Williams, R. (on the application of) v Secretary of State for Energy and Climate Change

In this claim for judicial review the claimant, Mr Michael Williams, challenges the development consent order made under section 114of the Planning Act 2008 by the defendant, the Secretary of State for Energy and Climate Change, on 12 September 2014, approving a major wind farm on land in the Clocaenog Forest in north Wales. The order is the Clocaenog Forest Wind Farm Order 2014 (S.I. 2441/2014). The claim alleges that in making the order the Secretary of State failed to comply with Council Directive 92/43/EEC (“the Habitats Directive”) and the Conservation of Habitats and Species Regulations 2010(“the Habitats Regulations”). It is opposed both by the Secretary of State and by the interested party, RWE Innogy UK Ltd., which intends to develop and operate the wind farm.

On 19 December 2014 Hickinbottom J. ordered that the application for permission to apply for judicial review, and, if permission were granted, the claim itself, should be dealt with together at a “rolled-up” hearing. That hearing took place at Mold Crown Court on 24 and 25 February 2015. At the end of it I reserved judgment. On 9 March 2015, Eversheds LLP, the solicitors acting for RWE Innogy, sent a letter to the Administrative Court Office, contending that the court had no jurisdiction to hear and determine the claim because the proceedings had not been issued until the day after the time limit set by section 118 of the 2008 Act had expired. I therefore invited written submissions on jurisdiction from all three parties. For the Secretary of State, Mr Richard Kimblin provided submissions dated 23 March 2015, as did Mr John Litton Q.C. for RWE Innogy. For Mr Williams, Mr John Hunter made submissions in response on 30 March 2015. Those submissions are supported by Mr Williams’ third witness statement in these proceedings, which is dated 30 March 2015. Mr Kimblin and Mr Litton replied on 1 April 2015. All three counsel made further submissions on the recent amendment to section 118, on 24 April 2015, and on the decision of the Court of Justice of the European Union in Uniplex (UK) Ltd. v NHS Business Services Authority (Case C-406/08) [2010] P.T.S.R. 1377 on 29 April 2015.

The application site, about 1,580 hectares of forest, lies within an area identified by the Welsh Government as one of seven capable of accommodating large wind farms. The application for the development consent order was made under section 37 of the 2008 Act by RWE Npower Renewables Limited in March 2013. The project for which development consent was sought was the construction of up to 32 wind turbine generators, each with a height to blade tip of 145 metres, together with related infrastructure and various other works. The installed capacity would be between 64 and 96 megawatts. There are ten dwellings near the application site. Mr Williams and his wife own one of them. They and other local residents objected.

The application did not include a proposal for the connection to the national grid. When it was made, alternative alignments for the grid connection were being considered – one running to the north, the other to the south. The choice between those two routes would depend on the route ultimately favoured by the distribution network operator, and the connection to the grid was to be the subject of a separate application, made later.

After an examination which began in September 2013 and ended in March 2014, the Examining Authority, Ms Wendy Burden, submitted a report to the Secretary of State, recommending that the order be made, subject to certain modifications. In his decision letter, which is dated 12 September 2014, the Secretary of State accepted that recommendation. In doing so, he said he agreed with the Examining Authority that, “given the contribution it will make to the production of renewable energy”, the case for approving the development was “not outweighed by the potential adverse local impacts … as mitigated by the proposed terms of the Order” (paragraph 9.1 of his decision letter).

As argued at the hearing, the claim challenges the Secretary of State’s conclusion in section 5 of his decision letter that adverse effects on the integrity of any European protected site as a result of the development of the Clocaenog Forest Wind Farm could be excluded, and that consent could therefore be granted for the project without first undertaking an appropriate assessment. Mr Williams says this was a conclusion the Secretary of State could not lawfully reach. Three main issues arise: first, whether the Secretary of State ought to have regarded the “project” as including the connection to the grid; secondly, whether, under regulation 6(3) of the Habitats Regulations, he was required to undertake an “appropriate assessment” either of a larger project embracing the connection to the grid or of the project as submitted to him in combination with the grid connection; and thirdly, whether, if the court finds that he was required to undertake an appropriate assessment, it should nevertheless withhold relief in the exercise of its discretion.

Those three issues were fully ventilated at the “rolled-up” hearing.But, as I have said, the prior issue now is whether the court has jurisdiction to entertain the claim at all.

Section 117 of the 2008 Act, under the heading “Orders granting development consent: formalities”, provides:

“(1)

This section applies in relation to an order granting development consent.

…

(3)

Except in a case within subsection (4), the Secretary of State must publish the order in such manner as the Secretary of State thinks appropriate.

(4)

If the order includes provision –

(a)

made under section 120(3) for or relating to any of the matters listed in paragraphs 32A and 32B of Schedule 5, or

(b)

made in the exercise of any of the powers conferred by section 120(5)(a) or (b), the order must be contained in a statutory instrument.

…

(6)

As soon as practicable after the instrument containing the order is made, the Secretary of State must deposit in the office of the Clerk of the Parliaments a copy of –

(a)

the instrument,

(b)

the latest version of any plan supplied by the applicant in connection with the application for the order contained in the instrument, and

(c)

the statement of reasons prepared under section 116(1).

…”.

At the relevant timesection 118 of the 2008 Act provided, under the heading “Legal challenges relating to applications for orders granting development consent”:

“(1)

A court may entertain proceedings for questioning an order granting development consent only if –

(a)

the proceedings are brought by a claim for judicial review, and

(b)

the claim form is filed during the period of 6 weeks beginning with –

(i)

the day on which the order is published, or

(ii)

if later, the day on which the statement of reasons for making the order is published.

(2)

A court may entertain proceedings for questioning a refusal of development consent only if –

(a)

the proceedings are brought by a claim for judicial review, and

(b)

the claim form is filed during the period of 6 weeks beginning with the day on which the statement of reasons for the refusal is published.

… .” (my emphasis).

