Hinde v Rugby Borough Council & Ors

A statutory challenge to a development plan document under section 113 of the Planning and Compulsory Purchase Act 2004 must be brought within six weeks, treated as 42 days, starting on the date of adoption. The adoption date is counted as day one. The period is prescribed by primary legislation and is therefore absolute. The Civil Procedure Rules 1998 govern the mechanics of issuing and serving the challenge, but cannot alter, extend or abridge the statutory period. The wording of section 113 is not to be construed as if it merely re-enacted the former section 287 of the Town and Country Planning Act 1990.

The claimant sought under section 113 of the Planning and Compulsory Purchase Act 2004 to quash policy H5.3 in Rugby Borough Council’s Core Strategy. The strategy was adopted on 21 June 2011. The application was issued on 2 August 2011. Bloor Homes Limited, whose land was affected by the policy, applied to strike out the claim as out of time. The central issue was whether the six-week period under section 113(4), read with section 113(11)(c), began on the adoption date or the following day, and whether the Civil Procedure Rules 1998 affected that calculation.

1. The strike-out application succeeded. The section 113 application was out of time and was struck out.
2. Section 113(2) makes the statutory challenge procedure exclusive. Section 113(4) requires the application to be made within six weeks starting with the relevant date, which for a development plan document is the date of adoption under section 113(11)(c). Six weeks means 42 days, following the approach in Okolo v Secretary of State [1997] 4 All ER 242. The adoption date is included as the first day. The period therefore expired at midnight on 1 August 2011.
3. The wording of section 113 is materially different from the former section 287(4) of the Town and Country Planning Act 1990. Section 113 is a replacement provision in a new statutory scheme and must be construed according to its own language and context.
4. The statutory period is fixed by primary legislation. CPR Part 2.8 and the other procedural provisions govern the mechanics of making the application, not the time for challenge. They cannot extend or abridge the period. The reasoning of the majority in Mucelli v Government of Albania [2009] 1 WLR 276 was highly persuasive.
5. The court declined to use Parliamentary material under Pepper v Hart [1994] AC 593. The statutory language was not ambiguous, obscure or absurd, and the limited Hansard material did not clearly address calculation of the period.
6. The claimant was ordered to pay Bloor Homes’ costs of the strike-out application on the standard basis. Permission to appeal was refused.

This was a first-instance application in the Administrative Court. The court refused permission to appeal, leaving any further application to the Court of Appeal.