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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Harrogate Borough Council v Secretary of State for Communities and Local Government & Anor [2014] EWHC 1506 (Admin) (13 May 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/1506.html Cite as: [2014] EWHC 1506 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		The Court House Oxford Row Leeds LS1 3BG
		13 May 2014

Judge Behrens :

1. Introduction

1. This is an application by Harrogate Borough Council ("the Council") for an extension of time for the service of an appeal under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") against a decision made on 5^th December 2013 by Simon Berkeley ("the Inspector") when he allowed a planning appeal by Mr Peter Zammitt ("Mr Zammitt").
2. Mr Zammitt opposes the application. He submits that there are serious defects with the procedure adopted by the Council. He submits that he has been prejudiced by the defects, that the application has not been made promptly and in the more robust conditions engendered in the post Jackson regime the application should be refused.
3. There are 4 defects relied on by Mr Zammitt. First, the claim form was not served in time. In so far as it was served at all it did not come to his notice until 18^th January 2014. The last day for service was 16^th January 2014. Second, the claim form was served at the wrong address. The claim form was hand delivered and posted to the address of Zammitt Developments Ltd ("ZDL"), 53A East Parade, Harrogate on 17^th January 2014. Mr Zammitt's residential address was, at the time, 1 Barnwell Crescent, Harrogate. Third, the Council failed to serve/join other interested parties in the proceedings. Mr Zammitt contends that ZDL and his wife were interested parties. Fourth, the Council failed to comply with the Practice Direction for Pre-Action Conduct and inform him of its intention to appeal.
4. The Secretary of State has by implication accepted that this is an appropriate case for time to be extended. On 25^th March 2014 the Treasury Solicitor signed a consent order which included:

"… [The Secretary of State] concedes that the said decision should be quashed on the ground that the … Inspector erred in law by misinterpreting condition 11 as requiring a scheme for only one affordable housing unit, when the description of the development in the original outline planning permission showed that three units were required"

5. The Council accept that the last day for service was 16^th January 2014. It believed, wrongly, that the period expired on the 17^th January 2014 and believed it had complied with its obligations by delivering and posting the relevant documents as set out above. It points out that in the planning application Mr Zammitt gave his address as 53A East Parade, Harrogate and thus it had served the documents on the address supplied by Mr Zammitt. Furthermore in the planning application Mr Zammitt certified that no-one except himself was the owner of any part of the land to which the application related. The Council do not accept that there was any obligation on them to notify Mr Zammitt before the service of the claim form and do not accept that Mr Zammitt has suffered any significant prejudice as a result of the short delay in service. In the circumstances and in the light of the attitude of the Secretary of State it contends that the application for an extension of time should be granted.

2. The facts.

2.1 Planning History

6. The application relates to a proposed housing development at Fulwith Mill Lane Harrogate. The planning history may be summarised:

1. On 25^th May 2011 the Council granted outline planning permission for 5 detached open market dwellings and 3 affordable dwelling units with occupancy restricted to people over 55 years with all matters reserved. Condition 11 was in the following terms

The development hereby permitted shall not begin until a scheme for the provision of affordable housing as part of the development has been submitted and approved in writing by the local planning authority. The affordable housing shall be provided in accordance with the approved scheme. The scheme shall include:

i) The timing of the construction of the affordable housing

ii) The arrangements to ensure that such provision is affordable for both initial and subsequent purchasers of the affordable housing and

iii) The occupancy criteria to be used for determining the identity of the prospective and successive occupiers of the affordable housing and the means by which such occupancy shall be enforced.

2. On 17^th September 2012 the Council approved a variation to Condition 11. The effect of the variation was to defer the need to apply for the approval for the affordable housing until the development of the last two open market plots. It thus permitted the development of 3 plots without the need for the approval of the affordable housing.

3. On 6^th May 2013 Mr Zammitt made a second application to vary Condition 11 by allowing the provision of the affordable housing to be provided off site. The Council did not determine the application with the result that on 9^th August 2013 Mr Zammitt's agent submitted an appeal to the Secretary of State under section 78 of the 1990 Act.

