England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		3 November 2011

THE DEPUTY JUDGE (David Elvin QC):

Introduction

1. This application raises a short but important point, namely the determination of the period for bringing an application to challenge a development plan document (or part of one) under section 113 of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act"). S.113 formed part of the suite of provisions in the 2004 Act which replaced the equivalent provisions in the Town and Country Planning Act 1990 for the formulation, consultation, examination and determination of the statutory development plan and related policy documents.
2. The facts can be simply stated. The Claimant has applied under S.113 to quash policy H5.3 of the Rugby Borough Council Core Strategy which, following examination by an Inspector, was adopted by the Defendant Council on 21 June 2011. That policy removes the restriction on developing land for housing at the edge of Wolston Village, where the Claimant lives.
3. The application was made to the Court on 2 August 2011 and no issues arise with regard to the form or manner of making of the application. The challenge is brought on the basis that it is alleged that the Council failed to apply properly the requirements of strategic environmental assessment in the Environmental Assessment of Plans and Programmes Regulations 2004. I do not need to examine the grounds further since the sole question for me is whether the Court has jurisdiction to entertain the challenge or whether it is precluded from doing so by s.113(2) and because it is not brought as required by s.113(4) within the time therein prescribed.
4. The matter comes before me by way of an application by Bloor Homes Limited to strike out. Bloor Homes has an interest in some land affected by the policy under challenge I ordered that it be joined as an Interested Party at the outset of the hearing ("the IP"). The IP applies to strike out the s.113 application as being made out of time and therefore precluded by s.113 (2). The IP submits that the time for challenge expired at midnight on 1 August 2011. Neither the Council nor the Secretary of State appeared on this application.

Section 113 and statutory challenges

5. S.113 (as amended by the Planning Act 2008) provides so far as is relevant:

"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) ... "

6. The first point to observe is the combination of s.113 (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 s.113(3) and (4) themselves - the "relevant date" for present purposes being that specified in s.113(11)(c), i.e. the date of adoption of the Core Strategy by the Council in this case. The third point to note is that, unlike s.287 of the Town and Country Planning Act 1990 ("the 1990 Act") which was the equivalent provision for challenging old-style development plans, s.113 provides in terms that the six weeks is to start with the date of adoption. The equivalent provision to s.113 in the 1990 Act was s. 287 which provided in terms which differ from those used in s.113(4):

"(4) An application under this section must be made within six weeks from the relevant date."

7. It can be seen that whereas s.113(4) specifies a six week period "starting with the relevant date" s.287(4) instead specified a period which ran "from the relevant date". This difference in language embodies the main area of dispute between the parties before me.
8. The submissions before me can be shortly stated. Mr Goatley for the IP submits that:

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 [1997] 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 [2009] 1 WLR 276;

iv) There is no ambiguity or other reason to have regard to Hansard pursuant to Pepper v Hart [1994] 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).

9. Mr Leigh, for the Claimant, argues that:

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.

