R (Oyston Estates Ltd) v Fylde Borough Council and St Anne’s-on-the-Sea Town Council (2017) EWHC 3086 (Admin) is concerned with time limits for a judicial review of a 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 Town Council in April 2013 under Section 38A(1) of the 2004 Act.
After the Town Council had initiated the process for making of the NDP, the Borough Council as LPA 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 LPA appointed an 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.
In early March 2017, the LPA published its Decision Statement. In the Decision Statement, the LPA 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 Anne’s-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 LPA rejected the Examiner’s recommendation that certain land be deleted and that other land be included within the settlement boundary. That, according to the Decision Statement, was considered by the LPA 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 LPA should use the NDP to help it decide planning applications in the neighbourhood’s area.
Following that result, the LPA then made the Order for the NDP on 26 May 2017. The challenge was brought on 5 July 2017 and therefore less than six weeks later. The grounds of challenge were that the LPA 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 statutory requirements, and that the LPA 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.
As to the question of time limits, the position is a NDP 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 of 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), relates to legal challenges with respect to NDPs. It includes a 6 week limitation period.
Kerr J said (emphasis added):-
“29. I start from the proposition that the time limits are negatively expressed; that is to say, a challenge is barred except when brought within the time limit. Secondly, the time limits are short, a mere six weeks. It is difficult to think of a shorter time limit for a first instance non-appellate challenge.
- The provisions are different from those in CPR Part 54 dealing with judicial review challenges generally. As is well known, in such cases the claim must be brought promptly and in any event not more than three months after the grounds of challenge first arose. The present six week time limit is shorter.
- Thirdly, it is well known that the purpose of the short six week period is to promote early certainty and avoid disruption of development projects and plans and prejudice to good administration.
- Fourth, under the provisions I am considering here, everyone knows when time starts to run, unlike those in the CPR, it is known for certain when time will run out. In the case of the CPR provisions, that occurs when the obligation of promptness can no longer be fulfilled.
- As is well known, the generic judicial review time limit provision in CPR Part 54 has been criticised for being uncertain. No such criticism can be levelled at these provisions. You know when time starts to run, you know when time is going to run out and you know when it has run out.
- Fifth, the rights of challenge are compartmentalised and segmented. There are four stages: the first is the examiner’s report under Schedule 4B, paragraph 10. There is no right to challenge it as such. A judicial review challenge to an examiner’s report brought under CPR Part 54 would inevitably be met with an argument that there is a suitable alternative remedy.
- The second stage is consideration by the local planning authority of the examiner’s report, and its decision what action to take. This arises from paragraph 12(2) of Schedule 4B to the 1990 Act. The decision must be published: see paragraph 12(11). It can be challenged, but according to the negative formulation of the time bar, the challenge may not be entertained unless it is brought by judicial review, and is made within six weeks, starting with the day after the decision is published: see section 61N(2).
- There is an alternative second stage procedure whereby the Secretary of State exercises intervention powers. That occurs, in summary, where the local planning authority has failed to make a decision or the Secretary of State disagrees with the local planning authority’s view on what steps to take. In such a case, the Secretary of State in effect steps into the shoes of the local planning authority under paragraph 13B of Schedule 4B.
- A challenge to the Secretary of State’s decision in such a case follows the same path as one where the local planning authority takes the decision. The same analysis applies. The challenge is brought under section 61N(2) and the same time limit applies.
- The third stage arises if the local planning authority has decided that a referendum must be held, or is directed by the Secretary of State to hold one. Section 61N(3) applies where a challenge is brought to question “anything relating to a referendum under paragraph 14 or 15 of Schedule 4B”. (Paragraph 15 deals with an “additional referendum” and I need not complicate this judgment unnecessarily by dealing with it separately or further).
- The challenge can only be entertained if brought by judicial review within six weeks, beginning the day after the day the referendum result is declared. Paragraph 14 of Schedule 4B deals with arrangements for the referendum and who is entitled to vote. A challenge could be brought if, for example, persons entitled to vote were not able to do so, such that the referendum result was tainted by impropriety.