4. Following a site visit on 11^th November 2013 the Inspector held an informal hearing on 12^th November 2013. As already noted his decision letter is dated 5^th December 2013.

2.2 The Inspector's decision

7. In paragraph 4 of the decision letter the Inspector identified two main issues. The first was whether Condition 11 is sufficiently precise and enforceable in relation to the number of affordable homes required and the timing of their provision. The second was whether it was necessary and reasonable for the affordable housing to be provided on the appeal site.
8. In paragraphs 5 – 12 he considered the first issue. He concluded, as a matter of law, that in the light of the decision in I'm Your Man v Secretary of State for the Environment [1999] QBD 77 P & C R 251 Condition 11 was not sufficiently precise and enforceable. It did not require the provision of 3 affordable housing units. In order for there to be such a scheme at all there must be at least one such unit. Thus the only enforceable condition is to provide one unit.
9. In paragraphs 13 to 20 he considered the second issue. He considered that on the merits of this application it was not necessary for the affordable housing to be provided on site.
10. He thus allowed the appeal. He varied the permission by granting permission for 8 dwellings without compliance with Condition 11. He imposed a new condition which required only one affordable housing unit either on or off site.
11. As already noted the Secretary of State has conceded that the Inspector's interpretation of Condition 11 was wrong in law. In the course of his submissions on behalf of Mr Zammitt Mr Burton made it clear that Mr Zammitt did not accept that analysis. If this appeal is allowed to proceed it will, of course be a matter for the Court as to whether the Secretary of State's concession was rightly made. However, to put it at its lowest, the concession shows that the Council's appeal is well arguable. It is also to be noted that the result of the appeal must have exceeded Mr Zammitt's wildest expectations. In paragraphs 9 and 10 of the decision letter the Inspector said:

9. The Council asks that my decision includes a specific requirement in condition 11 for three affordable dwellings to be provided. There is no doubt that this was the expectation of both the original outline permission in 2011 and that in 2012. Indeed this has been the appellant's intention.

10. There are many factors which point in favour of the Council's request. From the evidence it is clear to me that there is a pressing need for affordable housing in Harrogate. The appellant has not contested that three affordable dwelling is the level which would ordinarily be sought from a scheme for eight homes on this site through Selective Alteration to the Harrogate Local Plan May 2004 … I have no reason to suppose otherwise. The importance of the need for a condition to secure three affordable units carries significant weight.

12. It seems to me to be fair to describe the decision as something of a windfall to Mr Zammitt.

2.3 The chronology following the decision

13. As already noted the decision of the Inspector was issued on 5^th December 2013. After discussions with the planning department and relevant councillors the decision to appeal was taken on 24^th December 2013. Due to the Christmas break no further work was undertaken until 2^nd January 2014. The papers were received from Counsel on 8^th January 2014 and delivered to the Administrative Court in Leeds on 14^th January 2014. The Part 8 Claim Form was sealed by the Court on 14^th January 2014. It named the Secretary of State and Mr Zammitt as Defendants. It was returned by the Court by post, arriving on 16^th January 2014. On 17^th January 2014 it was sent by post to the Secretary of State and to Mr Zammitt at 53A East Parade, Harrogate. It was also hand delivered to 53A East Parade, Harrogate addressed to Mr Zammitt.
14. 53A East Parade, Harrogate is the registered office of ZDL. Mr Zammitt is the Managing Director of and sole shareholder of ZDL. It is, accordingly, the place where he works. It is also the address given by Mr Zammitt's agent as Mr Zammitt's address in a number of the applications relating to this planning application. None of the applications give Mr Zammitt's residential address.
15. Mr Zammitt became aware of the proceedings on attending the office on 18^th January 2014.
16. On 27 January 2014 Stokes Partners LLP ("Stokes") acting on behalf of Mr Zammitt's insurers wrote asking whether any notice was given of the proceedings and asking for details of service. Mr Power, the Council's principal solicitor, replied by email the following day.
17. On 31^st January 2014 Mr Pang of Stokes emailed Mr Power formally taking most of the points relied on by Mr Zammitt – the lack of notice to Mr Zammitt, the failure to serve him at his home address, the late service of the claim form. It also alleged prejudice.
18. On 3^rd February 2014 Mr Power answered the points taken by Mr Pang. It is not necessary for me to summarise the points made or the rebuttal by Mr Pang in his letter of 5^th February 2014.
19. On 12^th February 2014 this application for an extension of time was made and the appropriate fee paid. It was served on 13^th February 2014. In support of the application Mr Power has served 3 witness statements. Mr Zammitt has filed 3 witness statements in opposition.

