High Court judge dismisses statutory challenge by town council over permission for 146-home scheme, saying he did not have power to extend time for service

A deputy High Court judge has dismissed a statutory review challenge brought by a town council over a planning inspector's grant of permission for a 146-dwelling scheme, after finding that the court had no power to extend time for service of proceedings after they were served late by the claimant's solicitors.

In Farnham Town Council v Secretary of State for Levelling Up Housing & Communities & Anor [2024] EWHC 2458 (Admin) the judge, Tim Smith, said that even if the court did have that power, he would not have exercised it in favour of the claimant.

Farnham Town Council was seeking to challenge a decision by a planning inspector to allow an appeal by Wates Developments and grant it planning permission for the development on two parcels of land.

The site, which has been the subject of a number of planning applications in the past, sits at the edge of the Surrey Hills Area of Outstanding Natural Beauty (“AONB”).

In May 2021 Natural England announced a review of the AONB boundaries. Part of that review included a proposal to enlarge the boundaries in an area known as the Wey Valley Farnham Extension ("AONB Extension").

Part of the site falls within the AONB Extension and so it is a "candidate area for designation" within the AONB, the judge noted.

Waverley Council refused planning permission in November 2022, a decision that Wates appealed. In a decision letter issued on 3 July 2023, an inspector allowed the developer’s appeal.

Waverley considered whether to bring a legal challenge but chose not to. However, the town council did bring a claim.

Mr Smith said the issues for determination included not only a challenge to the lawfulness of the decision but also the questions of whether the court could, and, if so, should, extend time for the service of proceedings after they were served late.

The two grounds of challenge were:

1. a failure by the Inspector to have regard to a material consideration, namely the wording of policy FNP10(c) of the Farnham Neighbourhood Plan, and
2. a failure to give sufficient reasons for the decision to allow the appeal despite the conflict with policy FNP10(c).

FNP10 covers protection and enhancement of the countryside. It reads:

Outside of the Built Up Area Boundary, as defined on Map A, priority will be given to protecting the countryside from inappropriate development. A proposal for development will only be permitted where it would: 

…

c. Conserve and enhance the landscape and scenic beauty of the Surrey Hills Area of Outstanding National Beauty and its setting – including those areas of Great Landscape Value under consideration for designation as AONB

Setting out the procedural history, the deputy High Court judge said it was common ground between the parties that by virtue of s288(4B) of the Town & Country Planning Act 1990 a challenge must be both commenced and served within a period of 6 weeks beginning the day after the date of the decision letter. The last day of the period in this case was therefore 14 August 2023.

The claim was filed by the solicitors acting for the town council on 14 August 2023. But service on the Secretary of State, Wates and Waverley Council was not attempted until 16 August.

“Even then service on the Secretary of State did not accord with the requisite procedures and proper service on him was only effected on 18 August 2023,” the deputy High Court judge said.

A solicitor for the claimant acknowledged that, owing to the absence of a colleague on holiday, it fell to him to issue and serve the proceedings. However, he believed that he would have a period of time after issue to serve the proceedings, and had not appreciated at the time that the deadline to serve was in fact that day.

Both the Secretary of State and Wates resisted an application by the solicitor to the court for a retrospective extension of time within which to effect service.

Mr Smith said there were two matters for the court to determine:

1. whether the claimant was to be granted permission to extend time for service of the proceedings, and
2. if so whether permission to proceed with the statutory review should be granted (permission being required by virtue of section 288(4A) of the 1990 Act).

Counsel for the town council argued that the case of Corus UK Ltd v Erewash Borough Council [2006] EWCA Civ 1175, which related to a statutory challenge to the adoption of a development plan document, was binding.

However, the judge noted that the introduction of Practice Direction 54D represented a “critical difference” between the rules in force and interpreted in Corus and the rules applicable now.

Mr Smith also found: “[In] my judgement it simply does not follow that, just because in statutory challenge cases the rules regarding the timing of issue is strict, therefore the rules regarding the timing of service must be more forgiving. I prefer the conclusion that the court's discretion to extend applies to neither procedural step because statutory challenges are intended to hold claimants to a higher standard than those embarking on the common law remedy of judicial review. The statutory language is clear (and, we must assume, deliberately so) that six weeks means six weeks.” [judge’s emphasis]

He also endorsed the comments of Carr LJ (as she then was) at [85] of R (on the application of the Good Law Project) v Secretary of State for Health and Social Care [2022] EWCA Civ 355 in which she concluded overall on the relationship between rules 3.1.(2)(a) and 7.6 of the Civil Procedure Rules:

"As for extensions of time for service of a judicial review claim form, whilst CPR 7.6 does not directly apply, its principles are to be followed on an application to extend under CPR 3.1(2)(a). Thus, unless a claimant has taken all reasonable steps to comply with CPR 54.7 but has been unable to do so, time for service should not be extended"

The deputy High Court judge agreed with the application of those principles to statutory challenge proceedings as was found in the subsequent cases of Halton Borough Council, Telford and Wrekin Council and Aurora Properties.

Mr Smith said that the answer to the question “could I extend?” must be no, and the claim therefore failed.

That conclusion was sufficient to dispose of the case. However, the deputy High Court judge went on to indicate what his conclusions would have been on the remaining points.

Mr Smith said he would not have exercised a discretion to extend time, if he had one.

He acknowledged that on the face of it, the period of delay appeared short at four days for the Secretary of State and less for Wates. However, he added that “these ostensibly short periods need to be judged against a window for commencement and service which, at six weeks, is itself short by comparison with periods for the issue and service of other types of claim”.

He also recognised that it might appear unfair that errors by the claimant’s solicitors had excluded their claim. But he said that appearance needed to be weight against two factors:

• he was sceptical whether “careless mistakes” should justify a grant of an extension of time; and
• there was some force in the submission from Wates' counsel that the harm here was at least partly self-inflicted.

The judge said the evidence confirmed that the town council was in discussion with its solicitors about a potential claim some time before the deadline expired “and yet the claim was not compiled and issued until the very end of the challenge period”.

He said it was apt to recall the judgment of Lord Sumption in Barton v Wright Hassall LLP [2018] UKSC 12 at [23]:

"A person who courts disaster in this way can have only a very limited claim on the court's indulgence"

The deputy High Court judge said: “That observation was made in the context of a litigant in person. In my judgement it must apply with even greater force where a party is professionally represented.”

In response to a submission on behalf of the town council that the decision if left unchallenged would set the tone for the area for a generation or more, the judge observed that the case was far from unique in that fact.

"Permission for any development will, if implemented, set the tone for an area for at least the design life of the buildings permitted. What is more, as will be seen from the discussion below the Inspector reached her decision fully in the knowledge of the proposed changes to the AONB boundary and the implications which the development would have for the AONB in this location if the boundaries were expanded."

Mr Smith said: “In my judgement the interests of justice weigh firmly in favour of refusing an extension of time. It is in the public interest that there be certainty and finality around planning decisions and that any challenge to a planning decision must therefore be brought promptly. There would need to be powerful grounds to justify an extension of time. There are none.

“The delay in this case arises solely from an error on the part of the Claimant's advisers. Whilst the Claimant itself thereby suffers prejudice from being shut out of its claim, allowing an extension of time in these circumstances would serve to transfer that prejudice to the defending parties. That would lead to a perverse result. The merits of the claim and the consequences of the Decision do not displace that conclusion.”

The deputy High Court judge would also have dismissed the substantive claim, finding that there was neither error in how the inspector approached paragraph (c) of policy FNP10 nor inadequate reasons for her conclusions.

He would have granted permission for grounds 1 and 2 to proceed, but refused the claim on both grounds.