Staffordshire Moorlands District Council v Secretary of State for Communities & Local Government & Anor

An application under section 288 of the Town and Country Planning Act 1990 must be issued within six weeks, calculated as six successive periods of seven days from the relevant decision date. Where issue is in time but service is late, the defect is an irregularity rather than a nullity, and the court may extend time for service. The discretion should consider the public interest in correcting an acknowledged error of law, the shortness of the delay and any prejudice to other parties.

The Council challenged planning decisions made by an Inspector, including a decision dated 26 January 2007 allowing a section 78 appeal. The section 288 application was issued on 9 March 2007, but served several days later. The Interested Party argued that issue was one day late and that late service invalidated the proceedings.

The Council also sought to remove an abandoned costs challenge. The Secretary of State consented to the quashing of the principal planning decision because the Inspector’s conclusion concerning residential presence on the site lacked a sufficient legal basis. The court had to determine the validity of the proceedings, whether time for service should be extended, and the appropriate orders for quashing, remittal and costs.

1. Issue within time. The six-week period in section 288(3) of the Town and Country Planning Act 1990 means six times seven days. Applying Okolo v Secretary of State for the Environment [1997] 4 All ER 242, the period beginning on Friday 26 January 2007 ended at midnight on Friday 9 March 2007. The application was therefore validly issued.
2. Late service. Under Rules of the Supreme Court Order 94, rule 2(1), the claim should have been served within the statutory period. The failure to serve on the day of issue was an irregularity and did not invalidate the proceedings. The court had discretion to extend time.
3. Extension granted. The discretion required the court to balance the public interest in determining a statutory challenge against the prejudice caused by delay and the interest in prompt and certain decision-making. This approach was supported by Cala Homes (South) Limited v Chichester District Council [2000] 79 P&CR 430. The delay was modest, no real prejudice was shown, and refusal would leave standing a decision which the Secretary of State accepted contained a significant error of law. Time for service was extended.
4. The Council was permitted to amend the claim to delete the costs challenge, paying the costs of and occasioned by that amendment. By consent, the Inspector’s decision of 26 January 2007 was quashed, and the section 78 appeal was remitted to the Secretary of State for reconsideration and redetermination. The Secretary of State was given liberty to apply within seven days. No order for costs was made against the Interested Party.

The judgment describes a first-instance statutory challenge under section 288 of the Town and Country Planning Act 1990, together with related judicial review proceedings. The proceedings were disposed of by consent after the Secretary of State conceded an error of law.