hannigan v Hannigan [2000] 2 F.C.R. 650. The requirements of CPR r.8.2 are amplified in paragraphs 2.1 to 2.4 of the Practice Direction. The claim form – which is stated as being “(in practice form N208)”, whereas Annex A to Practice Direction 4 indicates that the form for “Planning Statutory Review” is form N208PC – must be filed at the Administrative Court within the statutory time limit (paragraph 2.1). In addition to the matters set out in rule 8.2, it must state, among other things, that permission is being sought to proceed with “a claim for planning statutory review” (paragraph 2.2(b)). It must include “a detailed statement of the claimant's grounds for bringing the claim for planning statutory review” (paragraph 2.2(c)), and “a statement of the facts relied on” (paragraph 2.2(d)); be accompanied by the specified documents, including “any written evidence in support of the claim” (paragraph 2.3(a)); and be served on “the appropriate Minister or government department” and on “[the] authority directly concerned with the decision …” (paragraph 4.1). Practice Direction 54E applies to “Planning Court claims”. Under the heading “How to start a Planning Court claim”, paragraph 2.1 states that “Planning Court claims must be issued or lodged in the Administrative Court Office of the High Court in accordance with Practice Direction 54D”. Paragraph 2.2 states that the form “must be marked the “Planning Court””. Under the heading “Venue – general provisions”, paragraph 2.1 of Practice Direction 54D states that the claim form in proceedings in the Administrative Court may be issued at the Administrative Court Office of the High Court at “(1) the Royal Courts of Justice in London …” (see the notes in the Encyclopedia of Planning Law and Practice, at P288. 04, P288.09 to P288.10).

9

That the court has a discretion to permit the correction of defects in, or the making of amendments to, a claim form is not in doubt. In Cala Homes (South) Ltd. v Chichester District Council (2000) 79 P. & C.R. 430, it was held that the filing of the claim on the wrong claim form and in the wrong court office would not automatically render the proceedings invalid. A similar approach was taken by the Court of Appeal in Thurrock Borough Council v Secretary of State for Environment, Transport and the Regions [2001] 1 P.L.R. 94, where the proceedings had been issued under section 289 of the 1990 Act, rather than section 288. In that case Brooke L.J., with whom Robert Walker L.J. and Sir Ronald Waterhouse agreed, accepted that the borough council should be given the right “to straighten out the formalities of [its] claim”, having launched it under the wrong section of the 1990 Act. To hold otherwise, he said, “would greatly inhibit the power of the court to deal with [its] case justly” and in accordance with the overriding objective in CPR r.1.1(1) (paragraph 27 of the judgment).

10

In San Vicente v Secretary of State for Communities and Local Government [2014] 1 W.L.R. 966, the applicants, having made their...

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