By Sejal Patel, an Associate Solicitor in Irwin Mitchell’s Planning team
A planning judicial review must be brought within six weeks of the decision under challenge. The Courts have on many occasions explained that the six-week deadline should, in the interest of good administration, be treated as a strict deadline.
The Court does have a wide discretion to grant an extension to the usual six-week deadline, provided that there is a good reason, prompt action by the claimant and limited prejudice to all parties. That discretion, is however, used very sparingly, for good practical reasons: the Courts have long ruled that people should be able to rely upon a planning permission, and not have to second-guess whether it might be at risk of a late judicial review.
Despite the power to extend being available, it is unusual for such an extension to be granted when challenging planning decision-making without causing substantial hardship or prejudice to the defendant or any other party. Furthermore, there is rarely a situation where an extension of time will not be detrimental to good administration. A developer should be entitled to rely on its planning permission and shouldn’t have to double guess whether an out of time judicial review could be forthcoming. Only in extreme circumstances would this be permitted.
One example of this is the 2019 case, Thornton Hall, where the Court of Appeal unusually allowed a judicial review to be brought after a period of approximately five years from the grant of planning permission. The Council’s intention was to grant temporary planning permission, but the final decision notice issued differed from both the committee report resolution and also the draft decision notice. Both included a condition making the permission temporary, but the condition was omitted from the final issued decision notice. The Court determined that it was in the public interest to allow the extension of time given the effect of the error. A key factor taken into account by the Court in reaching its decision was that the beneficiary of the planning permission was aware of the error in the decision notice but failed to draw the Council's attention to it and took advantage of it by claiming that the claimant (a competitor) and the Council were responsible for the delay in the issue coming to light. The judge held that if it was not for this factor then the extension of time might otherwise have been refused.
However, as the judge in Thornton Hall noted in terms, the circumstances in that case were “most exceptional” and “wholly extraordinary” and the extreme lateness of the challenge was not as prejudicial to the planning process as lateness in bringing a claim usually is.
Whilst it cannot be guaranteed that someone will not try to issue a claim after the six-week period during the current COVID-19 crisis, we do not expect the Courts to treat the current pandemic as a licence for people to start filing claims out of time. The Lord Chief Justice has issued general guidance which stressed the importance of the Courts continuing to function. No mention was made of softening the Administrative Court’s approach to the time period for filing such claims. The courts are still open and the Administrative Court is now accepting claims by email only, thereby making it somewhat easier than before to submit a claim for judicial review.
Whilst an objector to a development might try to use the COVID-19 pandemic as an excuse for late filing, it seems unlikely that the Courts will accept that as a good reason to depart from usual practice. Many if not all major law firm practices in the UK are accessible remotely. A claimant does not need to meet a solicitor to file a judicial review claim. Instructions can be given by phone and e-mail. And the documents can be filed remotely by e-mail. Even if an extension can be justified, it is unlikely to be a very long one.
The main adverse impact on the matter from the issue COVID-19 crisis will be from the backlog of judicial review claims being issued. The Administrative Court office is working to a hugely reduced capacity. New claims are not currently being processed in real time and may sit in a centralised inbox for weeks before being processed. Considerable delays can be expected while the Administrative Court works through this backlog. This means that, even if a claim is filed within the six-week period, it may not be processed and logged on to the Administrative Court’s system until several weeks after. This could range from weeks, to a few months. Developers are advised to make enquiries with the Court to check the date of claims currently being processed. Until they have had an opportunity to do so, it would be prudent to allow for at least a further four-week period, on top of the standard six-week period before assuming that a planning permission is free from challenge by way of judicial review.
This article first appeared in CoStar on 14 April 2020