Legal Challenges to neighbourhood plans and orders: the Supreme Court has the final word

Estelle Dehon and John Fitzsimons set out the lessons that those involved in neighbourhood plan and neighbourhood development order litigation should learn from a key Supreme Court ruling.

The Supreme Court has delivered judgment in R(on the application of Fylde Coast Farms Ltd) v Fylde Borough Council [2021] UKSC 17. The case concerned the short point on the interpretation and effect of section 61N of the Town and County Planning Act 1990 which provides for legal challenges to be brought against neighbourhood development orders and neighbourhood development plans. The judgment has provided important clarity concerning the timing of such challenges.

The Supreme Court had to consider whether s61N precludes challenges to plans and orders when they are finally made, if such challenges could have been brought at an earlier stage in the examination and administrative process. Its answer to that question was yes. As a result, although challenges in many other areas of planning law may be brought once the final decision is made (i.e. challenges to local plans under s113 Planning and Compulsory Purchase Act 2004), challenges to neighbourhood plans and orders must be brought at the time in the process at which the grounds of challenge first arise.

Quick analysis – the practical implications

There are a number of practical implications that those involved in neighbourhood plan and neighbourhood development order litigation should draw from this case. These include:

1. Local authorities defending challenges should be astute to ensure that as a preliminary step they consider whether a challenge has been brought in time.
2. Those bringing challenges should ensure they approach the process with care by getting timely legal advice when a potential challenge may arise and acting swiftly after the crucial steps in the plan or order making process are taken: ie when the local authority considers the examining inspector’s report and when the referendum is held. It will not do to seek to resolve issues that arise at those stages during the process and wait until the final plan or order is made to bring a challenge.
3. Those bringing challenges may also wish to consider the need for injunctive relief when bringing such challenges in order to prevent the plan or order proceeding to the next crucial stage of the process. This is of very significant practical importance in avoiding the need to issue a number of judicial review challenges as the crucial stages in the process are passed.
4. One area of challenge may legitimately be raised at the final stage when the plan or order is made, despite arising at an earlier stage: if the making of the plan would breach, or would otherwise be incompatible with, any retained EU obligation or any of the Convention rights within the meaning of the Human Rights Act 1998. This is because sections 38A(4) and 38A(6) of the Planning and Compulsory Purchase Act 2004 require the local authority to consider these issues again before finally making the plan.  

Detailed analysis – the background and the Judgment

Background

The case arose in the context of a challenge brought by the Appellant to the local authority’s decision to make the St Anne’s on the Sea Town Council Neighbourhood Development Plan. The challenge was brought under s61N(1) on the grounds that the Council had failed to comply with the basic conditions set out in Schedule 4B to the 1990 Act and that the Council had acted unreasonably in failing to carry out an Appropriate Assessment.  

The High Court accepted that the Appellant’s grounds were arguable. However, it refused to grant permission on the basis that the challenge should have been brought at an earlier stage under the provisions of s61N(2). The Court of Appeal upheld that decision and the Appellant pursued the matter in the Supreme Court.

The Judgment

Lord Briggs and Lord Sales wrote the judgment, with which the rest of the Court agreed. The Court noted as a starting point that s61N is not a complete and exclusive code for all public law challenges which may be made to the process leading to the making of a neighbourhood development plan or order (§46). This is because s61N only deals with stages 5,6 and 7 of the seven-stage plan or order making process. Outside of those steps, the Court observed that the general law would in principle have permitted a public law challenge to acts or omissions said to be unlawful at earlier stages in the process (§46). This is important as it is one aspect of the statutory scheme on which the Supreme Court noted “if the Court of Appeal thought otherwise, we respectfully disagree” (§46).

Turning to s61N itself, the Court’s view was that the only purpose ascertainable from section 61N is to subject those particular existing rights of challenge that exist under public law principles to the twin conditions in each of the subsections, namely that they be brought by way of judicial review and commenced within a rigid, non-extendable six-week time limit. In the Court’s view, this was the plain meaning of “only if” in each subsection. Accordingly, although the Court of Appeal had characterised s61N as permissive and restrictive in effect, the Supreme Court’s view was that it is entirely restrictive.

In light of this conclusion, the Supreme Court explained that the questions to be posed by section 61N in relation to any public law challenges made to neighbourhood development plans or orders are:

1. Does the challenge question a decision (or something relating to a referendum) within stages 5, 6 or 7 of the process?
2. If so, has the claim been made by way of judicial review?
3. If so has the claim form been filed within the specified time limit? (§50).

The Appellant had argued that a restrictive construction of s61N would result in difficulties from a good administration perspective. It would involve a detailed dissection of a claim for judicial review at an early stage of proceedings, simply to find out whether it (or part of it) was or was not time-barred. It would also encourage undesirable multiplicity of suit such that, for example, a multi-headed challenge to the lawfulness of action or inaction at each of stages 5,6 and 7 would have to be brought by three sets of proceedings about the lawfulness of the same overall process, because otherwise it would be impossible to secure the requisite relief. It also may require injunctive relief in order to stop the plan proceeding to the final stage while the judicial review of an earlier stage is ongoing.

In answer to these difficulties, the Supreme Court noted that the Planning Court regularly screens claims at the permission stage. Furthermore, while the Court acknowledged that cases may arise in which more than one claim will need to be issued, its view was that this feature of s61N was not a sufficient consideration to displace the clear restrictive meaning of each subsection (§54). The Court also suggested that such proceedings should be appropriately case managed such that they be dealt with together to avoid the costs of duplication (§54) 

Finally, the Appellant also argued that in taking a restrictive approach to s61N, the Courts risked causing serious injustice to ordinary residents who are being asked to challenge to a plan or order at a stage in the administrative process when they do not yet know whether their private rights will be impacted at the final stage by the making of a plan (§55).

The Supreme Court accepted that this was one of the potential disadvantages of a ‘challenge early’ approach. However, it also pointed out that through s61N Parliament has balanced the potential competition between different private and public interests and adopted a particular solution which it considered appropriate in this particular context. The Court further noted that it is plausible that such a balance was struck to avoid the outcome of referendums being set at nought by reason of technical legal arguments which could have been sorted out before the referendum was held.  

In short, the Court concluded that it was bound to interpret s61N restrictively rather than choose between rival permissive and restrictive interpretations of the provision. Its two reasons for this were first that there is no sufficiently clear answer to the issue as to the preferable route (either challenge when the unlawful step occurs or wait until the end of the process) to enable the court to say with confidence that only one of them could serve the statutory purpose in this context. And second, the choice between a “challenge early” or “wait to the end” approach is a matter for Parliament provided it makes that choice with sufficient clarity; clarity that the Supreme Court said was present in this case.

The appeal was accordingly dismissed.

Estelle Dehon and John Fitzsimons are barristers at Cornerstone Barristers and acted for the Appellant, instructed by Harrison Drury.

Jonathan Easton of Kings Chambers acted for the Respondent.