Edward Barker v Hambleton District Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Kitchin |
| Judgment Date | 09 May 2012 |
| Neutral Citation | [2012] EWCA Civ 610 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 May 2012 |
| Docket Number | Case No: C1/2011/1551 |
[2012] EWCA Civ 610
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QBD,
ADMINISTRATIVE COURT (LEEDS) (HHJ SPENCER QC)
REF: CO/952/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
Lord Justice Richards
and
Lord Justice Kitchin
Case No: C1/2011/1551
Mr Richard Harwood (instructed by Pinsent Masons LLP) for the Appellant
Mr Christopher Katkowski QC and Mr Guy Williams (instructed by Hambleton District Council Legal Services) for the Respondent
Hearing date : 25 April 2012
Lord Justice Maurice Kay
Mr Edward Barker commenced proceedings in which he invited the Administrative Court to quash part of the Hambleton Allocations Development Plan Document (the ADPD). Such applications are governed by section 113 of the Planning and Compulsory Purchase Act 2004. On 24 May 2011, HHJ Shaun Spencer QC, sitting in the Administrative Court in Leeds, struck out Mr Barker's application for want of jurisdiction on the basis that it was out of time. Mr Barker now appeals against that order.
The facts, the judgment below and the grounds of appeal
The ADPD was adopted by the local planning authority, Hambleton District Council, on 21 December 2010. Any application under section 113 has to be made "not later than the end of the period of six weeks starting with the relevant date" : section 113(4). The relevant date for these purposes was the date when the ADPD was adopted by the local planning authority, that is 21 December 2010. In the Administrative Court it was agreed between the parties that the six week time limit meant that the last date for the making of an application was 1 February 2011. That computation was based on the assumption that the first day to count was 22 December 2010, the day after the adoption resolution had been passed.
At 7.46 pm on 1 February, a trainee solicitor "posted the claim form and particulars of claim under the glass front entrance door at Leeds Combined Court Centre": witness statement of Thomas Richard Bartle. There the documents lay until a member of the Court security staff picked them up on the morning of 2 February and passed them to the Court Office. There is no publicly accessible letter box at the Court, which is locked to the public at 5.45pm each day. The Court Office closes its issues counter at 4.30pm. In these circumstances, the documents were formally sealed by the Court on 2 February.
In the Administrative Court, the submissions on behalf of Mr Barker were that (1) his application had been "made" when Mr Bartle put the documents under the front entrance door on 1 February, and/or alternatively, (2) the six weeks should be taken to have commenced on 31 December 2010 because, on that date, the Council published documents indicating that, although the ADPD had been adopted on 21 December, an application to the High Court could be made "within six weeks of 31 December". The Deputy Judge rejected these submissions. The appellant's notice issued on behalf of Mr Barker relies on grounds of appeal which reiterate his case in the Administrative Court.
If that represented the whole of the dispute before us, we would simply have to form our own view of the grounds of challenge which were advanced before the Deputy Judge. However, on 8 December 2011, about six months after the issue of the appellant's notice, a respondent's notice was issued on behalf of the Council. If we extend time for it, and if it is well-founded, it drives a coach and horses through Mr Barker's first ground of appeal and, indeed, the common assumption upon which the hearing in the Administrative Court was based.
The respondent's notice
On 3 November 2011, in Hinde v Rugby Borough Council [2011] EWHC 3684 (Admin), which also concerned the time limit under section 113(4), Mr David Elvin QC, sitting in the Administrative Court, held that time starts to run for these purposes not on the day after the local planning authority has adopted the plan, but on the very day of its adoption. Although an appeal in that case was originally listed to be heard today with Mr Barker's appeal, it has been withdrawn. We are not bound by Hinde, which Mr Harwood submits was wrongly decided.
I have no doubt that we should extend time for the respondent's notice. It raises an important jurisdictional point. It is highly desirable that this Court considers whether or not Hinde was correctly decided so that practitioners know where they stand. I reject Mr Harwood's submission that there was undue delay in the issuing of the respondent's notice. It was issued about five weeks after Hinde was decided and long before the hearing of this appeal. I accept that the Council has undergone several changes of mind about the parameters of the time limit in this case but ultimately it is a question of jurisdiction which must be based on the correct construction of the statute. Logically, this construction issue precedes the issues raised by the grounds of appeal.
Section 113
It is appropriate to set out the relevant parts of section 113:
"(2) A [development plan document] must not be questioned in any legal proceedings except in so far as is provided by the following provisions of this section.
(3) A person aggrieved by a relevant document may make an application to the High Court on the ground that –
(a) the document is not within the appropriate power;
(b) a procedural requirement has not been complied with;
(4) But the application must not be made later than the end of the period of six weeks starting with the relevant date
…
(11) References to the relevant date must be construed as follows:
…
(c) for the purposes of a development plan document (or a revision of it), the date when it is adopted by the local planning authority or approved by the Secretary of State (as the case may be)."
It is clear that the ADPD is a "development plan document" and that it was adopted by the local planning authority on 21 December 2010. If the six week period began with the counting of the day of adoption rather than on the following day, it ended on 31 January 2011, with the consequence that, when the documents were pushed under the door of the Court building on 1 February, the application was made out of time.
The judgment in Hinde
In a clear and incisive judgment, the Deputy Judge in Hinde stated (at paragraph 6):
"The first point to observe is the combination of s113(2) and (4) which is to allow challenges only to be brought within the stipulated period. The second point to note is that the time period of six weeks is set not by reference to the CPR but by the provisions of s113(3) and (4) themselves – the 'relevant date' for present purposes being that specified in s113(11)(c), ie the date of adoption … The third point to note is that, unlike s287 of the Town and Country Planning Act 1990 … which was the equivalent provision for challenging old-style development plans, s113 provides in terms that the six weeks is to start with the date of adoption."
Section 287(4) of the 1990 Act had required an application to be made within six weeks from the relevant date, as opposed to six weeks starting with the relevant date.
The Deputy Judge then stated (at paragraph 10) that, absent contrary authority or other considerations, section 113
"… clearly requires the calculation of the six weeks to 'start with' the date of adoption … Further, since Parliament has stipulated the period in primary legislation, and section 113(2) precludes any other form of challenge, that period is absolute and cannot be extended under the provisions of the CPR."
He further considered this analysis to be consistent with the approach of the House of Lords in Mucelli v Government of Albania to the construction of section 26(4) of the Extradition Act 2003, which requires notice of appeal to be given
"before the end of the permitted period, which is seven days starting with the day on which the order is made."
The remainder of the judgment in Hinde takes the form of a consideration of whether what the Deputy Judge found to be the natural and unambiguous meaning of the language of section 113(4) should be displaced by contrary authority or other considerations. He found no basis for such displacement. He adverted to the Administrative Court judgment in the present case which had been given some six months earlier but noted (at paragraph 16) that it was not authority to the contrary because it had been common ground and uncontroversial that the final date for the making of an application was 1 February.
Discussion
It is clear that the wording of section 287(4) of the 1990 Act – "must be made within six weeks from the relevant date" – meant that the first day to be counted was the day after the relevant date. Similar language in section 2 of the Limitation Act 1939 was so construed in Pritaur Kaur v S Russell and Sons Ltd [1973] QB 336, as it was in an area closer to the context of the present case, section 23(4) of the Acquisition of Land Act 1981: Okolo v Secretary of State...
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