2.4 Prejudice

20. As already noted Mr Zammitt contends that he is prejudiced by the failure to serve the claim form by 16^th January 2014. The detailed allegations of prejudice are in fact quite complex but may be summarised:

Exchange of Contracts for Plot 6 Fulwith Mill Lane

21. In paragraphs 5 and 6 of his second witness statement Mr Zammitt explains that he intended to purchase part of ZDL's land at Fulwith Mill Lane – plot 6 – to build a home for his family. A contract was prepared by his solicitors on 30^th September 2013. The contracts were exchanged on 17^th January 2013 when he believed that the time for appealing had expired.
22. As can be seen from the contract the contract price is £350,000. No deposit is payable and completion is not to take place before 30^th September 2015.
23. In his fourth witness statement Mr Power points out that the contract was drawn up prior to the planning appeal and that no steps have been taken under it. The only parties under the contract are Mr Zammitt and ZDL. It is inherently unlikely that there would be proceedings between Mr Zammitt and ZDL.
24. In his third witness statement Mr Zammitt states that the £350,000 is a slight undervalue. However without the benefit of the consent being challenged it is worthless if required for affordable housing.
25. There is no doubt that Mr Zammitt will be worse off if the claim succeeds and a subsequent section 78 appeal fails. However that does not mean that he is prejudiced by the short delay in serving the proceedings.

Bank borrowing

26. In paragraphs 13 to 17 of his second witness statement Mr Zammitt sets out somewhat complicated arrangements with his bank in relation to a land loan and a work in progress loan. The land loan was repayable by 23^rd March 2014. He submits that as a result of the decision of 5^th December the value of plot 6 has enhanced by £400,000. This persuaded his bank to extend the loan by 2 months. The agreement to extend did not occur until after 18^th January 2014. A provisional agreement only was made on 17^th January 2014. In the circumstances I have great difficulty in seeing how this can be said to be prejudice resulting from the failure to serve the claim form by 16^th January 2014.

Additional Work

27. In paragraphs 8 to 12 Mr Zammitt sets out additional work that he instructed between 16^th and 18^th January 2014:

1. Instructions to redesign the house on plot 5 on the basis that a more expensive dwelling would be viable on a development that had no affordable housing units.

2. Instructions given to various contractors following an email received from his quantity surveyors on 16^th January 2014

3. Instructions to a contractor to clear and prepare plot 6

28. Mr Power points out in his fourth witness statement that the decision to extend plot 5 has nothing to do with the action. He points out that Fulwith Mill Lane is amongst the most valuable addresses in Harrogate and it makes sense to increase the size of the dwellings to increase the value of the development. Other applications have been made in respect of Plots 2, 3 and 4.
29. As pointed out by Mr Hunter in his submissions it is not without significance that no attempt was made by Mr Zammitt to cancel any of the work after he received notification of the claim on 18^th January 2014. He proceeded with the work in the knowledge of the claim. It is thus difficult to see that any substantial work was in fact caused by the short delay in the service of the claim form.

General Delay.

