Town and country planning – Neighbourhood development plan – Judicial review – Time limit – Appellant wishing to challenge decision to make neighbourhood development plan prepared by town council – High Court holding claim brought too late and permission to apply for judicial review should be refused – Court of Appeal upholding decision – Appellant appealing – Whether judge misinterpreting section 61N of Town and Country Planning Act 1990 – Appeal dismissed
The appellant was a mixed farming business with land holdings in the Fylde peninsula. The town council submitted a proposal to the respondent local planning authority for a neighbourhood development plan (NDP) under section 38A(1) of the Planning and Compulsory Purchase Act 2004. In March 2016, the respondent appointed an independent examiner who recommended that the appellant’s site should be included within the settlement boundary for the purposes of the NDP in order to meet a legal requirement by offering flexibility for local housing needs to be addressed over the ensuing 15 years. In early March 2017, the respondent published its decision statement. Following a local referendum, the respondent made the order for the NDP.
The appellant wished to challenge that decision by way of judicial review under section 61N(1)(a) of the Town and Country Planning Act 1990. Section 61N provided for time limits in respect of legal challenges relating to steps 5, 6, and 7 of the plan-making process. Section 61N(1) set a six-week time limit for challenging the final making of a neighbourhood plan (step 7). Section 61N(2) set a six week time limit in relation to challenges to a local authority’s consideration of the examiner’s report (step 5).
The appellant’s challenge would have been in time if the time limit in section 61N(1) applied but was out of time if the limit in section 61N(2) applied. The Administrative Court determined that section 61N(2) applied so the claim was out of time: [2017] EWHC 3086 (Admin); [2018] PLSCS 217.
The Court of Appeal upheld that decision: [2019] EWCA Civ 1152; [2019] EGLR 41. The appellant appealed.
Held: The appeal was dismissed.
(1) The approach to identifying the time limit for challenging an administrative action which was the outcome of a series of steps had been a longstanding point of contention in planning law. If the time limit ran from the date of an early step in the process, said to be affected by unlawfulness, it could be perceived as requiring premature litigation ultimately proving to be unnecessary and placing a significant burden on a claimant, who would have to take prompt action when the outcome of the process was unclear. But it might be seen as dilatory, disruptive of good administration and potentially wasteful if a claimant was allowed to wait until the final decision before bringing proceedings since, if such a challenge was successful, all of the administrative steps after the unlawful one would be rendered nugatory even though it might have been possible to salvage matters at an earlier stage.
Ultimately, a choice had to be made between competing interests of different kinds, reflecting the particular balance of considerations as they arose in a specific context. There was no clear presumption how the balance should be struck in the context of the statutory regime under consideration which could offer any guidance regarding the interpretation of section 61N. Parliament was entitled to strike the balance as it thought fit and the words of the provision itself were a clear answer as to how it intended that should be achieved.
(2) The answer to the present case really turned upon whether section 61N was permissive or merely restrictive in its purpose and effect: ie, whether it created new or replacement rights of public law challenge (subject to procedural conditions) or whether it simply imposed new restrictions as conditions for the exercise of rights which arose anyway from the general law. If it was permissive, there was real force in the appellant’s submission that section 61N(1) created a right of challenge to the making of a plan which should not be treated as cut down by implication by subsection (2) or (3) merely because a challenge to administrative action of the type to which they each referred formed the real ground for the challenge to the making (or validity) of the plan. But if section 61N was merely restrictive of pre-existing rights then, on the facts, subsection (2) was an impassable barrier to any claim in which, as a matter of substance, the challenge was to the legality of something which that subsection described, namely, something done or omitted to be done during the planning authority’s consideration of the independent examiner’s report.
(3) Section 61N could not satisfactorily be read as supplying a complete and exclusive code for all public law challenges which might be made to the process leading to the making of a neighbourhood development plan or order. Section 61N only dealt with stages 5, 6 and 7 of a seven-stage process. Apart from section 61N, the general law would in principle have permitted a public law challenge to acts or omissions said to be unlawful at any stage of the process. For example, under para 5 of schedule 4B to the 1990 Act, the planning authority had a discretion to decline to proceed with a proposal made to it if the proposal repeated a previous proposal: in theory a case could arise in which a planning authority might act unlawfully at that stage by deciding to proceed with a proposal if it acted irrationally in doing so or failed lawfully to consider the due exercise of that discretion.
The express recognition in section 61N that there might be public law challenges to acts or omissions during stages 5, 6 and 7 of the process did not amount to the fresh creation of those rights. The only purpose ascertainable from section 61N was to subject those particular existing rights of challenge to the twin conditions in each of the subsections, namely that they be brought by way of judicial review and commenced within a rigid, non-extendable six-week time-limit. That was the plain meaning of “only if” in each subsection. Section 61N was therefore entirely restrictive, not permissive, in its effect. Since the appellant’s challenge to the plan was based on what the respondent did at stage 5, it was within section 61N(2) so that the time limit in that subsection applied.
Estelle Dehon and John Fitzsimons (instructed by Harrison Drury, of Preston) appeared for the appellant; Jonathan Easton (instructed by Fylde Borough Council) appeared for the respondent.
Eileen O’Grady, barrister
