Judicial review allows for the lawfulness of a decision or action made by a public body to be challenged, it is not concerned with the decision itself but instead whether the right procedures were followed. Part 54 of the Civil Procedure Rules sets out the procedure which must be followed when bringing a claim for judicial review. This article will focus on time limits for judicial review claims in planning cases, more specifically those that are brought out-of-time, the key considerations when dealing with out-of-time claims and a review of some recent case law.
Time Limits for Judicial Review in Planning Claims
Under Part 54.5(5) of the Civil Procedure Rules a claim for judicial review of a planning decision must be brought within six weeks from when the grounds to make the claim first arose, in the planning context this will be from the date when the decision was made by the Secretary of State or local planning authority. This time period is much shorter than the three-month period for non-planning judicial review cases. Planning Court claims include, amongst others, a judicial review of a planning permission, other development consents, the enforcement of planning control and enforcement of other statutory schemes.
Given the strict six week time limit for planning cases, it is imperative that those wanting to bring a claim move swiftly to enable the pre action protocol to be followed. Specifically, you need to be able to issue a pre-action letter to the defendant and allow them sufficient time to respond. If pre action is not followed, you could open yourself up to be penalised on costs. If you are thinking of bringing such a claim instruct your solicitor early!
Out-of-Time Planning Judicial Review Claims
If the claim is not brought within the six-week period, it is deemed "out-of-time," and the claimant will face the uphill challenge of convincing the court to allow the claim out-of-time if there are sufficient grounds.
If the claimant wishes to pursue a judicial review claim in a planning matter out of time, the claimant must seek permission from the court to bring the claim. Under Part 3.1 of the Civil Procedure Rules the court has general powers which allow them to extend or shorten the time for compliance with any rule, practice direction or court order, even where an extension application is made after expiry of the period for compliance. Below we consider recent case law on how the Courts have considered permission for these out of time cases.
Recent Case Law
In late 2024, in R (on the application of Wallis) v North Northamptonshire Council [2024] EWHC 3076 (Admin) (the “Weetabix case”) the court refused the Claimants application for permission to extend the time to bring a claim for judicial review. Georgina Wallis was a resident close to an old Weetabix factory in Earlstrees Road, Earlstrees Industrial Estate, Corby. An application was submitted by the first interested party to demolish the existing buildings, construct a new building and to change the use of the site. Due to an error by the planning officer, the consultation letters were sent to 20 residents, and commercial properties close to a second Weetabix site, not the site subject to the application. The incorrect residents were consulted, and no representations were made. In addition, there was no evidence that any notice or site display was put on or near the application site. The description of the application site was erroneous and included previous applications relating to the second Weetabix site. The errors were not noticed during the determination process and the planning permission was granted.
The Claimant asserted that she was aware of the demolition works in 2022, and the ground works which commenced in September 2023 but did not believe at that time that it would impact on her property. It was not until January 2024 that the Claimant saw the metal framework being put up behind her garden. Subsequently she looked on the Councils website and discovered the 2022 permission and made contact with neighbouring residents and the planning department. The planning officer explained to the Claimant the error with the consultation but maintained the statutory consultation requirements were met. After various complaints from residents and meetings with local MP’s the Claimant began the claim for judicial review in March 2024. Despite the local planning authorities’ procedural error, the judge had to balance this with the interests of the developer who had already commenced the development and who was not aware of the procedural error. In deciding whether there was a good reason to grant the extension, the judge took the principles of the Maharaj case (Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5, [2019] 1 WLR 983) which were “namely the importance of the issues, the prospects of success in the claim, the prejudice to the parties, and the public interest”.
The judge placed some of the onus on the Claimant in that a reasonable landowner would have checked the Councils website for details of the proposed development, or asked the Project Manager for more information, by October 2023 at the latest. The judge ultimately determined that the Claimant failed to act with "the greatest possible celerity" and noted that “even once the Claimant was aware of the details of the proposed development, she unreasonably delayed for nearly 3 months before filing her claim for judicial review”.
Despite refusing the Claimants application, the judge noted that there is a strong public interest in the competent and lawful processing of planning applications by local authorities. It was also acknowledged that the Council had fallen well below the standard expected. Despite this the Council investigated and introduced changes to its planning department to prevent these kinds of mistakes from occurring in the future.