Section 118 has been amended, with effect from13 April2015, by section 92(4) of the Criminal Justice and Courts Act 2015 (“Periods for certain legal challenges”) (see article 3 of, and Schedule 1 to, the Criminal Justice and Courts Act 2015 (Commencement No.1, Saving and Transitional Provisions) Order 2015). The time limit in section 118(1) has thus been changed. The words “before the end of” have been substituted for the word “during”, and the words “the day after” have been inserted after the words “beginning with”. Corresponding amendments have been made to section 118(2). The 2015 Act received the Royal Assent on 12 February 2015, and the 2015 Order was made on 19 March 2015. The amendment to section 118 does not have retrospective effect, and, as all three parties here agree, it has no bearing on the issue of the court’s jurisdiction in this case.I shall therefore refer throughout this judgment to section 118 as it was at the relevant time.

In April 2013 the Department for Communities and Local Government published a guidance document entitled “Planning Act 2008: Guidance for the examination of applications for development consent”. This guidance was issued in revised form in March 2015.In paragraph 111 of the April 2013 guidance document this advice is given on the notification of decisions on applications for development consent orders:

“Interested parties are entitled to be notified of the decision. Any written reports of assessors will be made available from the Inspectorate’s Website. The Secretary of State will also provide each interested party with a copy of the statement of reasons for his or her decision to grant or refuse development consent.”

The development consent order for the Clocaenog Forest Wind Farm changed the application of certain provisions of statute, and was therefore made as a statutory instrument, the Clocaenog Forest Wind Farm Order 2014.

Section 2(1) of the Statutory Instruments Act 1946 provides that, immediately after a statutory instrument is made, “it shall be sent to the King’s printer of Acts of Parliament … , and, except in such cases as may be provided by any Act passed after the commencement of this Act or prescribed by regulations made under this Act, copies thereof shall as soon as possible be printed and sold by [or under the authority of] the King’s printer of Acts of Parliament.”

Section 12(2) of the 1946 Act provides that “[the] publication in the London … Gazette” of a notice stating that a statutory instrument has been made, and specifying the place where copies of it may be purchased, is sufficient compliance with the provisions of any enactment requiring it to be “published or notified in that Gazette.”

Regulation 4 of the 1947 regulations provides for the “Classification” of statutory instruments as either “local or general according to their subject matter”; that unless there are special reasons to the contrary in any particular case, a statutory instrument which is “in the nature of a Local or Personal or Private Act” is to be classified as “local”, and a statutory instrument which is “in the nature of a Public General Act” is to be classified as “general”; and that “the responsible authority”, on sending a statutory instrument to “[the] King’s printer of Acts of Parliament”, must certify it as local or general.

Regulation 5 exempts certain statutory instruments from the requirements of section 2(1) of the 1946 Act “with respect to printing and sale of copies”. These include “any local instrument”.

Article 9(1) of Directive 2011/92/EU, to which I shall refer as “the EIA Directive”, provides that “the competent authority” must inform the public of a decision to grant or refuse development consent, and make available to it “(a) the content of the decision …”; “(b) … the main reasons and considerations on which the decision is based …”; and “(c) a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects …”.

Article 9(1) is given effect by regulation 23(2) of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009, which provides that where the Secretary of State determines an application for an order granting development consent that is EIA development he must

“…

(c)

inform the public of the decision by publication of a notice of the decision in the manner prescribed in paragraph (3) and by –

(i)

where the decision has been made by the Secretary of State, publication of a notice of the decision on the website of the Secretary of State;

…

(d)

make available for public inspection at the place where the register is kept a statement containing –

(i)

the content of the decision and, in the case of an order granting development consent, any requirements imposed in connection with the development for which consent is granted;

(ii)

the main reasons and considerations on which the decision is based including relevant information about the participation of the public;

(iii)

a description, where necessary, of the main measures to avoid, reduce, and, if possible, offset the major adverse effects of the development; and

(iv)

information regarding the right to challenge the validity of the decision and the procedures for doing so.”

for at least two successive weeks in one or more local newspapers circulating in the vicinity in which the proposed development would be situated;

once in a national newspaper;

once in the London Gazette …”.

In his decision letter the Secretary of State said that the Examining Authority’s report was being “[published] alongside this letter” (paragraph 1.4); that a copy of the development consent order was also being “published alongside this letter” (paragraph 3.1); that the decision letter should be “read with the [Examining Authority’s] Report and the Order”, and that the “letter with the aforementioned documents constitutes both the statement of reasons for [his] decision for the purposes of section 116 of the 2008 Act and, when published or placed appropriately, the notice and statement required by regulation 23(2)(c) and (d) of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 …” (paragraph 3.3); and that the “amended order is published alongside this letter” (paragraph 10.1).

Section 12 of the decision letter is headed “Challenge to decision”. Paragraph 12.1 says that “[the] circumstances in which the Secretary of State’s decision may be challenged are set out in the note attached in the Annex to this letter”.The Annex says:

“Under section 118 of the Planning Act 2008, an Order granting development consent … can be challenged only by means of a claim for judicial review. A claim for judicial review must be made to the Planning Court during the period of 6 weeks from the date when the Order is published. The Clocaenog Forest Wind Farm Order as made is being published on the date of this letter on the Planning Inspectorate website at the following address:

http://infrastructure.planningportal.gov.uk/projects/wales/clocaenog-forest-wind-farm/”.

These notes are provided for guidance only. A person who thinks they may have grounds for challenging the decision to make the Order referred to in this letter is advised to seek legal advice before taking any action. If you require advice on the process for making any challenge, you should contact the Administrative Court Office at the Royal Courts of Justice …” (my emphasis).

Section 13 of the letter is headed “Publicity for decision”. Paragraph 13.1 says that “[the] Secretary of State’s decision on this application is being published as required by section 116 of the 2008 Act and regulation 23 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009”.

The order was put on the Planning Inspectorate’s website on 12 September 2014. That was a Friday. On that day, at 1.04 p.m., the Planning Inspectorate sent Mr Williams an e-mail, which said:

“Dear Sir/Madam

Clocaenog Forest Wind Farm (EN010013)

Your reference: 10017315

Please follow the link below to view the letter giving notice of the decision by the Secretary of State for Energy and Climate Change: http://infrastructure.planningportal.gov.uk/document/2667739

If this link does not open automatically, please cut and paste it into your browser.

