The town council submitted a proposal to the local planning authority for the making of a neighbourhood development plan. Having considered the draft plan, the independent examiner made a report under paragraph 10 of Schedule 4B to the Town and Country Planning Act 1990 recommending that it should be submitted to a referendum with a modification to the effect that land owned by the claimant developer be included within the settlement boundary. Acting pursuant to paragraph 12 of Schedule 4B, the planning authority considered the report and decided that the draft plan should proceed to a referendum, but without that modification. Since 90% of those who voted at the referendum were in favour of the plan, the planning authority made the plan pursuant to section 38A(4) of the Planning and Compulsory Purchase Act 2004. Just under six weeks later, the claimant sought judicial review of the planning authority’s decision to make the plan without modification. The judge refused the claimant’s application for permission to proceed with the claim, holding that although the claim was framed as a legal challenge to the decision of the planning authority to make the plan, it in fact went to the legality of the planning authority’s earlier consideration of the examiner’s report and that, since the claim had been made more than six weeks after the publication of that decision, it was outside the time limit laid down by section 61N(2) of the 1990 Act for challenges to decisions under paragraph 12 of Schedule 4B. The claimant appealed, contending that the relevant time limit was that laid down by section 61N(1) of the 1990 Act which applied to challenges to the making of a neighbourhood development plan and conferred a distinct and separate right, unaffected by section 61N(2), and regardless of the particular basis of the claim to invalidate the plan. The Court of Appeal dismissed the claimant’s appeal.
On the claimant’s further appeal—
Held, appeal dismissed. Since section 61N of the Town and Country Planning Act 1990 only dealt with stages five, six and seven of a seven-stage process leading to the making of a neighbourhood development plan, it was not a complete and exclusive code for all public law challenges which might be made to that process as the general law would in principle permit a public law challenge to acts or omissions said to be unlawful at any stage of the process. On a proper interpretation, the express recognition in section 61N that there might be public law challenges to acts or omissions during stages five, six and seven of the process did not amount to the fresh creation of those rights of challenge but, rather, subjected the existing rights of challenge which arose under general law to the conditions in each of the subsections in section 61N, that they be brought by way of judicial review and commenced within a non-extendable six-week time limit. Applying the correct interpretation of section 61N to the facts of the present case, the claim questioned a decision under paragraph 12 of Schedule 4B to the 1990 Act and section 61N(2) of the 1990 Act applied. Although the claim also challenged the making of the neighbourhood development plan within the meaning of section 61N(1), and had been filed within six weeks of the making of the plan, since section 61N(2) prohibited a questioning out of time of the planning authority’s decision under paragraph 12 of Schedule 4B, once that challenge was excluded from the claim the challenge to the making of the plan lost its only substantial foundation. Accordingly, the claim had been filed out of time under section 61N(2) of the 1990 Act (post, paras 6, 41–51, 56).
Estelle Dehon and John Fitzsimons (instructed by Harrison Drury (Preston), Preston) for the claimant.
Jonathan Easton (instructed by Council Solicitor, Fylde Borough Council, Lytham St Annes) for the local planning authority.