Barker v Hambleton District Council

Mr Edward Barker commenced proceedings in which he invited the Administrative Court to quash part of the Hambleton Allocations Development Plan Document (the ADPD). Such applications are governed by section 113 of the Planning and Compulsory Purchase Act 2004. On 24 May 2011, HHJ Shaun Spencer QC, sitting in the Administrative Court in Leeds, struck out Mr Barker’s application for want of jurisdiction on the basis that it was out of time. Mr Barker now appeals against that order.

The ADPD was adopted by the local planning authority, Hambleton District Council, on 21 December 2010. Any application under section 113 has to be made “not later than the end of the period of six weeks starting with the relevant date” : section 113(4). The relevant date for these purposes was the date when the ADPD was adopted by the local planning authority, that is 21 December 2010. In the Administrative Court it was agreed between the parties that the six week time limit meant that the last date for the making of an application was 1 February 2011. That computation was based on the assumption that the first day to count was 22 December 2010, the day after the adoption resolution had been passed.

At 7.46 pm on 1 February, a trainee solicitor “posted the claim form and particulars of claim under the glass front entrance door at Leeds Combined Court Centre”: witness statement of Thomas Richard Bartle. There the documents lay until a member of the Court security staff picked them up on the morning of 2 February and passed them to the Court Office. There is no publicly accessible letter box at the Court, which is locked to the public at 5.45pm each day. The Court Office closes its issues counter at 4.30pm. In these circumstances, the documents were formally sealed by the Court on 2 February.

In the Administrative Court, the submissions on behalf of Mr Barker were that (1) his application had been “made” when Mr Bartle put the documents under the front entrance door on 1 February, and/or alternatively, (2) the six weeks should be taken to have commenced on 31 December 2010 because, on that date, the Council published documents indicating that, although the ADPD had been adopted on 21 December, an application to the High Court could be made “within six weeks of 31 December”. The Deputy Judge rejected these submissions. The appellant’s notice issued on behalf of Mr Barker relies on grounds of appeal which reiterate his case in the Administrative Court.

If that represented the whole of the dispute before us, we would simply have to form our own view of the grounds of challenge which were advanced before the Deputy Judge. However, on 8 December 2011, about six months after the issue of the appellant’s notice, a respondent’s notice was issued on behalf of the Council. If we extend time for it, and if it is well-founded, it drives a coach and horses through Mr Barker’s first ground of appeal and, indeed, the common assumption upon which the hearing in the Administrative Court was based.

On 3 November 2011, in Hinde v Rugby Borough Council [2011] EWHC 3684 (Admin), which also concerned the time limit under section 113(4), Mr David Elvin QC, sitting in the Administrative Court, held that time starts to run for these purposes not on the day after the local planning authority has adopted the plan, but on the very day of its adoption. Although an appeal in that case was originally listed to be heard today with Mr Barker’s appeal, it has been withdrawn. We are not bound by Hinde, which Mr Harwood submits was wrongly decided.

I have no doubt that we should extend time for the respondent’s notice. It raises an important jurisdictional point. It is highly desirable that this Court considers whether or not Hinde was correctly decided so that practitioners know where they stand. I reject Mr Harwood’s submission that there was undue delay in the issuing of the respondent’s notice. It was issued about five weeks after Hinde was decided and long before the hearing of this appeal. I accept that the Council has undergone several changes of mind about the parameters of the time limit in this case but ultimately it is a question of jurisdiction which must be based on the correct construction of the statute. Logically, this construction issue precedes the issues raised by the grounds of appeal.

It is appropriate to set out the relevant parts of section 113:

“(2)

A [development plan document] must not be questioned in any legal proceedings except in so far as is provided by the following provisions of this section.

(3)

A person aggrieved by a relevant document may make an application to the High Court on the ground that –

(a)

the document is not within the appropriate power;

(b)

a procedural requirement has not been complied with;

(4)

But the application must not be made later than the end of the period of six weeks starting with the relevant date

…

(11)

References to the relevant date must be construed as follows:

…

(c)

for the purposes of a development plan document (or a revision of it), the date when it is adopted by the local planning authority or approved by the Secretary of State (as the case may be).”