Yours faithfully

The Clocaenog Forest Wind Farm Case Team

The Planning Inspectorate, Temple Quay House, Temple Quay, Bristol, BS1 6PN

Helpline: 0303 444 5000

Email: clocaenogwindfarm@infrastructure.gsi.gov.uk

Web: www.planningportal.gov.uk/planninginspectorate (Planning Inspectorate casework and appeals)

Web: www.planningportal.gov.uk/infrastructure (Planning Inspectorate’s National Infrastructure Planning portal)

Twitter: @PINSgov

This communication does not constitute legal advice.

Please view our Information Charter before sending information to the Planning Inspectorate.”.

In a letter dated 12 September 2014, Mr Mark Southgate, the Director of Major Applications and Plans at the Planning Inspectorate, notified Mr Williams of the publication of the Secretary of State’s decision. The letter was sent to Mr Williams by post. It said:

“Dear Sir/Madam

Planning Act 2008 (as amended) – Sections 116 and 117 and The Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 (as amended) – Regulation 23

Application by RWE npower renewables for an Order Granting Development Consent for the Clocaenog Forest Wind Farm

Notice of the decision by the Secretary of State

I write to notify you of the publication of the Secretary of State’s decision and statement of reasons and the Order granting development consent in relation to the above application.

The Secretary of State as the decision maker under s103 and s104 of the Planning Act 2008 (as amended) has decided that development consent should be granted, and therefore has made an Order under s114 (1)(a) of the Planning Act 2008.

Electronic copies of the decision documentation, including the Secretary of State’s decision letter, Habitats Regulations Assessment and the text of the made Order can be viewed at:

http://infrastructure.planningportal.gov.uk/projects/wales/clocaenog-forest-wind-farm/?ipcsection=docs

The report submitted to the Secretary of State by the Examining Authority is also available at the same link.

Hard copies of the decision documentation will also be available to inspect at the Planning Inspectorate’s offices (by appointment using the contact details above). If you wish to receive a copy of the Secretary of State’s decision letter and the text of the Order, please write to or email us using the contact details provided at the top of this letter. No charge will be made if you wish us to send you a copy.

There is no right of appeal under the Planning Act 2008. The High Court may entertain proceedings to question an Order granting development consent from the day on which the Development Consent Order is published or (if later) the day on which the decision letter is published. The procedure is to make an application for judicial review. This must be done within the statutory period of time set out in s118 of the Planning Act 2008. Please contact the Administrative Court office for further information … or follow this link:

http://www.justice.gov.uk/courts/rcj-rolls-building/administrative-court/applying-for-judicial-review

If you have any queries about the Secretary of State’s decision letter, the Habitats Regulations Assessment or the made Order please contact:

…”.

The letterthengave the name, address and e-mail address of the Case Manager for National Infrastructure Consents at the Department of Energy and Climate Change, and said that further details of the project could be found on RWE Innogy’s website, whose address it provided.

On Monday, 15 September 2014 the order was put on the legislation.gov.uk website. It was published in printed form in the week beginning on that day. Notices announcing the Secretary of State’s decision were published in the Denbighshire Free Press on Wednesday, 24 September 2014, and in the London Gazette on Thursday, 25 September 2014.

Mr Williams’ claim was lodged with the Administrative Court in Cardiff on Friday, 24 October 2014.

In his witness statement of 30 March 2015 Mr Williams says he has “no recollection of having dealt with”the e-mail sent to him by the Planning Inspectorate at 1.04 p.m. on 12 September 2014 “until the following week” (paragraph 13). He says it is “unlikely” that the Planning Inspectorate’s letter of 12 September 2014 “was received until Monday[,] 15 September 2014” (paragraph 20). The “earliest … [he] would have had knowledge of the decision would have been 15 September” (paragraph 22). He next “sought representation from [his] solicitors who then instructed counsel” (paragraph 25). After the “Letter before Action” was sent on 10 October 2014 letters in response on behalf of the RWE Innogy and Secretary of State reached his solicitors on 21 and 22 October 2014 respectively. Other local residents were “reluctant to get involved any further” (paragraph 26). It was “only on … 24 October – after considerable thought – that [he] made a decision to lodge the Claim Form …” (paragraph 27). He concludes his evidence in these three paragraphs:

“28 The corollary of the timetable as set out above is that although there is only a six week time period for me to find money to cover fees, find representation, gather together information and documentation and to leave time for those instructed to prepare my legal case, time started to run when I was in receipt of the letter which at the earliest would been the 15 September 2014.

29 As for the final day when the claim was issued, with very little time after a response from the [Secretary of State] and [RWE Innogy] and the withdrawal of other campaigners from fighting the decision, I had to make the hard decision of taking the risk myself and I did this as swiftly as I could, given that I have a family to support and other responsibilities.

30 As to the very late notification of the Court by [RWE Innogy] and the [Secretary of State] to this issue, it seems this has been used tactically only and it effectively takes away my rights to have the decision judged by the Court.” (my emphasis).

In their letter of 9 March 2015 Eversheds brought to the court’s attention the recent judgment of Ouseley J. in two claims challenging the Thames Water Utilities (Thames Tideway Tunnel) Development Consent Order 2014 – R. (on the application of Blue Green London Plan) v Secretary of State for the Environment, Food and Rural Affairs (CO/4943/2014) and Southwark London Borough Council v Secretary of State for Communities and Local Government (CO/4946/2014). Ouseley J. gave judgment in that case, ex tempore, on 15 January 2015, holding that the court had no jurisdiction. The issue on which argument before him had concentrated was the meaning of the words “beginning with” in section 118 of the 2008 Act. Was the effect of those words that the six week period for bringing a challenge began on the date when the development consent order was published, or did time start to run only on the following day? Ouseley J. said (in paragraph 16 of his judgment) that it was “perfectly clear that, as a matter of ordinary statutory construction, a period of six weeks beginning with the day on which an event occurred includes the day on which the event occurred”. He reached this conclusion “by reference to clear authority” – though none of the previous case law dealt directly with section 118 of the 2008 Act (paragraph 17). The two claims before him were out of time, and an extension of time was not possible (paragraph 47). The time limit in section 118 was “a statutory limitation upon the jurisdiction of the court” (paragraph 55). There were now several different time limits for statutory challenges to planning decisions and parties must be alert to the need to lodge their proceedings in time (paragraph 65).

