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In this post, Angus Maudslay, an associate in the litigation and arbitration team at CMS, comments on the decision of the UK Supreme Court in the matter of R (on the application of Fylde Coast Farms Ltd (formerly Oyston Estates Ltd)) v Fylde Borough Council [2021] UKSC 18, which concerns whether section 61N of the Town and Country Planning Act 1990 should be interpreted to mean that an application for judicial review was made out of time.

On 9 March 2021, the Supreme Court heard the appeal in R (on the application of Fylde Coast Farms Ltd (formerly Oyston Estates Ltd)) v Fylde Borough Council. The appeal focused on the applicable time limits to a claim for judicial review brought by Fylde Coast Farms Ltd (“Oyston”) against Fylde Borough Council’s decision to confirm a statutory neighbour development plan (“NDP”).

In this post, we examine the background to the case and its treatment at the various appellate stages.

How to Introduce and/or Contest a Neighbourhood Development plan

The requirements for introducing and an NDP are contained within the Planning and Compulsory Purchase Act 2004 (the “2004 Act”) and the Town and Country Planning Act 1990 (the “1990 Act”). Under section 38A(2) of the 2004 Act, an NDP is defined 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.” In particular, sections 38A, B and C of the 2004 Act outline the procedural steps for making an NDP, Schedule 4B of the 1990 Act details the steps in the decision-making, including the need for independent examination, and section 61N of the 1990 Act outlines the requirements for bringing a claim at certain stages of the process.

Section 38A(3) of the 2004 Act incorporates Schedule 4B of the 1990 Act, including the provisions regarding independent examination of the draft NDP and the holding of a referendum. The appointed examiner must consider the draft plan and issue a report under paragraph 10(1) and (2) of Schedule 4B of the 1990 Act, explaining whether they are recommending that the NDP is: (a) submitted for referendum, (b) modified as recommended, or (c) refused. Under paragraph 12(2) of Schedule 4B of the 1990 Act, the planning authority must consider each of the recommendations and decide what action to take in response. If the planning authority is satisfied that the draft order meets the basic conditions and is compatible with any Convention rights, the NDP must be submitted for a referendum under paragraph 12(4). Under paragraph 12(11) the planning authority must publish its conclusion and reasoning in considering the examiner’s report.

When the NDP is submitted for referendum, if more than half in the referendum have voted in in favour, then the planning authority must implement the NDP under section 38A(4)(a) of the 2004 Act, unless they consider that such action would breach or otherwise be incompatible with any EU obligation or Convention rights under section 38A(6). The planning authority must publish their decision and reasoning for an action taken under subsections (4) and (6) under section 38A(9).

Under section 38C(2)(d) of the 2004 Act, the appropriate method for challenging NDPs is under section 61N of the 1990 Act. Under this section, a claimant may bring a claim for judicial review at three different stages in the process of issuing an NDP:

  • to challenge an authority’s decision to make or not to make an order for an NDP after an approving referendum under section 61N(1);
  • to challenge an authority’s decision in relation to the examiner’s report under section 61N(2); and
  • to challenge an authority’s decision related to the holding of a referendum under section 61N(3).

Claims must be brought within six weeks of the publishing of the authority’s decision in relation to sections 61N(1) and (2), and six weeks of the publishing of the results of the referendum in relation to section 61N(3).

Background

This case concerns an application for judicial review by Oyston against a decision made by Fylde Borough Council to make the St-Annes-on-Sea NDP. Oyston owned a site at Lytham Moss which was intended for housing development but was not included in the draft NDP by the local planning authority. However, an examiner appointed in March 2016 recommended revisions to this draft on the basis that they would enable the plan to meet the basic conditions specified under Schedule 4B(1), and in particular the need to contribute to the goal of “sustainable development”. Despite Lytham Moss being a Biological Heritage Site due to its use for grazing by migratory birds, the examiner recommended its inclusion in the NDP on the basis that any ecological impact could be considered at the application stage.

In response to this, Natural England suggested that the amended plan was not ready to be referred to the project stage. Rather than delay the project to appropriately assess the examiner’s proposed modifications, Fylde Borough Council chose to reject the examiner’s modifications on the basis that they did not meet the basic conditions because they breached EU obligations. A local referendum on the NDP was held on 4 May 2017, and after more than 90% of voters supported the plan, Fylde Borough Council made an order for the NDP on 26 May 2017.