10. If I were to approach the meaning of s.113(4) absent authority or consideration of the earlier provisions I would have no hesitation in accepting Mr Goatley's submission that statute clearly requires the calculation of the six weeks to "start with" the date of adoption, namely on 21 June 2011. Further, since Parliament has stipulated the period in primary legislation, and s.113(2) precludes any other form of challenge, that period is absolute and cannot be extended under the provisions of the CPR. This approach is not only consistent with the natural meaning of the language used but is also consistent with that of the House of Lords in Mucelli with regard to a very similar statutory formula. On that basis, the time for making the application expired at midnight on 1 August 2011 and the Claimant's application is out of time.
11. I therefore turn to consider whether there are any reasons why I should not approach the issue in accordance with what I consider to be the natural meaning of the words used in s. 113. Before dealing with the specific arguments, it is necessary to consider briefly the context for the making of statutory challenges by way of judicial review in this area of the law.
12. S.287 formed part of a group of provisions which are concerned with the validity of a range of planning decisions under Part XII of the 1990 Act and include other provisions for challenge, especially s.288 which provides a means to challenge decisions on appeal by SSCLG or planning inspectors and s.289 which allows an appeal on a point of law against a decision on appeal concerning an enforcement notice. Although all the forms of challenge, however expressed, are essentially statutory forms of judicial review, they differ from each other in several respects. Moreover, these are not the only provisions for challenge decisions in planning law since provisions are also found in the new procedures for producing National Policy Statements and for applying for development consent for large infrastructure projects under the Planning Act 2008, which refer directly to judicial review though various modifications are introduced, e.g. see s.13 which allows judicial review questioning National Policy Statements only within a six week period. Many other specific provisions exist for statutory challenges in the areas of planning, environmental law and compulsory purchase which while they bear close similarities to those in the 1990 Act differ from them in some respect.
13. The purpose of this discussion is to illustrate the point that, while there are a number of similar formulae used for statutory challenges, most of which involve the use of preclusive provisions such as that found in s.113(2), there are many differences and those who practice in the area of planning and environmental law must be aware of their differences and the specific requirements of each. For example, whilst planning appeals and enforcement appeals may raise similar issues, the procedures for challenge under ss.288 and 289 of the 1990 Act are quite different and it is only necessary for me to highlight one, namely the difference in the time for bringing a challenge. Under s.288(3) a challenge to a planning appeal must be "made within six weeks from the date" of the decision and under s.289(1) no period is specified but it is stipulated that a party may appeal "according as rules of court may provide".
14. It is also relevant to observe that s.113 was not simply a re-enactment of s.287 but a replacement for it, just as the new provisions of the 2004 Act dealing with developments plans and their like replaced the earlier provisions in the 1990 Act. It is not therefore appropriate to approach s.113 as if it were a mere re-enactment in new legislation of an existing provision - which was the approach taken to a large degree by Mr Leigh for the Claimant. It may have been based on s.287, and be the equivalent provision to s.287 in the new context, but it is provision permitting challenges in the context of the new scheme of development plans in the 2004 Act and has to be construed according to its own provisions and language.
15. For these reasons I reject the arguments Mr Leigh has advanced that the meaning of s.113 should be approached on the basis that there should be an expectation that s.113(4) would be construed as having the same meaning as s.287(4) - though it is plain that any such expectations are contradicted by the context of the new development plan provisions which differ substantially from those under the 1990 Act and the difference in wording. In any event, such expectations cannot in my judgment influence the construction of s.113(4) if, as in my view they are, the natural meaning of the words used are clear.
16. Mr Leigh also placed considerable reliance on the agreed basis reached by the parties as to the calculation of the challenge period in Barker v Hambelton DC [2011] EWHC 1707 (Admin). As the learned Deputy Judge noted at para.7 it was agreed that the period ran from 21 December 2010 to 1 February 2011 and that "the arithmetic is uncontroversial". The issue in that case was whether the application had been validly made on the last day by the manner in which it was made to the court. Whilst I note that experienced planning counsel appeared in that case, and agreed the arithmetic, it is not possible to discern the reasons for the agreement nor does the learned Judge himself discuss the question of the calculation of the time for challenge at all, doubtless because it was not controversial. Despite Mr Leigh's strenuous attempts to make something of this decision, I simply cannot regard it as providing significant guidance since there is no discussion and no reasons in the judgment touching on the issue before me.
17. I also reject Mr Leigh's reliance on the CPR and the provisions as to the calculation of time found in Part 2.8. Most importantly, as Mr Goatley pointed out, Part 2.8 provides:

"(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."

18. Since the period in s.113(4) is stipulated by primary legislation it plainly falls outside the scope of Part 2.8(1) and Mr Leigh was unable to explain why it should apply to a time period in primary legislation other than by asserting that it should.
19. Moreover, the Part 8A Practice Direction and the other provisions of the CPR plainly govern the procedure to be applied to the making of the application but not to the time for challenge itself which is set by Parliament in s.113. I simply did not follow the submission made to the effect that without the aid of the CPR it was impossible to determine what the time period in s.113(4) should be. That is plainly incorrect and I note that the parallel statutory formula in Okolo did not lead the Court of Appeal to refer to the then Rules of the Supreme Court.
20. The Claimant's submission is in any event contrary to the basis of the House of Lords' judgment in Griffiths v Secretary of State [1983] 2 A.C. 51 which considered the question of when a planning decision was made, on the implicit basis that the statutory six weeks was absolute. It is also contrary to the reasoning of Lord Neuberger in Mucelli which, while dealing with a different statute, nonetheless considered a very similar formula and, if not strictly binding, is nonetheless highly persuasive with regard to the decision to be reached here.
21. In Mucelli, the House of Lords were concerned with challenges to extradition decisions made in accordance with the Extradition Act 2003. S.26 of that Act made provision with regard to challenges in the following terms:

"(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."

