Extension of Time

May 2nd, 2019

Whether Kerr J was wrong when he exercised his discretion to extend time for a challenge to be brought by a claim for judicial review against a planning permission granted more than five and a half years before the claim was issued was the question at the heart of the appeal in R (Thornton Hall Hotel Ltd) v Wirral MBC (2019) EWCA Civ 737.  The appeal raised two main issues: first, in view of the delay of more than five and a half years, whether the Judge erred in extending time for the claim to be brought, under CPR r.3.1(2)(a); and second, having regard to the substance of the claim, whether he was wrong not to exercise his discretion to refuse relief under Section 31(6) of the Senior Courts Act 1981.  The appeal was dismissed on both issues.

As regards the requirement of timeliness in challenging a grant of planning permission, the Court of Appeal (paragraph 21) drew from the relevant case law the following broad principles:-

(1) When a grant of planning permission is challenged by a claim for judicial review, the importance of the claimant acting promptly is accentuated: the claimant must proceed with the “greatest possible celerity” – because a landowner is entitled to rely on a planning permission granted by a local planning authority exercising its statutory functions in the public interest; and in such cases the Court will only rarely accede to an application to extend time for a very late challenge to be brought;

(2) When faced with an application to extend time for the bringing of a claim, the Court will seek to strike a fair balance between the interests of the developer and the public interest;

(3) Developers are generally entitled to rely on a grant of planning permission as valid and lawful unless a court has decided otherwise;

(4) What is required to satisfy the requirement of promptness “will vary from case to case”, and “depends on all the relevant circumstances”: if there is a strong case for saying that the permission was ultra vires, the Court might in the circumstances be willing to grant permission to proceed, but given the delay, it requires a much clearer-cut case than would otherwise have been necessary;

(5) The Court will not generally exercise its discretion to extend time on the basis of legal advice that the claimant might or should have received;

(6) Once the Court has decided that an extension of time for issuing a claim is justified and has granted it, the question cannot be re-opened when the claim itself is heard;

(7) The Court’s discretion requires an assessment of all relevant considerations, including the extent of hardship or prejudice likely to be suffered by the landowner or developer if relief is granted, compared with the hardship or prejudice to the claimant if relief is refused, and the extent of detriment to good administration if relief is granted, compared with the detriment to good administration resulting from letting a public wrong go unremedied if relief is refused: the concept of detriment to good administration is not tightly defined, but will generally embrace the length of the delay in bringing the challenge, the effect of the impugned decision before the claim was issued, and the likely consequences of its being re-opened, with each case turning on its own particular facts and an evaluation of all the relevant circumstances;

(8) It being a matter of judicial discretion, the Court of Appeal will not interfere with the first instance Judge’s decision unless it is flawed by a misdirection in law or by a failure to have regard to relevant considerations or the taking into account of considerations that are irrelevant, or the Judge’s conclusion is clearly wrong and beyond the scope of legitimate judgment.

Kerr J had been right to grant the extension of time for the challenge to the planning permission in the unique circumstances of this case. The permission had erroneously omitted conditions specified by the planning committee, including a time limit on the permission. The claimant had proceeded with reasonable speed upon discovering the mistake. The Court of Appeal said:-

“36. … this is clearly a case in which the interests of good administration, and indeed the credibility of the planning system, weighed compellingly in favour of the court having the opportunity to hear the claim and, if the claim succeeded, to deal with the council’s error.  If … the decision notice it issued was issued without lawful authority, it might fairly be described as the antithesis of good administration.

37. Taking everything together, … we agree with the judge that this was a case where “very special reasons” do exist to excuse the delay, long as it was. In the circumstances here the judge was entitled, and in our view right, to grant the necessary extension of time for the claim to proceed. In doing so, he made no error of principle.  His approach was correct.  It was consistent with the relevant principles in the authorities.”

“45. In principle … this is clearly a case in which, leaving aside the delay, the court would generally not hesitate to quash the planning permission …”

“48. Normally, in a case where such a long delay has occurred in a complaint of unlawfulness in a planning decision being brought before the court in a claim for judicial review, the court would not grant relief.  Nothing we say in this judgment should be taken as suggesting the contrary. Equally however, we are in no doubt that, in the extremely unusual circumstances of this case, the judge was right not to withhold a remedy despite the very considerable delay in proceedings being begun.

49. There are three considerations in this case that tell strongly in favour of that conclusion.  First, the council’s mistake in issuing a decision notice that did not reflect its own lawful decision was and remains – as it concedes – an indisputable error. The decision notice mispresents the council’s decision. If the planning permission were not quashed, this manifest unlawfulness would persist.  Secondly, this is not the normal case where a landowner or developer is entitled to rely upon a permanent planning permission not promptly challenged before the court. In this case the very delay in issuing the proceedings, far from prejudicing the commercial interests of Thornton Holdings, had the effect of enabling them to enjoy to the full, and beyond, the fruits of the temporary planning permission the council had in fact decided to grant. Thirdly, given that the council’s committee resolved to grant no more than a five-year temporary permission, if the decision had been properly translated into the decision notice, the marquees would not have had the benefit of planning permission after 20 December 2016 and a further grant of planning permission would have been required for their retention. The effect of the quashing order, therefore, would not be to deprive Thornton Holdings of the value of the planning permission the council actually decided to grant. It would merely be to restore the position as it was when the decision itself was lawfully made.

50. We have considered whether, in view of the very lengthy delay, there are grounds for interfering with the judge’s decision not to exercise his discretion to refuse relief in the form of a quashing order. We think not. … Despite the lengthy delay, the judge’s decision not to withhold relief was, we think, amply justified.  The effect of that decision was both to undo an injustice and to sustain the public interest.

Conclusion

51. For the reasons we have given, the appeal must be dismissed. The opposite conclusion would not meet the justice of this particular case. No precedent is being set here. We stress once again that the court will not lightly grant a lengthy extension of time for a challenge to a planning decision by a claim for judicial review, nor will it lightly grant relief after a long delay. It will insist on promptness in bringing such challenges in all but the most exceptional circumstances. Here the circumstances are most exceptional. They are wholly extraordinary. This is a case where it can truly be said that the exception proves the rule.”

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