Mr Litton explains why it was only after the hearing on 24 and 25 February 2015 that the question of the court’s jurisdiction in this case was raised. A corrected transcript of Ouseley J.’s judgment in the Thames Tideway Tunnel case became available on 2 March 2015. RWE Innogy became aware of it on 6 March 2015. Eversheds wrote to the court on the next working day – which was 9 March 2015 – saying that Ouseley J.’s judgment raised “a new point of law concerning the jurisdiction of the Court to entertain the claim …”. The essential facts of the two cases were the same. The Clocaenog Forest Wind Farm Order was made on 12 September 2014, which was the day on which the order in the Thames Tideway Tunnel case was made. Mr Williams’ claim form was filed on 24 October 2014, the same day as the claimants in the Thames Tideway Tunnel case filed theirs. That was a day out of time. In this case too the claim was filed a day late, and in just the same way the court has no jurisdiction to determine the claim.

Both Mr Kimblin and Mr Litton rely on Ouseley J.’s analysis, which, they say, is clearly correct and ought to be applied here. The time limit in section 118 is immutable. It has the force of statute. The court has no power to extend time. Here, as in the Thames Tideway Tunnel case, the proceedings were issued out of time. The court has no jurisdiction to determine the claim, and should therefore dismiss it for that reason alone. It cannot be suggested that the order was published on a date later than 12 September 2014. The date of publication which starts the period of six weeks for filing a claim is the date on which the order is first published. In this case that was done on 12 September 2014, when the order and the statement of the Secretary of State’s reasons for making it were was put on the Planning Inspectorate’s infrastructure planning website. On the same day the Secretary of State also notified interested parties, including Mr Williams, that the order had been published. Sending them an e-mail notifying them that the decision had been made and providing a link to the Planning Inspectorate’s infrastructure planning website, where the order and the Secretary of State’s statement of reasons for making it could be found, was sufficient publication within the meaning of section 118 of the 2008 Act.The date of the publication of the order on the legislation.gov.uk website is irrelevant. The order had already been published with the Secretary of State’s reasons on 12 September 2014.Mr Kimblin also submits that in any event, as the order was merely a “local instrument” under regulation 4 of the 1947 regulations, regulation 5 exempted it from the requirements of section 2(1) of the 1947 Act.

Mr Hunter resists that argument. He submits that if a point on the court’s jurisdiction was going to be taken in this case, that ought to have been done in the acknowledgements of service (see rule 11(5) of the Civil Procedure Rules, and the decisions of the Court of Appeal in R. (on the application of Ewing) v Office of the Deputy Prime Minister [2006] 1 W.L.R. 1260 and Shah v Immigration Appeal Tribunal [2004] EWCA Civ 1665). That was not done. Both the Secretary of State and RWE Innogy urged the court to list Mr Williams’ claim, with expedition, for a “rolled-up” hearing. If their argument on jurisdiction is accepted, all three parties will have incurred a large amount of needless expense.

But Mr Hunter argues that the submissions made by Mr Kimblin and Mr Litton are in any case “bad on the merits, notwithstanding the apparent support they derive from [Ouseley J.’s judgment in the Thames Tideway Tunnel] case”. In that case there was no dispute about the date on which the order had been published. Ouseley J. did not have to decide what constitutes “publication” within the meaning of section 118(1)(a). That issue, however, is very much in dispute here. What amounts topublication will vary according to the context. Orders granting development consent under the 2008 Act are, by definition, of national significance. The public concerned is a national public, and the concept of publication in section 118(1) must be seen in that light. Because this was a case in which section 117(4) applied, the Secretary of State could not simply publish the order in the way he thought “appropriate” under section 117(3). The order had to be published in the form of a statutory instrument, under the requirements of sections 2(1) and 12 of the 1946 Act. It could not be said to have been published – within the meaning of section 118(1) – until every step the Secretary of State was required to take in bringing it to the attention of the public had been completed. Putting it on the Planning Inspectorate’s infrastructure planning website was only one of those steps, and was, in itself, “legally inadequate”.Because the order granted consent for EIA development the Secretary of State was also obliged, under regulation 23 of the 2009 regulations, toinform the public of his decision by, among other things, publishing notice of it in the local press and in the London Gazette. In a case to which regulation 23 applies, the publication of a development consent order must involve all of the steps specified in that regulation. Otherwise, a member of the public who became aware of an order only through a notice later placed in the press might be deprived of the opportunity to get a challenge before the court. As Ouseley J. acknowledged in the Thames Tideway Tunnel case, the guidance on the time limit in section 118 given in the Secretary of State’s decision letters is wrong, and this only makes the possible mischief worse.

Mr Hunter’s alternative argument is this. Even if the Secretary of State had some discretion under section 117 in deciding how the order should be published, the steps he chose to take in publishing it were not complete until “well after 12 September [2014]”.The Secretary of State clearly thought it necessary to publish the order not only by putting it on the Planning Inspectorate’s infrastructure planning website, but also by placing it on the legislation.gov.uk website and by publicizing it both under regulation 23 of the 2009 regulations and under section 12(2) of the 1946 Act.

Finally, Mr Hunter submits, if section 118(1) can only be construed as Mr Kimblin and Mr Litton contend, the court must refrain from applying it. In making this submission he relies on the decision of the Court of Justice of the European Union in Uniplex. An effective procedure for review by the court can be achieved only if the period for bringing a claim runs from the date on which a claimant knew or ought to have known of the alleged error of law. In this case that principle is strengthened by article 9 of the EIA Directive and regulation 23 of the 2009 regulations.

Mr Hunter accepts that the six-week time limit is sufficiently certain to comply with European Union law. But relying on what the court said in paragraphs 32 and 50 of its judgment in Uniplex, he submits that a time limit running from the date of the decision rather than from the time when a claimant had actual or constructive knowledge of it is incompatible with the aim of ensuring an effective right of review. The domestic court must therefore use such discretion as it has to extend the time limit to ensure there is an effective opportunity for review, or else disapply the relevant provisions. In this case Mr Williams did not actually know about the Secretary of State’s decision until after 12 September 2014, nor did he have constructive knowledge of it on that day.