22. It can thus be seen that the formula used for the timing of the challenge in s.26(4) bears a close resemblance to that used in s.113(4). Contrary to Mr Leigh's submission, I do not regard the use of the phrase "in accordance with the rules of court" as having any significance to this question since, as Lord Neuberger (giving the judgment of the majority of the House of Lords) held at [82], the rules governed the manner not the time of service. The same is implied by the reference to an application being made under s.113 which imports the requirements of Part 8 and the rest of the CPR with regard to the mechanics of making the application but not the timing of it.
23. Although the specific issue as to calculation was not discussed by Lord Neuberger, the timing is discussed at [86] to [90] with regard to the specifics of the Moulai case. It is clear from the calculation of the seven days there, running from 14 March 2008 (when the order was made) to 20 March 2008, counted the date of the order as the first of the seven days. It is therefore implicit in this that to "start with" means exactly what it says as a matter of ordinary language.
24. Lord Neuberger also made a number of observations which support the submissions of the IP in that they make clear that where Parliament has set the period of time for challenge then, absent some power in primary legislation, the CPR do not apply to that period and there is no power to extent or abridge time. At [73]-[75] and [78] Lord Neuberger held:

"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."

25. He concluded there and at [89] that there was "no warrant for the CPR being invoked" to modify the statutory period.
26. At [82] Lord Neuberger also rejected the argument that the assumption in the CPR relating to the deemed date of service by fax could not supplant the statutory time period:

"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...."

27. Agreeing with Lord Neuberger, Lord Brown held at [38]:

"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."

28. In my judgment, the approach taken by the House of Lords strongly underlines the approach which I consider should be taken towards the question of timing under s.113. It is important not to confuse the question of the calculation of the period for challenge, which is a matter for the primary legislation, with the mechanics of issuing and serving the application which is a matter for the CPR.
29. As for the meaning of six weeks, I consider that I should follow the Court of Appeal's approach in Okolo. This case concerned the period for challenging a CPO under s.23(4) of the Acquisition of Land Act 1981 formulated in the same manner as that in the old s.287(4) i.e. "from" the specific date so it does not provide an answer to the commencement issue. However, Schiemann LJ did consider what the period of six weeks meant at p. 247:

"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."

