In R (on the application of Williams) v Secretary of State for Energy and Climate Change [2015] EWHC 1202 (Admin), the claimant sought to challenge under section 118 of the Planning Act 2008 a development consent order made on 12 September 2014 by the secretary of state approving a major wind farm.
At the relevant time, section 118 provided that the court might entertain such a challenge only if the claim form had been filed “during the period of six weeks beginning with (i) the day on which the order is published, or (ii) if later, the day on which the statement of reasons for making the order is published”. The time limit is a strict one; the court has no power to extend time.
In Williams, the claim form was filed on 24 October 2014. It was contended by the secretary of state, and the interested party, that this was a day out of time, and that accordingly the court had no jurisdiction to determine the claim.
The court referred to the decision of the Court of Appeal in Barker v Hambleton District Council [2012] EWCA Civ 610, where Maurice Kay LJ distinguished between statutory time limits framed in terms of a claim having to be issued within six weeks “from” the date of the decision and those framed in terms of six weeks “starting with” that date. The former meant that the first day to be counted was the day after the date of the decision; the latter meant that the first day to be counted was the date of the decision itself. Accordingly, it went on to hold that the claim form here had been filed out of time.
(It is important to note, however, that section 118 has since been amended with effect from 13 April 2015 by section 92(4) of the Criminal Justice and Courts Act 2015. The relevant wording now reads as follows: “before the end of the period of six weeks beginning with the day after (i) the day on which the order is published, or (ii) if later, the day on which the statement of reasons for making the order is published”. The amendment does not have retrospective effect, and so was of no assistance to the claimant in Williams.)
On the issue of the meaning of the term “published” in section 118, the court was content to give the term its ordinary meaning, i.e. put into the public domain. Here, on 12 September 2014, the secretary of state had placed the order, his decision letter and the examining authority’s report on the PINS infrastructure planning website, and notified the interested parties both by email and by post. This amounted to publication.
