Court of Appeal upholds High Court decision to allow judicial review claim brought over five and a half years after grounds first arose

The High Court judgement in the case of Thornton Hall caused a stir when it was issued in March 2018, as the Court allowed a judicial review claim brought by the Thornton Hall Hotel to proceed notwithstanding that it was lodged with the Court some five and a half years or so after the grant planning of permission. Albeit subject to the Court’s discretion, the ‘standard’ period within which claims must be brought in planning cases is 6 weeks. Not only was leave granted, but the claim was successful.

Understandably, with relatively extreme facts such as these, the beneficiary of the planning permission, Thornton Holdings, appealed to the Court of Appeal.

To briefly refresh on the facts of the case, Wirral Metropolitan Borough Council (‘the Council’) granted planning permission in December 2011 for three marquees within the Thornton Manor estate. The Council intended to impose a number of planning conditions, including one limiting the permission to five years. This was evident from the committee report, the resolution, and the section 106 agreement which included a draft decision notice. However, the Council’s actual grant of planning permission included no planning conditions at all, clearly in error.

There then was a period of confusion over what was the decision notice, with several drafts being available on the Council’s planning portal, eventually to be replaced in May 2012 by a single decision notice dated from December 2011 that did have conditions listed on it, but which was signed by the Director of Regeneration who was only in post from March 2012.

After five years had passed, in March 2017. Thornton Hall’s solicitors contacted the Council explaining that the marquees remained on site in breach of planning control. This then was the beginnings of the judicial review claim Thornton Hall eventually lodged in August 2017. The High Court granted leave for the claim to proceed, granting an extension of time in the process. It then quashed the planning permission, not least because the error only became apparent to the claimant in late 2016 (when the five year period that should have been imposed would have expired), and because this was arelatively overt case of an error that was detrimental to the integrity of the planning process.

The Court of Appeal was faced with two issues. Firstly, was the judge in the High Court correct to grant an extension of time, and secondly was he wrong in not exercising his discretion to refuse relief (under s31(6) of the Supreme Court Act 1981).

On the first issue, the Court of Appeal found that:

  • Whist is was undeniable this was an extreme example, unique even, the Court’s power to extend time is not extinguished after a particular period. Whether the Court does extend time will be very fact sensitive.
  • This was also an unusual case in that there could be no dispute that the permission should not have been issued in the form it was. There was no lawful authority for grant without planning conditions.
  • The consequence or effect of the unlawfulness was not immediately apparent, it only became so after 5 years.
  • Thornton Holdings, the appellant, was well aware of the error relatively soon after grant, but stayed silent. This damaged their arguments that they would suffer material detriment as a result of relying on the permission. They were relying on a decision they knew to be defective.
  • There were strong arguments concerning good administration and the integrity of the planning system that advocated an extension (and subsequently a quashing order).

On the second:

  • the factors relevant to this ground were considered by the Court to be the same as those set out above.
  • even though “normally, in a case where such a long delay has occurred…the court would not grant relief...we are in no doubt that in the extremely unusual circumstances of this case, the judge was right not to withhold a remedy”.

The Court was very concerned to highlight the unusual, special, and extreme facts before it in this instance, noting in its conclusions that “no precedent is being set here. We stress once again that the court will not lightly grant a length extension of time for a challenge…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”.

Whilst therefore, in general, 6 weeks remains the key period to have in mind when considering judicial review risk, the Court retains discretion to extend this, in extreme cases in a very significant way.

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