Halton Borough Council v Secretary of State for Levelling Up, Housing and Communities

For applications to extend time for service of originating process in statutory or judicial review proceedings, the court should apply the stringent requirements of CPR 7.6 by analogy. Valid service has particular importance because it engages the defendant’s jurisdiction and preserves the statutory time limit. A delay of a day will ordinarily be serious and significant, and ordinary legal or administrative mistakes will not usually amount to a good reason.

A costs order made after a planning application is withdrawn before any decision under section 77 of the Town and Country Planning Act 1990 is not a relevant costs order connected with an actual decision for the purposes of section 284(1)(g). The challenge must therefore be brought by judicial review. An amendment correcting the procedural route may be permitted where the substantive claim was filed and served in time and no material prejudice results.

Halton Borough Council sought to challenge costs orders made in favour of the Health and Safety Executive and Viridor Energy Ltd after a called-in planning application was withdrawn during a planning inquiry. The Council issued a claim under section 288 of the Town and Country Planning Act 1990, but served it out of time and applied for an extension and relief from sanctions.

The Council alternatively sought permission to amend the claim so that it proceeded as a planning judicial review. The court had to determine the correct approach to late service, whether the costs orders fell within the statutory review regime, and whether amendment should be allowed.

1. Late service. The approach in Good Law Project Ltd v Secretary of State for Health and Social Care should be applied to statutory review claims by parity of reasoning. Although CPR 7.6 does not directly apply, its requirements apply by analogy because statutory reviews require prompt issue and service, and valid service performs the important function of subjecting the defendant to the court’s jurisdiction. Corus UK Limited v Erewash BC did not decide the additional question whether CPR 7.6 applied by analogy.
2. On the alternative CPR 3.1(2)(c) and Denton analysis, the breach was serious and significant. Any delay of a day or more in serving a statutory review claim will ordinarily have that character. The claimant’s failure resulted from careless mistakes, not a good reason. The public-law character of the dispute and absence of substantial prejudice did not justify relief, particularly because service had to be treated as an important procedural limitation.
3. Statutory construction. The words “in connection with” in section 284(1)(g) of the Town and Country Planning Act 1990 require a relevant costs order to be connected with an actual decision under section 77. A costs order made after withdrawal of the planning application, before any such decision was made, therefore fell outside sections 284 and 288. The challenge had to be brought by judicial review.
4. Amendment. Applying the general discretion under CPR 17.1(2)(b), permission to amend was granted. The substantive claim had been effectively filed and served within the applicable planning judicial review period, the application to amend was prompt, and no material prejudice was identified. The claim was to be pleaded solely as judicial review, using the proper planning form N461PC and confirming that the Aarhus Convention did not apply.
5. The amended claim form was required within 14 days of the order. The defendant and interested parties were given 28 days from that order to file and serve summary grounds of defence.