Development consent order – Challenge – Jurisdiction – Time limit – Claimant challenging consent order approving wind farm – Whether court having jurisdiction to entertain application – Whether application being made out of time – Application dismissed
The application site comprised about 1,580 hectares of Clocaenog Forest in north Wales which lay within an area identified by the Welsh Government as one of seven capable of accommodating large wind farms. The application for a development consent order was made under section 37 of the Planning Act 2008 for the construction of up to 32 wind turbine generators, Local residents objected to the development, including the claimant who owned one of the ten dwellings near the application site. After an examination, the defendant accepted the recommendation that the order should be made.
The claimant applied for judicial review of the resulting development consent order made by the defendant under section 114 of the 2008 Act, approving the project. The application was opposed both by the defendant and by the interested party, which intended to develop and operate the wind farm.
An issue arose whether the court had jurisdiction to entertain the claim. Section 118 of the 2008 Act provided that a court might entertain proceedings for questioning an order granting development consent only if the proceedings were brought by a claim for judicial review, and the claim form was filed during the period of six weeks beginning with the day on which the order was published or, if later, the day on which the statement of reasons for making the order was published.
(The time limit was changed, with effect from 13 April 2015, by section 92(4) of the Criminal Justice and Courts Act 2015. However, the amendment did not have retrospective effect and had no bearing on the issue of the court’s jurisdiction in the present case.)
Held: The application was dismissed.
(1) It was regrettable that the question of the court’s jurisdiction had not been raised at the outset but, once the court’s jurisdiction has been challenged, however late that was done, it had to resolve that issue before it did anything else. The court was not relieved of that task by rule 11(5) of the Civil Procedure Rules, which stated that if the defendant filed an acknowledgment of service and did not, within 14 days of doing so, make an application for an order declaring either that the court had no jurisdiction or that it should not exercise the jurisdiction it might have, he was to be treated as having accepted that the court had jurisdiction to try the claim. In this case the dispute as to jurisdiction fell within the first category of circumstances referred to in rule 11(1), namely a dispute over the court’s jurisdiction to try the claim, not the second category, where the issue was whether or not the court should exercise its jurisdiction. If there was a legislative bar on the court’s jurisdiction, such as a statutory time limit within which a relevant challenge had to be made, the court could not have jurisdiction conferred upon it by procedural rules.
(2) A time limit of six weeks for challenges to decisions of the secretary of state had traditionally been used by Parliament in planning and compulsory purchase legislation. The purpose of imposing such a limitation on the court’s jurisdiction was administrative certainty. Section 118(1) of the 2008 Act belonged to that tradition. The period of six weeks specified in section 118(1) as the time within which a claim for judicial review of a development consent order had to be issued was not flexible or indefinite. It was fixed and certain. And it had the force of statute. The claim had to be filed within the period of six weeks “beginning with” the day on which the order was published. A claim issued out of time, even one day out of time, was too late and beyond the reach of the court’s jurisdiction. The court had no discretion to extend time. The period for challenge could not be enlarged, even when the court might wish it could do so to avoid injustice to a particular claimant. There was a distinction between statutory time limits framed in terms of a claim having to be issued within six weeks “from” the date of the decision and those framed in terms of a claim “starting with” that date. The former meant that the first day to be counted was the day after the date of the decision; the latter that the first day was the date of the decision itself: Barker v Hambleton District Council [2012] EWCA Civ 610; [2012] 2 EGLR 101 and R (on the application of Blue Green London Plan) v Secretary of State for the Environment, Food and Rural Affairs; Southwark London Borough Council v Secretary of State for Communities and Local Government [2015] EWHC 495 (Admin) applied.
(3) Accordingly, it was clear that the calculation of the period for challenge set by section 118 included the day on which the order in question and the secretary of state’s reasons were published. The recent amendment to section 118 had been a deliberate change to the time limit. In the present case, the order in issue had been published, within the meaning of section 118(1), on 12 September 2014 on a straightforward interpretation of the statutory formula in section 118(1)(b). The words meant what they said, in their ordinary sense, i.e., the day on which the order, or the statement of the secretary of state’s reasons for making it, was put into the public domain. The focus was on the reasons for the secretary of state’s decision being made known to the general public, as well as to those members of the public particularly affected by it. The critical step, which started the period for challenge, was the publication of the secretary of state’s reasons for his decision. The proceedings in the present case had been issued out of time and the court had no power to extend time.
John Hunter (instructed by Irwin Mtichell LLP) appeared for the claimant; Richard Kimblin (instructed by the Treasury Solicitor) appeared for the defendant; John Litton QC (instructed by Eversheds LLP) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read transcript: Williams v Secretary of State
