Estates Gazette • 15 February 2025 • Case summaries

Practice and procedure – Judicial review – Extension of time – Defendant local authority granting interested party developer planning permission for residential development – Claimant seeking judicial review and applying to extend time for filing claim – Defendant and interested party applying for declaration that court had no jurisdiction – Whether court having jurisdiction – Whether appropriate to grant extension of time – Applications dismissed The interested party developer applied for outline planning permission for residential development comprising up to 120 units, including access, at a former bus depot at Midland Road, Masbrough, Rotherham. The defendant local planning authority granted permission.

The claimant company held a leasehold interest in, and operated, a gas-fuelled, back-up electricity generation facility on land which ran along part of the development site. It sought judicial review of that decision and filed a claim form after the six-week limit provided for by CPR 54.5(5). Acknowledging a judicial review was long out of time, the claimant applied for an extension of time to file the claim under CPR 3.1(2)(a).

The claim form was served on the defendant and interested party. Both filed an acknowledgment of service but neither attached summary grounds of defence. Instead, they both stated they intended to dispute the court’s jurisdiction by applying under CPR Part 11 for declarations that the court had no jurisdiction, or would not exercise its jurisdiction, in respect of the claim.

The CPR 11 applications were accompanied by written submissions but neither addressed the question whether the claimant’s grounds of challenge were arguable; each requested that, if the claimant’s extension of time application was granted and the CPR Part 11 applications were refused, they should be granted an extension of time to serve their summary grounds of defence. Held: The applications were dismissed.

(1) There was nothing in CPR Part 54 which excluded the operation of Part 11 in the context of a judicial review claim. But by virtue of the requirement for the court’s permission in every judicial review claim, the court was able to act as its own gatekeeper as to the exercise of its own jurisdiction, without there being any need for a party to make an application under CPR Part 11.

A defendant or interested party who considered that permission should be refused had the opportunity to put those matters which it considered justified the refusal of permission before the court when it filed its acknowledgment of service: CPR 54.8(1) provided that any person served with the claim form who wished to take part in the judicial review had to file an acknowledgment of service in the approved form in accordance with the following provisions of that rule, including CPR 54. 8(4)(a)(i), which required summary grounds of defence to be set out.

(2) It was always open to a defendant responding to a claim for judicial review on their acknowledgment of service to identify anything which it considered amounted to a knockout blow to the claim, without providing a response to the grounds themselves. It might choose not to dispute the grounds of claim were arguable, but to contest the claim by reference to another complete answer to the claim, such as the claimant’s lack of sufficient interest in the matter, or the availability of an alternative remedy.

It followed that there was no need for a defendant to apply under CPR Part 11 if it wished the court to refuse an extension of time and to refuse permission to apply for judicial review on grounds of a claimant’s delay in filing the judicial review claim. The need for a claimant to apply for an extension of time, coupled with the need to obtain the court’s permission to apply for one, provided a fully adequate procedure to allow the court to decide whether or not it should exercise its jurisdiction to determine the claim on its merits.

(3) Accordingly, the Part 11 applications made by the defendant and interested party were misconceived. Where there was an application for an extension of time for the claim form to be filed but there was no dispute that, following filing, the claim form was served within the relevant time limit imposed by CPR 54.7, the question whether time should be extended for filing the claim form had to be resolved by the exercise of judicial discretion. There was no shortcut which entitled the defendant or interested party to point to the delay in filing the claim form and to treat that as ipso facto determinative of the claim: R (on the application of Thornton Hall Hotel Ltd) v Wirral Metropolitan Borough Council [2019] PLSCS 80; [2019] PTSR 1794 applied. R (on the application of Good Law Project Ltd) v Secretary of State for health and Social Care [2021] 1 WLR 2339.

Nor was there any other basis on which the Part 11 applications could succeed independently of the outcome of the claimant’s application under CPR 3.1(2)(a) for an extension of time for the claim form to be filed and for permission to apply for judicial review.

(4) The claimant failed to act with all possible celerity, and delayed its enquiries following receipt of information that the application had been made on 16 February 2024. To extend time would cause substantial and unfair prejudice to the interested party and detriment to good administration. The grounds of the challenge were not so strong as to mean the public interest in the claim being heard and/or in decisions as to planning permission being made on a lawful basis outweighed those matters. There was reason to extend time to make up for the claimant’s delay. Accordingly, the application for an extension of time to file the claim form would be dismissed.

Since the claim form was not filed within the required time in breach of CPR 54.5(5), and in light of the court’s refusal to extend time, permission to apply for judicial review also had to be refused: R (on the application of Gerber) v Wiltshire Council [2016] EWCA Civ 84; [2016] PLSCS 59 considered.

Gregory Jones KC and Alexander Greaves (instructed by Squire Patton Boggs (UK) LLP) appeared for the claimant; Killian Garvey (instructed by Anthony Collins Solicitors LLP) appeared for the defendant; John Barrett (instructed by Ramsdens Solicitors LLP) appeared for the interested party.

