Amalgamated Smart Metering Limited, R (on the application of) v Rotherham Metropolitan Borough Council

In a planning judicial review, the court distinguishes late filing of a claim form from late service. The strict approach applicable to retrospective extensions for late service does not govern an application to extend time for filing a planning judicial review claim.

The filing question is determined under CPR 3.1(2)(a) by exercising judicial discretion and applying the principles in Thornton Hall Hotel. The court must consider all relevant circumstances, including the publicity given to the application, when the claimant had a fair opportunity to object, the claimant’s promptness, the strength of the proposed claim, prejudice to the developer and detriment to good administration.

Where the claimant had sufficient information to discover the application but failed to act with the greatest possible celerity, substantial delay may justify refusing an extension even where some grounds are strongly arguable.

The claimant operated an electricity generation facility adjoining land for which the interested party obtained outline planning permission for up to 120 homes. The claimant sought judicial review substantially outside the six-week period in CPR 54.5(5), arguing that it had not been properly notified and that a council website mapping error delayed discovery of the permission.

The defendant and interested party filed Part 11 applications, relying on Good Law Project, and initially failed to provide summary grounds of defence. The issues were whether Part 11 applied, whether late summary grounds should be admitted, whether time should be extended for filing the claim, and whether permission should be granted.

1. Part 11 applications. Part 11 can apply in judicial review proceedings because Part 54 modifies, but does not wholly replace, the Part 8 procedure. A defendant may raise a genuine jurisdictional issue under Part 11. However, the usual and safer course is to raise the point in the acknowledgement of service and summary grounds, inviting refusal of permission.
2. Filing distinguished from service. Good Law Project concerned late service of a claim form and the strict requirements derived from CPR 7.6(3). It did not alter the approach to extending time for filing a judicial review claim under CPR 54.5(5). That question is governed by the discretionary principles in Thornton Hall Hotel, including a broad assessment of the merits.
3. Publicity and opportunity to object. The site-notice and website requirements in article 15 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 were fulfilled, but the newspaper-publication requirement was not. The claimant nevertheless had a fair opportunity to discover the application by 16 February 2024, when it received a press article clearly reporting the outline application. The failure to use the council’s planning portal or contact the council thereafter was not sufficiently explained.
4. Merits and prejudice. The mistake-of-fact ground concerning night-time operation was strongly arguable, applying the test in E v SSHD. The grounds concerning the outline conditions and the noise assessment were arguable, but did not disclose insuperable difficulties with the permission. The interested party had acquired reliance and sale prejudice, while further delay would cause detriment to good administration.
5. The applications to extend time for summary grounds were granted, with their preparation costs disallowed. The Part 11 applications were dismissed. The claimant’s application to extend time was dismissed and permission to apply for judicial review was refused.