R (Oyston Estates Ltd) v Fylde Borough Council

JurisdictionEngland & Wales
Judgment Date2019
Neutral Citation[2019] EWCA Civ 1152
Date2019
Year2019
CourtCourt of Appeal (Civil Division)
Court of Appeal *Regina (Oyston Estates Ltd) v Fylde Borough Council [2019] EWCA Civ 1152 2019 April 11; July 5 Lewison, Lindblom, Rose LJJ

Planning - Development - Neighbourhood development plan - Claimant seeking judicial review of planning authority’s decision to make neighbourhood development plan - Planning authority contending claimant in fact challenging authority’s earlier consideration of examiner’s report - Whether claim brought out of time - Town and Country Planning Act 1990 (c 8), s 61N, Sch 4B (as inserted by Localism Act 2011 (c 20), s 116, Sch 9, para 2, Sch 10) - Planning and Compulsory Purchase Act 2004 (c 5), s 38A (as inserted by Localism Act 2011, s 116, Sch 9, para 7)

The town council submitted a proposal to the local planning authority for the making of a neighbourhood development plan. Having considered the draft plan, the examiner made a report under paragraph 10 of Schedule 4B to the Town and Country Planning Act 1990F1 recommending that it should be submitted to a referendum with a modifcation to the effect that land owned by the claimant developer be included within the settlement boundary. Acting pursuant to paragraph 12 of Schedule 4B, the planning authority considered the report and decided that the draft plan should proceed to a referendum, but without that modification. Since more than 90% of those who voted at the referendum were in favour of the plan, the planning authority made the plan pursuant to section 38A(4) of the Planning and Compulsory Purchase Act 2004F2. Just under six weeks later, the claimant sought judicial review of the planning authority’s decision to make the plan without the modification. The judge refused the claimant’s application for permission to proceed with the claim, holding that although the claim was framed as a challenge to the making of the plan, it in fact went to the legality of the planning authority’s earlier consideration of the examiner’s report and its decision to hold the referendum, and that, since the claim had been made more than six weeks after the publication of that decision, it was outside the time limit laid down by section 61N(2) of the 1990 Act for challenges to decisions under paragraph 12 of Schedule 4B. The claimant appealed, contending that the relevant time limit was that laid down by section 61N(1) of the 1990 Act, which applied to challenges to (i) decisions under section 38A(4) of the 2004 Act to make a neighbourhood plan and (ii) decisions under section 38A(6) of the 2004 Act that the making of such a plan would not breach any obligation under European Union law.

On the appeal—

Held, dismissing the appeal, (1) that section 61N of the Town and Country Planning Act 1990 identified different time limits for challenges to decisions taken at each of the three sequential stages in the neighbourhood plan process, namely (i) a local authority’s decision under paragraph 12 of Schedule 4B to the 1990 Act or the Secretary of State’s intervention under paragraph 13B, (ii) anything relating to a referendum under paragraphs 14 or 15 of Schedule 4B and (iii) a local planning authority’s decision to act under section 38A(4) or (6) of the Planning and Compulsory Purchase Act 2004; that, on a true construction of section 61N of the 1990 Act, a court could only entertain a challenge to one of those decisions if the challenge was brought by way of judicial review and was filed before the end of a finite six-week time period starting on the date specified for the particular type of decision by the relevant subsection of section 61N; that, therefore, a challenge to a planning authority’s decision under paragraph 12 of Schedule 4B to the 1990 Act had to be brought within six weeks of that decision being published, as required by section 61N(2) of the 1990 Act, rather than within six weeks of the date on which the planning authority subsequently acted under section 38A(4) or (6) of the 2004 Act, which was the time limit imposed by section 61N(1) of the 1990 Act; and that, accordingly, since the claimant conceded that the grounds of its claim had crystallised on the date when the planning authority decided under paragraph 12 of Schedule 4B that the plan should proceed to a referendum, it had been made outside the relevant time limit, which was that imposed by section 61N(2) of the 1990 Act (post, paras 3137, 39, 41, 47, 65, 66, 67).

(2) That, on a true construction, section 38A(6) of the 2004 Act was not confined to, nor did it exclude, breaches of European Union obligations which had arisen after the examiner had submitted his report, or after the planning authority’s consideration of that report, or after the referendum; that, further, if a claimant’s true grievance was that section 38A(6) had been offended, whether the specific breach of European Union law was the result of an oversight or legal error before the referendum or after it, a failure to rectify it before the plan was made would afford a ground for challenge under section 61N(1) of the 1990 Act; but that, in the present case, the claimant’s judicial review challenge did not fall within section 38A(6) at all because it alleged not that the neighbourhood development plan breached European Union obligations but that making a different plan would also have complied with European Union obligations; that, therefore, the claimant’s challenge was not to any alleged unlawfulness in the action taken by the planning authority under section 38A(4) or (6) of the 2004 Act, which would have been within the scope of section 61N(1) of the 1990 Act, but to an alleged unlawfulness at an earlier stage, for which a challenge only lay under section 61N(2), within the six-week time limit laid down by that provision; and that, accordingly, the claim for judicial review had been brought out of time (post, paras 5556, 6364, 65, 66, 67).