Like the directive considered in Uniplex, says Mr Hunter, the EIA Directive incorporates the right to effective review – in article 11. That right precludes time beginning to run before the date of actual or constructive knowledge. As the Court of Appeal’s decision in R. (on the application of Berky) v Newport City Council [2012] EWCA Civ 378 and other decisions of the domestic courts show, if that principle apples in the context of public procurement it is equally apt in the context of planning decisions where the regime for environmental impact assessment is engaged. To ensure an effective right of review consistent with the EIA Directive, the concept of a development consent order being “published” under section 118(1) of the 2008 Act must entail compliance with the requirements of the 2009 regulations for publicizing decisions. Otherwise, the time for challenge would be foreshortened, and could even have expired, before members of the public had been notified of a decision in the way the United Kingdom had decided to discharge its obligations under the EIA Directive. The Court of Justice would not consider such a right of review “effective”. But in any case, Mr Hunter submits, even if the court is unable to accept that argument there is at least enough doubt on the matter to justify a reference for a preliminary ruling. He points to the observations of all three judges to similar effect in the Court of Appeal in Berky.

I cannot accept Mr Hunter’s submissions. In my view Mr Kimblin’s and Mr Litton’s argument is correct.

It is, of course, regrettable that the question of the court’s jurisdiction was not raised at the outset when Hickinbottom J. considered the case on the papers and ordered a “rolled-up” hearing, or when the case came before me to be fully argued on its merits. But oncethe court’s jurisdiction has beenchallenged, however late this is done, it must resolve that issue before it does anything else.

As Mr Litton submits, the court is not relieved of that task by rule 11(5) of the Civil Procedure Rules. Rule 11(5) states that if the defendant files an acknowledgment of service and does not, within 14 days of doing so, make an application for an order declaring either that the court has no jurisdiction or that it should not exercise the jurisdiction it has or may have, “he is to be treated as having accepted that the court has jurisdiction to try the claim”. In this case the dispute as to jurisdiction falls within the first category of circumstances referred to in rule 11(1), namely a dispute over “the court’s jurisdiction to try the claim”, not the second category, where the issue is whether or not the court should “exercise its jurisdiction”. In Shah the Court of Appeal accepted that in a case where the court’s jurisdiction can be shown not to exist at all “the procedural inhibitions on taking the point have to yield (subject to the award of costs) to the principle that jurisdiction cannot be created by consent or acquiescence” (see paragraph 8 of Sedley L.J.’s judgment, with which Ward and Carnwath L.JJ. agreed). If there is a legislative bar on the court’s jurisdiction, such as a statutory time limit within which a relevant challenge must be made (which in Shah there was not), the court cannot have jurisdiction conferred upon it by procedural rules. And I do not think Mr Hunter submits that it can.

A time limit of six weeks for challenges to decisions of the Secretary of State has traditionally been used by Parliament in planning and compulsory purchase legislation. The purpose of imposing such a limitation on the court’s jurisdiction is administrative certainty. Section 118(1) of the 2008 Act belongs to that tradition. The period of six weeks specified in section 118(1) as the time within which a claim for judicial review of a development consent order must be issued is not flexible or indefinite. It is fixed and certain. And it has the force of statute. The claim must be filed within the period of six weeks “beginning with” the day on which the order is published. A claim issued out of time, even one day out of time, is too late and beyond the reach of the court’s jurisdiction. The court has no discretion to extend time. The period for challenge cannot be enlarged, even when the court might wish it could do so to avoid injustice to a particular claimant (see, for example, the Court of Appeal’s decision in R. v Secretary of State for the Environment, ex parte Kent [1990] J.P.L. 124 – especially the judgment of Parker L.J. at p.129).

In the Thames Tideway Tunnel case Ouseley J. discussed (in paragraphs 18, 19 and 35 to 38 of his judgment) the relevant jurisprudence on statutory time limits (in particular, the decisions of the Court of Appeal in Okolo v Secretary of State for the Environment [1974] 4 All E.R. 242, Berky and Barker v Hambleton District Council [2012] EWCA Civ 610). The jurisprudence is settled and clear. I entirely agree with what Ouseley J. said about it, and the conclusions he drew from it. I need not set out his reasoning here. At the heart of it was the decision of the Court of Appeal in Barker, where, in paragraph 12 of his judgment, Maurice Kay L.J., with whom Richards and Kitchin L.JJ. agreed, distinguished between statutory time limits framed in terms of a claim having to be issued within six weeks “from” the date of the decision and those framed in terms of a claim “starting with” that date. The former meant that the first day to be counted was the day after the date of the decision; the latter that the first day was the date of the decision itself.

In the light of the relevant case law, and adopting the construction of the words “beginning with” in section 118(1) of the 2008 Act favoured by Ouseley J., I conclude, as did he, that the calculation of the period for challenge set by that provision includes the day on which the order in question and the Secretary of State’s reasons were published. That, I think, is absolutely clear. The recent amendment to section 118 was a deliberate change to the time limit.

Mr Hunter does not argue against that understanding of section 118(1). He implicitly concedes that time began to run on the day on which the publication of the development consent order was accomplished. Which day that was he does not say. He submits, however, that it was “well after 12 September [2014]”. If it was the day on which notice of the Secretary of State’s decision appeared either in the local press – 24 September 2014 – or in the London Gazette – 25 September 2014 – that would be hard to reconcile with Mr Williams’ evidence in paragraph 28 of his witness statement of 30 March 2015 (see paragraph 26above). But Mr Hunter’s argument does not depend on his being able to be precise about the date. If the order was not published on 12 September 2014 time could not have started to run on that day. It could only have begun to run later, and, if it did, Mr Williams’ claim for judicial review cannot have been issued too late. Neither Mr Kimblin nor Mr Litton has suggested that the court lacks jurisdiction because the claim was issued prematurely – that is to say, before the six week period began.

The critical question therefore is whether the Clocaenog Forest Wind Farm Order was published, within the meaning of section 118(1), on 12 September 2014.

