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Supreme Court upholds ruling that appeal over neighbourhood plan brought out of time

The Supreme Court has unanimously dismissed an appeal over a ruling that a landowner’s challenge to the making of a neighbourhood plan was brought out of time.

The case of R (on the application of Fylde Coast Farms Ltd (formerly Oyston Estates Ltd)) v Fylde Borough Council [2021] UKSC 18 concerned the interpretation of section 61N of the Town and Country Planning Act 1990, which sets out time limits for bringing a legal challenge in relation to neighbourhood development plans.

A proposal for a neighbourhood plan for St Anne’s on the Sea, near Blackpool, was put forward which did not include an open site then owned by the appellant, Oyston Estates Ltd, which it wished to develop for housing.

The examiner recommended that the draft be amended to include the Oyston site.

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In March 2017, at stage 5 of the seven-stage neighbourhood planning process, Fylde Borough Council in its role as the local planning authority decided not to accept that recommendation and instead referred the draft plan in unamended form to a referendum (stage 6), in which it was approved by a large majority.

Accordingly, on 26 May 2017 the council made the St Anne’s on the Sea Neighbourhood Development Plan in unamended form (stage 7).

By a judicial review claim commenced on 6 July 2017 Oyston challenged the making of the Plan. This would have been in time if the time limit in section 61N(1) applied but was out of time if the limit in section 61N(2) applied.

The Administrative Court determined that section 61N(2) applied so the claim was out of time and the Court of Appeal upheld this decision. Oyston appealed to the Supreme Court.

The Supreme Court (Lord Lloyd-Jones, Lord Briggs, Lady Arden, Lord Sales and Lord Stephens) has unanimously dismissed the appeal. Lord Briggs and Lord Sales give the judgment.

Section 61N provides for time limits in respect of legal challenges relating to steps 5, 6, and 7 of the plan-making process. Section 61N(1) sets a six week time limit for challenging the final making of a neighbourhood plan (step 7). Section 61N(2) sets a six week time limit in relation to challenges to a local authority’s consideration of the examiner’s report (step 5).

Oyston’s ground of challenge to the Plan was that the council failed without good reason to accept the amendment recommended by the examiner, i.e. at step 5. Oyston filed its claim within six weeks of the council making the final Plan (step 7), but outside the time limit for a challenge to step 5.

The issue for the Supreme Court was whether Oyston could take advantage of the later time limit measured by reference to step 7.

The Court upheld the decision of the Court of Appeal that Oyston’s legal challenge was made out of time. It rejected Oyston’s argument that its claim fell within the scope of section 61N(1) and was unaffected by the time limit in section 61N(2).

Lord Briggs and Lord Sales said that when interpreting a statutory provision, it was necessary to set the provision in its context and to arrive at an interpretation which gave effect to its purpose.

The approach to identifying the time limit for challenging an administrative action which is the outcome of a series of steps has been a longstanding point of contention in planning law, the judges acknowledged.

Lord Briggs and Lord Sales said: “There is an obvious tension between different considerations. On the one hand, requiring a claimant to take action in relation to the step along the way could be perceived to be premature and potentially wasteful (in that, if one waited, it could transpire that for various reasons the final decision might not be taken, so that there would in fact have been no need for any challenge); it could also be perceived as placing the claimant under a heavy burden of trying to assess the future impact of an administrative process on him and then taking prompt action at a stage when the outcome of that process is not clear.

“On the other hand, if a claimant is allowed to wait until the final decision before bringing proceedings, that could be perceived as being dilatory, unduly disruptive of good administration and potentially wasteful in a different way, in that all the administrative steps after the unlawful one would be rendered nugatory and that in circumstances where it might have been possible, had the unlawfulness been addressed promptly when it occurred, to salvage matters at that stage and proceed with a completely lawful decision-making process to advance the public good without unnecessary loss of time. Particularly where the applicable law is complex, it may be relatively easy to find that a public authority has innocently slipped into some unlawfulness along the way to taking a final decision.”

The tension between these different approaches was reflected in the case law on the application of the time limit for judicial review in what is now CPR Part 54.5, the judges added.

