Supreme Court to hear appeal next week over timing of judicial review challenges to neighbourhood development orders

The Supreme Court will next week consider whether section 61N of the Town and Country Planning Act 1990, which deals with legal challenges to neighbourhood development orders, should be interpreted to mean that the appellant’s application for judicial review was made out of time.

The background to the case of R (on the application of Fylde Coast Farms Ltd (formerly Oyston Estates Ltd)) v Fylde Borough Council (Respondent) was that St Anne's on the Sea Town Council submitted a proposal to Fylde BC, the local planning authority, for a neighbourhood development plan. The draft plan related to land adjacent to that owned by Fylde Coast Farms Ltd.

Under the Town and Country Planning Act 1990, the draft plan was considered by an independent examiner, who made a report to the borough council, recommending that the plan be modified to include land owned by Fylde Coast Farms and then submitted to a referendum.

Fylde decided to submit the draft plan to a referendum without the proposed modification. 90% of those voting in the referendum supported the draft plan and the borough council subsequently published its decision to make the plan.

Just under six weeks later, Fylde Coast Farms applied for a judicial review of the council’s decision to make the plan without the examiner’s proposed modification.

The Planning Court held that Fylde Coast Farms’ challenge related to Fylde BC’s decision to hold the referendum without modifying the draft plan, rather than its later decision to make the plan.

Since that decision had been published more than six weeks before Fylde Coast Farms’ claim for judicial review, the Planning Court held that the claim had been brought out of time.

In Oyston Estates Ltd, R (On the Application Of) v Fylde Borough Council [2019] EWCA Civ 1152 the Court of Appeal dismissed Fylde Coast Farms’ appeal. It appealed to the Supreme Court.

The case will be heard by a panel comprising Lord Lloyd-Jones, Lord Briggs, Lady Arden, Lord Sales and Lord Stephens on 9 March 2021.