Practice and procedure – Issue of proceedings – Time limits – Appellant applying to challenge decision of planning inspector dismissing appeal against non-determination of planning application – Appellant attempting to file claim form at court office five minutes before Administrative Court office closed on last day of six-week statutory time limit – Attempt unsuccessful owing to refusal of security staff to grant entry to building – Judge refusing leave to apply because application made too late and court having no jurisdiction to hear it – Appellant appealing – Whether time to be extended to next working day where court office “inaccessible” on last day – Whether court having jurisdiction to hear claim – Appeal dismissed
The appellant sought to bring proceedings, under section 288 of the Town and Country Planning Act 1990, to challenge a decision of the first respondent’s planning inspector dismissing an appeal against the non-determination by the second respondent council of an application for planning permission for alterations and extensions to existing buildings to create a single residential dwelling with parking, sunken swimming pool and amenity space at “The Grange Barns”, Church Road, Ickford, near Aylesbury.
On the last day of the six-week statutory time limit for bringing such proceedings, the claimant attempted to file the claim at the Administrative Court office, which, as the appellant was aware, closed at 4.30pm. The appellant’s associate arrived at the Royal Courts of Justice at 4.25pm but was refused entry by security at the front of the building, who informed him that the counters were closed. The appellant attended the Administrative Court office in person on the next day but, due to the volume of people, he was not seen until 5pm, when he was told that he had used the wrong claim form and was told to return on another occasion to submit the correct form. The following day was Good Friday and the court office was closed; it did not reopen until the following Tuesday, when the claim was finally filed.
The first respondent applied to strike out the claim on the ground that it had been filed out of time and the court had no jurisdiction to entertain it. The appellant accepted that the six-week period was absolute and the court had no power to extend time. However, he contended that, where a court office was inaccessible during its normal office hours on the last day of the time limit, the due date should be extended to the following day, by analogy with the position where the last day fell on a date when the court office was closed. Moreover, when he had attended the court office in person the following day, there was no reason why the court could not have accepted the claim form which he had used, since it contained exactly the same information as the alternative form he was given. The High Court granted the application to strike out: [2016] EWHC 2484 (Admin); [2016] EGLR 60. The appellant appealed.
Held: The appeal was dismissed.
(1) When a time was prescribed by statute for doing any act, which could only be done if the court office was open on the day when the time expired, if it turned out in any particular case that the day was a Sunday or another day on which the court was not sitting, the time was extended until the next day on which the court office was open (“the Kaur principle”). Where a statutory provision provided that proceedings had to be brought no later than the end of a specified period, and the bringing of proceedings required that the court office be functioning, and the last day of the prescribed period fell on a day when the court office was closed, the statutory provision was to be interpreted as permitting the proceedings to be brought on the next day when the court office was open: Kaur v S Russell & Sons Ltd [1973] 1 QB 336 and Calverton Parish Council v Nottingham City Council [2015] EWHC 503 (Admin); [2015] PLSCS 66 followed.
(2) Parliament had provided a strict time limit of six weeks for the making of an application under section 288 of the 1990 Act. Section 288(4B) did not admit any exception to the absolute time limit it laid down. The time limit was precise, unambiguous and unqualified. The statutory language was mandatory. It required an applicant to make his application within the specified period. The application for leave to bring such a challenge had to be made before the end of the period of six weeks beginning with the day after the date on which the action was taken. There was no reference to considerations such as a requirement to act “promptly” or to make the application without “undue delay”. It was clear that Parliament intended to avoid the uncertainty and inconsistency likely to occur if the time for making an application under section 288 was subject to the court’s discretion. The present case showed what could happen when a series of unlucky events occurred on the last day of the six-week period. However, those events did not engage the Kaur principle or demonstrate any need to enlarge it.
(3) The only basis upon which time could be extended beyond the six-week period would be where the court could and should exercise its discretion, in exceptional circumstances, on human rights grounds. Under section 3 of the Human Rights Act 1998 the court had to read and give effect to the provisions of the 1990 Act in a way that was compatible with European Convention rights, here the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Section 288 permitted proceedings by any person aggrieved by a decision of the secretary of state or his inspector. The grounds on which such a challenge might be made were confined to the principles of public law. The six-week time limit for making an application in section 288(4B), did not distinguish between one person aggrieved and another. It imposed a relatively generous but finite period within which a challenge could be brought. The time limit was compatible with article 6.
The appellant appeared in person; Zack Simons and Alistair Mills (instructed by the Government Legal Department) appeared for the first respondent; The second respondent did not appear and was not represented.
Eileen O’Grady, barrister