30. In paragraph 17 to 20 Mr Zammitt makes a complaint about the general delay and uncertainty affecting the development site. He points to increased borrowing costs and the costs of renting 17 Hookstone Chase.
31. Plainly there has been some delay caused by Mr Zammitt's opposition to this application. To my mind the short delay in serving the claim form has not contributed significantly to the overall delay.

Conclusion

32. Whilst I am satisfied there may have been a small amount of prejudice caused by the late service of the claim form I am not satisfied that there has been any significant prejudice.

3. Defects other than late service

33. In my view it is possible to deal with the defects other than the time of service relatively shortly.

3.1 Place of Service

34. I agree with Mr Burton that under paragraph 1 of the table in CPR 6.9(2) the claim form should have been served at Mr Zammitt's usual or last known residence. I also agree that 53A East Parade, Harrogate was not his residence and never had been. However it was the address given in the planning applications as Mr Zammitt's address and it was the registered office of ZDL. Service at this address on 17^th January 2014 came to Mr Zammitt's attention on 18^th January 2014.
35. Under CPR 3.10

Where there has been an error of procedure such as a failure to comply with a rule or practice direction—

(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and

(b) the court may make an order to remedy the error.

36. I am content to assume (without deciding) that 53A East Parade, Harrogate was not Mr Zammitt's last known residence although I think it arguable that it was. On that assumption it seems to be a plain case for me to make an order validating the service as at 18^th January 2014.

3.2 Interested Parties

37. Under paragraph 22.4 of PD 8A the claim form must be served on "every person who would, if he were aggrieved by the decision …, be entitled to apply to the High Court under … section 288 of the Town and Country Planning Act …."
38. Mr Hunter referred me to paragraphs 86 – 88 in the judgment of Lord Reed in Walton v Scottish Ministers [2012] UKSC 44. A person will ordinarily be regarded as aggrieved if they made objections or representations as part of the procedure which preceded the decision challenged and their complaint is that the decision was not properly made.
39. In this case Mr Zammitt was the sole appellant. Mr Zammitt certified that he was the owner of all of the relevant land. The decision letter contains no reference to either ZDL or Mrs Zammitt in any capacity.
40. In the course of his submissions Mr Burton referred me to the appeal statement dated 2^nd October 2013 prepared by Mr Zammitt's planning consultant in support of the appeal. This document makes a number of references to Zammitt Developments. It does not define who Zammitt Developments are. It makes no reference to a limited company. As already noted the planning application was made on behalf of Mr Zammitt and the Inspector took the view that Mr Zammitt was the appellant.
41. I am not satisfied that either ZDL or Mrs Zammitt was a "person aggrieved" by the decision. If I am wrong about that I consider that this does not invalidate the proceedings under CPR 3.10 and that it is not appropriate to make any order to remedy the situation. The claim form was served at ZDL's registered office and was addressed to its sole director and shareholder - Mr Zammitt. ZDL had contributed to the error by not making it clear in the application for planning permission that it had an interest. Mrs Zammitt has been content to leave matters to her husband and the Council had no reason to know she had any interest.

3.3 Pre-action Protocol/Conduct

42. It is common ground between the parties that there is no specific pre-action protocol dealing with claims under section 288 of the 1990 Act. Mr Hunter drew an analogy with the protocol for judicial review proceedings. He drew my attention to two paragraphs in bold type which form part of paragraph 6:

This protocol will not be appropriate where the defendant does not have the legal power to change the decision being challenged, for example decisions issued by tribunals such as the Asylum and Immigration Tribunal.

This protocol will not be appropriate in urgent cases, for example, when directions have been set, or are in force, for the claimant's removal from the UK, or where there is an urgent need

43. He pointed out that this was a case with a short time limit – 6 weeks for issue and service and thus might be regarded as urgent. He noted that in this case the 6 week period included Christmas and the New Year. He also pointed out that as this was a challenge to a decision of the Inspector it fell within the first paragraph. Neither the Secretary of State nor Mr Zammitt had the power to change the decision. It could only be quashed by an order of the High Court.
44. Both Mr Hunter and Mr Burton referred me to the Practice Direction – Pre-Action Conduct. I was referred to paragraphs 2 and 6 but to my mind paragraph 1 is also relevant.

