Challenge to local plan — Claim form — Claimant applying for extension of time for service — Whether court having general power to extend time — Application granted
The claimant applied for an extension of time for service of its claim form, under section 287 of the Town and Country Planning Act 1990, challenging parts of the local plan that the defendants had adopted in August 2005. The claim form issued was of the type envisaged by CPR 8 which was agreed to be the appropriate form in the present case.
Section 287(4) provided that an application under section 287 had to be made within six weeks from “the relevant date”. It was agreed that the relevant date was 9 August 2005 and that the six-week period expired on 20 or 21 September 2005, by which date the claim form had to be issued and served. However, owing to an error by the agent acting on behalf of the claimant’s solicitor, it had not been served until 23 September.
An issue arose as to the procedural rules governing the application. The claimant submitted that CPR 3.1 applied, giving the court a discretion to grant the relief sought. The defendants argued that CPR 7.5 and 7.6 applied so that only limited grounds applied (none of which applied in this case) upon which the court had jurisdiction to grant relief where, as here, the application for extension had been made after the expiry of the relevant time period.
Held: The application was granted.
The procedural rule applicable to the present application was CPR 3.1(2)(a).
Paragraph 2.1 of the practice direction to CPR 8 stated that Part 7 contained “a number of rules and directions applicable to all claims”, in the form of a reminder to look to Part 7 to determine which of its provisions applied to any particular Part 8 claim. CPR 7.6 was not applicable to all claims, including the instant one. It expressly dealt with applications for an extension of time after the end of the period specified under CPR 7.5 or an order of the court and it was clear that the present case was not such an application. Accordingly, it was not appropriate to apply CPR 7.6 to this case: Nagusina Navierav Allied Maritime Inc [2002] EWCA Civ 1147 considered.
In a case such as the present, where the defendants had conceded that it could be argued that they had acted unlawfully in implementing a plan that did not follow exactly the inspector’s decision pursuant to a public inquiry, the considerations were different from those affecting ordinary litigation. A potentially unlawful plan might affect planning policy for three years. Dilatoriness was not to be encouraged and the leeway was slender. However, it would be unjust to refuse an extension of time of two or three days to challenge an action of a public authority that was potentially unlawful, where the error had been made by a third party: Commissioners of Customs & Excise v Eastwood Care Homes (Ilkeston) Ltd [2001] CP Rep 18; Wandsworth London Borough Council v Secretary of State for Transport, Local Government and the Regions [2003] EWHC 622 (Admin); [2004] 1 P&CR 32; and Morbaine Ltd v First Secretary of State [2004] EWHC 1708 (Admin); [2005] JPL 377 considered.
Colin Thomann (instructed by Marrons, of Leicester) appeared for the claimant; Andrew Hogan (instructed by the legal department of Erewash Borough Council) appeared for the defendants.
Eileen O’Grady, barrister
