Croke v Secretary of State for Communities and Local Government & Anor

The six-week period for challenging a planning appeal decision under section 288(4B) of the Town and Country Planning Act 1990 is a strict and mandatory limitation period. The court has no general discretion to extend it.

Where the final day is one on which the court office is closed throughout, time runs until the next day on which the office is open. This narrow rule does not cover delays, access problems or other contingencies arising when the office is functioning normally.

An exceptional extension may be required to protect the right of access to a court under article 6(1). That possibility is extremely narrow. It ordinarily requires circumstances impairing the essence of the right and a litigant who personally did all that could reasonably be done to commence proceedings in time.

The appellant sought to challenge an inspector’s dismissal of his planning appeal by an application under section 288 of the Town and Country Planning Act 1990. The statutory six-week period expired on 23 March 2016. His agent reached the Royal Courts of Justice shortly before the normal closing time but was refused entry by security staff. The application was ultimately filed on 29 March.

H.H.J. Alice Robinson, sitting as a deputy High Court judge, held that the application was out of time and that the court lacked jurisdiction: [2016] EWHC 2484 (Admin). The appellant appealed.

The principal issue was whether the period could be extended from 23 to 24 March because of the unsuccessful attempt to file on the final day. A consequential issue was whether the court staff’s erroneous refusal on 24 March to accept form N208 could justify a further extension to 29 March.

1. Appeal dismissed. Section 288(4B) of the Town and Country Planning Act 1990 imposes a precise, mandatory and unqualified six-week period. Apart from the narrow calendar rule concerning a day on which the court office is closed throughout, and any exceptional extension required by Convention rights, the court has no discretion to enlarge that period.

2. The principle derived from Pritam Kaur v S. Russell & Sons Ltd. applies where the act requires the court’s co-operation and the court office is closed for the whole of the final day. It preserves the full statutory period by allowing the act on the next day when the office is open. The principle rests on certainty and the predictable calendar. It does not extend to unexpected events, delays or obstacles arising on a day when the office is open and functioning normally.

3. The Administrative Court Office was open throughout 23 March 2016. The appellant’s missed train, mistyped email address and his agent’s encounter with security shortly before closing did not turn that day into a dies non. Extending the principle to such circumstances would undermine the certainty required in planning litigation, where developers, authorities and third parties may act in reliance on a decision.

4. Section 3 of the Human Rights Act 1998 required the legislation to be read compatibly with article 6(1). The six-week period was proportionate and compatible with the right of access to a court. It afforded a relatively generous and finite period for preparing a public law challenge.

5. The exceptional human-rights jurisdiction identified in Pomiechowski did not apply. The appellant had not personally done all he could to file in time. He left filing until very late on the final day and was partly responsible for the chain of events. The loss of the last few minutes did not impair the essence of his right of access to a court.

6. Obiter, if 24 March had been the final day, the court staff’s erroneous refusal to accept form N208 might have constituted exceptional circumstances. The appellant was entitled to use that form, and any question about the validity of a claim issued on an allegedly incorrect form would ordinarily have been for a judge rather than administrative staff. This could not assist because the statutory period had already expired.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously: [2019] EWCA Civ 54. The six-week period had expired before the appellant’s effective attempt to file.

2. Administrative Court, Planning Court: H.H.J. Alice Robinson, sitting as a deputy High Court judge, refused leave under section 288(4A) of the Town and Country Planning Act 1990 and confirmed the striking out of the application as out of time: [2016] EWHC 2484 (Admin).

3. Administrative Court: Ouseley J. had previously struck out the application on the papers for want of jurisdiction because it was filed after the statutory period.