In my view it was. I base that conclusion on a straightforward interpretation of the statutory formula in section 118(1)(b) of the 2008 Act – “the day on which the order is published” or, if later, “the day on which the statement of reasons for making the order is published”. The words mean what they say. What they mean, in their ordinary sense, is the day on which the order, or the statement of the Secretary of State’s reasons for making it, is put into the public domain. The concept of publicationin this context, I think, reflects the normal meaning of the verb to “publish” – to “[make] generally known, declare or report openly; announce …” (Shorter Oxford English Dictionary, sixth edition). The same may be said of the concept of the Secretary of State’s reasons for a refusal of development consent being “published”, as the parallel provision for that eventuality is framed in section 118(2)(b). Here again the focus is on the reasons for the Secretary of State’s decision being made known to the general public, as well as to those members of the public particularly affected by it. The critical step, which starts the period for challenge, is the publication of the Secretary of State’s reasons for his decision.

The way in which an order and the Secretary of State’s statement of reasons for making it are to be “published” is not prescribed by section 118. But in my view the placing of the order on the Planning Inspectorate’s infrastructure planning website on 12 September 2014, together with the Secretary of State’s decision letter and the Examining Authority’s report, and, on the same day, the notification of interested parties, both by e-mail and by post, that this had been done, was enough to constitute publicationof the order, and the reasons why it was made, within the meaning of section 118. It enabled any interested party, including Mr Williams, to consider, with the benefit of legal advice,whether there were grounds for a claim for judicial review, and, if there were, to launcha challenge within the statutory period of six weeks. The fact that the Secretary of State chose to publish the order in that way but then went on to publish it in other ways as well does not mean that he failed to publish it, and his reasons for making it, on 12 September 2014. Putting boththe order and the reasons on the Government’s legislation.gov.uk website, producing it and sending it out in printed form, and placing notices in the London Gazette and in the local press to announce the decision were all separate and additional acts of publication. But the order and reasons had been published on 12 September 2014. This was all that was necessary to start the period within which a legal challenge to the order could be made.

I do not accept that the provisions of section 117 point to some other understandingof section 118. There is clearly a difference between the concept of publishing a development consent order by making it known to the public that the order has been made, and the concept of the formalities involved in the making of a statutory instrument. Section 117(3) allows the Secretary of State to publish an order granting development consent “in such manner as [he] thinks appropriate” unless the order falls within the ambit of section 117(4), in which case it “must be contained in a statutory instrument”. The status of a development consent order as a statutory instrument, if it has to be in that form, requires a particular statutory process to be followed. That process has to be followed, no matter how the Secretary of State has initially published the order and his reasons for making it. The relevant provisions of the 1946 Act and 1947 regulations lay down the procedure by which statutory instruments are to be promulgated, and provide differently for local instruments and general instruments in the formal steps required. In this case it was necessary for the development consent order to be contained in a statutory instrument. As a local instrument it was exempt from the requirements of section 2(1) of the 1946 Act. Mr Hunter does not suggest that any of the necessary formalities under the 1946 Act and 1947 regulations were neglected. But in any event the order and the Secretary of State’s reasons for making it were in the public domain on 12 September 2014, and interested parties had been told on the same day that this was so. That is the crucial point.

If Parliament had intended to include in section 118 different concepts of a development consent order being “published” depending on whether or not it was required to be contained in a statutory instrument, I think it would have done so. Had the intention been to provide that the period for challenge would start only when a particular requirement of the 1946 Act or the 1947 regulations had been discharged, this could have been done. But it was not. I doubt that such provisions would have been conducive to clarity, certainty and consistency in the statutory regime for challenging decisions on applications for development consent orders. The fact is, however, that section 118 was not drafted in that way. And I do not think the court should imply into it provisions that Parliament did not see fitto insert.

The same may be said of the requirements of the 2009 regulations. If Parliament had intended the time limit in section 118 to begin on the day on which a particular requirement of regulation 23 of the 2009 regulations was satisfied – presumably the requirement in paragraph (2)(c) that the public be informed of the decision “by publication of a notice of the decision in the manner prescribed in paragraph (3)” – it could and would have done so. Again, however, it did not. And again, I see no reason to read such a provision into section 118.

So one is left with the simple concept of a development consent order being published on the day when the order itself and the Secretary of State’s reasons for making it are made known to the public. That is how section 118(1)(b) of the 2008 Act should be understood.

In this case both order and reasons were published on 12 September 2014. And, unfortunately for Mr Williams, that fact is fatal to Mr Hunter’s argument on jurisdiction. Under section 118 the claim for judicial review had to be issued by no later than 23 October 2014. It was not. It was issued the following day, which was a day too late. The court has no jurisdiction to hear it.

Does the judgment of the Court of Justice of the European Union in Uniplex provide a route to a different conclusion? In my view it does not.

It was held in Uniplex that rules limiting the period within which proceedings may be brought to vindicate rights deriving from European Union law must be certain if they are to ensure that the law is capable of effective enforcement. A requirement that proceedings be brought “promptly” would render the limitation period discretionary and thus undermine the effectiveness of the transposition into domestic law of the relevant European legislation.

The court had to consider two distinct questions. The first was whether article 1(1) of Directive 89/665/EEC required that the period for bringing proceedings seeking to establish an infringement of the rules for public procurement, or to obtain damages for the infringement of those rules, started to run from the date of the infringement or from the date on which the claimant knew, or ought to have known, of it (see paragraph 25 of the court’s judgment). That question arose from the fact that the unsuccessful tenderer had been notified on 22 November 2007 that it would not be awarded a framework agreement but was not given the reasons for that decision until 13 December 2007. The second question was in two parts. The first part concerned the interpretation of the directive as it relates to a requirement under national law that proceedings be brought “promptly”. The second part concerned the effect of the directive on the discretion conferred on the national court to extend periods within which proceedings must be brought (see paragraph 36).

As I understand his argument, Mr Hunter seeks to rely, at least principally, on the court’s conclusions on the first question. When dealing with that question the court observed (at paragraph 27) that “[the] detailed procedural rules governing the remedies intended to protect rights conferred by Community law on candidates and tenderers harmed by decisions of contracting authorities must not compromise the effectiveness of Directive 89/665 …”. It recalled (at paragraph 29) that article 1(1) of the directive “requires member states to guarantee that unlawful decisions of contracting authorities can be subjected to effective review which is as swift as possible …”. It went on to say (at paragraph 30) that “the fact that a candidate or tenderer learns that its application or tender has been rejected does not place it in a position effectively to bring proceedings”, and that “[such] information is insufficient to enable the candidate or tenderer to establish whether there has been any illegality which might form the subject matter of proceedings”. It continued (at paragraph 31):

“It is only once a concerned candidate or tenderer has been informed of the reasons for its elimination from the public procurement procedure that it may come to an informed view as to whether there has been an infringement of the applicable provisions and as to the appropriateness of bringing proceedings.”