30. Clearly the learned Lord Justice was considering the running of a period under a different statutory formulation, but it is clear from his judgment that six weeks was to be regarded as a matter of six times seven days, namely 42 days. That is also common ground between the parties here as to the calculation of the 6 weeks under s. 113.
31. I do not consider that I should refer to Parliamentary material pursuant to Pepper v Hart [1993] AC 593 since I do not consider the meaning of s.113(4) to be ambiguous, obscure or to lead to absurdity. Moreover, having considered the short extract from Hansard from the Committee Stage of the Bill I would not have found that the statement was clear as to the issue before me. Indeed, all the minster said as a comment in dealing with a debate on whether there should be compensation provided for a successful challenger to a plan, was that the precedent for the six weeks was s.287(4). He said nothing about the calculation of the period or how that precedent might have been viewed by the Government.
32. Mr Leigh points out that the period is a short one and that the inclusion of the date of adoption in the calculation of the six weeks could well mean that fewer than 42 days was allowed, for example if the decision to adopt was made at an evening Council meeting. That may well be true, but it provides no basis for departing from the wording of the Act. The same could also be said of the s.287 or 288 formula since, as Griffiths illustrates, the time runs from the date of the decision not the date when it is notified to a potentially aggrieved party. In statutory challenges, especially in the area of planning and related areas of public interest, there is a need for certainty and finality - which is doubtless why Parliament generally fixes the period for challenge.
33. Finally, my attention is drawn by Mr Leigh to the fact that the Council stated on its website that the date for challenging the Core Strategy expired on 2 August 2011 which, for the reasons I have stated, was incorrect. However, that cannot affect the construction of a statutory time period where there is no discretion to extend time under the CPR or otherwise. The Court in Barker v Hambleton reached a similar conclusion with regard to incorrect public statements by a planning authority at [23]. Differing from the Council, it also appears that leading counsel, Mr Anthony Crean, QC, who curiously submitted what described itself as a combined opinion and skeleton argument in support of the claim, advised the Claimant (albeit only on 1 August 2011) that the challenge should be brought before 2 August. Whilst that matter cannot influence my judgment either, I observe that the advice to the Claimant was at least consistent with the view which I have reached.
34. I therefore conclude that there are no factors which lead me to the opposite conclusion which a consideration of the language of s.113 would otherwise cause me to reach and, indeed, for a number of reasons which I have set out - not least the judgments in Mucelli - which point firmly to the same conclusion.
35. I therefore find that that period for bringing an application to challenge a development plan document under s.113 means that it must be made within a period of 42 days, the calculation to begin with the date of adoption of the plan itself. On that basis, the time under s.113(4) ran out at midnight on 1 August 2011 and the application to this Court was made out of time.
36. The IP's application therefore succeeds and I strike out the claim made on 2 August 2011 under s.113.
Post-judgment discussion
37. MR GOATLEY: My Lord, thank you. I am grateful for that. In the light of your Lordship's judgment I would like to apply for costs on behalf of the interested party against the claimant. In this sort of circumstance, certainly where it would appear from representation before the court that the claimant will be faced with two sets of costs because obviously the Council is not here and is not represented.
38. THE DEPUTY JUDGE: And it is your application to strike it out in any event. Mr Leigh, do you have anything to say about the principle?
39. MR LEIGH: Yes. I don't take issue with the point that the Council itself isn't here. I will be making submissions whether you consider this under the principle or generally whether we should be paying for costs at all, which I can elaborate when called upon. In addition, in any event, if there are any costs to be considered, they should only be limited to the strike-out application, not to any other work done whatsoever in relation to the claim.
40. THE DEPUTY JUDGE: I don't think Mr Goatley is asking for anything else, are you? He only became a party on Tuesday.
41. MR GOATLEY: Yes and no cost schedule was served on us for the hearing as I understand it.
42. THE DEPUTY JUDGE: We will come back to that in a moment.
43. PROSECUTION COUNSEL: That's why I raised the point, my Lord, because I don't know what costs are being asked for.
44. THE JUDGE: I am just asking about the principle at the moment.
45. MR LEIGH: So far as the principle is concerned, I would -- and depending on when your Lordship wants me to elaborate on it -- same principle, this is a case where actually costs should not, as it were, follow the event and on the facts of this case, although the law have succeeded in a knockout blow, for reasons I will explain when called upon --
46. THE DEPUTY JUDGE: Well now is the time to explain, Mr Leigh.
47. MR LEIGH: As your Lordship knows your Lordship has discretion in costs. It is a trite matter so unless your Lordship wants me to take you to the provisions, your Lordship knows you have discretion and in this particular case what your Lordship decided upon ultimately with respect to your Lordship's judgment, your Lordship found the point only went one way despite my efforts to persuade your Lordship otherwise. But this was, if I may submit, a novel point, not previously it seems properly considered. Even in the light of what your Lordship said, which was no doubt a warning to planning practitioners, it would be an interpretation which would come as a surprise perhaps to many if not most planning practitioners that the days excluded, in effect s.113 is not following the pattern of ss. 287/288 and most significantly, so far as my client's concern, Bloor having jumped aboard as it were, Bloor having jumped aboard rather late, your Lordship knows that not only did they advertise on their website that they were, as far as counsel were concerned, viewing this as a period of challenge which ended on the day we contended for, your Lordship's seen that, I trust, from the court file, but I can take your Lordship to it.