In R (Thornton Hall Hotel Ltd) v Wirral MBC and Thornton Holdings Ltd [2018] EWHC 560 (Admin), the planning permission which the dispute related to was granted more than five years before the issue of the claim for judicial review and allowed for the erection of three marquees on the appellants land. The permission when granted omitted conditions which were agreed at planning committee, one of those conditions was to limit the permission to a period of 5 years essentially making it temporary. After the five years had expired the marquees remained in place, this then led the first respondent to become aware of the error relating to the planning conditions. The first respondent, a rival wedding venue, launched a judicial review of the permission. The High Court subsequently granted the extension of time to bring the claim for judicial review and quashed the permission.
On appeal, the Court of Appeal upheld the decision of the High Court to allow the claim for judicial review. The court’s reasons included that the applicant was aware of the error and had remained silent, the Council acted unlawfully in not rectifying it’s error and the applicants had not suffered any material hardship or prejudice as a result as they had been able to make use of the marquees for a five year period which was what one of the conditions provided for had it been imposed. This case highlights that the court will not look kindly on developers who rely on a decision notice which is erroneous.
Our experience
In 2023, Wright Hassall was instructed to request an extension of time to file a judicial review claim out-of-time. The local planning authority had granted planning permission in November 2022 for a first-floor extension over an existing garage to a residential property, the Claimants home adjoined the site to the north, the extension included large floor to ceiling windows which would directly overlook the Claimants private amenity space and was located within 1 meter of a shared boundary. The case officer had carried out a consultation exercise with those he deemed to be affected by the Development and erected a site notice. Despite this, the Claimant was not consulted and was unaware of the application until they learned of it in early 2023 by chance. The local planning authority had adopted and published a Neighbour Notification Code which stated that written notification of all proposed developments will be provided to known occupiers of all adjacent properties sharing a common boundary. The Claimant contended that the code created a legitimate expectation of being notified given that they shared a common boundary with the development property.
The local planning authority argued it was unaware that the Claimant occupied the adjacent property, they had utilised an open-sourced cartographic computer system to identify known occupiers and on that occasion, it had not identified the Claimant despite the shared boundary. The Claimant’s contended, if the case officer had visited the site, it would have been immediately obvious the adjacent land was occupied. The judge granted the extension of time on the basis that although the judicial review claim was outside of the six week period the Claimant had acted promptly once they were aware of the grant of permission. And in any event works had not commenced.
Factors Considered by the Courts
Case law will continue to shape the way in which out-of-time planning judicial review claims are dealt with, but we’ve set out below some of the factors that are considered by the court.
Some factors which the court may consider when deciding whether or not to grant an extension to bring a claim for judicial review are:
- Reason for the Delay: The court will look to the reasons for the delay in the claimant bringing their claim for judicial review. Emphasis is placed on the need for a claimant to act promptly in the interests of certainty. The judge’s determination will very much be case and fact specific.
- Prejudice to the Defendant: The court will also consider whether granting an out-of-time claim would cause prejudice to the defendant. The court will consider the impact on the defendant, other interested parties who may have relied on the planning permission and carried out substantial works. This is a fine balancing act between providing certainty in the planning system to developers and ensuring the correct processes, such as consultation are followed. The court will also consider the implications on the claimant.
- Public Interest: As was seen in the Weetabix case the courts have made clear the strong public interest in the lawful processing of planning applications. In the Weetabix case the proposed development was found to have public interest benefits for the wider community and economy. If an out-of-time claim had wider implications for a large number of people, the court may be more inclined to grant an extension in those circumstances.
Conclusion
As can be seen by the case law in this area, it is not impossible to bring an out-of-time planning judicial review claim, but it presents additional hurdles to the claimant and is rare for an extension to be granted. Only in exceptional circumstances may a court grant an extension to bring a claim which is out-of-time, the court will review each individual case, and their determination will be fact specific.
The six week limit is there to provide those who rely on the planning system with certainty and to avoid unnecessary delay. Some key takeaways for claimants considering bringing a claim for judicial review relating to a planning decision:
- Act Promptly: Once a decision notice is issued it is imperative that you act promptly, if you would like to bring a claim for judicial review you should seek independent legal advice and ensure your claim is made within the six week period.
- Pre-action Requirements: If you are bringing a planning judicial review claim you will be required to comply with the Pre-action Protocol for Judicial Review claims. It is important to comply with these requirements and so being alive to the timeframes is key.
- Document the Reasons for Delay: If a claim is out-of-time, you should be prepared to provide detailed reasons for the delay to the court along with any supporting evidence, the facts and relevant arguments.
If you have any questions about bringing a claim for judicial review or planning in general, please do get in touch with our planning team.
