R (on the application of Fylde Coast Farms Ltd (formerly Oyston Estates Ltd)) v Fylde Borough Council

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Briggs,Lord Sales,Lord Lloyd-Jones,Lady Arden,Lord Stephens
Judgment Date14 May 2021
Neutral Citation[2021] UKSC 18

[2021] UKSC 18

Supreme Court

Hilary Term

On appeal from: [2019] EWCA Civ 1152

before

Lord Lloyd-Jones

Lord Briggs

Lady Arden

Lord Sales

Lord Stephens

R (on the application of Fylde Coast Farms Ltd (formerly Oyston Estates Ltd))
(Appellant)
and
Fylde Borough Council
(Respondent)

Appellant

Estelle Dehon

John Fitzsimons

(Instructed by Harrison Drury (Preston))

Respondent

Jonathan Easton

(Instructed by Fylde Borough Council)

Heard on 9 March 2021

Lord Sales

Lord Briggs AND( with whom Lord Lloyd-Jones, Lady Arden and Lord Stephens agree)

1

This appeal raises a single short point about the interpretation and effect of section 61N of the Town and Country Planning Act 1990 (“the TCPA”), which is headed “Legal challenges in relation to neighbourhood development orders”. Its provisions apply also to legal challenges in relation to neighbourhood development plans, and it was to the making of such a plan that the legal challenge in the present case related.

2

Speaking generally, the making of neighbourhood development orders or plans requires the taking of what may loosely be described as seven consecutive steps, mainly by the relevant local planning authority. They are, in summary:

  • (1) designating a neighbourhood area;

  • (2) pre-submission preparation and consultation;

  • (3) submission of a proposal;

  • (4) consideration by an independent examiner;

  • (5) consideration of the examiner's report;

  • (6) holding a local referendum;

  • (7) making the order or plan.

3

Section 61N makes separate statutory provision, albeit in very similar terms, about public law challenges to each of steps 5, 6 and 7. It provides as follows:

“(1) A court may entertain proceedings for questioning a decision to act under section 61E( 4) or (8) only if —

(a) the proceedings are brought by a claim for judicial review, and

(b) the claim form is filed before the end of the period of six weeks beginning with the day after the day on which the decision is published.

(2) A court may entertain proceedings for questioning a decision under paragraph 12 of Schedule 4B (consideration by local planning authority of recommendations made by examiner etc) or paragraph 13B of that Schedule (intervention powers of Secretary of State) only if —

(a) the proceedings are brought by a claim for judicial review, and

(b) the claim form is filed before the end of the period of six weeks beginning with the day after the day on which the decision is published.

(3) A court may entertain proceedings for questioning anything relating to a referendum under paragraph 14 or 15 of Schedule 4B only if —

(a) the proceedings are brought by a claim for judicial review, and

(b) the claim form is filed before the end of the period of six weeks beginning with the day after the day on which the result of the referendum is declared.”

4

Pausing there, subsection (2) is about step 5. Subsection (3) is about step 6. Subsection (1) is about the final step 7, namely making the order or plan, because this step is the subject matter of section 61E(4) and (8). The terms of each of the subsections are strikingly similar. Each of them provides that proceedings may be entertained “only if” the following two conditions are satisfied. The first requires the proceedings to be by way of judicial review. The second imposes a six week time limit for the filing of the claim form, running either from the publication of the challenged decision or, in respect of step 6, from the declaration of the result of the impugned referendum. In practice the only respect in which the second condition adds anything to the time limit which the law would otherwise apply to the bringing of a judicial review challenge of this kind is that the court is given no discretion to extend it.