It followed, said the court (at paragraph 32), that the objective laid down in article 1(1) of the directive “of guaranteeing effective procedures for review of infringements of the provisions applicable in the field of public procurement can be realised only if the periods laid down for bringing such proceedings start to run only from the date on which the claimant knew, or ought to have known, of the alleged infringement of those provisions: see, to that effect, [Universale-Bau AG v Entsorgungsbetriebe Simmering GnbH (Case C-470/99) [2002] ECR I-11617], para 78”. That, in substance, was the court’s answer to the first question (see paragraph 35).

The court’s answer to the first part of the second question (at paragraph 43) was that article 1(1) of the directive “precludes a national provision, such as [regulation 47(7)(b) of the Public Contracts Regulations 2006], which allows a national court to dismiss, as being out of time, proceedings seeking to have an infringement of the public procurement rules established or to obtain damages for the infringement of those rules on the basis of the criterion, appraised in a discretionary manner, that such proceedings must be brought promptly”. The court answered the second part of the second question in this way (at paragraph 50):

“… Directive 89/665 requires the national court, by virtue of the discretion conferred on it, to extend the limitation period in such a manner as to ensure that the claimant has a period equivalent to that which it would have had if the period provided for by the applicable national legislation had run from the date on which the claimant knew, or ought to have known, of the infringement of the public procurement rules. If the national provisions do not lend themselves to an interpretation which accords with Directive 89/665 the national court must refrain from applying them, in order to apply Community law fully and to protect the rights conferred thereby on individuals.”

The decision in Uniplex was relied upon by judges of the Administrative Court in two cases where the claimants had sought judicial review of planning decisions, alleging a failure to undertake environmental impact assessment (see R. (on the application of Buglife) v Medway Council [2011] EWHC 746 (Admin) and R. (on the application of U. & Partners (East Anglia) Ltd. v Broads Authority [2011] EWHC 1824 (Admin)).

The question which divided opinion in the Court of Appeal in Berky related to the court’s power under section 31(6) of the Senior Courts Act 1981 to withhold relief for “undue delay”. Carnwath L.J. was of the view that the court’s decision in Uniplex was concerned only with the time allowed for commencing proceedings, and did not affect the discretion under section 31(6) (see paragraph 37 of his judgment). Moore-Bick L.J. and Sir Richard Buxton disagreed (Moore-Bick L.J. in paragraphs 49 to 53 of his judgment, and Sir Richard Buxton in paragraphs 61 to 77 of his). Moore-Bick L.J. observed (at paragraph 52) that the court’s power to refuse relief on the grounds of delay in commencing proceedings, even though the three-month time limit had not been exceeded, infringed the European Union law principles of certainty and effectiveness just as much as a rule which requires proceedings to be begun promptly.

That, however, is not the issue here. Section 118 of the 2008 Act is not framed in language that leaves any uncertainty about the period within which proceedings to challenge a development consent order must be issued. The concepts of promptness and undue delay have no part to play. The time limit could not be more certain. The date of the publication of the order and of the Secretary of State’s statement of reasons can be readily ascertained. Time runs, beginning on that date, regardless of a claimant’s actual knowledge of the order in question.

In my view the submissions that Mr Hunter seeks to found upon the court’s decision in Uniplex are mistaken. The particular questions which the court had to resolve in that case do not seem germane to the jurisdictional issue here. And I cannot see how it can be said that any of the principles identified and applied by the court in answering those questions supports the argument that there is jurisdiction under section 118 for Mr Williams’ claim to be heard.

As Mr Litton submits, the facts and circumstances of this case are not analogous to those of Uniplex. They are very different. In Uniplex the reasons for the decision were provided only after the notification of the decision itself had been given. The disappointed tenderer was not in a position effectively to bring proceedings until it was aware of the reasons for the decision. Until then it could not have known whether there had been an infringement of the relevant procedural rules (see paragraph 54 above). In this case, by contrast, the Secretary of State’s decision and his reasons for it, together with the development consent order itself, were published at the same time, on 12 September 2014. It cannot be said that Mr Williams did not have at least constructive knowledge of both decision and reasons on that date (see paragraphs 19 to 23 above). Exactly when it was that he had actual knowledge of the decision is not clear from his evidence, though he was obviously aware of it well within the statutory period for challenge (see paragraph 26 above). But in any event the day on which he “knew, or ought to have known,” of the decision and the reasons for it was plainly 12 September 2014, not some indeterminate later date within the statutory six-week period for challenge. Time began to run on that day. As Mr Kimblin and Mr Litton submit, the fact that Mr Williams did not apparently open the e-mail sent to him on behalf of the Secretary of State at 1.04 p.m. on 12 September until sometime in the following week did not extend the time for issuing proceedings so that it began only on the day he read the e-mail, whenever that was. This is no different from the situation in which somebody affected by a planning decision chooses not to read a decision letter sent to him in the post, or is unable to do so, until well after the period for challenge has begun, or even after it has passed. A statutory time limit such as that set by section 118 of the 2008 Act does not fluctuate in those circumstances. The court has no discretion to vary a time limit of this kind. And the judgment of the Court of Justice of the European Union in Uniplex does not decide that it should.

The provisions of section 118 do not offend the principle that the period laid down for bringing a challenge before the court must start to run only from the date on which a claimant knew, or ought to have known, of the alleged error of law in the decision impugned. On the contrary, they clearly respect that principle. They are not at odds with the answer given by the court to the first question in Uniplex (see paragraph 54 above), or indeed with its conclusions on either part of the second question (see paragraph 55 above).

Nor does Uniplex provide any support for Mr Hunter’s submission that time runs under section 118(1) only once the publicity requirements in the 2009 regulations for decisions on development subject to environmental impact assessment have been met. As Mr Kimblin submits, there is no European or domestic jurisprudence which indicates that statutory time limits in the planning legislation, such as that provided in section 118, must be construed or applied in that way.

