Barker v Hambleton District Council

A statutory period expressed as a period of weeks starting with a stated date includes that date. It differs from a period running from a date. A statutory time limit defining the court’s jurisdiction cannot be extended by a local authority’s erroneous notice.

A clear and reasonable limitation period does not infringe the EU principle of effectiveness merely because an authority misstated it. Nor does it impair the essence of the Article 6 right of access to a court where the claimant and specialist advisers could have complied with the statutory rule.

The appellant sought to challenge part of a development plan document adopted by the respondent local planning authority on 21 December 2010. His application under section 113 of the Planning and Compulsory Purchase Act 2004 was placed under the locked court-building entrance door on 1 February 2011 and was sealed the following day.

The Administrative Court struck out the application as out of time. On appeal, the Council relied on the subsequent decision in Hinde to contend that the six-week period began on the date of adoption, rather than the following day. The appellant also relied on the Council’s adoption documents, which wrongly stated a later deadline. The central issues were the construction of the statutory period and whether EU law or Article 6 required the court to give effect to that erroneous notice.

Appeal dismissed. The court unanimously upheld the conclusion that the application was out of time.

1. Section 113(4) of the Planning and Compulsory Purchase Act 2004 requires an application within six weeks starting with the relevant date. For a development plan document, that date is its adoption. The wording therefore includes the day of adoption. It is materially different from a period expressed to run from a date. The court agreed with Hinde v Rugby Borough Council [2011] EWHC 3684 (Admin) and held that the period expired on 31 January 2011.
2. It was consequently immaterial whether placing the papers under the court entrance door on 1 February amounted to making an application on that day.
3. The Council’s adoption statement and notice did not alter the result. Although required regulations obliged the Council to publish information about the statutory remedy and time limit, the Council had no power to extend a jurisdictional limit fixed by Parliament. Its benevolent but erroneous statement of a later date could not confer jurisdiction.
4. The EU principle of effectiveness did not require words to be read into section 113(4). The six-week period was clear and reasonable. It did not make the statutory remedy practically impossible or excessively difficult to use, notwithstanding the Council’s error.
5. Article 6(1) of the European Convention Human Rights and Fundamental Freedoms was not infringed. The question was whether the essence of access to a court had been impaired, and that inquiry was fact-sensitive. Here the adoption date and statutory rule were clear, and the appellant’s specialist legal representatives should have known that the Council lacked power to grant an indulgence. The finality of important planning decisions also protected other interested parties entitled to rely on the expiry of the statutory period.

• Court of Appeal (Civil Division) — by [2012] EWCA Civ 610, dismissed the appeal and confirmed that the statutory challenge was out of time.
• High Court, Queen’s Bench Division, Administrative Court (Leeds) — on 24 May 2011, HHJ Shaun Spencer QC struck out the application for want of jurisdiction because it was out of time.