5

The difficulty of interpretation thrown up by this appeal arises from the fact that a public law challenge to the making of a neighbourhood development order or plan may be based upon a challenge to some earlier step in the prescribed process which is then said to invalidate the making of the order or plan itself. Thus, as will be explained in more detail below, the appellant claims in the present case that the respondent planning authority failed without good reason to accept an amendment to the draft plan recommended by the independent examiner, ie an alleged departure from the lawful performance of step 5, so that it became unlawful to make the plan at step 7, even though approved by the requisite majority during the referendum at step 6. The appellant filed its claim form making that claim within six weeks of the making of the plan, but well outside the six week time limit for a challenge to the lawfulness of the respondent's consideration of the independent examiner's report. To the respondent's objection that the claim form was filed out of time under section 61N(2) the appellant replied that its claim fell squarely within the permission for legal challenge to the making of a plan provided by section 61N(1), which conferred a distinct and separate right, unaffected by subsection (2), and regardless of the particular basis of the claim to invalidate the plan. Both the Planning Court and the Court of Appeal agreed with the respondent's interpretation of section 61N. The appellant seeks the blessing of this court for its rival interpretation.

6

Even where particular words used in a statute appear at first sight to have an apparently clear and unambiguous meaning, it is always necessary to resolve differences of interpretation by setting the particular provision in its context as part of the relevant statutory framework, by having due regard to the historical context in which the relevant enactment came to be made and, to the extent that its purpose can be identified (which may require examination of admissible travaux preparatoires), to arrive at an interpretation which serves, rather than frustrates, that purpose. In R (Quintavalle) v Secretary of State for Health [2003] UKHL 13; [2003] 2 AC 687, para 8, Lord Bingham of Cornhill said:

“Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.”

7

After setting out the relevant facts it will therefore be necessary to set out the statutory scheme for the making of neighbourhood development orders and plans in a little detail, and also to say a little about the general development by the courts of jurisprudence which addresses the question when public law challenges may, and should, be brought in relation to the legality of an administrative process comprising a series of successive steps.

The Facts
8

On 26 May 2017 the respondent, Fylde Borough Council (“the Borough Council”), as local planning authority for its area, decided after the required referendum to make the St Anne's on the Sea Neighbourhood Development Plan, which had been prepared by the interested party, St Anne's on the Sea Town Council. In deciding on the form of plan to put to the referendum, the Borough Council chose not to follow a recommendation by the independent examiner of the draft plan that it should be amended to include within the settlement boundary of St Anne's a site then owned by the appellant, Oyston Estates Ltd (“Oyston”). By a claim for judicial review issued on 6 July 2017, Oyston challenged the decision of the Borough Council to make the neighbourhood development plan.

9

The site is undeveloped land on the edge of St Anne's, at Lytham Moss. To its west is a site known as Queensway, which has planning permission for development for 1,150 dwellings. The site and Queensway are part of land which has been designated a Biological Heritage Site. Land to the north and east has been designated a Farmland Conservation Area and will be managed for over-wintering birds, including the pink-footed goose. Oyston wished to develop the site for housing. With that aim in view, in the neighbourhood plan process Oyston argued for the site to be included within the settlement boundary, but ultimately without success. In what follows we gratefully draw upon the account of the facts given by Lindblom LJ in the Court of Appeal.

10

In July 2013, the Borough Council designated the St Anne's on the Sea Neighbourhood Parish Area for the preparation of a neighbourhood plan. Public consultation took place in April and May 2014, and in June and July 2015. The submission draft of the neighbourhood plan was consulted upon in February and March 2016. The independent examiner, Mr Slater, was appointed in March 2016. The examination hearing took place on 7 June 2016, and the examiner duly submitted a report, dated 10 August 2016.

11

In his conclusions on “Policy GP1: Settlement Boundary” the examiner said he was aware of the “ecological issues affecting Lytham Moss, as the land is used for grazing of overwintering birds …” and is “identified as a Biological Heritage Site as well as being part of a wider network of linked sites of ecological importance”. But in his view this was “not a reason to exclude it from changes to the settlement boundary”. The “ecological impact on the site and its protected species” would have to be considered “at any application stage”. Given the Borough Council's inability to identify a five-year housing supply, “the incorporation [of] the land identified as Countryside outside the Green Belt … into the settlement boundary would offer the town the flexibility to be able to meet its housing needs over the next 15 years, which are unlikely to diminish, but within...

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