It is clear that the ADPD is a “development plan document” and that it was adopted by the local planning authority on 21 December 2010. If the six week period began with the counting of the day of adoption rather than on the following day, it ended on 31 January 2011, with the consequence that, when the documents were pushed under the door of the Court building on 1 February, the application was made out of time.

In a clear and incisive judgment, the Deputy Judge in Hinde stated (at paragraph 6):

“The first point to observe is the combination of s113(2) and (4) which is to allow challenges only to be brought within the stipulated period. The second point to note is that the time period of six weeks is set not by reference to the CPR but by the provisions of s113(3) and (4) themselves – the ‘relevant date’ for present purposes being that specified in s113(11)(c), ie the date of adoption … The third point to note is that, unlike s287 of the Town and Country Planning Act 1990 … which was the equivalent provision for challenging old-style development plans, s113 provides in terms that the six weeks is to start with the date of adoption.”

Section 287(4) of the 1990 Act had required an application to be made within six weeks from the relevant date, as opposed to six weeks starting with the relevant date.

The Deputy Judge then stated (at paragraph 10) that, absent contrary authority or other considerations, section 113

“… clearly requires the calculation of the six weeks to ‘start with’ the date of adoption … Further, since Parliament has stipulated the period in primary legislation, and section 113(2) precludes any other form of challenge, that period is absolute and cannot be extended under the provisions of the CPR.”

He further considered this analysis to be consistent with the approach of the House of Lords in Mucelli v Government of Albania to the construction of section 26(4) of the Extradition Act 2003, which requires notice of appeal to be given

“before the end of the permitted period, which is seven days starting with the day on which the order is made.”

The remainder of the judgment in Hinde takes the form of a consideration of whether what the Deputy Judge found to be the natural and unambiguous meaning of the language of section 113(4) should be displaced by contrary authority or other considerations. He found no basis for such displacement. He adverted to the Administrative Court judgment in the present case which had been given some six months earlier but noted (at paragraph 16) that it was not authority to the contrary because it had been common ground and uncontroversial that the final date for the making of an application was 1 February.

It is clear that the wording of section 287(4) of the 1990 Act – “must be made within six weeks from the relevant date” – meant that the first day to be counted was the day after the relevant date. Similar language in section 2 of the Limitation Act 1939 was so construed in Pritaur Kaur v S Russell and Sons Ltd [1973] QB 336, as it was in an area closer to the context of the present case, section 23(4) of the Acquisition of Land Act 1981: Okolo v Secretary of State for the Environment [1997] 4 All ER 242. However, section 113 of the Planning and Compulsory Purchase Act 2004 expressly departed from that model. “Starting with” is not the same wording as “from” and I can see no basis for any kind of presumption that, in using different language, Parliament was intending it to mean precisely the same as the discarded language.

Mr Harwood draws attention to the differences in language between section 113(4) of the 2004 Act and section 26(4) of the Extradition Act 2003. Whereas section 113(4) requires an application to be made not later than the end of the six week period, section 26(4) of the Extradition Act requires the notice of appeal to be given before the end of the permitted period. In my judgment, that is a distinction without a difference. Moreover, it focuses on the wrong comparison, namely the language referable to the end of the relevant period. Our concern is with when the relevant period begins and, in relation to that, the language of the two provisions is essentially the same: starting with the day upon which the relevant event occurred.

It is true that in Mucelli the House of Lords did not engage in detail with the specific dates. It was simply accepted that a decision made on 14 March 2008 had to be challenged by 20 March 2008. However, the whole approach of the House of Lords is predicated on the understanding that when a statutory time limit starts with a particular day, time runs from that day and not from the following day.

For all these reasons, I find myself in complete agreement with the judgment of the Deputy Judge in Hinde. Accordingly, the first ground of appeal is unsustainable. It is immaterial whether what Mr Bartle did at the door of the Court building on 1 February amounted to the making of an application on that day. Subject to the second ground of appeal, time had expired on the previous day. It is inappropriate to say anything more about the first ground of appeal, which, I confess, I do not find entirely straightforward.

