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

Section 61N of the Town and Country Planning Act 1990 restricts existing public law rights rather than creating new or replacement rights. For decisions at stages 5, 6 and 7 of the neighbourhood planning process, the claim must be brought by judicial review and filed within the applicable, non-extendable six-week period.

The substance of the challenge determines which subsection applies. A claimant cannot revive an out-of-time challenge to an earlier decision by presenting it as a timely challenge to the final making of the plan or order. Section 61N is not an exclusive code: general public law rights remain available for earlier stages which it does not address.

The appellant sought judicial review of the respondent planning authority's decision to make a neighbourhood development plan. Its grounds depended on alleged unlawfulness at the earlier stage when the authority considered the independent examiner's report and rejected a recommended alteration to the settlement boundary.

The claim was filed within six weeks of the plan being made, as required by section 61N(1) of the Town and Country Planning Act 1990, but more than 11 weeks after the time allowed by section 61N(2) for challenging the authority's consideration of the examiner's recommendations. Kerr J refused permission because the claim was late. The Court of Appeal dismissed the appeal in [2019] EWCA Civ 1152.

The issue before the Supreme Court was whether section 61N(1) provided a distinct right to challenge the final plan regardless of whether the substantive ground was an out-of-time challenge to an earlier stage.

1. Disposition. Lord Briggs and Lord Sales delivered the joint judgment, with which Lord Lloyd-Jones, Lady Arden and Lord Stephens agreed. The appeal was dismissed unanimously.

2. Interpretative approach. Statutory language must be read within the whole statutory framework, its historical context and its ascertainable purpose. No general presumption required either an early challenge or a challenge only at the end of every multi-stage administrative process. Parliament was entitled to choose the appropriate balance for this particular planning regime, and a sufficiently clear choice had to be respected.

3. Nature of section 61N. Section 61N of the Town and Country Planning Act 1990 was restrictive rather than permissive. General public law already supplied rights to challenge unlawful action throughout the seven-stage neighbourhood planning process. The section did not create fresh rights. For stages 5, 6 and 7, it imposed two conditions on existing rights: proceedings had to take the form of judicial review, and the claim form had to be filed within a rigid six-week period which the court could not extend.

   The section was not a complete and exclusive code because it said nothing about stages 1 to 4. Clear language would have been required to extinguish the general-law rights applicable to those stages. To that limited extent, the Supreme Court disagreed with the Court of Appeal's analysis.

4. Application. A court must identify the decision or referendum matter which the claim questions in substance. The appellant's grounds questioned the stage 5 decision not to adopt the examiner's recommended boundary alteration. Section 61N(2) therefore applied, and the challenge was late. The fact that the same claim also questioned the final making of the plan and was filed within the section 61N(1) period did not avoid the section 61N(2) prohibition. Once the late stage 5 challenge was excluded, the challenge to the final plan had no substantial foundation.

5. Procedural consequences. The permission process permits early identification of the stage to which each ground relates. More than one claim may sometimes be necessary, although an existing claim may be amended to add a later-stage challenge if the application to amend is filed within the relevant six-week period. Related claims can be managed together, with appropriate costs provision where the Aarhus Convention applies.

• United Kingdom Supreme Court: The court unanimously dismissed the appeal in [2021] UKSC 18. It agreed that the stage 5 challenge was out of time, although its reasoning differed to a limited extent from that of the courts below.
• Court of Appeal: The court dismissed the appellant's appeal from Kerr J in [2019] EWCA Civ 1152.
• Planning Court: Kerr J held that the claim was an out-of-time challenge to the authority's consideration of the examiner's report and refused permission to apply for judicial review.
• Planning Court, paper stage: Lang J considered the proposed grounds arguable but directed a preliminary hearing on whether the claim had been brought in time.