Secretary of State for Levelling Up, Housing and Communities v Bryan Rogers

In a planning statutory review under section 288 of the Town and Country Planning Act 1990, CPR 7.6(3) applies by analogy to an application made after expiry of the six-week period for serving the claim form. The claimant must establish both that all reasonable steps were taken to serve within that period and that the extension application was made promptly.

Filing in good time does not alone satisfy the first requirement. A claimant must identify the deadline to the court office, explain the urgency and pursue issue proactively. Promptness runs from expiry of the statutory period, rather than issue of the sealed claim form. An extension may be sought before issue and prospectively. The merits, the overriding objective and the principles governing relief from sanctions do not form part of this inquiry.

The respondent challenged a planning inspector’s decision by a statutory review under section 288 of the Town and Country Planning Act 1990. Although his solicitors filed the papers more than two weeks before the six-week service deadline, they did not identify that deadline, clearly distinguish the review from a related section 289 appeal, or pursue issue with sufficient urgency. The court office delayed issuing the claim form until more than two months after the deadline. The respondent applied for an extension two days later.

A Deputy High Court Judge granted the extension and dismissed the Secretary of State’s jurisdictional application: [2023] EWHC 2528 (Admin). The appeal concerned whether CPR 7.6(3), applied by analogy, required the respondent to prove that all reasonable steps had been taken before expiry and that the later extension application was made promptly.

1. Appeal allowed. CPR 7.6 applies by analogy to an application to extend the six-week period for serving a section 288 planning statutory review. The approach in R (Good Law Project) v Secretary of State for Health and Social Care [2022] EWCA Civ 355 has superseded any materially different approach in Corus UK Ltd v Erewash Borough Council [2007] 1 P & CR 22. The Denton relief-from-sanctions principles, the underlying merits and the overriding objective are irrelevant to the prescribed inquiry.

2. Under CPR 7.6(3), a claimant applying after expiry must establish two conditions. The claimant must have taken all reasonable steps to serve within the relevant period and must have acted promptly in seeking an extension. Because the statutory period runs independently of the court’s issue of the claim form, the first question concerns the claimant’s conduct before expiry. Later events cannot retrospectively constitute reasonable steps, although they may illuminate earlier conduct or affect the residual discretion.

3. Filing the papers in good time does not necessarily amount to taking all reasonable steps. The claimant should identify the precise deadline and its significance when filing, chase the court office after two or three working days, and repeat the urgency as the deadline approaches. Here the solicitors failed to state either deadline, submitted a misleading claim form, did not delineate the two proceedings and sent only a bland follow-up email shortly before expiry. The court office’s serious delay did not cure those failures.

4. The extension application was not prompt. Promptness was measured from expiry of the six-week period, not from eventual issue of the sealed form. An application could have been made before expiry, immediately afterwards, without an issued claim form, or prospectively by seeking time after eventual receipt. Waiting ten weeks failed CPR 7.6(3)(c).

5. The accrual of a limitation defence may be relevant but is not decisive. Otherwise no extension could be granted in a case where the service period expires automatically. It carried little weight where court-office failings had contributed to the position.

6. Coulson LJ gave the judgment with which Birss LJ and the Senior President of Tribunals agreed. The court ruled that it had no jurisdiction to consider the section 288 statutory review.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed. The extension was refused and the court ruled that it lacked jurisdiction to consider the section 288 statutory review: [2024] EWCA Civ 1554.
2. High Court, King’s Bench Division: A Deputy High Court Judge extended time to the dates of actual service and dismissed the Secretary of State’s CPR Part 11 jurisdictional application: [2023] EWHC 2528 (Admin).