An application under section 113 of the Planning and Compulsory Purchase Act 2004 to challenge a development plan document, or part of one, must be made “not later than the end of the period of six weeks starting with the relevant date”. In such a case, the section goes on to define “the relevant date” as meaning the date when the development plan document is adopted by the local planning authority or approved by the Secretary of State, as the case my be. The decision in Barker v Hambleton District Council [2012] EWCA Civ 610 sounds a warning about the strictness of that time limit.
In that case the appellant applied under section 113 to quash in part an allocations development plan document (“the ADPD”). At first instance, his application had been struck out for want of jurisdiction on the basis that it was out of time. The ADPD had been adopted on 21 December 2010. (The appellant’s claim form and particulars of claim had been posted by hand under the front door of the court late in the evening of 1 February 2011, and the documents had been formally sealed by the court the following day.) The appellant appealed, relying in part on the argument that the respondent had effectively extended the statutory period by stating in its adoption statement that a section 113 application could be made “within six weeks of 31 December 2010”. (This was apparently intended to reflect the holiday period over Christmas.)
The court held that the respondent had no power to extend the statutory time limit. It was a statutory limitation on the jurisdiction of the court. Moreover, at common law there was no room for the establishing of jurisdiction on the basis of an estoppel operating against the respondent.
The appellant sought separately to argue that the six-week period did not commence until the day following the date of adoption, so expiring on 1 February 2011. The court also rejected that argument, holding that the decision in Hinde v Rugby Borough Council [2011] EWHC 3684 (Admin) – see PP 2012/36 – was correct. There the judge had concluded that by using the words “starting with the relevant date” i.e. the date of adoption, parliament intended the day on which adoption occurred to count as part of the six-week period. In the present case, therefore, the claim form and particulars of claim should have been filed by 31 January 2011, the day on which the six-week period expired.
John Martin is a freelance writer
