Suzanne Merrills, R (on the application of) v Secretary of State for Levelling Up, Housing and Communities

In a statutory planning challenge, service of the sealed claim form must be completed within the statutory period. An unsealed claim form does not constitute valid service. After expiry, an extension should be granted only where the claimant has taken all reasonable steps to comply with the applicable service requirement and has applied promptly. The claimant must proceed on the basis that sufficient time is needed both to file the claim and to obtain and serve the sealed form. Where the claimant leaves sealing until shortly before the deadline, fails to make the urgency clear to the court, and delays its extension application, the court may refuse relief. The claimant is ordinarily fixed with the acts and omissions of its legal advisers. A successful jurisdiction challenge may then result in the claim being set aside.

The claimant brought a statutory challenge under section 288 of the Town and Country Planning Act 1990 to an inspector’s decision allowing a planning appeal and granting permission. The claim form was filed electronically before the six-week deadline, but the sealed claim form was not issued and served until six days after expiry. An unsealed claim form had been served within time.

The claimant applied for an extension of time. The Secretary of State and the developer applied under Part 11 of the Civil Procedure Rules 1998 for a declaration that the court had no jurisdiction. The central issues were whether the claimant had taken all reasonable steps to serve the sealed claim form within time and whether the extension application had been made promptly.

1. Extension test. The application was governed by CPR rule 3.1(2)(a), applying by analogy the principles in CPR rule 7.6. Following R (Good Law Project) v Secretary of State for Health and Social Care [2022] EWCA Civ 355, time should not ordinarily be extended unless the claimant had taken all reasonable steps to comply with the applicable service requirement but had been unable to do so, and had acted promptly.
2. Reasonable steps. Paragraph 4.11 of PD 54D required the claim form to be served within the statutory period. The claimant’s representatives knew that a sealed form was required, but left electronic issuing until shortly before the deadline, did not attend court to obtain the sealed form, and did not expressly tell court staff that sealing was urgently required to permit service before midnight. They therefore had not taken all reasonable steps.
3. Promptness. The extension application was made on 5 July 2023, approximately two weeks after receipt and service of the sealed claim form and 20 days after the deadline. That was not prompt in the context of a strict six-week planning timetable.
4. Discretion and consequences. Service of an unsealed claim form did not cure the defect. The claimant was fixed with the actions of its legal advisers, and the circumstances did not justify disapplying that principle. The court refused the extension.
5. Jurisdiction. Since valid service had not occurred within time and no extension was granted, the applications under Part 11 of the Civil Procedure Rules 1998 succeeded. The claim form was set aside, and the parties were directed to agree an order accordingly.