Farnham Town Council v Secretary of State for Levelling Up Housing & Communities & Ors

A statutory planning challenge under section 288 of the Town and Country Planning Act 1990 must be issued and served within the statutory six-week period. Although the court’s general power to extend time under rule 3.1(2)(a) applies, the restrictive criteria in rule 7.6 must be applied by analogy. A solicitor’s error will ordinarily provide no sufficient basis for extension.

For a policy containing cumulative criteria, breach of any one criterion establishes conflict with the policy as a whole. The decision-maker need not separately address every criterion where another breach already establishes that conflict, unless the omitted criterion is a principal controversial issue. Review under section 288 concerns legality, not the planning merits or weight given to material considerations.

Wates Developments Limited appealed against refusal of outline planning permission for 146 dwellings near Farnham. A planning inspector allowed the appeal and granted permission. Farnham Town Council brought a statutory challenge under section 288 of the Town and Country Planning Act 1990, alleging failure to consider, and failure to give adequate reasons concerning, criterion (c) of Policy FNP10 of the Farnham Neighbourhood Plan.

The claim was issued within six weeks but was served late. The court therefore considered whether time for service could be extended, whether permission to proceed should be granted, and, if so, whether the substantive grounds were made out.

1. Extension of time. Practice Direction 54D requires a section 288 claim to be served within the statutory six-week period. The court has a power under rule 3.1(2)(a) to extend time, but the criteria in rule 7.6 apply by analogy. The approach in Good Law Project applies to statutory challenges. Corus was distinguishable because the procedural rules had materially changed, particularly through Practice Direction 54D.
2. The statutory scheme requires certainty and finality in planning decisions. Delay caused by a solicitor’s mistake was not a sufficient justification. The court therefore had no power to grant the required extension on the applicable criteria. Even if it had possessed a wider discretion, the short delay, lack of demonstrated substantive merit, and the defendants’ accrued limitation defence did not justify relief.
3. Substantive grounds. Policy FNP10 imposed cumulative requirements. Once the inspector found breaches of criteria (d) and (e), the development conflicted with Policy FNP10 as a whole. It added nothing to decide whether criterion (c) was also breached. Criterion (c) was not a principal controversial issue, having not been relied on by the parties at the inquiry, and its omission from the decision letter did not show a failure to take a material consideration into account.
4. The inspector had lawfully identified conflict with the development plan and carried out the planning balance under section 38(6) of the Planning and Compulsory Purchase Act 2004. The weight given to competing considerations was a matter for the decision-maker. The reasons were intelligible and adequate.
5. The court would have granted permission for both substantive grounds to proceed but would have dismissed them. The claim therefore failed.

First-instance statutory challenge. The judgment does not state any prior appellate decision in the same proceedings.