South Derbyshire District Council v Secretary of State for Housing Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews |
| Judgment Date | 09 April 2020 |
| Neutral Citation | [2020] EWHC 872 (Admin) |
| Date | 09 April 2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4505/2019 |
[2020] EWHC 872 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
33 Bull Street, Birmingham
THE HONOURABLE Mrs Justice Andrews DBE
Case No: CO/4505/2019
and
Timothy Jones (instructed by Geldards LLP) for the Claimant
Killian Garvey (instructed by the Government Legal Department) for the Defendant
Christian Hawley instructed by Howes Percival LLP for the Interested Party (written submissions only)
Hearing dates: 31 March 2020
Approved Judgment
INTRODUCTION
This matter came before me on an oral hearing for determination of a preliminary issue of jurisdiction. The question whether permission should be granted to bring a claim for planning statutory review under s.288 Town and Country Planning Act 1990 (“the 1990 Act”) was ordered to be determined at the same hearing if the preliminary issue of jurisdiction was decided in favour of the Claimant, South Derbyshire District Council. The Claimant was represented at the hearing by Mr Jones and the Defendant by Mr Garvey. I have also taken into consideration the summary grounds of resistance settled by Mr Hawley on behalf of the Interested Party.
S.288 of the 1990 Act provides, so far as relevant, as follows:
(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.
One of the “actions” to which s.288(1)(b) applies is a decision taken by a Planning Inspector on a planning appeal.
Before the requirement for leave was introduced in 2015, s.288(3) provided that: “ an application under this section must be made within six weeks of [the decision]”. That provision was superseded by s.288(4B).
The relevant provisions of the CPR specifically relating to Planning Court claims are PD8C, CPR 54.5(5) and PD 54E. PD 8C provides, in para. 1.3, that the Part 8 procedure must be used in a claim for planning statutory review. By virtue of paras. 1.1 and 1.2 that expression includes a claim for statutory review under s.288 of the 1990 Act.
PD 8C modifies the Part 8 procedure. Para. 2.1 provides that a Part 8 claim form must be used and must be filed at the Administrative Court within the time limited by the statutory provisions set out in paragraph 1.1. Para. 2.2 stipulates certain matters that must be stated in the claim form in addition to the matters prescribed in CPR 8.2. These include:
a) The name and address of any person that the claimant considers must be served in accordance with paragraph 4.1 (of PD8C) and
b) That the claimant is requesting permission to proceed with a claim for planning statutory review.
Thus, the prescribed means by which a claimant makes an application for the leave of the High Court required under s.288 (4A) is by including a request for permission to proceed with the claim in the Part 8 claim form.
PD 54E, which relates to Planning Court claims, provides by paragraph 2.1 that a Planning Court claim must be issued or lodged in the Administrative Court Office of the High Court in accordance with PD 54D. That practice direction relates to the place in which a claim before the Administrative Court should be started and administered and the venue at which it will be determined.
CPR 54.5 sets out the time limits for filing a claim form in claims for judicial review and statutory review. CPR 54.5(5) specifies that:
“ Where the application for judicial review relates to a decision made by the Secretary of State or local planning authority under the planning acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose.”
Service of the claim form is dealt with under para.4 of PD8C. This provides that the claim form must be served on the Minister and on relevant interested parties (as set out in a table). Para 4.4 states that:
“ The claim form must be served within the time limited by the relevant enactment for making a claim for planning statutory review set out in paragraph 1.1.”
WAS THE APPLICATION MADE IN TIME?
The preliminary issue which arises for determination is whether the application for permission was made within the six weeks prescribed by the statute. If it was not, then this Court has no jurisdiction to entertain the claim.
The decision of the Defendant's Planning Inspector which the Claimant seeks to challenge is dated 9 October 2019. It is common ground that the six weeks expired at midnight on 20 November 2019. The claim, including the application for permission, was issued and filed with the Administrative Court in Wales within that period, on 15 November 2019, in accordance with CPR 54.5 (5) and PD 54E para 2.1.
The claim form was then posted by the Claimant's solicitors on 19 November 2019 to the Government Legal Department (“GLD”) at One Kemble Street, London WC2. That was the address for service on the Defendant under s.17 of the Crown Proceedings Act 1947 which then appeared in the list set out in Annex 2 to PD66 in the main volume of the hard copy of Part 1 of the White Book 2019. A certificate of service was filed by a solicitor confirming the date of posting for the purpose of CPR 7.5(1).
Unfortunately for the Claimant, the GLD had moved offices on 11 September 2019 to 102 Petty France, London SW1. Section 17 of the Crown Proceedings Act was amended after the move to reflect this change in address. The updated address had been put in the online (electronic) version of the White Book by the time the claim form was posted, and a search for the GLD's address online would have revealed the new address. However, there is no update to PD66 in the 3 rd supplement to the hard copy of the White Book, which updated the CPR to 1 October 2019. There is no evidence that any further supplement was published before 19 November.
The evidence of Ms Wittkopf, a lawyer at the GLD, is that given the short delay in the amendment of the Crown Proceedings Act, the GLD extended a grace period and decided to accept service of proceedings at either address until 4pm on 25 September 2019.
The Claimant had sent a pre-action protocol letter to the Defendant on 29 October 2019, to which the GLD responded on 11 November 2019. The response from the GLD stated in paragraph 30 that the address for service was 102 Petty France. Unfortunately, this was overlooked by the Claimant's solicitors, who were unaware that the GLD's address had changed. They took the address from the hard copy of the White Book.
Ms Wittkopf's evidence is that there was an automatic redirection of mail in operation for correspondence addressed to the GLD at One Kemble Street. However, because the new offices are shared with the Ministry of Justice and the Crown Prosecution Service, a private postal company collects the mail for 102 Petty France from Royal Mail and security scans it off-site, before delivering it on the next business day. Therefore, although the claim form was automatically redirected to 102 Petty France, it was collected by the private postal company on 20 November, and it did not arrive at 102 Petty France until 21 November, one day after the six-week period expired. There is no suggestion that there has been any prejudice to the Defendant in consequence.
In Mendip District Council v Secretary of State for the Environment and another [1993] JPL 434 (“ Mendip”), Schiemann J decided what was meant by the “making of an application” for the purposes of the statutory time limit (which was then prescribed by s.288(3)). He concluded that whilst the rules of the Supreme Court then in force required that the notice of originating motion had to be entered at the Crown Office and served on the appropriate Minister within the six week time limit, the “application to the High Court” required by the statute was the entry of the notice of motion at the Crown Office. Accordingly, in a case where the application was made within the statutory time limit, but the service was not within the period specified by the rules of court, the Court had power to extend the time for service.
In so deciding, Schiemann J followed the approach taken by Morris J in Summers and others v Minister of Health [1947] 1 All ER 184, to the provisions which he described as “ the forerunner in as near as makes no relevant difference of the present section 288”. In Summers, Morris J made it clear that the question whether the court had power to extend time for service depended on whether all steps, including service, must take place to constitute an application; or whether the application was made by the entry...
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