Harrogate Borough Council v Secretary of State for Communities and Local Government & Anor

An application to extend time for serving a statutory planning challenge may be granted where the delay is short, the application is prompt, significant prejudice is absent, and the challenge raises an arguable or strong public interest issue. The six-week period for making a claim under section 288 of the Town and Country Planning Act 1990 is jurisdictional and cannot be extended, but the time for serving the claim form may be extended under the Civil Procedure Rules. The post-Mitchell approach does not require refusal where non-compliance is trivial or where, exceptionally, the public interest and other circumstances outweigh the enforcement factors in CPR 3.9.

The Council sought an extension of time to serve a claim under section 288 of the Town and Country Planning Act 1990 challenging an inspector’s decision allowing an appeal concerning affordable housing at a proposed development. The claim form was issued within the six-week statutory period but served two days late and at the interested party’s business address rather than his residence. The interested party also alleged failure to join other parties and failure to comply with pre-action conduct requirements.

The Secretary of State accepted that the inspector had erred in law by interpreting the relevant planning condition as requiring only one affordable housing unit. The central issues were whether the procedural defects justified refusing an extension and whether the court should validate service and grant relief under the Civil Procedure Rules.

1. Extension of time. The six-week period for making an application under section 288(3) of the Town and Country Planning Act 1990 was jurisdictional and could not be extended. The claim had, however, been issued within time. The court had power under CPR 3.1(2)(a) to extend the time for service.
2. Applicable approach. The discretion had to be exercised in accordance with the overriding objective and the statutory policy of expeditious determination. The guidance in Corus UK Ltd v Erewash BC [2007] 1 P & C R required the power to be used sparingly, but recognised both the importance of the statutory timetable and the public interest in viable challenges to public authority decisions. The principles in Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795 were relevant, but did not displace that assessment.
3. The two-day delay was trivial on the facts and the application for relief was prompt. The Council’s miscalculation of the deadline was not a good reason, but the Secretary of State’s concession, the arguable error of law, the wider public interest in affordable housing, and the absence of significant prejudice justified relief. Even if the delay were non-trivial, those factors would outweigh the matters identified in CPR 3.9.
4. Service and parties. Service at the interested party’s registered business address was defective under CPR 6.9(2), but CPR 3.10 permitted the error to be remedied. Service was validated as effective on 18 January 2014. The court was not satisfied that the company or the interested party’s wife was a person required to be joined. In any event, the omission did not invalidate the proceedings.
5. Pre-action conduct. The Practice Direction – Pre-Action Conduct did not apply in the ordinary way because neither the Secretary of State nor the interested party could alter the inspector’s decision and the issue was solely whether it was unlawful. No breach requiring sanction was established.
6. The application for an extension of time succeeded.

First-instance application in the Administrative Court. The judgment does not state any prior appellate history.