QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
|DAVID CAIRNCROSS HINDE||Claimant|
|(1) RUGBY BOROUGH COUNCIL|
|(2) SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENT||Defendants|
|BLOOR HOMES LIMITED|
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(Official Shorthand Writers to the Court)
Mr Peter Goatley (instructed by Squire, Sanders & Dempsey (UK) LLP ) appeared on behalf of the Interested Party
Crown Copyright ©
THE DEPUTY JUDGE (David Elvin QC):
Section 113 and statutory challenges
"113 Validity of strategies, plans and documents.
(1) This section applies to -
... (c) A development plan document;
... (e) a revision of a document mentioned in paragraph (b), (c) or (d);
(2) A relevant 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 be made not 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) ... "
"(4) An application under this section must be made within six weeks from the relevant date."
i) The period of six weeks is to be treated as one of 42 days applying the Court of Appeal's approach in Okolo v Secretary of State  4 All ER 242;
ii) The calculation of the 42 days, in accordance with the language of s.113(4), starts with the date of adoption, namely 21 June 2011 and thus ends at midnight on 1 August 2011;
iii) Since the six week period is stipulated by statute with no power to extend, the period is absolute and the provisions of the CPR cannot be applied to allow any extension of time and they are relevant only with regard to the mechanics of making the application and the procedure to be followed. This is consistent with Lord Neuberger's judgment applying the similar wording in s.26 of the Extradition Act 2003 in Mucelli v Government of Albania  1 WLR 276;
iv) There is no ambiguity or other reason to have regard to Hansard pursuant to Pepper v Hart  A.C. 593 and even if the only reference to the provision in the passage through Parliament is considered de bene esse it does not shed significant light on the interpretation of s. 113(4).
i) The language should be construed to match that in s.287 of the 1990 Act and the expectations of those approaching that question is that s.113 would be applied in the same manner;
ii) S.113(4) should accordingly be construed as starting "from" the date of adoption, namely counting from the date after adoption (adopting the approach of the Court of Appeal in Okolo with regard to the similar provision in s.23 of the Acquisition of Land Act 1981), which means that the 42 days expired at midnight on 2 August 2011, one day later than the IP submits;
iii) S.113 should not be approached like the provision in Mucelli and the CPR can be applied to construe the challenge provision. This is clear from para.22 of the Part 8A Practice Direction, dealing with statutory challenges, and CPR Part 2.8 (time) which applies to any statutory challenge and requires that days should be calculated as "clear days" excluding the date on which the event occurs.
"(1) This rule shows how to calculate any period of time for doing any act which is specified-
(a) by these Rules;
(b) by a practice direction; or
(c) by a judgment or order of the court."
"(1) If the appropriate judge orders a person's extradition under this Part, the person may appeal to the High Court against the order ...
(3) An appeal under this section may be brought on a question of law or fact.
(4) Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is seven days starting with the day on which the order is made."
"73. The second question of principle is whether there is any basis on which the court could extend time for filing or service under sections 26(4) and 103(9). Again, I shall deal first with the position under section 26.
74. On the face of it, at any rate, there is a clear and unqualified statutory time limit, namely seven days, and there would therefore seem to be no basis upon which it could be extended. In that connection, viewed from the English and Welsh perspective, I would refer to the Civil Procedure Rules, which contain provisions whereby the court can extend time for the taking of any step, under CPR r 3.1(2)(a), can make an order remedying any error of procedure, under CPR r 3.10, or can make an order dispensing with service of documents, under CPR r 6.9. However, these powers cannot be invoked to extend a statutory time limit or to avoid service required by statute, unless of course, the statute so provides. Apart from being correct as a matter of principle, this conclusion follows from CPR r 3.2(a) which refers to time limits in "any rule, practice direction or court order", and from CPR r 6.1(a) states that the rules in CPR Pt 6 apply, "except where ... any other enactment ... makes a different provision.
75. Accordingly, it would be necessary to find some statutory basis for the court having power to extend time, or indeed to dispense with the service which section 26(4) requires. The only arguable such basis is to be found in the words "in accordance with rules of court", which, it is contended, incorporate the various provisions of the CPR to which I have just referred. I cannot accept that argument. First, the way in which the subsection is linguistically structured appears to me to mean that those words govern the way in which "notice of an appeal" is to be "given", not the time within which such notice is to be given, which is dictated by the closing part of the subsection ...
78. It is true that the Practice Direction to CPR Pt 52, and the prescribed form of the notice of appeal both suggest that the court's powers to extend time under the CPR apply to the appeal process. As a general proposition this is of course, true, but it does not follow that the draftsman of those documents considered, let alone was stating, that the court must have such power in relation to every type of appeal. In any event, CPR r 52.1(4) makes it clear that the provisions of CPR Pt 52 are "subject to any rule, enactment or practice direction which sets out special provisions with regard to any particular category of appeal", and the practice direction is brought into effect through CPR r 52.2."
"82. In my view, that general assumption is wrong. Section 26(4) requires the appellant's notice to be issued and served within seven days, and I can see no warrant for the CPR being invoked to cut down that period. If a statute permits something to be done within a specific period, it is hard to see how that period can be cut down by subordinate legislation, as a matter of principle. In relation to the first two points of principle raised by these appeals, it is part of the prosecutor's case, indeed it is part of my reasoning, that the reference to rules of court in the section govern the manner, not the time, of service. In these circumstances, it is particularly hard to see how invocation of provisions of the CPR can be justified in order to curtail that period...."
"38 ...it seems to me tolerably plain both that section 26(4) is requiring the notice of any appeal to be both filed and served within the stipulated seven-day period and that this, being a statutory time limit, is unextendable. The rules of court are to dictate everything about the filing and serving of the notice save only the period within which this must be done; this is expressly dictated by the section itself. Whatever discretions arise under the rules are exercisable only in so far as is consistent with the filing and serving of the notice before the statutory time limit expires."
"The point in relation to the six seeks is very simple and, to my mind, one of first impression. ... I equiparate six weeks with six times seven days. There are various cases to which reference has been made where, in the landlord and tenant field, one is construing periods of a month. There the courts have used what has been described as the corresponding date rule. "Months" is of course a rather more difficult word than "week" because "months" can be anything from 28 to 30 or 31 days and, therefore, they have no precise meaning. Parliament in the Interpretation Act l978 has given it a definition in relation to statutes passed after 1850.
The need for such a rule as to the corresponding date is one which has arisen because of this uncertainty. I see no need for such a rule in relation to a "week" where none of these problems arise. One notes that even in cases where the rule would normally apply there are modifications of it, for instance where a notice is given on the 31st day of a month containing 31 days, such as August, that would expire in a month with only 30 days in September, and one could not continue into the next month.
It is really a very short point as counsel on both sides recognise. It is common ground that there is no decision to the effect that the corresponding date rule has an equivalent where statute has prescribed a given number of weeks as the relevant period."
"It follows that the complainant has a strong case to challenge decision of the Council to adopt the core strategy (In fact their case is unanswerable). Time however is relevant, the challenge must be brought before 2 August and a part A claim form is included in draft with these papers. Solicitors must be instructed to file and serve the claim before the deadline."