Town and country planning – Neighbourhood development plan – Judicial review – Time limit – Appellant wishing to challenge decision to make neighbourhood development plan prepared by interested party – Court ordering trial of preliminary issue whether claim out of time – High Court holding claim brought too late and permission to apply for judicial review should be refused – 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 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 respondent local authority 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.
The High Court took the view that the appellant had raised arguable grounds of challenge meriting full consideration, but the respondent 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 appellant’s application for judicial review had been brought out of time. The court held that the claim had been brought too late and permission to apply for judicial review should be refused: [2017] EWHC 3086 (Admin); [2018] PLSCS 217.
The appellant appealed. The single main issue was whether the judge’s interpretation of section 61N was correct, and the claim for judicial review too late.
Held: The appeal was dismissed.
(1) It was clear that section 61N was a bespoke and complete scheme for legal challenges to specified decisions and actions taken in the course of a neighbourhood plan process: in subsection (2), a local planning authority’s “consideration” of an examiner’s recommendations under para 12 of Schedule 4B to the 1990 Act or the secretary of state’s intervention under para 13B; in subsection (3), “anything relating to a referendum” under para 14 or para 15; and in subsection (1), the local planning authority’s “decision” to act under section 61E(4) or (8) of the 1990 Act, or section 38A(4) or (6) of the 2004 Act. Section 61N was differently drafted from other statutory provisions for challenging the validity of development plans, such as section 287 of the 1990 Act (proceedings for questioning validity of development plans and certain schemes and orders) and section 113 of the 2004 Act (validity of strategies, plans and documents) which did not apply to neighbourhood plans. It was self-contained and comprehensive. It related to, and relied upon, no other plan process. It left no gaps to be filled by claims for judicial review outside the statutory scheme itself, no alternative or additional statutory procedure and no alternative time limits.
(2) Section 61N did not provide for a single stage of the neighbourhood plan process to be the point at which it was possible to bring a claim before the court. It did not rule out as premature any challenge started before the process had fully run its course, when the plan was finally made. It did not require, or permit, every claim to await that moment. It distinguished three sequential stages in the plan process. The three stages, the corresponding provisions for challenge and the associated time limits were precisely identified. The three subsections in section 61N were not expressed in merely permissive terms, but both permissively and restrictively. All three were formulated in the same way. Each, however, stipulated two conditions for the bringing of a claim, both of which had to be satisfied if the court was to entertain the challenge: the requirement that the proceedings were brought by a claim for judicial review, and the further requirement that the claim form was filed before the end of a finite six-week period, which started and ended on particular dates and could not be varied. The court had no discretion to extend time as the time limits were statutorily fixed. Subsection (1) provided a route to challenge the final step in the process, the local planning authority’s decision to make the plan after it had passed through the referendum stage. The fact that a statutory provision, construed in a particular way, had only limited scope did not necessarily mean that the construction was wrong. If subsection (1) was relatively limited in scope, it was merely the consequence of subsections (2) and (3) providing for challenges to prior steps in the process, so that any unlawfulness in those steps could be tackled before it infected the neighbourhood plan itself, and thus the development plan as a whole. Section 61N acted against that mischief. In all the circumstances, not only was the judge’s interpretation of section 61N correct; he also grasped the statutory purpose behind it. Nor was his interpretation hostile to good administration.
(3) The appellant had further argued that permission to apply for judicial review should in any event have been granted because the claim fell within the court’s jurisdiction under section 61N(1) to entertain proceedings for questioning a decision under section 38A(4) and (6) of the 2004 Act which required the local planning authority, when it came under a duty to make a neighbourhood plan, to consider whether the making of the plan would breach, or be otherwise incompatible with, any EU obligation. However, the challenge here was not to any alleged unlawfulness in the action taken under section 38A(4)(a) and (6), which would have been within the proper scope of a claim under section 61N(1), but to an alleged unlawfulness at an earlier stage, for which a challenge only lay under section 61N(2), within the relevant six-week time limit under that provision.
Estelle Dehon (instructed by Direct Access) appeared for the appellant; Jonathan Easton (instructed by Fylde Borough Council) appeared for the respondent. The interested party did not appear and was not represented.
Eileen O’Grady, barrister