Aims

1.1 The aims of this Practice Direction are to—

(1) enable parties to settle the issue between them without the need to start proceedings (that is, a court claim); and

(2) support the efficient management by the court and the parties of proceedings that cannot be avoided.

1.2 These aims are to be achieved by encouraging the parties to—

(1) exchange information about the issue, and

(2) consider using a form of Alternative Dispute Resolution ("ADR").

Scope

2.1 This Practice Direction describes the conduct the court will normally expect of the prospective parties prior to the start of proceedings.

2.2 There are some types of application where the principles in this Practice Direction clearly cannot or should not apply. These include, but are not limited to, for example—

(1) applications for an order where the parties have agreed between them the terms of the court order to be sought ("consent orders");

(2) applications for an order where there is no other party for the applicant to engage with;

(3) most applications for directions by a trustee or other fiduciary;

(4) applications where telling the other potential party in advance would defeat the purpose of the application (for example, an application for an order to freeze assets).

Overview of Principles

6.1 The principles that should govern the conduct of the parties are that, unless the circumstances make it inappropriate, before starting proceedings the parties should—

(1) exchange sufficient information about the matter to allow them to understand each other's position and make informed decisions about settlement and how to proceed;

(2) make appropriate attempts to resolve the matter without starting proceedings, and in particular consider the use of an appropriate form of ADR in order to do so.

6.2 The parties should act in a reasonable and proportionate manner in all dealings with one another. In particular, the costs incurred in complying should be proportionate to the complexity of the matter and any money at stake. The parties must not use this Practice Direction as a tactical device to secure an unfair advantage for one party or to generate unnecessary costs.

45. I agree with Mr Hunter that there is an analogy between these proceedings and an application for judicial review. In particular this is a case where there is no legal power in the Secretary of State or Mr Zammitt to alter the decision. Thus it is not a case where the parties can settle the matter without legal proceedings. The parties are fully informed about each other's case. The only question is whether the Inspector's decision is wrong in law. In my view therefore this is not a case within the aims of the PD; it is not a normal case within paragraph 2 of the PD and circumstances do make it inappropriate within paragraph 6.1 of the PD for there to be an exchange of information prior to the commencement of the proceedings.
46. I accordingly consider that there was no breach of the PD. If I am wrong about that I would not, in the circumstances of the case think it appropriate to impose any sanction on the Council.

4. Extension of Time

47. It is common ground that under section 288(3) of the 1990 Act an application under section 288 must be made within 6 weeks. That time limit is jurisdictional and cannot be extended. However the application was made 2 days within time.
48. Under paragraph 22.3 of PD8

The claim form must be filed at the Administrative Court and served within the time limited by the relevant enactment for making the application. Practice Direction 54D applies to applications under this paragraph.

49. It is common ground between the parties in the light of the decision of the Court of Appeal in Corus UK Ltd v Erewash BC [2007] 1 P & C R that there is power to extend time under CPR 3.1(2)(a) which provides:

Except where these Rules provide otherwise, the court may—

(a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired)

50. Corus involved a challenge under section 287 where the claim form was served two or three days outside the 6 week period. It is common ground that no distinction can be made between sections 287 and 288.

50. In granting the extension McCombe J said

"21. In all these circumstances I come to apply my discretion to the present application bearing in mind the overriding principle that requires cases to be dealt with justly. I bear in mind the factors identified in CPR rule 1.1 and those identified by Lightman J, Blackburn J, and Scott-Baker J in applying that principle in the cases already cited. It seems to me that in a case where the council concedes that there is an arguable case that it has acted unlawfully in implementing a plan which in certain respects does not follow the decisions of an inspector after public inquiry with the result that a potentially out lawful plan may affect planning policy for three years the considerations are rather different from those affecting ordinary litigation of the type considered in many of the recent cases. Obviously dilatoriness cannot be seen to be encouraged and it will not be encouraged. The leeway available will be slender. However I do not consider that it will be at all just to refuse an extension of time for two or three days to challenge an action of a public authority that is potentially unlawful where the error was of the nature that occurred here.

