Out of time, out of luck?

Judicial review (‘JR’) is the mechanism by which the lawfulness of a public body’s decision can be tested in court. The rules governing the timing of JR are notoriously unforgiving, and for a local planning authority (‘LPA’) facing a late challenge to one of its decisions they can offer a valuable line of defence. It is not uncommon for claimants, often unaware of the strict time limits, to bring claims out of time. This article gives a short overview of the law and how an LPA can put it to use.

The six-week rule

Most public law challenges must be brought promptly and, at the latest, within three months. Planning is different. Under CPR 54.5(5), where a JR relates to a decision of the Secretary of State or a local planning authority under the planning acts, the claim form must be filed “not later than six weeks after the grounds to make the claim first arose.” That rule does not cover decisions of the Secretary of State or an inspector on appeal, which are challenged instead under section 288 of the Town and Country Planning Act 1990 and are subject to their own (stricter) time limits, outside the scope of this article.

Time runs from the day after the decision was made, irrespective of when an objector happened to find out (Croke v Secretary of State for Housing, Communities and Local Government [2019] EWCA Civ 54). CPR 3.1(2)(a) does give the court discretion to extend time, but it will not do so lightly.

Overview of the law

The leading authority on allowing claims to be brought out of time is R (Thornton Hall Hotel Ltd) v Thornton Holdings Ltd [2019] EWCA Civ 737. The Court of Appeal set a deliberately high bar, insisting on “promptness in bringing such challenges in all but the most exceptional circumstances” [§51], and emphasising that a prospective claimant must move with “the greatest possible celerity” in bringing a claim [§21].

This emphasis on promptness arises because developers are entitled to rely on a permission that appears lawfully granted, and because there is a strong public interest in ensuring the certainty of the LPA’s decisions. The short challenge window is intended to protect that certainty from challenges mounted once development has commenced and significant expenditure has been incurred. For an LPA, this rationale forms the basis of any argument that a prospective claim should be defeated by the 6-week deadline.

Where a third party has had a fair opportunity to become aware of and object to a development, in most cases presumed where the statutory notification requirements have been complied with (see, for example, R (oao Wallis) v North Northamptonshire Council and ors [2024] EWHC 3076 (Admin)),  it would not be appropriate to extend time “simply because an objector did not notice what was happening” (Thornton Hall [§21(2)], citing Sales LJ in R (on the application of Gerber) v Wiltshire Council [2016] EWCA Civ 84).

Gerber is also authority that a claimant cannot generally blame delay on the legal advice they did or did not receive; the claimant remains responsible for the decision to bring a claim and must take responsibility for the consequences that ensue [§53]. In the same spirit, the Administrative Court Judicial Review Guide makes clear that there is no special dispensation for litigants in person: they too are expected to know and comply with the Civil Procedure Rules.

What the claimant will argue

However, a late claim is not automatically refused, and it helps to know the ground on which the claimant will try to stand. The strongest arguments emerge where the delay arose out of exceptional circumstances; for example, where the claimant could not reasonably have known of the decision within the six-week challenge period, supported by evidence that they issued proceedings as soon as they became aware of it. Immediacy of action once knowledge is acquired is likely to be central to any application to bring a claim out of time, so an LPA should scrutinise closely both when the claimant first knew, and how long they then sat on their hands.

Equally instructive is what will not save the claimant, and these are points the LPA should advance. Following the pre-action protocol does not stop the clock: the protocol does not affect the time limits established in the CPR and is not, of itself, a reason to extend time. Nor will the claimant readily succeed in arguing that they were waiting for the conclusion of a complaints procedure or inter-party correspondence before issuing, if the time limit has already passed.

The safer course, endorsed by Lang J in R (Wallis) v North Northamptonshire Council [2024] EWHC 3076 (Admin) [§101], is for the claimant to issue a protective claim to stop time running while negotiations or protocol correspondence continued, and to have applied later to amend. Where the claimant has failed to take that step, the LPA can fairly ask why not.

What this means for the LPA

When resisting a late claim, the LPA’s task is to close off each of these arguments in turn. Establish that time runs from the date of the decision and not from any later event, and pin down precisely when the claimant knew of the decision and of any possible ground of challenge. Where the statutory notification requirements were complied with, say so: that will usually defeat any suggestion that the claimant could not reasonably have known what was happening. Where you do not accept that there were exceptional circumstances on which the claimant can rely, make that position clear to the court rather than leaving it to inference. Finally, do not treat the time limits as purely procedural: argue the wider public interest in the certainty of the LPA’s decisions and also any prejudice to the developer.

A well-evidenced time point is frequently the LPA’s quickest and cheapest route to disposing of a claim.

Anna Stein is a barrister at No5 Chambers specialising in planning and environmental law. She acted for the successful defendant in R (oao Sroda Construction Ltd) v Elmbridge BC and ors [2026] EWHC 967 (Admin), resisting an application to bring a judicial review out of time.