High Court judge dismisses planning claim as out of time

Litigants whose claims are subject to strict time limits “must make arrangements to ensure that they attend the court office in good time so that they are not thwarted by unexpected problems”, a Deputy High Court judge has said in a planning case.

The case of Croke v Secretary of State for Communities and Local Government & Anor [2016] EWHC 2484 (Admin) concerned an application pursuant to s.288 of the Town and Country Planning Act 1990 for permission to quash a decision of an inspector dated 10 February 2016 given on behalf of the Communities Secretary.

The inspector had dismissed an appeal by the claimant, Mr Croke, against non-determination by Aylesbury Vale District Council of an application for planning permission for alterations and extension to existing buildings to create a single residential dwelling with parking, sunken swimming pool and amenity space in Ickford.

The claim was seeking to challenge the decision on a number of grounds including misconstruing national planning policy, failure to take into account material considerations and inadequacy of reasons.

The claim form was filed on 29 March 2016, several days after expiry of the 6-week time limit for bringing a challenge under s.288 which ended on 23 March 2016. The Communities Secretary applied as a result to strike out the claim on the grounds that the court had no jurisdiction to entertain it.

Before Her Honour Judge Alice Robinson, Mr Croke asserted that, having regard to the attempts made to file the claim on 23 and 24 March, the claim was in time and the court should determine it.

HHJ Robinson was not asked to consider the merits of the claim at this stage but rather consider whether the s. 288 application was made out of time.

The factual background to the case was that:

• The claimant was aware of the fact that the last day for filing was 23 March and was intending to attend the Administrative Court office in person for that purpose. However, he missed the train from Haddenham.
• Mr Croke was aware that the court office shut at 4.30 pm so he emailed the documents to another person, Mr Miller, who was located a few minutes from the court and asked him to file the claim. Mr Miller arrived at the Royal Courts of Justice at 4.25 pm but was refused entry by security at the front of the building. The security guard informed him that the counters were closed.
• On 24 March the claimant personally attended the Administrative Court office at 3.30 pm. Due to the volume of people he was not seen until about 5 pm when he was informed by a member of staff that he had used the wrong claim form and would need to complete a different form. He was given a copy of the form and asked to be able to complete it then and there. Mr Croke was told he would have to return the next day and that the claim would be issued on the next working day. The next day was Good Friday and the next day the court office was open was 29 March which was the date when the claim was filed.

The claimant sought to argue that the court office, even though it was open, was not functioning because it was not accessible. He further argued that where the court office is inaccessible, the time limit should carry over to the next day.

Counsel for the Communities Secretary meanwhile argued that the 6-week time limit was absolute and could not be extended by the court. He emphasised the need for legal certainty, adding that the approach of asking whether the court office was accessible would be a departure from previous authority and there was no support for it.

HHJ Robinson said this was not a case where the court office was closed nor where the claimant or Mr Miller had been prevented from attending the court office by any action on the part of the court office itself.

“Where it is necessary to issue a claim in a court office, litigants must anticipate security procedures and the need to obey the directions of security staff,” she said.

“The position would have been just the same if there had been a queue to go through security and by the time Mr Miller got to the security screening it was 4.30pm and he had been turned away.”

The judge said the interpretation proposed by the claimant suffered “from the fundamental defect that it provides no certainty at all, either as to the nature of the event which is sufficient to bring the principle into play, or to third parties who may be affected. Further, it is one without precedent and is likely to cause confusion to litigants and others.”

HHJ Robinson added that there was no reasonable basis on which it could be said that Parliament intended a litigant in these circumstances to be able to file their claim the next working day.

“Thus, looked at from both perspectives considered in the Kaur case, legal certainty and consistency, the claimant's interpretation fails to meet either objective,” she found. “Litigants whose claims are subject to strict time limits must make arrangements to ensure that they attend the court office in good time so that they are not thwarted by unexpected problems.”

The judge concluded that the s.288 application was made out of time and the court did not have jurisdiction to entertain it.