On 5 July 2017, Oyston issued its application for judicial review under section 61N(2) on the grounds that Fylde Borough Council had acted unlawfully in (a) refusing to follow the examiner’s recommendations, wrongly concluding that the plan as amended would breach the basic conditions, and (b) determining that the modified plan could not progress without appropriate assessment, and then failing to carry out such an assessment. In response, Fylde Borough Council highlighted that Oyston’s claim was time-barred. As the claim related to Fylde Borough Council’s consideration of the examiner’s report on 2 March 2017, it should have been brought within 6 weeks of the publishing of that decision under section 61N(2) of the Town and Country Planning Act 1990.

Decision at first Instance

The case was referred by Mrs Justice Lang to the High Court to determine the preliminary issue of whether the application for judicial review had been bought in time. At the preliminary issue hearing in front of Mr Justice Kerr, Oyston submitted that the claim had been brought within time, arguing that the provisions of section 61N were to be interpreted permissively in regard to the timing of the different challenge. Oyston explained that the time limits in respect of each limb of section 61N were in place to prevent a prematurity argument being raised for earlier claims, but accepted that the bulk of its challenge targeted the authority’s decision making in relation to the examiner’s report.

In contrast, Fylde Borough Council asserted that the claim was patently out of time; it should have been brought within 6 weeks of the decision of the local planning authority as published in March 2017. Fylde Borough Council argued that the application of time limits to different stages in the process had merit in assisting with good administration and avoiding the need for an onerous referendum in respect of an NDP with fatal legal flaws. Fylde Borough Council further contended that the permissive “may” in section 61N was in each case qualified by two clear preconditions: that the claim be brought by judicial review, and within 6 weeks of the relevant crystallising event.

Mr Justice Kerr was not persuaded by Oyston’s submission that the language of 61N is permissive. Instead, he explained that it was evident “when time starts to run” for the purposes of the different types of claim under 61N. Any claim targeting flaws in the consideration of the examiner’s report, while potentially valid, must be brought within “6 weeks of publication of the local planning authority’s decision”. Mr Justice Kerr explained that to submit to Oyston’s assertion that the language of sections 61N(2) and (3) permit a claimant to await the results of a referendum and challenge any resultant order was counter to “good administration”. This is because it defied the clear ‘set menu’ of claims detailed by the legislation and would have the effect of cloaking any referendum in legal uncertainty.

Mr Justice Kerr therefore ruled that the claim was out of time but granted permission to appeal.

Court of Appeal

Oyston appealed Mr Justice Kerr’s decision on four grounds:

  • that Mr Justice Kerr had erroneously interpreted the provisions of the 1990 Act as exclusionary, making subsection (1) almost irrelevant;
  • that Mr Justice Kerr had misunderstood the intent of section 61N and wrongly conclude that an exclusionary interpretation would promote uncertainty in producing NDPs;
  • that Mr Justice Kerr’s was wrong to conclude that a permissive interpretation of section 61N was contrary to good administration; and
  • that permission to apply for judicial review should have in any case been granted under the court’s jurisdiction under section 61N(1). This fourth ground was the subject of a successful late application to amend Oyston’s grounds of appeal.

First Three Grounds of Appeal

Lord Justice Lindblom chose to deal with Oyston’s first three grounds of appeal together, which he considered “replicated” their arguments in the court below. Lord Justice Lindblow explained that this was a question of statutory interpretation, and that there was no reason to depart from a literal interpretation of the relevant sections. Given this approach, it was plain that the section represented a “bespoke and complete scheme for legal challenges to specified decisions and actions” relating to an NDP. More importantly, the section is “self-contained, and comprehensive”. It is clear in distinguishing “three sequential stages” in the plan process, for which the corresponding provisions for challenge and their time limit are clearly defined. Lord Justice Lindblow clarified that the time limits are set in stone, unlike the court’s usual discretion to extend time for judicial review under CPR r.3.1(2)(a). Finally, he concluded that to interpret the section as Oyston contended would be to “add words Parliament did not insert” given the carefully constructed time limits imposed. The court was therefore satisfied as to the immutability of the time limits for bringing a claim and dismissed Oyston’s first three grounds of appeal. Lord Justice Lindblom also highlighted that disruption Oyston’s permissive interpretation would potentially result in significant disruption to plans which had taken several years to implement.

