Town and country planning – Neighbourhood forum – Statutory challenge – Claimant challenging decision of defendant local authority to adopt site allocations plan – Preliminary issue arising whether claimant as unincorporated association had capacity to bring statutory challenge – Preliminary issue determined in favour of claimant
The claimant had been designated as a neighbourhood forum under section 61F of the Town and Country Planning Act 1990 on 15 July 2014, the objectives of which included the good planning of the neighbourhood. Under the statute, the designation lasted for five years and expired on 15 July 2019. The claimant’s application to the defendant local authority for re-designation remained outstanding.
The claimant applied under section 113 of the Planning and Compulsory Purchase Act 2004 challenging the defendant’s decision to adopt the Leeds site allocations plan (SAP). The SAP was a development plan document prepared by the defendant setting out its proposed allocations for planning purposes of land throughout the Leeds area. The challenge was a statutory challenge, not a judicial review, and there was a statutory time limit of six weeks under section 113(3B) of the 2004 Act. The time limit was strict and not amenable to the more flexible approach to the time limits in judicial review.
The court was asked to determine as a preliminary issue whether the claimant, as an unincorporated association, had capacity to bring a statutory challenge against the defendant’s decision. The defendant and two developers affected by the SAP contended that the defendant did not have legal capacity to bring the claim and that substitution was time-barred. They argued that it was not a “person” aggrieved within section 113(3) as it was no longer a designated neighbourhood forum. In any event, even if in principle an unincorporated association could be a person aggrieved, the claimant was not such a person.
Held: The preliminary issue was determined in favour of the claimant.
(1) There was a distinction between cases where the applicant/claimant was an unincorporated association and the courts proceeded on the basis that the claimant had capacity and those where the court’s jurisdiction was in issue. A court could not proceed without jurisdiction and therefore it was a matter which any court had to consider. A court had to be satisfied of its own motion that it had jurisdiction. Jurisdiction could not be assumed or consented to: R v Traffic Commissioners of the North Western Traffic Area, ex parte Brake [1996] COD 248 applied.
The definition of “person” in schedule 1 to the Interpretation Act 1978 included “a body of persons corporate or unincorporated”, subject to section 5 which applied those definitions “unless the contrary intention appears”. There was no reason why, in the context of public law and the 2004 Act in particular, the contrary should appear. It was not necessary for the statutory scheme and, in terms of procedural protections such as security for costs or certainty of membership, they could be appropriately dealt with under the Civil Procedure Rules: R (on the application of Association of British Civilian Internees (Far East Region) v Secretary of State for Defence [2003] EWCA Civ 473 and Williams v Devon County Council [2015] EWHC 568 (Admin) considered.
(2) The court did not accept the alternative submission that even if an unincorporated association could be a claimant in a judicial review, it could not be in a statutory challenge. The Interpretation Act definition pointed firmly in the opposite direction, and the contrary intention did not appear. The Court of Appeal in Williams did not suggest that there was any such difference, and assumed that the claim was valid when lodged. It would be unfortunate if there was a significantly different rule in a judicial review to a statutory challenge, given that the two could sometimes arise in closely aligned circumstances. If the statute forced that conclusion it would be different, but here it plainly did not do so.
(3) As a matter of principle, an unincorporated association had capacity to bring both a judicial review and a statutory challenge in its own name. Although in certain circumstances the addition or substitution of named individuals might be necessary for practical reasons such as security for costs, or where there was uncertainty about membership of the body, the inclusion of named individuals was not necessary for the validity of the claim.
(4) There was a critical distinction between private and public law litigation. In private law, individuals had to be able to show that they had a legal right which had been infringed. It was fundamental that they had legal capacity to sue. In contrast, the critical question in judicial review or statutory challenges was whether the claimant was a person aggrieved or had standing to challenge, which was not a test of legal capacity but of sufficient interest in the decision. The claim was invoking the powers of the court to exercise its supervisory jurisdiction to quash, curb or correct decisions of bodies subject to public law. The personal rights of individual applicants might never be in play. The legal capacity of the claimant was not a critical component of the court having jurisdiction in a judicial review or statutory challenge: Colchester Estates v Carlton plc [1986] Ch 80 followed.
(5) Wider public policy issues had led to a more flexible approach to the issue of standing. Groups of residents or interested people might group together to make representations, or attend inquiries, on a matter of interest and importance to them. That was particularly the case in matters concerning planning or the local environment, where the nature of the impact might often fall most directly on a group of people living in a particular area. The general policy position supported a finding that a claim could be brought by an unincorporated association.
The claimant was a local body with a constitution and purposes relating to the good planning of the area, whether or not it was designated under the 2004 Act. It sought designation under the statute because that gave it a particular statutory function and certain procedural rights, but the fact that that role and function had ended at the date of the claim did not mean that its more wide-ranging purposes did not continue to apply.
Jenny Wigley (instructed by Town Legal LLP) appeared for the claimant; Juan Lopez (instructed by Leeds City Council Legal Services) appeared for the defendant; Matthew Fraser (instructed by Walker Morris LLP) appeared for the second interested party; James Corbet Burcher (instructed by Shoosmiths LLP) appeared for the third interested party.
Eileen O’Grady, barrister
Click here to read a transcript of Aireborough Neighbourhood Development Forum v Leeds City Council