51. The exercise of McCombe J's discretion was challenged in the Court of Appeal. Permission to appeal was refused. Some guidance was given by Laws LJ in the course of his judgment to the principles involved.

19 I should add that I see nothing in this result which sits uneasily with the overriding objective of the CPR . Judges will exercise their discretion whether or not to extend time for service under CPR 3.12(a) in accordance with the overriding objective, which will require them of course to have regard to the statutory policy that these cases be subject to minimum delay, a policy demonstrated by the absolute six-week time limit for issue of proceedings. On the other hand, they will have regard also to the general public interest in having viable challenges to decisions of public authorities ventilated in proceedings.

21 The council have a second submission, that the judge's exercise of his discretion in favour of Corus cannot be supported. The judge reviewed a number of cases in which consideration had been given to the kind of matters which would be material to a discretionary decision whether or not to extend time; the length of the delay and the explanation for it; the existence or absence of prejudice; the paramount considerations of the interests of justice; and the applicant's prospects of success.

24 … Section 287(4) is not in truth an ouster clause. It is a section which conferred a jurisdiction in limited terms. The fact that the six-week period is "tight", to use that expression, cuts both ways. The other points are all matters which it seems to me that the judge was entitled to consider. We cannot overturn his exercise of discretion unless it was based on a legal mistake or was plainly wrong. In my judgment it was neither.

25 I should add that I would for my part accept, as I indicated in the course of argument, that the power in CPR 3.12(a) to extend time for service in a s.287 case should be used sparingly. The primary six-week timetable, absolute so far as issue of proceedings is concerned, demonstrates an important statutory policy that these matters be expeditiously dealt with. If the delay is at all substantial in such a case, the applicant will I think have a very large hill indeed to climb. The statutory policy is always to be considered, notwithstanding the importance, which I also accept, in the public interest that viable challenges to public decisions be ventilated in proceedings. Here the delay was two or three days. I can see nothing that would entitle us to overturn McCombe J.'s exercise of his discretion.

52. I was also referred to an observation in paragraph 16 of the judgment of Sullivan J in R (oao Wandsworth BC) v Secretary of State for Transport [2003] EWHC 622 Admin:

It is convenient therefore to consider at the outset the merits of the council's challenge to the inspector's decision because, save in cases of significant delay or where there is significant hardship or prejudice, it will almost always be sensible to consider an application for an extension of time in the context of at least a preliminary assessment of the merits of the substantive case which the would-be appellant seeks permission to advance.

53. As is becoming increasingly frequent I was referred to the decision of the Court of Appeal in Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795 and the increasing number of cases which seek to apply the principles contained in that judgment.
54. CPR 3.9 provides:

(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need—

(a) for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and orders.

55. In Re Guidezone Ltd [2014] EWHC 1165 (Ch) Nugee J expressly held that the Mitchell principles applied to an application to extend time under CPR 3.1(2)(a). He summarised the principles by reference to the decision of Leggatt J in in Summit Navigation Ltd v Generali Romania Asigurare Reasigurare SA [2014] EWHC 398 (Comm) as follows:

"i) On an application for relief from a sanction under CPR 3.9, it is usually appropriate to start by considering the nature of the non-compliance. If the non-compliance can be regarded as trivial or insignificant, the court will usually grant relief provided that an application is made promptly [40].

ii) If the non-compliance cannot be so regarded, the court should consider why it occurred and will still be likely to grant relief if there is a good reason for it [41].

iii) Good reasons are likely to arise from circumstances outside the control of the party in default [43]; by contrast, inefficiency or incompetence of a party's solicitors – for example, where a deadline is simply overlooked – is unlikely to amount to a good reason [41].

iv) Where the non-compliance is not trivial and there is no good reason for it, the court is still required by CPR 3.9 to consider "all the circumstances of the case, so as to enable it to deal justly with the application" [37] + [49]. However, relief should not usually be granted in such cases because the circumstances which should generally be given greatest weight are the two factors specifically mentioned in the rules [49] + [58]."