Lord Justice Lindblom also rebutted Oyston’s assertions that a restrictive interpretation rendered the first limb of section 61N “irrelevant”. There were conceivable situations where a claim precluded by subsections (2) and (3) would be allowed by subsection (1); for instance a claim that the making of a plan after a positive referendum had breached a Convention right under section 38A(6). In any case, the fact that a provision has limited scope does not mean that its construction is wrong.

Fourth Ground of Appeal

Oyston’s fourth ground of appeal did not rely on a permissive interpretation of section 61N. Instead, Oyston argued that the claim could be brought under section 61N(1), challenging the planning authority’s decision to make the plan after the successful referendum on the following grounds. At the point of making the plan, Oyston argued that the planning authority had been obliged to consider whether the approved plan would be in breach of any EU obligations or Convention rights and had failed to correct its previous misunderstanding of the EU obligations in relation to the examiner’s proposed modifications.

The Court of Appeal was not persuaded by this fourth ground. Lord Justice Lindblom explained that the crux of Oyston’s argument in the case was that the authority had misunderstood the relevant EU obligations in rejecting the examiner’s recommendations; this was properly the subject of a claim under section 61N(2). Oyston’s true grievance was that the plan recommended by the examiner would have complied with the relevant obligations and was improperly dismissed. It could not be claimed that the plan made without the examiner’s amendments was in breach of any relevant EU obligations. Therefore, Oyston’s fourth ground was dismissed, and the Court of Appeal ruled that the claim was out of time.

THE DECISION OF THE UK SUPREME COURT

The Supreme Court was similarly unconvinced by the Oyston’s contentions, largely agreeing with the Court of Appeal’s analysis. Lord Briggs and Lord Sales considered that the key question in the appeal was whether section 61N created a new right of public law in this area, or whether it restricted existing public law rights. If the former is the case, there was a “real force” in Oyston’s argument that section 61N(1) created a novel right of challenge, unaffected by the other subsections. However, if section 61N is restrictive, then section 61N(2) represents an “impassable barrier” to a late claim concerned with a complaint within its jurisdiction.

The Supreme Court distinguished its judgment from that of the Court of Appeal in considering this question, explaining that section 61N does not supply a “complete and exclusive code for all public law challenges” for NDPs. In fact, section 61N only considers the later NDP stages, beginning at the point of a planning authority’s consideration of the independent examiner’s report. The section does not consider claims concerning earlier stages of the process, such as the designation of the neighbourhood area or the appointment of the independent examiner. In light of the principle from Islington London Borough Council v Uckac [2006] EWCA Civ 340, which holds that existing rights can only be extinguished by statute expressly or by clear implication, the Supreme Court found that section 61N (a) does not extinguish or limit a party’s right to bring a claim under these earlier stages of the NDP process, and (b) merely limits a party’s right to bring a claim in the areas to which it relates. Section 61N therefore does not create fresh public law rights of challenge, and as such, subsection 61N(2) clearly applied and Oyston’s claim was out of time.

The Supreme Court also briefly considered Oyston’s wider submissions on the interpretation of section 61N, despite its conclusion that section 61N(2) did apply. The Supreme Court was not persuaded by Oyston’s points made to earlier courts, and similarly disproved Oyston’s suggestions that a restrictive interpretation of section 61N would risk injustice to ordinary residents by setting the time period for a judicial review claim running before their private rights had been impacted by the making of the plan or order. The Supreme Court explained that there would be significant publicity attached to all stages of the process, and in any case, Parliament had adopted the balance between competing public and private interests which it thought was appropriate.

The Supreme Court therefore ruled that the case was out of time.

Implications for practice

This is a very specific area of law, and as such, the Supreme Court’s ruling will have limited wider consequences. However, practitioners considering claims in areas with rules amending the usual judicial review process should note the Supreme Court’s analysis on the scope of section 61N. In particular, the Supreme Court placed emphasis on the fact that section 61N did not provide a “complete and exclusive code” for bringing challenges against NDPs, suggesting that NDP claims not expressly considered by section 61N might be subject to the usual rules for judicial review under CPR Part 54. A consequence of this is that a claim concerning an earlier stage in the NDP process under CPR Part 54 might still be in time even though a claim against a planning authority’s later decision might be time-barred by section 61N.

Practitioners should therefore be wary of falling foul of this distinction and ensure that multi-headed suits targeting different stages of a public body’s process comply with all appropriate rules for bringing a claim. As this case shows, there may be different time limits for challenging different stages, and these may not expire chronologically.