Fylde Coast Farms Ltd, R (on the application of) v Fylde Borough Council [2021] UKSC 18

Fylde Coast Farms challenged a neighbourhood development plan, arguing the council unlawfully rejected an examiner's recommendation. The challenge was filed within time to contest the plan's making but outside the time limit for challenging the council's earlier decision. The Supreme Court held section 61N restricts, rather than creates, challenge rights, requiring timely challenges to each step.

Facts

Fylde Borough Council made the St Annes on the Sea Neighbourhood Development Plan on 26 May 2017 following a referendum where 90% voted in favour. During the plan’s preparation, an independent examiner recommended including land owned by Oyston Estates Ltd (now Fylde Coast Farms Ltd) within the settlement boundary. The Council rejected this recommendation, citing concerns about compliance with EU obligations under the Habitats Regulations without conducting an Appropriate Assessment.

Oyston filed a judicial review claim on 6 July 2017 challenging the decision to make the plan. This was within the six-week time limit under section 61N(1) of the Town and Country Planning Act 1990 for challenging the making of the plan, but more than 11 weeks after the Council’s decision on 2 March 2017 regarding the examiner’s report, meaning it was outside the six-week limit under section 61N(2).

Issues

The central issue was the interpretation of section 61N of the TCPA: whether the appellant could challenge the making of the neighbourhood development plan under section 61N(1) based on alleged unlawfulness at an earlier step (the Council’s consideration of the examiner’s report under section 61N(2)), even though the time limit for challenging that earlier step had expired.

Specifically:

• Is section 61N permissive (creating new rights of challenge) or restrictive (imposing conditions on pre-existing rights)?
• Does section 61N(1) provide an independent, umbrella right to challenge the making of a plan regardless of the specific basis of challenge?

Judgment

The Supreme Court unanimously dismissed the appeal. Lord Briggs and Lord Sales delivered the judgment.

The Court held that section 61N is restrictive rather than permissive in effect. It does not create new rights of challenge but imposes conditions on pre-existing rights of judicial review that arise under general public law principles.

The express recognition in section 61N that there may be public law challenges to acts or omissions during stages 5, 6 and 7 of the process does not amount to the fresh creation of those rights. The only purpose ascertainable from section 61N is to subject those particular existing rights of challenge to the twin conditions in each of the subsections, namely that they be brought by way of judicial review and commenced within a rigid, non-extendable six week time-limit.

The Court explained that the words ‘only if’ in each subsection are restrictive, not permissive:

The words at the start of each subsection ([a] court may entertain proceedings … only if) are not permissive in effect. Rather, they recognise that general public law means that legal proceedings are capable of being brought if there is unlawfulness at any stage and they introduce a series of limitations.

Applying this analysis, since the appellant’s challenge fundamentally questioned the Council’s decision at stage 5 (consideration of the examiner’s report), section 61N(2) applied and the challenge was out of time. The Court noted that Parliament likely adopted this approach to prevent referendum outcomes from being overturned by technical legal arguments that could have been resolved beforehand.

Implications

This judgment clarifies that challenges to neighbourhood development plans and orders must be brought within the time limits applicable to each specific step in the statutory process. A claimant cannot circumvent an expired time limit for challenging an earlier step by framing their claim as a challenge to the final decision to make the plan.

The decision represents a departure from the ‘wait to the end’ approach established in R (Burkett) v Hammersmith and Fulham LBC in the specific context of neighbourhood development plans, reflecting Parliament’s choice to protect the integrity of referendum results in this democratic process.

The ruling has broader significance for multi-step administrative processes where Parliament has enacted specific time limits for challenging individual steps, establishing that such provisions should generally be interpreted as restrictive conditions on pre-existing rights rather than creating new independent rights of challenge.

Verdict: Appeal dismissed. The claim for judicial review was out of time under section 61N(2) of the Town and Country Planning Act 1990 because it was, in substance, a challenge to the Council’s decision regarding the examiner’s report, filed more than six weeks after that decision was published.

Source: Fylde Coast Farms Ltd, R (on the application of) v Fylde Borough Council [2021] UKSC 18