Development plan – Allocation of land – Claimant seeking to challenge plan – Claimant leaving papers at court building after close of business on last day for filing application – Application recorded as received and issued after end of statutory time limit — Whether claimant applying out of time — Appeal dismissed
The appellant owned land in North East Thirk in respect of which the respondent council were the local planning authority. He wanted to challenge, under section 113 of the Planning and Compulsory Purchase Act 2004, the respondents’ decision to allocate land for housing and employment development in the local development plan document (DPD) which excluded his land.
Under section 113 of the 2004 Act, an application to the High Court had to be made within six weeks of the DPD being adopted. In this case, the respondents adopted the DPD on 21 December 2010. Thus the statutory time period for the appellant’s application expired on 1 February 2011, based on the assumption that the first day to count was 22 December 2010, the day after the adoption resolution had been passed.
At 7.46pm on 1 February, after the court building had closed, an envelope containing the appellant’s claim form and particulars of claim were posted under the outer door of the court since there was no letter box. The claim form was sealed the next day with a date of issue of 2 February. An issue arose whether the application had been made in time.
In the administrative court, the appellant argued that: (i) his application had been made when the documents were put under the front entrance door on 1 February; and/or alternatively (ii) the six weeks should be taken to have commenced on 31 December 2010 when the respondents had published documents indicating that, although the DPD had been adopted on 21 December, an application to the High Court could be made within six weeks of 31 December 2010. The deputy judge rejected those submissions and dismissed the appellant’s application: [2011] EWHC 1707 (Admin); [2011] PLSCS 172.
On the appellant’s appeal against that decision, the respondents sought to rely on the decision in Hinde v Rugby Borough Council [2011] EWHC 3684, decided after the judgment in the present case, where the Administrative Court held that time started to run, not on the day after the local planning authority had adopted the plan, but on the very day of the adoption. The appellant argued that that case had been wrongly decided.
Held: The appeal was dismissed.
(1) Section 287(4) of the Town and Country Planning Act 1990 (the equivalent provision to section 113 for challenging old-style development plans) had required an application to be made within six weeks from the relevant date, as opposed to six weeks starting with the relevant date. That meant that the first day to be counted was the day after the relevant date. However, section 113 had expressly departed from that model. When a statutory time limit started with a particular day, time ran from that day and not from the following day.
The judge in Hinde had correctly decided that section 113 clearly required the calculation of the six weeks to start with the date of adoption. Since Parliament had stipulated the period in primary legislation, and section 113(2) precluded any other form of challenge, that period was absolute and could not be extended under the provisions of the Civil Procedure Rules. Further, there was no reason to displace the natural and unambiguous meaning of section 113(4) by contrary authority or other considerations. Therefore, it was immaterial whether what was done at the door of the court on 1 February amounted to the making of an application on that day since time had expired on the previous day.
(2) There could be no doubt that, notwithstanding their benevolent intentions, the respondents had no power to extend the statutory time limit of six weeks starting with the adoption. It could not be said that it was in practice impossible or excessively difficult for the appellant to make his application within the statutory time limit which was clear and reasonable. The fact that the respondents had misstated it could not have the effect of rewriting a jurisdictional rule.
Section 113 was clear that the six week time limit started with “the relevant date” which was the date when the plan was adopted by the local planning authority. It was clear that 21 December was the date of adoption, a fact that was reiterated in the adoption statement and the notice of adoption.
Per curiam: Important planning decisions were not simply of bilateral significance. They affected many interests. In a case such as the present, other interested parties were entitled to assume, without the need to engage in litigation, that if no valid application was made within the statutory time limit, the DPD would be beyond challenge.
Richard Harwood (instructed by Pinsent Masons LLP, of Leeds) appeared for the appellant; Christopher Katkowski QC and Guy Williams (instructed by Hambleton District Council Legal Services) appeared for the respondents.
Eileen O’Grady, barrister