56. In Chartwell Estate Agents v Fergies Properties SA [2014] EWCA Civ 506 the Court of Appeal upheld a decision of Globe J to grant relief from sanctions Davis LJ (in paragraph 34) summarised the principles in much the same way as the summary in Guidezone. He also referred to a passage from paragraph 46 of Mitchell:

The new more robust approach that we have outlined above will mean that from now on relief from sanctions should be granted more sparingly than previously.

57. The default related to the exchange of witness statements. Both sides were in default and the trial date would not be lost. The Court of Appeal held that Globe J was entitled to exercise the discretion in the way he did. At paragraph 59 Davis LJ said:

Given that, and given all the other factors, this was one of those cases in which, notwithstanding the paramount importance and the great weight to be given to the two matters specified in CPR 3.9, those two matters could reasonably be assessed as outweighed by all the other circumstances. There is, in my view, no proper basis for interfering with the judge's evaluation of the position and his exercise of discretion

Discussion

58. As Laws LJ pointed out in paragraph 19 of Corus there is a general public interest in having viable challenges to decisions of public authorities ventilated in proceedings. To my mind that principle is reinforced where as here the Secretary of State after careful consideration has conceded that the decision of the Inspector is wrong in law and that the decision should be quashed.
59. It is clear from the Inspector's decision that there is a pressing need for affordable housing in Harrogate. The effect of the decision is to reduce the additional affordable housing in Harrogate from the three which Mr Zammitt agreed to provide to only one. Thus there is a wider public interest than simply a dispute between private litigants.
60. For reasons that I have given I do not accept that Mr Zammitt suffered any significant prejudice by the two day delay in the service of the claim form. In those circumstances, as Sullivan J pointed out in Wandsworth, the assessment of the merits is an important factor. In the light of the Secretary of State's concession and the surprising nature of the decision my preliminary assessment is that the Council has good prospects of success in the application.
61. I accept that even under the pre-Mitchell regime the power to extend time was to be used sparingly in the light of the statutory policy that applications such as this are to be dealt with expeditiously.
62. However, this was not a case where the delay was substantial and to my mind the public interest identified by Laws LJ outweighs the other factors. Thus under the pre Mitchell regime I would have extended time. Like McCombe J in Corus I do not consider that it will be at all just to refuse an extension of time for two or three days to challenge an action of a public authority that is potentially unlawful where the error was of the nature that occurred here.
63. I have to ask myself whether the position has changed in the light of the new regime. In my view the delay of two days in serving the claim form is to be regarded as trivial on the facts of this case. I take the view that the application has been made promptly. The Council did not appreciate that the application was out of time until it received the email of 31^st January 2014. It attempted to explain the position in its email of 3^rd February 2014. By 5^th February 2014 it had become clear that Mr Zammitt would not agree to an extension. The application was issued on 12^th February 2014. To my mind that chronology is sufficiently prompt. In those circumstances it seems to me to be an appropriate case for relief.
64. If, contrary to my view, a delay of 2 days is not to be regarded as trivial I accept that the reason for the delay (a miscalculation of the dates by Mr Power) is not a good reason. I would then have had to consider all of the circumstances of the case. I would have had in mind the principle that relief should not usually be given because the two factors mentioned in rule 3.9 usually trump all other factors. I would, however, still have granted relief. In particular I would have held that the public interest I have identified coupled with the relatively short (albeit non trivial) delay in service of the claim form outweighed the two factors in CPR 3.9 and any minor prejudice Mr Zammitt may have suffered by reason of the two day delay.
65. Accordingly the application for an extension of time succeeds.