Sroda Construction Limited, R (on the application of) v Elmbridge Borough Council

Extensions of time for challenging planning decisions by judicial review are exceptional. A claimant must act with the greatest possible celerity, and compliance with the pre-action protocol does not suspend the statutory or procedural time limit.

A local planning authority must take account of a material planning consideration, including the effect of development on existing solar panels. However, relief may be refused where it is highly likely that the outcome would not have been substantially different. The court must assess the significance of the error without substituting its own decision for that of the planning authority.

Notification under article 15(5) may be satisfied by serving adjoining owners or occupiers, displaying a site notice, or both.

Sroda sought permission to bring judicial review proceedings challenging Elmbridge Borough Council’s grant of planning permission for a dwelling adjoining premises occupied by Sroda.

The application was issued 13 weeks and two days after the planning permission. Sroda alleged that Elmbridge had failed to consider the effect of the development on solar panels and had failed to comply with its notification duties. The central preliminary issue was whether time should be extended. The court also considered the two substantive grounds for completeness.

1. Extension of time. The application was substantially out of time. The claimant knew of the decision and at least one proposed ground within the six-week period. Acting through a director and as a litigant in person did not justify the delay. The pre-action protocol imposed no mandatory waiting period and did not extend the time limit. The developer had suffered prejudice, and the circumstances were not exceptional. The extension was refused.
2. Solar panels. The solar panels were capable of being a material planning consideration. Elmbridge’s stated view that solar panels were not material was legally wrong, and the original decision-maker had not considered them. Applying the approach in Tesco Stores Limited v Secretary of State for the Environment [1975] 1 WLR 759, there had been a failure to take account of a material consideration.
3. Nevertheless, applying section 31 of the Senior Courts Act 1981, it was highly likely that the outcome would not have been substantially different. The housing need and benefits of the development would have outweighed the limited effect on direct sunlight. The court was required to evaluate the significance of the error in the decision-making process, not predict or determine the decision afresh. The approach in R(Bradbury) v Awdurdod Parc Cenedlaethol Bannau Brchiniog [2025] EWCA Civ 489 was applied.
4. Notification. On the balance of probabilities, notification letters had been sent to the relevant neighbouring properties. In any event, a bright site notice displayed less than 30 metres from the site for almost 10 weeks was near the site and satisfied article 15(5) of the Town and Country Planning (General Management Procedure) (England) Order 2015. The notification ground therefore could not succeed.
5. The claim failed because time was not extended. Permission would also have been refused on both substantive grounds. Sroda was ordered to pay Elmbridge’s costs of £3,535.