Developer fails in Court of Appeal bid to overturn ruling that neighbourhood plan challenge was brought out of time

The Court of Appeal has rejected a developer’s appeal against a High Court judge’s ruling that its claim over the making of a neighbourhood plan had been brought too late and that permission to apply for judicial review should therefore be refused.

Lord Justice Lindblom said the main question in Oyston Estates Ltd, R (On the Application Of) v Fylde Borough Council [2019] EWCA Civ 1152 was how one should understand the statutory provisions – in section 61N of the Town and Country Planning Act 1990 – for proceedings to challenge the steps taken by a local planning authority in making a neighbourhood plan.

In a claim for judicial review issued on 6 July 2017 the appellant, Oyston Estates, challenged the decision of the respondent, Fylde Borough Council, on 26 May 2017, 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.

Oyston Estates owns a site at Lytham Moss, which it intends to develop for housing. In the neighbourhood plan process it promoted the site for inclusion within the settlement boundary, but without success.

The developer’s claim for judicial review sought an order quashing the borough council's decision to make the plan.

In its acknowledgment of service, dated 3 August 2017, Fylde maintained not only that Oyston's claim was unarguable but also that it was out of time, because it was, in truth, a challenge to the borough council's consideration of the examiner's report on 2 March 2017 – which, under section 61N(2), should have been issued by 13 April 2017.

On 4 September 2017 Mrs Justice Lang accepted that the claim "raised arguable grounds which merit full consideration", but directed that a preliminary hearing be held to determine whether the claim had been made in time.

At the preliminary hearing on 9 November 2017 Kerr J. agreed with Lang J. that "the grounds are arguable on their merits" (paragraph 2 of the judgment), but held that the claim had been brought too late and that permission to apply for judicial review must therefore be refused. He granted permission to appeal.

The appeal was fought between Oyston Estates and the borough council. The town council played no part in the proceedings, either in the Court of Appeal or below.

Oyston Estates initially put forward three grounds of appeal:

1. whether the judge wrongly construed the provisions of section 61N(1), (2) and (3) of the 1990 Act as "exclusionary", despite this interpretation rendering subsection (1) "almost irrelevant";
2. whether he misunderstood the purpose of section 61N, wrongly concluding that the "exclusionary" interpretation would promote certainty in the production of neighbourhood plans;
3. whether he was wrong to conclude that a "plain" interpretation of section 61N was contrary to "good administration".

Underlying all three of these questions was a single main issue, Lord Justice Lindblom said, “which is whether the judge's interpretation of section 61N was correct, and the claim for judicial review too late”.

At the hearing of the appeal Oyston Estates' counsel sought the Court’s permission to argue a fourth ground: that permission to apply for judicial review should in any event have been granted because the claim fell within the court's jurisdiction under section 61N(1) to entertain proceedings for questioning a decision under section 38A(4) and (6) of the Planning and Compulsory Purchase Act 2004 – which require the local planning authority, when it comes under a duty to make a neighbourhood plan, to consider whether the making of the plan would breach, or be otherwise incompatible with, any EU obligation.

Lord Justice Lindblom said the submissions of counsel for Oyston Estates on the three grounds of appeal in the appellant's notice largely replicated her argument in the court below.

“She contended for a 'permissive' interpretation of the provisions of section 61N(1), (2) and (3), which would enable a claimant to choose at which stage of the process to bring a challenge, but would require him, having opted to challenge at a particular stage, to make his challenge by a claim for judicial review within the relevant six-week period,” he said.

However the Court of Appeal judge said he could not accept that argument. “In my opinion the judge's understanding of the provisions was essentially correct. And that conclusion, if it is right, must be fatal to all three of the originally pleaded grounds of appeal.”

Lord Justice Lindblom added: “Not only was the judge's interpretation of section 61N correct; he also grasped the statutory purpose behind it. Nor was his interpretation hostile to good administration.”

He also concluded that the fourth ground of appeal must fail.

“In reality…..the real target of the claim for judicial review in this case is not what the borough council did when, subject to section 38A(6) [of the Planning and Compulsory Purchase Act 2004], the duty under section 38A(4)(a) arose to make the neighbourhood plan in the form it was in by that stage of the process,” the judge said.

“Oyston's argument does not truly lie within the territory of section 38A(6) at all. Rather, it is to the effect that making a different plan, which the borough council had earlier rejected, would also have complied with EU obligations. This may or may not be right, but it does not avail Oyston of a claim under section 61N(1).”

Lord Justice Lindblom said a challenge under that provision must attack the local planning authority's decision to make the plan that was actually made at the final stage of the statutory process.

“The fact that making another neighbourhood plan might have complied with EU obligations and Convention rights does not mean that making the one that was actually made did not,” the Court of Appeal judge said.

“The challenge here is not to any alleged unlawfulness in the action taken under section 38A(4)(a) and (6), which would have been within the proper scope of a claim under section 61N(1) – but to an alleged unlawfulness at an earlier stage, for which a challenge lay, and only lay, under section 61N(2), within the relevant six-week time limit under that provision.”