Court of Appeal to hear case over whether planning challenge was out of time

An applicant has secured permission from the Court of Appeal to argue that his challenge in a planning case was not brought out of time.

The background to the permission hearing in Croke v Secretary of State for Communities and Local Government & Anor [2017] EWCA Civ 423 was that John Noel Croke has been seeking to challenge a decision issued by a planning inspector in February 2016.

The inspector dismissed an appeal by Mr Croke against the decision of Aylesbury Vale District Council not to determine an application for planning permission for alterations and extension to existing buildings at the Grange Barns, Church Road, Ickford, Aylesbury, Buckinghamshire.

In this case the six-week time limit for bringing a challenge under section 288 of the Town & Country Planning Act 1990 ended on 23 March 2016.

Mr Croke sought to issue his section 288 claim in the Administrative Court Office at the Royal Courts of Justice, in person, on 23 March. However, he missed his train.

He emailed the relevant documents to a friend, who was apparently located only a few minutes from the court; and asked him to file the claim.

It was Mr Croke’s case, accepted by the judge below for the purposes of the application before her and by counsel for the Secretary of State before the Court of Appeal, that the friend arrived at the RCJ at 4.25 pm.

However, although the advertised closing time for the court was 4.30 pm, the friend was refused entry at the main front entrance of the building, the security guard there informing him that the counters were closed.

The following day, Mr Croke personally attended the Administrative Court Office, where he arrived at 3.30pm. It was Maundy Thursday and, for the court office, the last working day before the Easter break.

Due to the volume of people in the queue, he was not seen until about 5 pm, when he was informed by a member of staff that he had used an out-of-date claim form, and he would need to complete a different form. He was given a copy of the new form, and he asked if he could complete it there and then. He was told that he would have to return the next working day.

The following day was Good Friday, and the next day upon which the court office was open was 29 March. Mr Croke attended the Administrative Court Office that day, and filed the claim.

The Secretary of State for Communities and Local Government applied to strike out the claim on the ground that it was outside the six-week statutory time limit, and the court had no jurisdiction to entertain it.

On 11 August 2016, on the papers, Ouseley J refused leave to proceed, on the basis that the claim was out-of-time, and so the court had no jurisdiction to hear it.

Mr Croke renewed his application. Her Honour Judge Alice Robinson held that litigants who were subject to strict time limits must ensure that they attend court in good time, so that their attempts to issue proceedings were not thwarted by unexpected problems, such as security procedures; and, on the facts of this case, time expired on 23 March 2016. It was, in her view, unnecessary to consider what happened on 24 March 2016.

Mr Croke sought permission to appeal against that order.

As before the Deputy Judge, he relied upon such cases as Pritam Kaur v S Russell & Sons Ltd [1973] QB 336, Nottingham City Council v Calverton Parish Council [2015] EWHC 503 (Admin) and Yadly Marketing Co Ltd v Secretary of State for the Home Department [2016] EWCA Civ 1143, to contend that the claim was brought in time.

Those cases all concerned circumstances in which a time limit for doing something at court expires on a Sunday, Bank Holiday or other "dies non" on which the court is closed for the day, days of business in the High Court being regulated by paragraph 2 of CPR PD 2A.

In those circumstances, the courts have held that Parliament intended the time limit to expire only on the next working day ("the Kaur principle").

Lord Justice Hickinbottom said neither Mr Croke nor counsel for the Secretary of State had found any case which dealt with the circumstances of the applicant’s case, in which the court office was open on the relevant day, but not open for the whole of "normal working hours" on that day as set out on the web and, in mandatory terms, in paragraph 2.1(2)(a) of CPR PD2A under which the hours which the offices of the senior courts at the Royal Courts of Justice "will be open to the public" are from 10 am to 4.30 pm.

Lord Justice Hickinbottom said there appeared to be no authorities on the point of whether, and in what circumstances, the Kaur principle extended to a case where the court was closed, or not otherwise functioning, for less than the whole of the final day on which a claim must be issued or "made".

Mr Croke submitted that it should apply when the court is not functioning for part of the relevant day, and at least not functioning for the period running up to the time when the court would normally close; and, in his case, it should apply to both 23 March (when his friend was barred access to the court building) and 24 March (when the court staff failed to issue his claim).

Lord Justice Hickinbottom said: “Having considered the ground of appeal with particular care – and not without some hesitation – I am persuaded that this appeal is arguable, particularly given the absence of authority on this point. It is also noteworthy that this issue affects not just section 288 claims, but a variety of proceedings where there are strict time limits.

“Therefore, although the Applicant himself accepts that the merits of his particular case may not be the strongest or attract great sympathy, the issue of principle involved does or may have some broader importance.”

The Court of Appeal judge added: “The Kaur principle is dependent upon the intention of Parliament, as the courts have construed it, i.e. that, when a time limit would otherwise have expired on a dies non, Parliament intended that that time should not expire until the next working day. That involves no exercise of discretion on the part of the court.

“Judge Robinson proceeded on the basis that there was no jurisdiction for the court to extend time. In my view, that is not strictly the case: even where a time limit is strict, there remains a residual jurisdiction in the court to extend time, e.g. to avoid a breach of human rights (see, e.g., Pomiechowski v District Court of Legnica, Poland [2012] UKSC 20, R (Adesina) v Nursing and Midwifery Council [2013] EWCA Civ 818 and Yadly Marketing). However, in this case, the Applicant before me renounced any reliance on such a ground; and, in my view, rightly so. There is no arguable case here for the court extending time in circumstances in which the relevant time limit, as construed in Kaur, has expired.”

The judge granted leave, limited to the single ground he had described.

Lord Justice Hickinbottom made two final points. He warned Mr Croke that this was only the permission stage and that he ran the risk of an adverse costs order if he lost the substantive appeal. The judge also said Mr Croke would need to consider whether he wished to be legally represented at the substantive appeal, which involved the true construction of section 288 as a matter of law.