- The fourth and final stage of the process is that once the referendum result is known, if more than half of those voting have voted in favour of making the order for the NDP, the local planning authority must make the order as soon as reasonably practicable after the referendum is held and in any event, by not later than any date prescribed: see section 61E(4). I interject that no date has been prescribed by regulations.
- There is an exception to that, by section 61E(8): the duty to make the order does not arise where the local planning authority considers that making it would breach or be incompatible with certain rights arising in EU law or under the European Convention on Human Rights.
- The decision to act under section 61E(4) or, as the case may be, (8), must be published: see section 61E(11). A challenge to a decision either to make the order or not to make it in reliance on the exception relating to EU obligations or human rights law can be brought, but once again cannot be brought unless the same two conditions are met: it must be brought by judicial review, and it must be brought before expiry of six weeks starting with the day after “the decision” is published: see section 61N(1).
- It is apparent, therefore, that the legislation dealing with the stages in the decision making process, the method of challenge and the timing of any challenge is meticulous and precise. There is none of the vagueness that has given rise to the criticism of the timing of provisions in CPR Part 54.
- In my judgment, the promotion of certainty and avoidance of disruption, which is the rationale for the shorter time limits, and the precision with which they are enacted should not be undermined by a lax approach when interpreting and applying them. I think that observation has all the more force in the case of the provisions I am considering here where, unlike in CPR Part 54, there is no power to extend time.
45, I think the parties involved in this important process of localised and democratic decision making are entitled to know, once the six weeks is up, that the stage in the process that could within that six week period have been challenged, is no longer susceptible to challenge.
- It follows, in my judgment, that a challenge, say, to the making of an order following a referendum, should not be entertained if the ground of the challenge in truth attacks, say, the rationality of the authority’s consideration of the examiner’s report and the resulting decision to hold the referendum in the first place.
- Still less should such a challenge, after the referendum has been held, hark back to the content of the examiner’s report, which in turn has informed the authority’s decision on how to proceed on the basis of that report.
- In such a case, the six week period having already expired, the prohibition against entertaining the challenge has come into play and I do not think it can be outflanked by dressing up the challenge as one not to the authority’s decision to hold a referendum, but to the subsequent decision to make an order on the strength of the referendum result.
- I do accept that legal flaws in an examiner’s report may be relied on to challenge a decision to hold a referendum, if brought by judicial review within six weeks of that decision. Otherwise, legal flaws in the examiner’s report would have to be brought by judicial review outside the scope of the statutory provisions, which is most unlikely to have been the (objectively ascertained) intention of the legislature.
- If an examiner’s report is legally flawed, the authority’s subsequent consideration of the report and decision on how to proceed may, or may not, be infected by the flaw in the examiner’s report. If it is, there is no difficulty with the challenge, but it must be brought by judicial review within six weeks of publication of the local planning authority’s decision.”
The present claim was not brought until 5 July 2017. No separate challenge is made to the propriety of the referendum, nor is any complaint made about the making of the Order on 26 May 2017 except that founded on the alleged unlawfulness of what happened back in March 2017. The Judge did not accept the submission that the language of Section 61N(2) and (3) is permissive in that they permit a challenge to a decision taken at an earlier stage of the process than the final outcome, without falling foul of a prematurity argument, leaving the complainant free, if it prefers, to await the referendum and if the result is positive, to challenge the resultant order. That interpretation offends against good administration on at least three counts. First, it is out of tune with the carefully calibrated decision making process and the step by step rights of challenge built into the provisions. Second, it allows a claimant to “dine à la carte”, without any principled reason why that should be permitted and in the presence of a very clear set menu. Third, it encourages claimants to wait for the results of a referendum that on the claimant’s own case is a nullity. That would promote uncertainty and mean that referenda would have to take place under a legal cloud. For those reasons Kerr J preferred the arguments of the LPA. The claim was out of time, and although arguable on its merits, permission had for that reason to be refused. Permission to appeal was granted.