TOWN AND COUNTRY PLANNING | FLOOD RISK

Mead Realisations Ltd v Secretary of State for HCLG and another

Town and country planning – Flood risk – Sequential test – Local authority refusing permission for residential development – Inspector dismissing appeal – High court dismissing application for statutory review – Whether judge wrongly holding planning practice guidance could “amend” National Planning Policy Framework – Whether judge wrongly holding inspector properly treated PPG as “elucidating” NPPF – Appeal dismissed The appellant developer applied to the second respondent local authority for outline planning permission for up to 75 dwellings at Lynchmead Farm, Wick St Lawrence, near Weston-Super-Mare, in a high-probability floodplain.

Paragraph 162 of the National Planning Policy Framework (2021) contained a policy for a “sequential approach” in assessing proposals for development likely to give rise to, or increase, the risk of flooding. The aim was to steer development to areas with the lowest risk of flooding. Development was not to be allocated or permitted if there were sites appropriate for the proposed development in areas with a lower risk of flooding.

Paragraph 7-028 of the Planning Practice Guidance contained guidance on the “sequential test” relating to the policy in paragraph 162, including the concept of a “reasonably available” site.

The second respondent refused planning permission and an inspector appointed by the first respondent secretary of state dismissed the appellant’s appeal, holding the sequential test in paragraph 162, together with the PPG, was not met because there were reasonably available sites with a lower flood risk; and the adverse effects of the proposed development, including flood risk, were not outweighed by its benefits so that the exception test did not apply.

The High Court dismissed the appellant’s application for statutory review of the inspector’s decision: [2024] EWHC 279 (Admin). The appellant appealed. Held: The appeal was dismissed.

(1) There was no legal distinction between the government’s planning policies in the NPPF and its guidance in the PPG. They were not legislation. Their status was equivalent in the sense that both were statements of national policy issued by the secretary of state when exercising his general power as the minister with overall responsibility for the operation of the planning system: R (on the application of West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] PLSCS 137; [2016] 1 WLR 3923 and Suffolk Coastal District Council v Hopkins Homes Ltd [2017] EGLR 27 considered.

The NPPF was a framework of national planning policy, in which the government set out its policies for planning decision-making and plan preparation. The PPG was national guidance for planning practice, which could reinforce that framework. Policies in the NPPF would state the government’s objectives and purposes for aspects of land use planning and planning decision-making, and the essential principles that applied. The PPG explained how those policy objectives and purposes were to be achieved, and the principles put into practice: Bent v Cambridgeshire County Council [2017] EWHC (Admin) considered.

(2) The guidance in the PPG complemented the NPPF policies. Its function was to support the NPPF, to the benefit of applicants, authorities and those involved or interested in the planning process and practitioners. Its mode of publication, as an online resource, made it accessible and adaptable to changing circumstances. It promoted greater predictability and consistency in various aspects of planning decision-making and plan preparation when the government considered it necessary, with amendments or additions made to the guidance from time to time. It was conducive to certainty in the planning process, without constraining unduly the exercise of planning judgment by local planning authorities or, in appeals, the secretary of state and inspectors: Menston Action Group v City of Bradford [2016] EWHC 127 (Admin); [2016] PTSR 466 and Solo Retail Ltd v Torridge District Council [2019] EWHC 489 (Admin) considered.

(3) The policies in the NPPF and the guidance in the PPG were capable of being material considerations in decision-making on planning applications and appeals. And the weight to be given to such policy or guidance in a planning decision was for the decisionmaker, subject to the court’s intervention on public law grounds: Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 EGLR 147 considered.

Relevant factors in assessing weight might include: the respective terms of the policy and guidance and whether they sat easily together; the timing of their publication, and how recently each was issued; and the nature of the process by which they were produced, including the fact the guidance in the PPG was generally not subject to any external consultation before being issued, whereas NPPF policies were.

(4) Policies in the NPPF and guidance in the PPG might be used as an aid to the interpretation of each other. In this case, both the NPPF policy in question and the related PPG guidance were clear, and when read together they formed a coherent whole: Braintree District Council v Secretary of State for Communities and Local Government [2018] EWCA Civ 610; [2018] PLSCS 61; [2018] 2 P & CR 9 considered.

The judge was right to hold that the guidance in paragraph 7-028 of the PPG did not amend the policy in paragraph 162 of the NPPF. The policy and guidance could and should be read together harmoniously, and paragraph 7-028 was consistent with the opentextured language of paragraph 162 properly understood. The former had merely clarified the latter and the inspector correctly treated the PPG as having elucidated the NPPF.

(5) The inspector’s critical conclusions, that the proposal failed the sequential test under current government policy in the NPPF, read in the light of the current guidance in the PPG, and that the proposal was not in accordance with the development plan, taken as a whole, were clearly expressed and reasoned. His exercise of planning judgment was lawful. His conclusions reflected a proper understanding and faultless application of the policy in paragraph 162 and the guidance in paragraph 7-028, and of the core strategy. No public law error occurred.

Lord Banner KC and Isabella Buono (instructed by Clarke Willmott LLP) appeared for the appellant; Hugh Flanagan (instructed by the Government Legal Department) appeared for the first respondent; the second respondent did not appear and was not represented

© 2025 MA Business Ltd. While all reasonable care is taken in the preparation of these case summaries, readers are advised that they are not based on the authorised judgments and may contain errors and omissions

These summaries are selected from the archive on EG Legal. Case summaries are posted daily and law reports weekly. www.egi.co.uk/legal