Limitation periods for judicial review: is it ever too late?
Cases where extensions of time have been granted for several years
The time limit to bring a judicial review claim for a planning decision is six weeks from the date of the decision (CPR 54.5 (5)). The courts normally refuse to accept any late applications.
However, recent case law suggests that on rare occasions, the courts will accept a late claim for judicial review.
In the recent case of R (Croyde Area Residents Association) v North Devon DC, the High Court held that a planning permission was unlawful and quashed the decision. In this case, the claimant sought judicial review of permission for the use of lodges, static caravans and touring caravans at a Holiday Park. When permission was granted in 2014, the permission erroneously extended the area of the holiday park. In 2018, the owner of the holiday park applied for a certificate of lawfulness for the stationing of caravans, which they argued the 2014 permission permitted. The application was refused by the Council but granted on appeal by the Planning Inspector. This was because the plan on the 2014 permission included that field and other undeveloped land within the caravan park and even third party land outside it. The Council had inadvertently granted permission for an extended area which had not been applied for. The error of the boundary line of the site went unnoticed by the officers, until the certificate was granted.
Both parties agreed the permission was unlawful but the owner of the holiday park resisted the planning permission being quashed, due to the time that had passed in bringing the challenge.
In deciding the matter, the High Court had to consider using their discretionary powers whether to allow a late claim pursuant to s. 31(6) Senior Courts Act 1981 and weigh up whether allowing the same would cause substantial hardship to, or substantial prejudice or any detriment to good administration.
The judge in this case felt this case was a more extreme version of the Thornton Hall case (see below) and as there would be very little prejudice to the owner, the planning permission was unlawful in the first place and that consideration needed to be given to the credibility of the planning system, the planning permission should be quashed.
Also of importance was that the unlawful part of the planning permission, the extension of the site, had still not been implemented and until the certificate application was made four years later, no one was aware of the error. The overriding factor though was found to be the harm that would flow from upholding the planning permission.
In the Thornton Hall hotel case, planning permission was granted to Thornton Holding. The officer has recommended that the permission was subject to certain conditions, including a time limit on the permission of five years. However, the Council incorrectly issued the decision notice in 2011 without any conditions and therefore there was no time limit on when the use needed to cease. Five years after grant of the permission a judicial review application was made by Thornton Hall Hotel (rival neighbours of Thornton Holdings) of the Council’s decision to issue the permission on the grounds that it had been granted in error and was unlawful because it did not include the conditions that the officer had intended. The High Court accepted that the necessary extension of time for bringing the claim should be granted, despite the claim being bought five and half years later, and that the planning permission was unlawful, and therefore it should be quashed. The Court of Appeal upheld this decision mainly to uphold the integrity of the planning system, as the permission should not have been issued in the form it was in the first place.
Cases where extension of time, even of a few days, was refused
The case of Save Britain’s Heritage also reiterated the importance of issuing a challenge promptly. In this case the High Court had to determine which date the six week limit ran from. Was it the date the decision was made (30 July) or the date the claimant was notified of the decision (4 August). The discrepancy between these two dates would determine whether the claim was made in time or not. The High Court found that 30 July was the correct date and thus the claim was filed out of time, despite it being only a couple of days late. Furthermore, the High Court also considered whether an extension of time should be granted. However, as no explanation was provided for why the application was made out of time and the claimant was able to submit a pre-action protocol letter on 17 August with detailed grounds, with the knowledge that the decision was made on 30 July, the High Court felt that the claimant would have been in a position to commence proceedings by the expiry of the six week period, as they could have cut and pasted the grounds from their pre-action letter.
It is best always to try and comply with the six week time limit where possible and file the claim within time even if the grounds of challenge are not completely finalised (you can seek to add to them later if necessary). If you fail to do this, there is significant risk that an extension of time will not be granted.
If you do need to apply for an extension of time, you will need to show that no prejudice will be caused as a result of the late claim, that significant harm will be caused to the credibility of the planning system if the extension of time is not granted because the planning permission was unlawful, and that there was a clear error by the Local Planning Authority.