“What can be derived from consideration of this case law is that there is no clear or obvious resolution of the tension to which we have referred. Ultimately, a choice has to be made between competing interests of different kinds. It is to be expected that the choice made will reflect the particular balance of considerations as they happen to arise in a specific context. There is no clear presumption how the balance should be struck in the context of the statutory regime under consideration here which could offer any guidance regarding the interpretation of section 61N. Parliament was entitled to strike the balance in this particular context as it thought fit and the words of the provision itself provide a clear answer as to how it intended that should be achieved.”

Lord Briggs and Lord Sales said that in their view the answer to the question of interpretation posed by this appeal really turned upon whether section 61N was permissive or merely restrictive in its purpose and effect. They held that each subsection of section 61N was intended to be restrictive in its effect.

“The starting point is to appreciate that section 61N cannot satisfactorily be read as supplying a complete and exclusive code for all public law challenges which might be made to the process leading to the making of a neighbourhood development plan or order. If the Court of Appeal thought otherwise, we respectfully disagree,” they said. “Section 61N only deals with stages 5, 6 and 7 of a seven stage process.”

In principle, challenges to other stages would be available under the general law.

“The express recognition in section 61N that there may be public law challenges to acts or omissions during stages 5, 6 and 7 of the process does not amount to the fresh creation of those rights. The only purpose ascertainable from section 61N is to subject those particular existing rights of challenge 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. That is the plain meaning of “only if” in each subsection. Section 61N is therefore entirely restrictive, not permissive, in its effect,” Lord Briggs and Lord Sales said.

They suggested that the wording of the statute supported this interpretation. The words at the start of each subsection (“[a] court may entertain proceedings…only if”) introduce limitations to the position in general law, which is that proceedings are capable of being brought if there is unlawfulness at any stage.

The Supreme Court said that the questions which might be said to be posed by section 61N, in relation to any public law challenge which has actually been made to an act or omission during the process leading to the making of a neighbourhood development order or plan are:

i) Does the challenge question a decision (or something relating to a referendum) within stages 5, 6 or 7 of the process?

ii) If so has the claim been made by way of judicial review?

iii) If so has the claim form been filed within the specified time limit?

Applying their analysis to the current proceedings, they concluded that Oyston’s challenge to the Plan was based on what the council did at stage 5, and was therefore within section 61N(2) so that the time limit in that subsection applied. Oyston’s challenge to the Plan was therefore brought out of time.

Lord Briggs and Lord Sales acknowledged that this interpretation could lead to a scenario where multiple challenges have to be brought in relation to one overall plan-making process, albeit it was more realistic to expect that an existing claim in relation to one stage might be amended to introduce any additional challenge to a subsequent stage as the process moves forward.

“This feature of the operation of section 61N is by no means a sufficient consideration to displace the clear restrictive meaning of each subsection. Even if there were separate proceedings, appropriate case management thereafter should ensure that they were dealt with together, and save most of the cost of duplication,” the judges said.

It was submitted by counsel for the appellant that the restrictive rather than permissive interpretation of section 61N would risk causing serious injustice to ordinary residents (rather than sophisticated developers) in a relevant neighbourhood area, because it would start a tight time period running for judicial review before the process actually impacted upon their private rights by the making of a plan or order, so that time might run out before they could be expected to seek legal advice.

“That may fairly be said to be one of the potential disadvantages of the adoption of a “challenge early” approach to a multi-stage process,” Lord Briggs and Lord Sales accepted.

“On the other hand, there will be significant publicity attaching to the stages referred to in each subsection of section 61N so anyone with an interest in their neighbourhood affairs will have a reasonable opportunity to take action to mount any challenge at the proper time.”

The Supreme Court judges said the inference was that in enacting section 61N Parliament had balanced the potential competition between different public and private interests in connection with a process that is in its essentials an aspect of public administration, involving development policy for a whole neighbourhood and the exercise of referendum rights with regard to its outcome.

“As has been observed in the case law, there are arguments on both sides of the debate regarding the alternative approaches to the timing of public law challenges,” Lord Briggs and Lord Sales noted.

“In section 61N Parliament has clearly adopted a particular solution which it considered appropriate in this particular context. It is plausible to expect that in a new procedure introduced into the TCPA and the 2004 Act by the Localism Act 2011 with the aim of promoting public participation in certain decisions by holding referendums, Parliament would not wish to allow the outcome of a referendum to be set at nought by reason of technical legal arguments which could have been sorted out before the referendum was held. That would risk creating scepticism and disaffection with the new procedure which could undermine rather than promote public engagement.”

This article was predominantly based on the Supreme Court’s press summary.

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