Nottingham City Council v Calverton Parish Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis |
| Judgment Date | 02 March 2015 |
| Neutral Citation | [2015] EWHC 503 (Admin) |
| Docket Number | Case No: CO/4846/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 March 2015 |
[2015] EWHC 503 (Admin)
Mr Justice Lewis
Case No: CO/4846/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Annabel Graham Paul (instructed by Nottingham City Council) for the Applicant
Richard Turney (instructed by Public Access) for the Respondent
Hearing date: 19 th February 2015
INTRODUCTION
This is an application by Nottingham City Council ("the City Council") to strike out a claim made by Calverton Parish Council ("the Parish Council") pursuant to section 113 of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") for an order quashing a development plan document which contains the Core Strategy adopted by the City Council for its area.
The application raises one short but important point of statutory construction. By virtue of section 113(4) of the 2004 Act, an application to quash a development plan document must be made no later than the end of the period of six weeks starting with the relevant date, here the date of adoption of the document plan document. In the present case, the development plan document was adopted on 8 September 2014. The application to quash was made on Monday, 20 October 2014. The court office was closed on Sunday, 19 October 2014 and an application could not be made on that day. Subject to the proper interpretation of section 113(4) of the 2004 Act, the six week period would have ended on a Sunday, the 19 October 2014.
The question is whether, when the last day for making an application falls on a date when the relevant court office is closed so that an application cannot be made on that day, is section 113(4) of the 2004 Act to be interpreted so that the period of six weeks for making an application ends on the next working day when an application can be made? If so, the period for making the application in this case would end on Monday 20 October 2014 and the claim would not be barred by section 113(4) of the 2004 Act.
THE LEGAL FRAMEWORK
The Local Development Scheme and Development Plan Documents
In brief, the statutory framework governing the preparation and adoption of development plan documents is as follows. Section 15 of the 2004 Act requires a local planning authority to prepare and maintain a local development scheme for its area. Section 17(3) of the 2004 Act provides that:
"(3) The local planning authority's local development documents must (taken as a whole) set out the authority's policies (however expressed) relating to the development and use of land in their area"
Furthermore, section 15(2)(aa) of the 2004 Act provides that the local development scheme must specify which local development documents are to be "development plan documents". There are provisions governing the preparation of development plan documents: see section 19 of the 2004 Act. There is a duty on local planning authorities to co-operate in the preparation of development plan document: section 33A of the 2004 Act. A local planning authority must submit every development plan document to the Secretary of State for independent examination: section 20 of the 2004 Act. There are provisions enabling the local planning authority to adopt the development plan document if the examiner recommends adoption, or to make main modifications and then adopt the development plan if the independent examiner so recommends: see section 23 of the 2004 Act.
The Development Plan
The development plan has particular significance in the operation of the planning system. So far as England outside Greater London is concerned, the development plan is now defined by section 38(3) of the 2004 Act as:
"(b) the development plan documents (taken as a whole) which have been adopted or approved in relation to that area and
(c) the neighbourhood development plans which have been made in relation to that area"
Section 38(6) of the 2004 Act provides that:
"(6) If regard is to be had to the development plan for the purposes of any determination made under the planning Acts the determination must be made in accordance with the development plan unless material considerations indicate otherwise".
That subsection applies to, amongst other things, decisions on applications for planning permission for development (see section 70 of the Town and Country Planning Act 1990). If proposed development conflicts with the development plan, planning permission will be refused unless material considerations indicate otherwise.
Challenges to the Validity of Development Plan Documents
There is provision for challenging the validity of development plan documents. Section 113 of the 2004 Act provides, so far as material that:
"113 Validity of strategies, plans and documents
"(1) This section applies to–
…..
(c) a development plan document;
and anything falling within paragraphs (a) to (g) is referred to in this Section as a relevant document.
"(2) A relevant 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 be made not later than the end of the period of six weeks starting with the relevant date.
"(5) The High Court may make an interim order suspending the operation of the relevant document–
(a) wholly or in part;
(b) generally or as it affects the property of the applicant.
"(6) Subsection (7) applies if the High Court is satisfied–
(a) that a relevant document is to any extent outside the appropriate power;
(b) that the interests of the applicant have been substantially prejudiced by a failure to comply with a procedural requirement.
"(7) The High Court may—
(a) quash the relevant document;
(b) remit the relevant document to a person or body with a function relating to its preparation, publication, adoption or approval.
…..
"(8) An interim order has effect until the proceedings are finally determined.
…..
"(10) A procedural requirement is a requirement under the appropriate power or contained in regulations or an order made under that power which relates to the adoption, publication or approval of a relevant document.
"(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);
….."
THE FACTS
The City Council, in co-operation with two other local planning authorities, Broxtowe Borough Council and Gedling Council began working on appropriate polices for the development and use of land within their respective areas. The three local planning authorities prepared a document described as the "Greater Nottingham – Broxtowe Borough Gedling Borough, Nottingham City Aligned Core Strategies Part 1 Local Plan" ("the Aligned Strategies document"). That document set out a policy, Policy 2, setting out a spatial strategy for sustainable development. As part of that policy, the Aligned Strategies document identified that there was considered to be a need for a minimum of 30,550 new homes over the period 2011 and 2028. It proposed that 17,150 new homes would be provided within the area of the City Council, 6,150 within the area of Broxtowe Borough Council and 7,250 within the area of Gelding Borough Council. Policy 3 in the Aligned Strategies document provided, amongst other things, for a review of Green Belt Boundaries in order to deliver the development anticipated in Policy 2.
On 7 June 2013, the Aligned Strategies document was submitted to the Secretary of State and an independent examiner was appointed to conduct an examination under section 20 of the 2004 Act. On 24 July 2014, the independent examiner recommended that, with main modifications, the "Greater Nottingham — Broxtowe Borough, Gedling Borough and Nottingham City Councils' Aligned Core Strategies Local Plan" satisfied the requirements of section 20(5) of the 2004 Act and was sound.
On 8 September 2014, the City Council resolved to adopt the Aligned Strategies document as a development plan document for its area. On 9 September 2014, the City Council published an adoption statement pursuant to regulation 26 of the Town and Country Planning (Local Development) (England) Regulations 2012 ("the 2012 Regulations), stating that the City Council had adopted its Core Strategy on 8 September 2014. The Core Strategy was said in the adoption statement to provide "the vision, objectives, spatial strategy, polices and strategic policies for the City up to 2028". In essence, the Aligned Strategies document, or at least those parts of it relevant to the City Council's area, became a development plan document for its area (see section 17(7) of the 2004 Act and regulations 5(1), 6 and 26 of the 2012 Regulations). As such, the Core Strategy is one of the City Council's development plan documents and is part of its local development scheme.
On 10 September 2014, Gedling Borough Council, it seems, similarly resolved to adopt the Aligned Strategies document, or at least those parts of it relevant to its area, as a development plan document. On 17 September 2014, Broxtowe Borough Council did likewise.
On 20 October 2014, the Claimant, the Parish Council, issued a single claim, naming as the three defendants, the City...
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