Oyston Estates Ltd, R (On the Application Of) v St Anne's-On-The-Sea Town Council

Statutory time limits for challenging stages in the making of a neighbourhood development plan are compartmentalised and must be applied strictly. A claimant cannot wait until a later stage, such as the making of the plan after a referendum, and then challenge an earlier decision concerning the examiner’s report or the decision to hold the referendum. The six-week period runs from publication of the relevant decision, and there is no power to extend it. A legal flaw in an examiner’s report may be relied on in a timely challenge to a later decision which was infected by that flaw, but the challenge must be brought within the time limit applicable to that later decision.

The claimant sought judicial review of the defendant local planning authority’s decision on 26 May 2017 to make the St Annes-on-the-Sea Neighbourhood Development Plan. The examiner had recommended modifications involving the claimant’s land, but the authority rejected those recommendations in a decision published in March 2017 and proceeded to a referendum. The claimant brought its claim on 5 July 2017, relying on alleged unlawfulness in the March decision. The preliminary issue was whether the claim was out of time under section 61N of the Town and Country Planning Act 1990.

1. The claim was out of time and permission to apply for judicial review was refused, although the proposed grounds were arguable. Permission to appeal was granted.
2. Section 61N of the Town and Country Planning Act 1990 creates distinct six-week time limits for challenges to different stages of the neighbourhood plan process. The provisions are negatively expressed, precise and directed to promoting certainty, avoiding disruption and preventing an abortive referendum. Unlike the general judicial review regime under CPR Part 54, there is no power to extend time.
3. The statutory stages include the authority’s consideration of the examiner’s report, any referendum-related decision, and the final decision to make or not make the plan. Each stage has its own challenge period. Once that period has expired, the relevant stage is no longer susceptible to challenge.
4. A challenge framed against the final decision to make the plan cannot be used to attack, in substance, the authority’s earlier consideration of the examiner’s report or its decision to proceed to a referendum. Such a challenge would improperly outflank the earlier statutory time bar.
5. A legal flaw in an examiner’s report may be relied on in a timely challenge to the decision to hold a referendum. If the flaw infected the authority’s subsequent consideration and decision, that decision must itself be challenged within six weeks of publication.
6. The claimant accepted that its grounds concerned the authority’s March 2017 decision, for which time began on 3 March 2017 and expired in mid-April. The July claim therefore could not be entertained. The defendant was awarded £1,250 for the acknowledgement of service, and a draft order was requested.

The judgment records that Mrs Justice Lang ordered determination of the limitation issue on the papers on 4 September 2017. No appellate decision is stated.