European Union law does not specify what an appropriate time limit for challenging a decision in the field of environmental law should be, or require that any time limit set for such a challenge should be subject to the court’s discretionary power to extend it. In Lesoochranarske Zoskupenie Vik v Ministerstvo Zivotneho Prostredia Slovenskej Republiky [2011] Env. L.R. 28 the Grand Chamber said (in paragraph 47 of its judgment) that “[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 …”. The Court of Appeal accepted in Barker that the six week period for challenge in section 113 of the Planning and Compulsory Purchase Act 2004 did not offend the principle of effectiveness. Maurice Kay L.J. said (in paragraph 23 of his judgment) that it was neither impossible nor excessively difficult for the claimant to make his application to the court within the statutory time limit. Six weeks was “a clear and reasonable time limit”. The statute provided an “effective remedy”. The fact that in that case the local planning authority had misstated the time limit “[could not] have the effect of rewriting a jurisdictional rule”. So too in the Thames Tideway Tunnel case – and here: the fact that in his decision letters the Secretary of State gave misleading guidance on the time limit in section 118 has no effect upon the time limit which Parliament has put in place.

Nor can it be suggested that a statutory time limit of six weeks jeopardizes a claimant’s right to a fair trial under article 6 of the European Convention on Human Rights. In Matthews v Secretary of State for the Environment [2002] 2 P. & C.R. 34 Sullivan J., as he then was, rejected the submission that the six week period in section 288(3) of the Town and Country Planning Act 1990 for applications for orders to quash decisions of the Secretary of State on appeal was incompatible with article 6. As he said (in paragraph 33 of his judgment), the fixed time limit “does indeed pursue a legitimate aim, that is to ensure legal certainty and finality”, an important objective in land use planning because both land owners and public authorities need to know where they stand as soon as is possible”. It is, said Sullivan J., “in everyone’s interests to have a considerable degree of finality in planning cases”. I would echo that sentiment. It applies no less to nationally significant infrastructure projects promoted under the 2008 Actthan to schemes far less ambitious than that. AsMaurice Kay L.J. emphasized in Barker (in paragraph 29 of his judgment), important planning decisions are “not simply of bilateral significance”. They affect “many interests”. Interested parties had been “entitled to assume, without the need to engage in litigation, that if no valid application was made within the statutory time limit, [the plan] would be beyond challenge”.

I therefore conclude, as Mr Kimblin and Mr Litton submit, that there is in this case no justification for a reference to the Court of Justice of the European Union. Mr Hunter fails to identify any question relevant to the court’s jurisdiction under section 118 of the 2008 Act which is not acte clair.

I should add that various other arguments based on European Union law were advanced in the Thames Tideway Tunnel case. The thrust of them, as Ouseley J. said (in paragraph 57 of his judgment), was that “because there was a European Union law component to the challenge and because the environmental directives and the Aarhus Convention on access to information, and public participation in decision making, all having the purpose of enabling a greater degree of public participation in environmental decision making, this court should interpret the provisions or regard [them] as overborne by provisions of EU law”. Ouseley J. had no difficulty in rejecting those arguments (in paragraphs 58 to 64 of his judgment), and his reasons for doing so are in my view compelling.

To be absolutely clear, the conclusion that the court does not have jurisdiction to determine Mr Williams’ claim for judicial review is not in any way inconsistent with the decision of the court in Uniplex, or with any other European jurisprudence.

I am therefore in no doubt that the court lacks jurisdiction to determine this claim.It makes no difference to this conclusion that until Ouseley J.’s approved judgment in the Thames Tideway Tunnel case came to hand all three parties had assumed that the court had jurisdiction to deal with the claim. Jurisdiction is not generated by the parties’ agreement, nor by their mutual mistake.

Mr Kimblin and Mr Litton ask me to indicate what my decision on the merits of the claim would have been if I had had jurisdiction to determine it.Mr Kimblin invites me to give “at least summary reasons” on the substantive issues, in case “an appellate court finds that there was indeed jurisdiction to try the claim”. Having heard full argument on those issues, the court is able to tell the parties what the outcome would have been if the case had been properly before it, and therefore it should. Mr Litton says it would be “desirable” for the court to “express its view on the merits notwithstanding that [it] has no jurisdiction”. Mr Hunter does not invite me to do that, but he does not say that I should not.

I do not accept Mr Kimblin’s and Mr Litton’s invitation, for three reasons.

First, if, as I have held, the court has no jurisdiction to hear the claim, the parties are not entitled to the court’s adjudication on their dispute, not even in the form of an outline, provisional discussion of the merits. The fact that the issues have been fully ventilated in argument does not change that. The situation here is quite different from that in which the court, in a case it has jurisdiction to hear, expresses a contingent view on a substantive issue which would not arise if its conclusion on another issue were right.

Secondly, the question of the court’s jurisdiction has nothing at all to do with the substance of the claim itself. And this would still be so on appeal. As Ouseley J. said in the Thames Tideway Tunnel case (in paragraph 6 of his judgment), “the decision on jurisdiction will be the same whether the claim is wholly unarguable, arguable or bound to succeed”.

Thirdly, I do not think the overriding objective would be well served by the court providing summary conclusions on issues which it had held it had no jurisdiction to decide. The fact that when the question of jurisdiction was eventually raised a good deal of the court’s time had already been spent in preparing for the hearing and listening to argument does not warrant further time being spent in preparing an outline, provisional judgment on the merits. That would not be consistent with the fair, efficient and cost-effective administration of justice – which is vital in the Planning Court, as it is throughout the court system. With the overriding objective in mind, I can see no real benefit, and some disadvantage,in the court now producing a provisional view on the merits of the claim. That provisional view would, of course, be entirely obiter. It would achieve no obvious saving of time or expense, either for the parties or for the court. It would not relieve the court of its duty to hand down a fully reasoned judgment in due course if there were an appeal and the Court of Appeal held thatthere was jurisdiction to hear and determine the claim. It is not said to be necessary for the decision I shall have to make on costs; and I do not I think that it is.

I therefore express no view on the merits of the claim.

For the reasons I have given, I have concluded that the court has no jurisdiction to entertain these proceedings and that the claim must therefore be dismissed.