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

The Court of Appeal considered whether the court could extend the six-week period for service of a planning statutory review claim under section 288 of the Town and Country Planning Act 1990 by analogy with CPR 7.6(3). The judge below had extended time on the basis that delay in service resulted from errors and delay by the Manchester Administrative Court Office. The Court of Appeal held that extension under CPR 7.6(3) could be considered by analogy but that the claimant must show (i) that all reasonable steps were taken to serve within the statutory period and (ii) that an application for extension was made promptly.

Applying those tests, the court concluded the respondent had not taken all reasonable steps before expiry of the six-week period (failing to notify urgency, to identify which documents related to which claim, and to chase the court office adequately) and had not acted promptly in applying for an extension (waiting about ten weeks after expiry). The appeal was allowed and the court ruled it had no jurisdiction to consider the section 288 review.

Background and parties: The respondent, Mr Bryan Rogers, sought judicial review of a planning decision by means of a statutory review under section 288 TCPA 1990 and separately an appeal under section 289. Documents were filed with the Manchester Administrative Court Office on 18 April 2023; the six-week statutory period for service of the section 288 claim expired on 4 May 2023.

Procedural posture: A Deputy High Court Judge (Karen Ridge) extended time for service and dismissed the appellant’s declaratory Part 11 application that the court had no jurisdiction. The Secretary of State appealed to the Court of Appeal from [2023] EWHC 2528 (Admin).

Nature of the relief sought: The respondent sought an extension of time for service of the sealed Part 8 claim form for a planning statutory review under s.288 TCPA 1990. The Secretary of State sought a declaration that the court had no jurisdiction because service was out of time.

Issues before the Court of Appeal:

• Whether CPR 7.6 applies (by analogy) to an application to extend time for service of a section 288 planning statutory review claim.
• Whether the respondent had taken all reasonable steps to serve the claim form within the six-week statutory period (CPR 7.6(3)(b)).
• Whether the respondent had acted promptly in applying for an extension after the period expired (CPR 7.6(3)(c)).

Facts and procedural detail: The respondent filed a claim form, appellant’s notice and grounds on 18 April but did not indicate the respective statutory deadlines or clearly distinguish which document related to which remedy. The court office and the respondent’s solicitors exchanged communications thereafter; the sealed claim form was only issued on 11 July and served on 11–12 July. The respondent applied to extend time on 13 July; the Secretary of State applied under Part 11 on 4 August. The Deputy High Court Judge found the delay was outside the claimant’s control and extended time.

Court’s reasoning: The Court of Appeal accepted that Good Law Project v Secretary of State for Health and Social Care [2022] EWCA Civ 355 governs by analogy the application of CPR 7.6 principles to Part 8 judicial review and planning statutory review claims. The court distilled the applicable tests: where the statutory service period runs independently of issue, the assessment of "all reasonable steps" focuses on actions taken up to expiry; promptness is measured from expiry to the application to extend. The court analysed the respondent’s conduct: failure to notify the court office of the deadlines at filing, failure to identify which documents related to which remedy, failure to chase effectively before and immediately after expiry, and a lengthy delay (around ten weeks) before applying for an extension. Post-expiry events could illuminate but did not cure pre-expiry omissions. The court also noted the public interest in finality of planning decisions.

Result and implications: The Court of Appeal concluded the respondent failed both limbs of CPR 7.6(3) and allowed the appeal, ruling the court had no jurisdiction to consider the challenge. The judgment emphasises the obligation on claimants and their representatives to alert and to pursue court offices proactively where statutory service periods are running.

Appeal allowed. The Court of Appeal held that CPR 7.6 applies by analogy to extension applications for service of a s.288 planning statutory review claim and that the claimant failed to satisfy r.7.6(3): he did not take all reasonable steps to serve within the six-week period nor act promptly in applying for an extension (a c.10-week delay). The judge below had erred by focusing on post-deadline events and court office delay without applying the required r.7.6(3) tests.

Appeal from the High Court (King's Bench Division, Deputy High Court Judge Karen Ridge) [2023] EWHC 2528 (Admin) to the Court of Appeal [2024] EWCA Civ 1554. Below, the judge extended time for service and dismissed the Secretary of State's Part 11 challenge; the Court of Appeal allowed the Secretary of State's appeal and held the court had no jurisdiction to hear the s.288 review.