Oyston Estates Ltd, R (On the Application Of) v Fylde Borough Council

Statutory time limits for challenging neighbourhood plans form a complete, staged code. A challenge to a local planning authority’s consideration of an examiner’s recommendations must be brought within six weeks of publication and before the referendum. A referendum challenge has its own six-week period. An earlier complaint cannot be reserved for a later stage. The final decision to make the plan remains separately challengeable where the complaint concerns the authority’s final statutory duty, including its duty to consider EU obligations and Convention rights. That duty concerns the plan actually made. An earlier error in rejecting an examiner’s recommended modification must be challenged under the earlier time limit.

Oyston Estates owned land which it wished to develop for housing. An independent examiner recommended altering the settlement boundary in the St Anne’s on the Sea Neighbourhood Development Plan. Fylde Borough Council rejected that modification when considering the examiner’s report on 2 March 2017, but allowed the plan to proceed to referendum. The plan was approved at referendum and made on 26 May 2017. Oyston issued judicial review proceedings on 6 July 2017. Kerr J held that the claim was in substance a challenge to the earlier decision and was out of time, refusing permission in [2017] EWHC 3086 (Admin). The appeal concerned the proper construction of section 61 N and whether the final EU-compatibility duty provided a route to challenge the earlier decision.

Appeal dismissed. Lord Justice Lindblom gave the lead judgment. Lady Justice Rose and Lord Justice Lewison agreed.

1. Section 61 N of the Town and Country Planning Act 1990 is construed by a straightforward reading of its words in statutory context. The provision is a bespoke and complete scheme for challenges at three sequential stages. Each subsection requires judicial review proceedings and filing within an inflexible six-week period. The court has no ordinary discretion to extend time. A claimant cannot postpone a challenge arising at one stage until a later stage.
2. The scheme is intended to permit prompt challenges and to prevent cost, disruption and uncertainty caused by complaints held back until the plan is made. A challenge to consideration of the examiner’s report under section 61 N(2) must be brought before the referendum. A challenge to anything relating to the referendum under section 61 N(3) must be brought before the plan is made. The importance of certainty and predictability in planning challenges was noted in Burkett [2002] UKHL 23, although in a different statutory context.
3. Section 61 N(1) retains a distinct route for challenging the final decision to make the plan. At that stage the local planning authority remains under an active duty. The duty to make the plan after a successful referendum is qualified by section 38 A(6) of the Planning and Compulsory Purchase Act 2004, which requires consideration of any relevant EU obligation or Convention right. That duty is not confined to issues arising after the examiner’s report or referendum, but the final review must be realistic and proportionate to the circumstances.
4. A failure to rectify a breach before making the plan may support a section 61 N(1) challenge where the true complaint is that making the plan actually made contravened section 38 A(6). Oyston’s complaints instead challenged the earlier decision under paragraph 12 of Schedule 4B not to accept the examiner’s recommended modification. They therefore fell within section 61 N(2). The fact that an alternative plan might have complied with EU obligations did not make the making of the plan actually approved and made a section 61 N(1) issue.
5. The court permitted the late amendment introducing the fourth ground because it raised a pure legal issue, had been fully argued, and caused no real prejudice. The amended ground failed on its merits. The appeal was dismissed.

• Court of Appeal (Civil Division) — Appeal from the Administrative Court dismissed. The court upheld the refusal of permission in [2017] EWHC 3086 (Admin).
• Administrative Court, Planning Court — Kerr J held that the claim was brought out of time because it challenged the council’s earlier consideration of the examiner’s report.