Having failed on the issue of the construction of section 113(4), Mr Harwood accepts that he cannot succeed on his first ground of appeal. It matters not whether the act of posting the documents under the door of the Court building on 1 February amounted to making an application if time had expired on 31 January. However, he still pursues his second ground of appeal which asserts that, by reason of the Council’s errors contained in the Adoption Statement and the Notice of Adoption, the appellant had until 11 February to make his application and that the application sealed by the Court on 2 February was in time.

The Adoption Statement and the Notice of Adoption are not “relevant documents” for the purposes of section 113 but they are documents required by the Town and Country Planning (Local Development) (England) Regulations 2004. Both the Statement and the Notice have to be published “as soon as reasonably practicable” after the adoption of the development plan document: regulation 36. The Statement must specify the date of adoption; the fact that an aggrieved person may make an application under section 113; and the grounds on which, and the time within which, such an application may be made: regulation 24.

The Adoption Statement accurately specified the date of adoption as 21 December 2010, the availability of the section 113 procedure and the grounds upon which an application may be made. However, it stated that the application could be made “within 6 weeks of 31 December 2010”. The Notice contained the same information. We are told and we and Mr Harwood are content to accept that the explanation for referring to 31 rather than 21 December was that the Council thought it appropriate to extend the period so that interested parties would not be prejudiced by any loss of time resulting from the holiday period over Christmas and New Year.

There can be no doubt that, notwithstanding its benevolent intentions, the Council had no power to extend the statutory time limit of six weeks starting with the date of adoption. In the same way, no council could adopt a policy of prescribing a longer time limit because it considered that six weeks was too short a period. The time limit is a statutory limitation upon the jurisdiction of the Court. Moreover, Mr Harwood accepts that, at common law, there is no room for the establishing of jurisdiction on the basis of an estoppel operating against the Council. His submission is that, by reference to European Union law or the European Convention Human Rights and Fundamental Freedoms (ECHR), this Court has the power, indeed the duty, to read words into section 113(4) in order to prevent circumstances such as those in the present case from giving rise to a breach of European law or rights arising under Article 6 of the ECHR.

European Union law

The substantive provisions upon which the submission on EU law is based originate with the Aarhus Convention on Access to Information, Public Participation in Decision –Making and Access to Justice in Environmental Matters (25 June 1998). Article 9.3 of the Convention obliges state parties to ensure access to justice. Article 9.4 requires the provision of “adequate and effective remedies” which are “fair, equitable, timely and not prohibitively expensive”. Although the Aarhus Convention is not an instrument of EU law, the United Kingdom is a state party and the Convention has been approved by the EU (Decision 2005/370). Its provisions do not have direct effect but, in cases concerning matters covered by EU law, a national court is required to interpret domestic procedural rules in accordance with the objectives of Article 9 and the doctrine of effective judicial protection of rights conferred by EU law. The present context concerns a matter covered by EU law because of the European origin of some of the requirements which operate on the promulgation of a development plan document such as the one here. Mr Katkowski does not dispute that there is a potential for the impact of an EU law element in some cases. His submission is that the present circumstances come nowhere near to requiring such an approach.

The authority to which we have been referred on this issue is Lesoochranarske Zoskupenie v Slovakia [2011] Env LR 28, a decision of the Grand Chamber. The judgment includes the following passages:

“47.

In the absence of EU rules governing the matter, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, in this case the Habitats Directive, since the Member States are responsible for ensuring that those rights are effectively protected in each case …

48.

On that basis, … the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law (principle of effectiveness).

49.

Therefore, if the effective protection of EU environmental law is not to be undermined, it is inconceivable that art. 9(3) of the Aarhus Convention be interpreted in such a way as to make it in practice impossible or excessively difficult to exercise rights conferred by EU law.

50.

