Bellamile Ltd, R (On the Application Of) v Ashford Borough Council

A statutory time limit for challenging a local plan under section 113 of the Planning and Compulsory Purchase Act 2004 is strict and absolute. There is no general discretion to extend it. Nor does the scheme confer an exceptional human-rights jurisdiction where the time limit does not impair the very essence of the right of access to court. The merits of the proposed challenge are irrelevant to any exceptional extension jurisdiction. If such jurisdiction exists, the claimant must personally have done all that could reasonably be done to file and notify the claim in time, supported by a full, candid and verified explanation. A planning inspector’s assessment of whether a plan is sound is primarily a matter of planning judgment, subject to arguable public-law error.

The claimant owned the former Bombardier train maintenance site at Chart Leacon, Ashford. It sought permission to challenge policy 11a of the defendant’s adopted local plan, which safeguarded the site for railway use for two years before possible commercial development.

The statutory six-week period under section 113 of the Planning and Compulsory Purchase Act 2004 expired on 4 April 2019. The claimant contended that it had attempted to file proceedings that day, but the papers were not filed and the wrong fee had been tendered. A judicial review claim was filed the following day. The claimant sought permission, an extension of time, and orders treating later Part 8 documents as filed on the original date. The central issues were whether the challenge was arguable and whether the statutory time limit could be extended.

1. Permission refused. The challenge was not arguable. Whether a local plan is sound is pre-eminently a matter of planning judgment, although permission may be granted where an arguable public-law error is shown.
2. The inspectors were entitled to rely on Southeastern Railways’ representation that the site was needed for railway use. They were not required, as part of their Tameside duty, to interrogate that representation. The inspectors had considered the change to policy 11a lawfully and had given intelligible reasons for safeguarding the whole site for two years.
3. The challenge to reliance on the sustainability appraisal was also unarguable. The inspectors were entitled to regard the policy change as minor in the relevant context.
4. The reasoning in Croke v Secretary of State for Communities and Local Government [2019] EWCA Civ 54 was applied by analogy. The six-week limit in section 113 was strict and absolute, subject only to the so-called Kaur principle and any exceptional human-rights jurisdiction recognised by authority.
5. There was no exceptional jurisdiction under Article 6(1). Applying the reasoning in Pomiechowski v District Court of Legnica, Poland [2012] UKSC 20, as explained by Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442, the statutory scheme did not impair the very essence of access to a court. The six-week period was sufficiently long, and a local-plan challenge affected the interests of persons beyond the immediate parties.
6. In any event, the claimant had not personally done all it could to file and notify the claim in time. The evidence was incomplete and insufficiently verified. There was no contemporaneous, full and candid explanation of what occurred at the court office, and no application for an extension when the claim was lodged.
7. The application for permission was dismissed. It was unnecessary to determine the remaining procedural applications.