Court of Appeal agrees with High Court to quash planning permission after six years

13 May 2019

Was the High Court wrong to extend time for a judicial review challenge to a planning permission granted around six years ago? That was the question the Court of Appeal had to grapple with in R(on the application of (1) Thornton Hall Hotel Limited (2) Wirral Metropolitan Borough Council v Thornton Holdings Limited [2019] EWCA Civ 737

In my previous article (which can be read here) I dealt with the very specific facts of this case and suggested that this was a case which the Court of Appeal may need to deal with to bring some clarity on the legal position of challenging a decision by judicial review many years after the deadline for such an application has passed. 

The case came before the Court of Appeal following an appeal by Thornton Holdings Limited (who benefited from the quashed planning permission for three marquees). Thornton Holdings owns Thornton Manor, a grade II* listed building, which has within its grounds a historic garden. Thornton Hall Hotel, which is owned and operated by the first respondent (Thornton Hall Hotel Limited) is about 2km to the south-east. Thornton Holdings and Thornton Hall Hotel are commercial rivals, competing for the business of hosting weddings and other events.

The issues for the Court of Appeal were neatly set out at the start of the judgment. There were two main issues, firstly in view of the delay whether the High Court judge erred in extending time for the claim to be brought after around six years and secondly whether he was wrong to quash the planning permission.

There are three paragraphs of the judgment which makes it very clear that this case is specific on its facts.

  • ’26. There can be no doubt that the circumstances of this case, viewed as a whole, are extremely unusual. Indeed, we would go further. They are unique. The question for us, however, is whether, in combination, they can properly be said to amount to an exceptional case for extending time to allow the challenge to be brought before the court. In our view, in agreement with the judge, they clearly can.’
  • ’37. Taking everything together, therefore, and consistently with the approach of Sales L.J. in Gerber, we agree with the judge that this was a case where “very special reasons” do exist to excuse the delay, long as it was. In the circumstances here the judge was entitled, and in our view right, to grant the necessary extension of time for the claim to proceed. In doing so, he made no error of principle. His approach was correct. It was consistent with the relevant principles in the authorities.’
  • ’51. For the reasons we have given, the appeal must be dismissed. The opposite conclusion would not meet the justice of this particular case. No precedent is being set here. We stress once again that the court will not lightly grant a lengthy extension of time for a challenge to a planning decision by a claim for judicial review, nor will it lightly grant relief after a long delay. It will insist on promptness in bringing such challenges in all but the most exceptional circumstances. Here the circumstances are most exceptional. They are wholly extraordinary. This is a case where it can truly be said that the exception proves the rule.’

The result is very clear that this case is specific on the facts and will not change the standard six week deadline for judicial reviews. The courts were looking for a sensible conclusion to this matter bearing in mind the difficult history of this case and the circumstances all parties found themselves in. They have found it in this judgement and I doubt that any party will take this matter further and I don’t expect to see any further challenges.

What had initially potential to change the face of judicial review claims and potentially put at risk many planning permissions, can now be seen as a very exceptional case. All those worried about their planning permissions after the usual six weeks period can sleep a little sounder after this judgment.

The content of this article is for general information purposes only. For further assistance or advice regarding planning law, please contact Steven Bell on 01603 756521 or via [email protected]. Alternatively, please contact another member of the Birketts’ Planning and Environmental Law Team.