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This article by John Litton QC was originally published by Lexis PSL Planning on 17th May 2021. R (on the application of Fylde Coast Farms Ltd (formerly Oyston Estates Ltd)) v Fylde Borough Council (Respondent) Case ID: UKSC 2019/0167 CA judgment being appealed - [2019] EWCA Civ 1152 This case determines, at the highest level, whether alleged legal errors in a local planning authority’s consideration of an examiner’s report and the holding of a referendum in the making of a neighbourhood plan or order must be challenged at each respective stage or whether they can be challenged at the end of the process once the neighbourhood plan or order plan has been made. The Supreme Court held that section 61N of the Town and Country Planning Act 1990 did not create fresh rights to the bringing of a public law challenge to the consideration of an examiner’s report, the holding of a referendum or the making of a neighbourhood plan or order but restricted the existing right to do so by requiring a challenge to be brought by way of judicial review and imposing a non-extendable six week time-limit. Because the alleged defect related to the local planning authority’s consideration of the examiner’s report and its rejection of one of his recommendations the applicant’s challenge should have been brought then and leaving it until the neighbourhood plan was made meant the challenge was out of time. What are the practical implications of this case? The Supreme Court’s decision usefully sets out and summarises the various statutory steps in the making of a neighbourhood plan and analyses the effect of section 61N of the Town and Country Planning Act 1990 on challenges brought to the making of a neighbourhood plan. The judgment is important because it makes clear that alleged errors in a local planning authority’s consideration of a neighbourhood plan or the holding of a referendum must be challenged within six weeks of those errors being made at those stages and an applicant cannot wait until the end of the process when the neighbourhood plan is formally made. Doing so runs the risk that the claim will have been made out of time. Consequently, those contemplating challenging a neighbourhood plan or order must be astute to each stage of that process and make a challenge at the appropriate time. Consequently, someone wishing to challenge a neighbourhood plan or order because of an earlier defect in the consideration given by the local planning authority to an examiner’s report or the holding of a referendum cannot wait until after the plan or order is made. The case therefore underlines the importance to (a) those opposed to a neighbourhood plan of bringing a challenge at the appropriate stage of the neighbourhood plan or order making process and not leaving it to the end; and (b) those resisting a challenge to the making of a neighbourhood plan or order to be astute to whether the substance of the challenge relates to an earlier stage and is out of time. What was the background? The examiner of the St Anne’s on Sea Neighbourhood Development Plan recommended in his report dated 10 August 2016 the inclusion of Oyston Estate’s site within the settlement boundary. However, following its consideration of the examiner’s report on 2 March 2017, Fylde Borough Council decided not to follow the examiner’s recommendation and the neighbourhood plan went to referendum without including the site within the settlement boundary. Following a referendum held on 4 May 2017, the neighbourhood plan was made on 26 May 2017. Oyston Estates challenged the making of the neighbourhood plan by way of a claim for judicial review on 6 July 2017 on the basis that Fylde Borough Council had acted unlawfully in refusing to follow the examiner’s recommendation. In its acknowledgment of service, Fylde Borough Council maintained that the claim was unarguable and that it was brought out of time because it was a challenge to the consideration given to the examiner’s report on 2 March 2017 and in accordance with section 61N(2) of the Town and Country Planning Act 1990 had to have been brought within six weeks of that date (i.e. by 13 April 2017). Following her consideration of Oyston Estate’s application for judicial review, Lang J directed a preliminary hearing on the question whether the claim was brought within time. Kerr J held that it was brought out of time and the Court of Appeal dismissed Oyston Estate’s appeal. The issue before the Supreme Court was whether section 61N is permissive or merely restrictive in its purpose and effect: i.e. whether it creates new or replacement rights of public law challenge (subject to procedural conditions) or whether it simply imposes new restrictions as conditions for the exercise of rights which arise anyway from the general law. What did the court decide? The Court held that section 61N was restrictive in its nature. Decisive to its conclusion was that the choice between a “challenge early” or “wait to the end” approach to the multi-stage process of public administration applicable to neighbourhood plans was a matter for Parliament to decide. Consequently, provided that the choice had been made with sufficient clarity, it must be respected. The express recognition in section 61N that there may be public law challenges to acts or omissions in the neighbourhood plan process when considering the examiner’s report, the holding of a referendum and the formal making of a neighbourhood plan did not create fresh rights and only imposed conditions on existing rights by requiring that the challenge is brought by way of judicial review and within a six week time limit. In the present case, Oyston Estate’s claim had sought to challenge Fylde Borough Council’s earlier decision not to accept the examiner’s recommendation to include its site within the settlement boundary and, therefore, section 61N(2) applied such that the claim was made out of time. The Court further held that the multiplicity of claims that might result if a challenge had to be brought at each stage of the neighbourhood plan process and not simply at the end could be managed by the court using its case management powers.
