Town and country planning – Neighbourhood development plan – Judicial review – Time limit – Claimant wishing to challenge decision to make neighbourhood development plan – Court ordering trial of preliminary issue – Whether claim being out of time – Preliminary issue determined
The claimant was a mixed farming business with land holdings in the Fylde peninsula which owned a site at Lytham Moss (the site). The interested party town council initiated the making of a statutory neighbourhood development plan (NDP) under section 38A(1) of the Planning and Compulsory Purchase Act 2004. In March 2016, the defendant local authority appointed an independent examiner who recommended that the claimant’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 defendants published their decision statement. Following a local referendum on 4 May 2017, the defendants made the order for the NDP on 26 May 2017. The claimant wished to challenge that decision by way of judicial review under section 61N(1)(a) of the Town and Country Planning Act 1990.
The High Court took the view that the claimant had raised arguable grounds of challenge meriting full consideration, but the defendants argued that the claim fell well out of time as it had been filed more than six weeks after the decision published in March 2017 contrary to section 61N(1)(b) of the 1990 Act. Therefore, the court ordered the determination of a preliminary issue whether the claimant’s application for judicial review had been brought out of time.
Held: The preliminary issue was determined.
(1) The time limits were negatively expressed; a challenge was barred except when brought within the short time limit, a mere six weeks. The provisions were different from those in CPR Part 54 dealing with judicial review challenges generally. In such cases, the claim had to be brought promptly and in any event not more than three months after the grounds of challenge first arose. The present six-week time limit was shorter in order to promote early certainty and avoid disruption of development projects and plans and prejudice to good administration. Under section 61N, everyone knew when time started to run, unlike in the case of the CPR time limit, which referred to time running from when the grounds first arose. Moreover, under section 61N, unlike those in the CPR, it was known for certain when time would run out. In the case of the CPR provisions, that occurred when the obligation of promptness could no longer be fulfilled. The generic judicial review time limit provision in CPR Part 54 had been criticised for being uncertain but no such criticism could be levelled at the provisions in the present case.
(2) The promotion of certainty and avoidance of disruption, which was the rationale for the shorter time limits, and the precision with which they were enacted were not to be undermined by a lax approach when interpreting and applying them. The parties involved in that important process of localised and democratic decision making were entitled to know, once the six weeks was up, that the stage in the process that could within that six-week period have been challenged, was no longer susceptible to challenge. It followed that a challenge, say, to the making of an order following a referendum, should not be entertained if the ground of the challenge in truth attacked, say, the rationality of the authority’s consideration of the examiner’s report and the resulting decision to hold the referendum in the first place. Still less should such a challenge, after the referendum had been held, hark back to the content of the examiner’s report, which in turn had informed the authority’s decision on how to proceed on the basis of that report. In such a case, the six-week period having already expired, the prohibition against entertaining the challenge had come into play and it could not be outflanked by dressing up the challenge as one not to the authority’s decision to hold a referendum, but to the subsequent decision to make an order on the strength of the referendum result. Legal flaws in an examiner’s report might not be relied on to challenge a decision to hold a referendum, if brought by judicial review within six weeks of that decision. Otherwise, legal flaws in the examiner’s report would have to be brought by judicial review outside the scope of the statutory provisions, which was most unlikely to have been the (objectively ascertained) intention of the legislature. If an examiner’s report was legally flawed, the authority’s subsequent consideration of the report and decision on how to proceed might, or might not, be infected by the flaw in the examiner’s report. If it was, there was no difficulty with the challenge, but it had to be brought by judicial review within six weeks of publication of the local planning authority’s decision.
(3) In the present case, the claimant’s challenge was framed as a challenge to the making of the order on 26 May 2017, following the result of the referendum held on 4 May 2017. However, it did not dispute that both grounds of challenge related to the legality of the defendants’ decision back in March 2017; and did not dispute that the six-week period for a challenge to that decision began to run on 3 March 2017 and ended six weeks later in mid April. The present claim was not brought until 5 July 2017. No separate challenge was made to the propriety of the referendum, nor was any complaint made about the making of the order on 26 May 2017 except that founded on the alleged unlawfulness of what happened back in March 2017. The claim was out of time and, although arguable on its merits, permission had to be refused.
Estelle Dehon (instructed by Cassidy Ashton Solicitors, of Preston) appeared for the claimant; Jonathan Easton (instructed by Fylde Borough Council) appeared for the defendants.
Eileen O’Grady, barrister
