Six week planning challenge limit reinforced by Court of Appeal

In the recent case of Croke v Secretary of State for Communities and Local Government [2019] EWCA Civ 54 the Court of Appeal refused to extend the six-week statutory time limit for challenging a planning inspector’s decision where the individual had been prevented from filing on the day of the deadline.

Mr Croke, the Appellant in the case, intended to file his challenge under Section 288 of the TCPA 1990 within the six-week statutory time limit, by 23 March 2016. Mr Croke’s agent arrived at the Court doors at 4:25pm on 23 March, five minutes before the Court’s official closing time. Mr Croke’s agent was refused entry as the Court counter had already closed. Mr Croke attended the Administrative Court Office himself the following day arriving at 3:25pm. After queuing for a considerable time, he reached the front of the queue at 5:00pm. Mr Croke attempted to file his application using a standard Part 8 claim form but a member of the court staff told him he should have used a Planning Court claim form instead. He refused the Appellant’s request that he be allowed to complete the form and file it straight away and told him to return with the completed form on the next working day. Mr Croke returned for a third time (due to the Easter Bank holiday) on 29 March 2016 filing his challenge six days after the deadline.

Mr Croke sought an extension of time of one working day, to 24 March 2016, followed by a further extension of time of one working day, to 29 March 2016.

The Secretary of State applied to strike out the Appellant’s application on the basis that the application was made too late. The strike-out application was granted by the High Court. Mr Croke subsequently appealed the decision of the High Court to refuse leave to the Court of Appeal.

The Appellant argued that the governing principles (as set out in the case of Kaur, where the High Court ruled that a claim could be brought on the next working day if the time limit for making it expired on a non-working day) should be extended in this case.

Mr Croke argued that it was the action of the court, in this case the security officer employed by it, that had deprived him of the full six-week period to lodge an application under TCPA 1990, s 288. Mr Croke proposed that the Kaur principle be adjusted, so that if a prospective litigant had been inside the court building within normal court working hours but had then been prevented from lodging a claim on that day, that day should be treated as being a ‘dies non’ (a non-working day). Lindblom J concluded that the alteration of that principle urged by the Appellant would go against the approach taken in the relevant authorities. It would stretch the principle beyond calendar events, which are fixed and certain, to circumstances that are unexpected and unpredictable, including not only the acts of third parties but also the actions or inaction of the litigant himself over which the court had no control.

Lindblom J also discussed the ‘obvious difficulties’ with adjusting the Kaur principle. He stated that time limits enabled all potential parties to the proceedings to know where they stood and to act accordingly. It was clear that the Appellant’s failure to lodge his application on the last day of the six-week period was not the result of any event falling within the principle in Kaur. To extend the time period to accommodate the unfortunate facts of a particular case such as this, would be to undermine the principle.

This case acts as an important reminder to those leaving challenges under s.288 until the last minute. Unless the statutory time limit ends on a day where the Court is not open or exceptional circumstances exist (i.e. where human rights grounds may apply), do not leave it to chance. File your application with the Court well before the deadline.

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