R Blue Green London Plan v The Secretary of State for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 15 January 2015 |
| Neutral Citation | [2015] EWHC 495 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 January 2015 |
| Docket Number | CO/4943/2014 and CO/4946/2014 |
[2015] EWHC 495 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Ouseley
CO/4943/2014 and CO/4946/2014
Mr G Stevens appeared in person on behalf of the Blue Green London Plan
Ms N Lieven & Mr Z Simons appeared on behalf of The London Borough of Southwark
Mr R Harwood & Mr D Blundell appeared on behalf of the Defendant Secretaries of State 3
Mr M Humprhies QC & Mr A Booth (instructed by the Berwin Leighton Paisner) appeared on behalf of the Interested Party
On 12 September 2014, the Secretaries of State for Communities and Local Government and for Environment, Food and Rural Affairs, made the Thames Water Utilities Limited (Thames Tideway Tunnel) Order 2014, which grants development consent under the 2008 Planning Act for the construction and operation by Thames Water Utilities Limited of a waste water scheme in London, known as the Thames Tideway Tunnel.
A number of challenges have been brought to that order by way of judicial review. I am at present concerned with two of them.
The claims brought by Southwark London Borough Council and by Mr Graham Stevens, who calls the claimant the Blue Green London Plan but is in fact Mr Stevens in person, face a jurisdiction argument. The defendant Secretaries of State and TWUL contend that they have filed their claim out of time, that there is no jurisdiction to extend time and therefore the proceedings must fail without consideration of their merits.
The decision, as I have said, was made on 12 September 2014. That is when it was published. The claim was filed in both cases on 24 October 2014. The defendants say that the last day for filing was 23 October 2014.
I am considering the question of jurisdiction not on an arguability basis but in order to decide whether this court has jurisdiction to consider the substantive merits of those two claims.
I, of course, am assuming that each claim does have substantive merits, at least to the extent of being arguable, but the decision on jurisdiction will be the same whether the claim is wholly unarguable, arguable or bound to succeed.
My decision on jurisdiction involves no expression of view as to whereabouts those cases might fall. I have not considered their substantive merits to a sufficient degree.
It is also accepted by the Secretaries of State that, were this court to have jurisdiction to extend time, given that there is only one day's extension required and plainly no obvious prejudice, time should be extended. But they take their stance along with the TWUL firmly on the jurisdiction point.
The relevant statutory provision of the 2008 Act is section 118, which provides:
"1) A court may entertain proceedings for questioning an order granting development consent only if (a) the proceedings are brought by a claim for judicial review and (b) the claim form is filed during the period of six weeks beginning with:
(i) the day on which the order is published …"
There are three points to be noted about that formulation. The first is the court is able to "entertain" proceedings only if the proceedings are brought as required. That form of language is only apt to create a jurisdictional bar to a claim which does not meet the requirements of Section 118.
Second, the proceedings are to be brought by a claim for judicial review. That is an essential part of Miss Lieven QC's submissions for Southwark.
Third, there is a statutory time limit of six weeks. The starting point of that six weeks is what is first at issue.
Miss Lieven's submissions for Southwark have been adopted by Mr Green but he has added some points of his own to which I shall come later.
The defendants say that, as the decision or order was published on 12 September 2014, the period of six weeks beginning with that date expired on 23 October 2014. Hence, a claim filed on 24 October 2014 was one day out of time.
Miss Lieven submits that the claim form was filed during the period of six weeks beginning with the day on which the order was published, because the wording, "six weeks beginning with", is the same as, "six weeks beginning after" that day.
In my judgment, it is perfectly clear that, as a matter of ordinary statutory construction, a period of six weeks beginning with the day on which an event occurred includes the day on which the event occurred.
I reach that conclusion by reference to clear authority, although, as Miss Lieven says, none of them directly deal with Section 118 itself, but with statutory wording in cognate fields.
I start with the decision of the Court of Appeal in Okolo v Secretary of State for the Environment and another [1997] 4 AER 242. The court had to construe Section 23(4) of the Acquisition of Land Act 1981, which provided that:
"An application to the High Court under this section shall be made within six weeks … from the date on which notice of the confirmation or making of the order is first published in accordance with this Act."
The Court of Appeal, see page 246 letters C to D per Lord Justice Schiemann, regarded it as manifest that the counting of the period of six weeks, or 42 days, started on the day after the order was published. That is what was meant by six weeks "from the date" on which the notice was published. That is, of course, different from the statutory language with which I am concerned.
The distinction is borne out by two other decisions. The first is the decision in Hinde v Rugby Borough Council [2011] EWHC 3684 Admin, in which Mr David Elvin QC, sitting as a Deputy High Court Judge, had to construe the provisions of Section 113 of the Planning and Compulsory Purchase Act 2004. This provided, in relation to a development plan document, that an application to the High Court:
"Must be made not later than the end of the period of six weeks starting with the relevant date."
The Deputy Judge drew attention to the distinction between the language of "starting with" in Section 113 of the 2004 Act and the language of Section 23(4) of the 1981 Act, "from the date".
He rejected a number of other arguments which found echoes in those of Miss Lieven here. He said in paragraph 10 that if he were to approach that section without authority, he would have had no hesitation in accepting the submissions by counsel on behalf of the interested party that Section 111 clearly required the calculation of six weeks to start with, that is include, the date of adoption. He also took the view it was clear that time could not be extended. He elaborated his reasoning.
I draw particular attention to that, because in the next case to which I refer, Barker v Hambleton District Council [2012] EWCA Civ 610, the Court of Appeal specifically found itself in "complete agreement with the judgment of the Deputy Judge in Hinde". In that case, the Court of Appeal again had to consider Section 113 of the 2004 Act.
Having commented on the clarity and incisiveness of Mr Elvin's judgment, the Court of Appeal considered arguments advanced by Mr Harwood on behalf of the claimant in that case, which again were echoed by some of Miss Lieven's submissions.
I note at the end of paragraph 12 that the Court of Appeal, through Lord Justice Maurice Kay, specifically drew attention to the contrast between the language of some Acts in the planning sphere, which use the words "from the relevant date" and those at Section 113 which use the words "starting with". He said, after referring to Okolo:
"However, Section 113 of the Planning and Compulsory Purchase Act 2004 expressly departed from that model. 'Starting with' is not the same as the word 'from' and I can see no basis for any kind of presumption that, in using different language, Parliament was intending it to mean precisely the same as the discarded language."
Mr Harwood, in that case, also sought to distinguish the extradition case to which Hinde had referred, namely Mucelli v The Government of Albania [2009] UKHL 2, [2009] 1 WLR 276. I shall come to that later but it was a case in which the statutory provisions of the Extradition Act 2003, notably Section 26(4), required 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".
As is evident from that decision of the Supreme Court, the Court of Appeal was right in Barker, if I may say so with respect, to say:
"The whole approach of the House of Lords [in that case] is predicated on the understanding that, when a statutory time limit starts with a particular day, time runs from that day and not from the following day."
That is paragraph 14 of Barker.
The Court of Appeal regarded the point as sufficiently clear to say that this, the first ground of appeal in Barker, was unsustainable.
I should add that the whole approach of the House of Lords was repeated by the Supreme Court when it revisited some of the problems which its earlier decision had created in Pomiechowski v District Court of Lgunica Poland [2012] UKSC 20, [2012] 1 WLR 1604, to which I shall return.
It is accordingly clear that there is a distinction to be drawn — a vital distinction —...
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