It follows that … it is for the national court, in order to ensure effective judicial protection in the fields covered by EU environmental law, to interpret its national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in art. 9(3) of the Aarhus Convention.”

By reference to those paragraphs, Mr Harwood submits that it is incumbent on us to read into section 113(4) wording which would permit an application to be made later than six weeks starting with the date of adoption because, if we do not do so, we shall fall foul of the principle of effectiveness. The principle required, he submits, that Mr Barker was able to make his application “within 6 weeks of 31 December 2010” because that is what the Adoption Statement and the Notice of Adoption stated. It is a reasonable inference (as Mr Katkowski fairly accepts), that Mr Barker and his legal representatives were relying on those statements until 1 February when someone realised the implications of section 113(4).

I do not accept that the principle of effectiveness avails Mr Barker. It simply cannot be said that it was “in practice impossible or excessively difficult” for him to make his implication within the statutory time limit. It is a clear and reasonable time limit. The fact that the Council misstated it cannot have the effect of rewriting a jurisdictional rule. The statute provides an effective remedy and neither its terms nor the factual history of Mr Barker’s application points to an infraction of EU law.

ECHR

Mr Barker’s case on the ECHR is that the refusal by the court to treat his application as duly made pursuant to section 113(4) amounted to a breach of his right to a fair trial under Article 6(1), which provides:

“In the determination of his civil rights and obligations … everyone is entitled to a … hearing within a reasonable time …”

The submission is that he was denied a hearing as a result of the Council’s misstatement of the time limit.

The question in relation to Article 6 is whether Mr Barker was denied “the very essence” of his right of access to a court. In Majski v Croatia (No 2) [2011] ECHR 16924/08 the applicant wished to challenge his failure to secure an appointment in the Attorney’s Office. He was wrongly informed by the State Attorney’s Council that his remedy was an application to the Administrative Court under section 23 of the Administrative Disputes Act whereas in fact it was only under a different section of the same Act which involved a different procedure, but the same 30 day time limit. He claimed that by holding his application to be inadmissible the Administrative Court had breached his Article 6 rights. The European Court of Human Rights, having observed that the right of access to a court is not absolute but may be subject to limitations, stated (at paragraph 66):

“However, these limitations must not restrict or reduce the access left to an individual in such a way or to such an extent that the very essence of the right is impaired.”

Its decision that that “very essence” had been impaired was plainly conditioned by its conclusion that there was a lack of clarity in the statutory provisions which had only recently been the subject of judicial consideration. It did not consider that the applicant “should have been aware of it” because it “normally takes six months for such a development of the case law to acquire a sufficient degree of legal certainty before the public may be considered to be effectively aware of the domestic decision” (paragraph 70). It continued (at paragraph 71):

“In these particular circumstances, the applicant might have reasonably expected … the Administrative Court [to give him the correct information]. Instead, the Administrative Court declared his application inadmissible outright. As a result … he was prevented, through no fault of his own, from having the impugned decision … examined on its merits.”

That passage, including the words I have emphasised, demonstrates the fact-sensitive nature of the inquiry into whether or not “the very essence” of the right of access to a court has been impaired.

In my judgment, the present case is significantly different. The statutory provision was clear that the six week time limit started with “the relevant date” which was the date when the plan was adopted by the local planning authority. That 21 December was the date of adoption was abundantly clear – a fact that was reiterated in the Adoption Statement and the Notice of Adoption. Mr Barker and his specialist legal representatives should have been aware of all that. In effect, they allowed themselves to assume that there had been an indulgence which, as it went to jurisdiction, the Council was not competent to grant, even if its intentions were benevolent. In these particular circumstances, I do not consider that it can be said that there had been an impairment of “the very essence” of the right of access to the court.

There is another aspect of the case which seems to me to be significant. Important planning decisions are not simply of bilateral significance. They affect many interests. In a case such as the present other interested parties were entitled to assume, without the need to engage in litigation, that if no valid application was made within the statutory time limit, the ADPD would be beyond challenge.

It follows from what I have said that I would dismiss this appeal.

I agree.

I also agree.