Out of Time, Out of Luck? Bringing a Planning Judicial Review after the Deadline

Introduction
1. Judicial review (‘JR’) is the mechanism by which the lawfulness of a public body’s decision can be tested in court. The rules governing the timing of JR are notoriously unforgiving. Prospective claimants, often unaware of the strict time limits, frequently seek advice on the prospects of bringing a claim out of time. This article provides a short overview of the law.

2. In planning, many decisions may potentially be open to challenge (although the grounds on which a challenge can be brought can be complex and are not covered in this article). However, in principle decisions concerning applications for planning permission, enforcement action, certificates of lawful use or development can all be subject to judicial review. While the scope for challenging a decision by way of JR is broad, having a decision which is challengeable in principle means little if your application is brought out of time.

The six-week rule
3. Most public law challenges must be brought promptly and at least within three months. However, planning is different. Under CPR 54.5(5), where a JR relates to a decision of the Secretary of State or a local planning authority under the planning acts, the claim form must be filed “not later than six weeks after the grounds to make the claim first arose.” It should be noted that this rule does not cover decisions of the Secretary of State or an inspector on appeal, which can also be challenged but via section 288 of the Town and Country Planning Act 1990 (‘the TCPA 1990’). This process is subject to specific (stricter) time limits and falls outside of the scope of this article.

4. Time runs from the day after the decision was made, irrespective of when an objector happened to find out (Croke v Secretary of State for Housing, Communities and Local Government [2019] EWCA Civ 54). Those who are interested in the outcome of a planning decision and are contemplating a challenge would be well advised to monitor the process closely, to ensure that they bring proceedings within time.

5. Nonetheless, CPR 3.1(2)(a) does provide a mechanism by which the court can extend time for bringing a claim for judicial review. However, it will not do so lightly.

Overview of the law
6. The leading authority in allowing claims to be brought out of time is R (Thornton Hall Hotel Ltd) v Thornton Holdings Ltd [2019] EWCA Civ 737. In this case, the Court of Appeal set a deliberately high bar, insisting on “promptness in bringing such challenges in all but the most exceptional circumstances” [§51]. The Court emphasised that a prospective claimant must move with “the greatest possible celerity” in bringing a claim [§21].

7. This emphasis on promptness arises because developers are entitled to rely on a permission that appears lawfully granted. The certainty of a short window within which to bring a claim is intended to protect them from challenges brought once they have commenced development and incurred significant expenditure. Developers would be wise to delay commencement of development until the challenge period has passed.

8. Where a third party has had a fair opportunity to become aware of and object to a development, which is in most cases presumed where the statutory notification requirements have been complied with (see, for example R (oao Wallis) v North Northamptonshire Council and ors [2024] EWHC 3076 Admin, 2024 WL 04932771), it would not be appropriate to extend time “simply because an objector did not notice what was happening” (Thornton Hall [§21(2)], citing Sales LJ in R. (on the application of Gerber) v Wiltshire Council [2016] EWCA Civ 84).

9. Gerber is also authority that a claimant cannot generally blame delay on the legal advice they did or did not receive. The Claimant remains responsible for any decision to bring a claim and ultimately must take responsibility for the consequences which ensue [§53].

10. In the same spirit, the Administrative Court Judicial Review Guide makes it clear that there is no special dispensation for litigants in person. They are expected to know and comply with the Civil Procedure Rules.

What this means for claimants
11. If your claim is late it is not automatically lost, but you will need to justify the delay. You are most likely to be successful where you can demonstrate that the delay arose out of exceptional circumstances; for example, where you could not reasonably have known of the decision within the six-week challenge period. It is also likely to be necessary to demonstrate that you issued proceedings as soon as you became aware of the decision you wish to challenge. The immediacy of action is likely to be crucial to the success of any application to bring a claim out of time.

12. What will not save you is instructive. Following the pre-action protocol does not stop the clock: the protocol does not affect the time limits established in the CPR and is not, of itself, a reason to extend time. You will also struggle to argue successfully that you were waiting for the conclusion of a complaints procedure or inter-party correspondence before issuing proceedings if the time limit has already passed.

13. The safer course, endorsed by Lang J in R (Wallis) v North Northamptonshire Council [2024] EWHC 3076 (Admin) [§101], is to issue a protective claim to stop time running while negotiations or protocol correspondence continue, and make a subsequent application to amend, backed up by evidence explaining why the amendment is necessary and desirable.

What this means for defendants

14. If you are resisting a late claim, the drafting points largely mirror the advice above. Establish that the time for challenge runs from the date of the decision and not any later event and identify precisely when the claimant knew of the decision and of any possible ground of challenge. Where you do not consider there to be exceptional circumstances, make that position clear to the court. Finally, emphasise the prejudice to the developer and the public interest in certainty which might arise as a result of an out of time challenge.
This is a general overview and not legal advice.
Anna Stein acted for the successful Defendant in R (oao Sroda Construction Ltd) v Elmbridge BC and ors [2026] EWHC 967 (Admin), resisting an application to bring a judicial review out of time.