Williams, R. (on the application of) v Secretary of State for Energy and Climate Change

A statutory time limit for challenging a development consent order is a jurisdictional limit. Where section 118 of the Planning Act 2008 requires a claim to be filed within six weeks beginning with publication of the order, the day of publication counts as the first day. Publication means making the order and the Secretary of State’s reasons known to the public. It does not depend on later statutory-instrument formalities, newspaper notices or the claimant’s actual knowledge. The court has no power to extend the period. European Union law does not require a different result where the order and reasons were made publicly available together. A court which lacks jurisdiction should dismiss the claim and should not give a provisional view on the merits.

The claimant sought judicial review of the Secretary of State’s decision under the Planning Act 2008 to make the Clocaenog Forest Wind Farm Order 2014, alleging failures under the Habitats Directive and the Conservation of Habitats and Species Regulations 2010. The claim was lodged on 24 October 2014. The order, decision letter and reasons were placed on the Planning Inspectorate’s website and interested parties were notified on 12 September 2014. The defendants argued that the six-week period under section 118 had expired on 23 October. The central issues were when the order was published, whether later publication and environmental publicity requirements postponed time, and whether European Union law permitted an extension or disapplication of the statutory limit.

1. Jurisdiction. The court had to determine jurisdiction before considering the substantive challenge. CPR rule 11(5) could not create jurisdiction where section 118 imposed a legislative bar. The claim was filed one day late and was outside the court’s jurisdiction.
2. Meaning of section 118. The six-week period is fixed, certain and incapable of extension. The phrase “beginning with” includes the day on which the relevant event occurs. Publication means putting the order, or the Secretary of State’s reasons, into the public domain and making them generally known.
3. Publication. Placing the order, decision letter and Examining Authority’s report on the Planning Inspectorate’s website on 12 September 2014, together with notification to interested parties by email and post, constituted publication. Later placement on legislation.gov.uk, printing, and notices in the London Gazette and local press were additional acts of publication. The statutory-instrument formalities under the Statutory Instruments Act 1946 and the Statutory Instruments Regulations 1947, and the publicity requirements under regulation 23 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009, did not postpone the start of time.
4. European Union law. Uniplex (Case C-406/08) concerned a different regime in which the claimant lacked sufficient information to identify a possible infringement. Here the order and reasons were published together, and the six-week period was certain and reasonable. Neither the EIA Directive nor the Habitats Directive required time to run from actual knowledge or permitted the court to extend or disapply section 118. No reference to the Court of Justice was justified.
5. No merits determination. Because jurisdiction was absent, the court declined to give summary or provisional conclusions on the Habitats Directive issues. The claim was dismissed.

Not stated in the judgment.