When a neighbourhood plan is made in stages, which decision starts the six-week clock for judicial review? Fylde Coast Farms challenged the completed plan on time. Its complaint, however, was directed at an earlier decision about an examiner’s recommendations.
The plan and the missed time limit
The developer owned land at Lytham Moss and wanted it included within the settlement boundary. The council was concerned about the ecological implications of that change.
St Anne’s on the Sea Town Council prepared a neighbourhood development plan. The independent examiner, Mr Slater, recommended that the settlement boundary follow the Green Belt and that the land cease to be shown as open countryside outside the Green Belt. He thought ecological impact could be considered when a planning application was made, and that the change would help meet housing needs. In his view, the submitted plan would not provide for sustainable development over the whole plan period, but the plan as modified by his recommendations should go to a referendum.
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Fylde Borough Council did not accept that recommendation. After further ecological advice, an objection from Natural England and counsel’s advice, it decided on 2 March 2017 that accepting the modification would mean the plan did not meet the statutory basic conditions, because it would breach EU obligations. It resolved that the unamended plan should proceed to a referendum. On 4 May 2017, 90% of those voting supported the plan. On 26 May 2017 the Council made it, stating that it met the basic conditions and that the process complied with the legal and procedural requirements.
Oyston sent a pre-action letter on 5 July 2017 and issued its judicial review the next day. It alleged that the Council had acted unlawfully in refusing to follow the examiner, including by failing to carry out an appropriate assessment, and in then making the unmodified plan. The claim was in time by one day to question the making of the plan, but more than 11 weeks late to question the Council’s consideration of the examiner’s report.
Section 61N
Making a neighbourhood development plan or order involves a sequence of steps: designation of a neighbourhood area, preparation and consultation, submission of a proposal, examination, the authority’s consideration of the examiner’s report, a local referendum, and the making of the plan or order. Once made, a neighbourhood development plan forms part of the development plan. Planning decisions must then be made in accordance with the development plan unless material considerations indicate otherwise.
Section 61N makes separate provision for challenges to the last three steps. A court may entertain proceedings questioning the authority’s decision on the examiner’s recommendations, anything relating to the referendum, or the decision to make the plan, only if the claim is for judicial review and the claim form is filed before the end of six weeks beginning with the day after the relevant publication or, for the referendum, the declaration of the result. The court has no discretion to extend that period.
Oyston said that section 61N(1), concerning the making of the plan, conferred a distinct right of challenge, unaffected by the time limit in section 61N(2) for the decision on the examiner’s report. Lang J found the claim arguable on the merits but directed a hearing on time. Kerr J refused permission: although framed as a challenge to the making of the plan, the claim depended on alleged unlawfulness in the decision of 2 March 2017 and was out of time. The Court of Appeal dismissed the appeal.
A restriction on existing rights
Lord Briggs and Lord Sales, with whom Lord Lloyd-Jones, Lady Arden and Lord Stephens agreed, held that section 61N is restrictive, not permissive. It does not create new rights of challenge. Public law already allows the lawfulness of administrative steps to be questioned. The section imposes two conditions on challenges to three specified stages: judicial review, and a fixed six-week limit. That is the meaning of the words “only if”.
The section is not a complete code. It says nothing about earlier stages, such as designation of the area, preparation of the draft, appointment of the examiner, or a decision to proceed with a repeat proposal. The Court would not read Parliament’s silence as removing those existing rights. If the Court of Appeal had treated section 61N as an exclusive code for every challenge, the Supreme Court respectfully disagreed. It also disagreed with Lindblom LJ’s view that the subsections were both permissive and restrictive. Their opening words recognise that proceedings may be brought and then introduce limitations.
The questions are therefore whether the claim questions a decision, or something relating to a referendum, at one of the three covered stages; whether it was brought by judicial review; and whether the claim form was filed in time for that stage. Oyston’s claim did question the stage-five decision not to include its land. Section 61N(2) applied and that challenge was out of time. It did not matter that the claim also questioned the making of the plan and was in time for that purpose. The out-of-time questioning of the earlier decision could not be included, and without it the challenge to the plan had no substantial foundation.
The Court would not choose the reading that seemed administratively preferable, or align the section with the approach taken to other planning procedures. Public law has long recognised a tension between challenging an unlawful step when it occurs and waiting for the final decision. Waiting may avoid a premature claim, but a late challenge may undo later administrative work and, here, a referendum. There was no presumption either way. Parliament had made the choice, and the Court considered it understandable that Parliament would not want a referendum result overturned afterwards because of an earlier act or omission that could have been challenged in time.
The remaining objections
The order of the subsections did not give the provision about the final plan an overriding status. Permission proceedings already require the grounds to be identified, so the court can see which subsection applies. If more than one stage is challenged, more than one claim may be needed, or an existing claim may be amended if the application to amend is filed within the relevant time limit. Proceedings can be managed together, and the costs rules can be applied so that the principles of the Aarhus Convention are respected. A tight limit before private rights are directly affected may disadvantage residents, but the covered stages attract publicity. Parliament had balanced that disadvantage against the public interest in this referendum-based process.
Verdict: The Supreme Court unanimously dismissed the developer’s appeal. A timely challenge to the final plan could not revive the out-of-time challenge to the council’s earlier decision. The merits of the proposed boundary change were not determined.
