R (on the application of Fylde Coast Farms Ltd (formerly Oyston Estates Ltd)) v Fylde Borough Council

The Supreme Court considered the correct interpretation of section 61N of the Town and Country Planning Act 1990, which regulates public law challenges to stages 5, 6 and 7 of the neighbourhood development order/plan process set out in Schedule 4B. The court held that section 61N is restrictive rather than permissive: it does not create new substantive rights but imposes mandatory procedural limits on existing rights of judicial review in respect of the specified stages. Accordingly a challenge that, in substance, questions a decision taken at stage 5 (the local planning authority's consideration of the examiner's report) must comply with the time limit in section 61N(2), even if the claim is framed as a challenge to the later act of making the plan under section 61N(1). Because the claimant's case depended on unlawful conduct at stage 5 and the claim on that basis was brought outside the six-week limit in section 61N(2), the claim could not succeed.

Background and facts.

The appellant (formerly Oyston Estates Ltd) sought judicial review of the respondent local planning authority's decision to make the St Anne's on the Sea Neighbourhood Development Plan after a referendum in May 2017. The appellant alleged that the authority acted unlawfully at stage 5 by refusing to accept an independent examiner's recommendation to amend the settlement boundary to include land owned by the appellant, and that the plan therefore could not lawfully be made. The claim form was issued within six weeks of the making of the plan but was more than 11 weeks after the planning authority's stage 5 decision.

Procedural history. The Planning Court (Kerr J) refused permission on time grounds; the Court of Appeal ([2019] EWCA Civ 1152) dismissed the appellant's appeal; the appellant appealed to the Supreme Court.

Nature of the claim and relief sought. The appellant sought judicial review of the decision to make the neighbourhood plan and consequential relief to quash or otherwise remedy the making of the plan, on grounds including failure to follow paragraph 8(2) of Schedule 4B (the basic conditions) and unreasonable conduct in failing to carry out an Appropriate Assessment under the Habitats Regulations.

Issues framed by the court.

• Whether section 61N should be read as creating a distinct, permissive right to challenge the making of a neighbourhood plan under subsection (1) that is unaffected by subsections (2) and (3), or whether section 61N is restrictive and applies to limit pre-existing judicial review rights in respect of stages 5–7.
• If restrictive, whether the appellant's claim (substantively challenging the stage 5 decision) was out of time under section 61N(2).

Court's reasoning. The court set out the seven-step statutory process for neighbourhood plans (Schedule 4B and related provisions) and discussed the general jurisprudence about challenges to multi-stage administrative processes. It concluded that section 61N does not constitute a comprehensive code that displaces all other public law remedies, but that insofar as it deals with challenges to steps 5, 6 and 7 it imposes two mandatory conditions (proceedings by way of judicial review and a non-extendable six-week limit). Reading the subsections in their statutory and historical context, the court found that section 61N is restrictive, not permissive: it curtails existing rights to challenge decisions in stages 5–7 by introducing a mandatory form and timetable. Applying that analysis, the appellant's challenge was, in substance, to the stage 5 decision and therefore had to be brought within the section 61N(2) time limit; it was not, and so failed.

The court also considered practical arguments against the restrictive reading (multiplicity of suits, potential unfairness to lay participants) but concluded Parliament struck a balance when enacting section 61N and chose to protect referendum outcomes by limiting post-referendum litigation based on earlier-stage challenges.

Appeal dismissed. The court held that section 61N of the Town and Country Planning Act 1990 is restrictive: it does not create an independent permissive right to challenge the making of a neighbourhood plan free from the temporal limits applicable to challenges to earlier stages. Because the appellant's case was substantively a challenge to the local planning authority's consideration of the examiner's report (stage 5), it was subject to and out of time under section 61N(2), so the claim could not succeed.

Permission to apply for judicial review refused at preliminary hearing in the Planning Court (Kerr J). Appeal to the Court of Appeal dismissed ([2019] EWCA Civ 1152). Appeal to the Supreme Court ([2021] UKSC 18) dismissed.