The Queen (on the application of Oyston Estates Ltd) v Fylde Borough Council St Anne's-on-the-Sea Town Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 30 November 2017 |
| Neutral Citation | [2017] EWHC 3086 (Admin) |
| Docket Number | CLAIM NO: CO/3187/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 November 2017 |
and
[2017] EWHC 3086 (Admin)
Mr Justice Kerr
CLAIM NO: CO/3187/2017
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
PLANNING COURT
In the matter of a judicial review of the St Annes-on-the-Sea Neighbourhood Development Plan
Ms Estelle Dehon appeared on behalf of the Claimant
Mr Jonathan Easton appeared on behalf of the Defendant
JUDGMENT APPROVED
This is the hearing of a preliminary issue ordered by Mrs Justice Lang to determine whether or not the claimant's application for judicial review has been brought in time or out of time. Mrs Justice Lang made an order on the papers on 4 September 2017 that the matter be listed for determination of that issue. She observed that in her view the claimant had raised arguable grounds of challenge meriting full consideration but that "[i]f the defendant's preliminary point on time limits is correct, the claim is unlikely to proceed beyond permission stage …".
I agree with the judge that the grounds are arguable on their merits, and that subject to the time point, permission to proceed should be granted. I therefore consider the time limit point. The claimant brought its challenge on 5 July 2017. The challenge is to the decision made by the defendant (the local planning authority) published on 26 May 2017 to make the St-Annes-on-Sea neighbourhood plan, a statutory Neighbourhood Development Plan (the NDP).
The concept of an NDP was introduced into the law by provisions in The Localism Act 2011, inserting the relevant provisions into the Planning and Compulsory Purchase Act 2004 (the 2004 Act) and the Town and Country Planning Act 1990 (the 1990 Act). The making of the NDP was initiated by the interested party (the town council) as long ago as April 2013 under section 38A(1) of the 2004 Act.
The claimant is the owner of a site at Lytham Moss (the site) which, the examiner in this case subsequently concluded, should be included within the settlement boundary for the purposes of the NDP, in order to meet a legal requirement by offering flexibility for local housing needs to be addressed over the ensuing 15 years.
The claimant is a mixed farming business with land holdings in the Fylde peninsula. It owns the site, which is a parcel of undeveloped urban fringe land currently used for grazing. On the southern boundary of the site is a residential estate. On the western boundary is a site known as Queensway, which has planning permission for 1,150 dwellings (the Queensway Development).
Further land on the northern boundary of the site is intended to be redeveloped into a nature park and playing fields to provide "mitigation" for the Queensway Development. Yet further, for the benefit of overwintering birds, particularly pink-footed geese, land to the north and north- east has been allocated as a "farmland conservation area", also by way of mitigation for the Queensway Development. The site, the two other sites adjacent to it, and the Queensway Development site, are all part of a larger Biological Heritage Site (BHS). That is the background.
After the town council had initiated the process for making of the NDP, the local planning authority designated the town council's area for the purposes of preparing an NDP. That was in 2013. Over the following three years, public consultation took place. In March 2016, the local planning authority appointed a Mr John Slater as the independent examiner. After a hearing in June 2016, the examiner produced his report on 10 August 2016.
In that report, as the legislation requires, he considered whether the then version of the draft NDP complied with the statutory "basic conditions". The examiner recommended that the site, together with two other sites, should be included within the settlement boundary for the purposes of the NDP.
After that, from September to November 2016 a complex controversy developed, the details of which do not matter for present purposes. It involved comments by Natural England on environmental and habitat issues raised by the examiner's report. Consultants were appointed and further consultation took place.
In early March 2017, the local planning authority published its decision statement. The document appears to be undated, so the exact date of the publication is not clear, but it appears to have been 2 March 2017 which is, certainly, as is common ground, considerably more than six weeks before the issue of the present claim in July 2017.
In the decision statement, the local planning authority noted that the law permitted it to come to different views from those in the examiner's report and stated that accepting the examiner's recommendations in full and extending the St Annes-on-Sea settlement boundary to include the land in question would mean that the plan would not meet the statutory basic conditions.
In the same decision statement, the local planning authority rejected the examiner's recommendation that certain land be deleted and that the other land in question, which I have mentioned, be included within the settlement boundary. That, according to the decision statement, was considered by the local planning authority not to be compliant with the basic conditions in that it "breaches EU obligations".
The decision statement also included the setting of a date for the holding of a local referendum, on 4 May 2017. The referendum was then held on that date and 120 of the 127 people who voted answered yes to the question whether the local planning authority should use the NDP to help it decide planning applications in the neighbourhood's area.
Following that result, the local planning authority then made the order for the NDP on 26 May 2017. The challenge in this case was brought, as I have said, on 5 July 2017 and therefore less than six weeks later. The grounds of challenge in briefest summary are:
(1) that the local planning authority failed to act lawfully in refusing to follow the examiner's recommendation as regards the modification of the text of the NDP and failed in particular to comply with relevant requirements of paragraph 8(2) of Schedule 4B to the 1990 Act; and
(2) that the local planning authority acted unlawfully in determining that the modified plan could not progress without what was called "appropriate assessment", but then failed to carry out such an assessment and made the NDP without the modification, again contrary to the examiner's finding that the unmodified plan would not meet the statutory basic conditions.
It is not necessary to go into either the facts or the grounds of challenge in more detail, since I am satisfied, in agreement with Mrs Justice Lang, that the grounds are arguable. Therefore, if the application is made in time, the time and place for evaluation of the arguments in support of the claim would be the substantive hearing of the application for judicial review.
As to the question of time limits, the position is as follows: a "Neighbourhood Development Plan" is defined in section 38A(2) of the 2004 Act as, "a plan which sets out policies (however expressed) in relation to the development and use of land in the whole or any part of a particular neighbourhood area specified in the plan".
Under section 61E and Schedule 4B to the 1990 Act, the process for making an NDP involves, among other things, sequential procedural requirements, which include the process of independent examination; the production of the examiner's report; consideration of that report; a local referendum; and if the result of this is positive, the making of an order for the NDP. The paragraphs in Schedule 4B set out the procedural steps in the decision making process.
Section 61N of the 1990 Act, inserted by provisions in the Localism Act 2011 (and as subsequently amended), provides as follows:
" 61N Legal challenges in relation to neighbourhood development orders
(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 6 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 6 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] 4 the period of 6 weeks beginning with the day after the day on which the result of the referendum is declared."
Ms Dehon, for the claimant, submitted that the claim has been brought within time. She pointed out in her skeleton argument that the provisions of 61N provide for challenge to three different decisions at different stages of the process. In chronological order they are, first, a challenge to the authority's decision, having considered the examiner's report; secondly, challenges related to the holding of a...
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Table of Cases
...[2010] EWHC 530 (Admin), [2010] BLGR 631, [2010] 2 EGLR 171, [2010] JPL 1106 502, 509, 533, 536 R (Oyston Estates Ltd) v Fylde BC [2017] EWHC 3086 (Admin), [2018] JPL 600 74 R (Palmer) v Herefordshire Council [2016] EWCA Civ 1061, [2017] 1 WLR 411 294 R (Pearl) v Maldon District Council [20......
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Neighbourhood Planning
...to become part of the development plan. 46 PCPA 2004, s 38C(2)(c). 47 PCPA 2004, s 38C(2)(d). See R (Oyston Estates Ltd) v Fylde BC [2017] EWHC 3086 (Admin), which concerned time limits for the judicial review of a neighbourhood development plan where Kerr J considered the different stages ......