Decision of Kerr J [2017] EWHC 3086 (Admin) affirmed.

The following cases are referred to in the judgment of Lindblom LJ:

Edinburgh Council (City of) v Secretary of State for Scotland [1997] 1 WLR 1447; [1998] 1 All ER 174, HL(Sc)

Jones v MBNA International Bank Ltd [2000] EWCA Civ 514, CA

Pinner v Everett [1969] 1 WLR 1266; [1969] 3 All ER 257, HL(E)

Pittalis v Grant [1989] QB 605; [1989] 3 WLR 139; [1989] 2 All ER 622, CA

R v Cornwall County Council, Ex p Huntington [1994] 1 All ER 694, CA

R (Bewley Homes plc) v Waverley Borough Council [2017] EWHC 1776 (Admin); [2018] PTSR 423

R (Burkett) v Hammersmith and Fulham London Borough Council [2002] UKHL 23; [2002] 1 WLR 1593; [2002] 3 All ER 97, HL(E)

R (Crownhall Estates Ltd) v Chichester District Council [2016] EWHC 73 (Admin)

R (Gladman Developments Ltd) v Aylesbury Vale District Council [2014] EWHC 4323 (Admin); [2015] JPL 656

R (Hillingdon London Borough Council) v Secretary of State for Transport [2017] EWHC 121 (Admin); [2017] 1 WLR 2166

R (Hoare) v Vale of White Horse District Council [2017] EWHC 1711 (Admin); [2018] PTSR 210

R (Larkfleet Homes Ltd) v Rutland County Council [2015] EWCA Civ 597; [2015] PTSR 1369, CA

R (Maynard) v Chiltern District Council [2015] EWHC 3817 (Admin)

R (Stonegate Homes Ltd) v Horsham District Council [2016] EWHC 2512 (Admin); [2017] Env LR 8

No additional cases were cited in argument.

The following additional cases, although not cited, were referred to in the skeleton arguments:

Roodal v State of Trinidad and Tobago [2003] UKPC 78; [2005] 1 AC 328; [2004] 2 WLR 652, PC

R (Catt) v Brighton and Hove City Council [2007] EWCA Civ 298; [2007] LGR 331, CA

APPEAL from Kerr J and APPLICATION

By a claim form issued on 6 July 2017 the claimant, Oyston Estates Ltd, applied pursuant to section 61N(1) of the Town and Country Planning Act 1990 for permission to bring a claim for judicial review of the decision of the local planning authority, Fylde Borough Council, on 26 May 2017 to make the St Anne’s on the Sea Neighbourhood Development Plan on the grounds that the planning authority had: (1) failed to act lawfully in refusing to follow the independent examiner’s recommendation as to modification of the text of the Neighbourhood Plan, and, in particular, failed to comply with the relevant requirements of paragraph 8(2) of Schedule 4B to the 1990 Act; and (2) acted unreasonably in determining that the modified plan could not progress without an appropriate assessment at plan stage, but then failing to carry out that appropriate assessment and making the plan without the modification, despite the examiner’s finding that the unmodified plan would not meet the basic conditions. By an order dated 4 September 2017 Lang J ordered a preliminary hearing to determine whether the claim had been made in time.

By a judgment dated 30 November 2017 Kerr J [2017] EWHC 3086 (Admin) refused permission to proceed on the basis that the claim had been made out of time, because the claimant’s claim went to the legality of the planning authority’s decision on 2 March 2017 and so the challenge should have been brought at an earlier date under section 61N(2) of the 1990 Act.

By an appellant’s notice filed on 29 November 2017 and pursuant to permission granted by the judge the claimant appealed on the grounds that the judge had erred: (1) in his approach to interpreting the language of section 61N by wrongly interpreting subsections (1), (2) and (3) as exclusionary—each subsection operating to preclude a judicial review challenge being brought under one of the other subsections (“the exclusionary interpretation”)—despite the language of section 61N not supporting such an interpretation, and by adopting the exclusionary interpretation despite this interpretation rendering section 61N(1) almost irrelevant; (2) in addressing the purpose of section 61N, as he had wrongly held that the exclusionary interpretation would promote certainty in the process of making neighbourhood plans; and (3) in finding that a plain interpretation of section 61N offended against good administration.

By an application dated 17 April 2019 and pursuant to permission granted by the Court...

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  • R Lochailort Investments Ltd v Mendip District Council
    • United Kingdom
    • Queen's Bench Division
    • 8 October 2019
    ...at three discrete stages of the process. 30 The Court of Appeal considered s.61N in R (Oyston Estates Ltd) v Fylde Borough Council [2019] EWCA Civ 1152. Lindblom LJ (with whom Rose and Lewison LJJ agreed) rejected the appellant's central contention that s.61N is “permissive”, enabling a cla......

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