48. THE DEPUTY JUDGE: What, the Council's website?
49. MR LEIGH: Yes.
50. THE DEPUTY JUDGE: Yes, I refer to in the judgment.
51. MR LEIGH: And the published advertisement in the local newspapers which was also in the papers before the court and most significantly in a letter dated 24 June which is also in the court's papers, I referred to in my skeleton, it would have found itself attached to a letter, 23 August, to the court.
52. THE DEPUTY JUDGE: So the Council got it wrong. Why does that affect the interested party?
53. MR LEIGH: In this way, I will take your Lordship back to the letter in a moment, but being plain, the claimant -- and of course your Lordship will have to take this from the bar because there is no affidavit or statement before the court on this -- but the claimant, when he saw the Council's position being published started up a correspondence with his consultant, with the Council, trying to point out the error of their ways to persuade them that they had missed out because your Lordship has a (Inaudible) substantive point, but in my submission there was a good substantive point. He started this dialogue --
54. THE DEPUTY JUDGE: Yes.
55. MR LEIGH: -- and basically they filibustered. For the moment, I make no submissions as to whether that was deliberate or accidental, but they filibustered. Indeed, the MP also got involved and bearing in mind the Monday was the 1st, in the correspondence the parties batted this point around as to whether they had or had not done the right thing in law.
56. THE DEPUTY JUDGE: Fine.
57. MR LEIGH: And so the claimant held off challenging, hoping that the Council would accede. Maybe a planning lawyer, had one been involved -- there wasn't because there was only a planning consultant involved -- a planning lawyer may have protected the issue of proceedings but it was on the Friday that the MP was communicated to and my client received a copy of that on the Friday saying that, no, the Council are standing on their adoption process and what they had adopted as a lawful plan. It was therefore on that basis that leading counsel were instructed urgently over the weekend and as your Lordship knows he produced the advice on the Monday and that advice was produced very late in the afternoon. He had been instructed on a licensed-access basis. As your Lordship will appreciate, when a licensed access practitioner instructs a member of the bar, although you can advise, you can't go to court, you can only do so with a solicitor or for that matter on a public access basis. Late on the Friday afternoon when, Mr Crean produced his opinion.
58. THE DEPUTY JUDGE: That is the Monday afternoon?
59. MR LEIGH: Late on the Monday afternoon, on the 1st, he at the same time contacted my instructing solicitors and put them in touch with the client. The claimant never became their client until sometime later in fact because of all the procedures the solicitors firm have to go through but they held his hand effectively as a favour to Mr Crean. It was on that basis that DAC as they then were, now DAC Beachcroft --
60. THE DEPUTY JUDGE: I know who DAC is.
61. MR LEIGH: -- DAC holding his hand and having got the introduction late on the Monday effectively issued everything on the Tuesday.
62. THE DEPUTY JUDGE: How does this help me? I appreciate that Mr Crean and DAC turned things around very quickly indeed but where does that go to?
63. MR LEIGH: It goes in this way, my Lord. Because my learned friend's found the knockout point, with the utmost respect, bearing in mind your Lordship has discretion, a material factor on the question of costs is that not only did this local authority believe, because they published it on the website, because they published in the local newspapers, they told Joe Public you had until 2 August to challenge -- bearing in mind this is a very limited period many people rely on that without having any access to lawyers or planning consultants -- they actually wrote to Mr Pearce (As heard) of Avon Planning Services on 24 June, in the letter to which I made reference in my skeleton, and I invite your Lordship to turn that.
64. THE DEPUTY JUDGE: Is that going to tell me anything?
65. MR LEIGH: Yes, my Lord, because in that it says very clearly on 24 June and if it assists your Lordship, I'll read it. "Dear Mr --
66. THE DEPUTY JUDGE: No, just tell me what it says.
67. MR LEIGH: It says -- I will read the paragraph, third paragraph, my Lord.
68. THE DEPUTY JUDGE: What is the page reference?
69. MR LEIGH: It is the first page of the letter dated 24 June.
70. THE DEPUTY JUDGE: What page in the bundle is it?
71. MR LEIGH: It is not in our skeleton bundles but it is the documents that were copied to the court. My instructing solicitor wrote -- and therefore I assumed you would have the copy of the court file.
72. THE DEPUTY JUDGE: Mr Leigh, odd though it may seem, I focussed on the bundles.
73. MR LEIGH: Yes, I appreciate that my Lord, but in my skeleton I mentioned this letter of 23 August and I can hand up my copy, though it is marked.
74. THE DEPUTY JUDGE: Let me say I have got the claim documents which may have those documents attached. What is it attached to, the claim form?
75. MR LEIGH: No, it was attached to a letter to the Administrative Court on 23 August 2011 when this application was getting on its feet. In effect, what happened was, Bloor wrote and then they were copied, the same point was made by Rugby.
76. THE DEPUTY JUDGE: Yes, I have got a clip of the correspondence, if you hang on a second.
77. MR LEIGH: Very grateful, my Lord. That is actually how this application came about, it came about by letters. It looks like it was of the court's own motion. I have not actually seen a formal application or an order ordering a hearing. It was raised in correspondence so the court said let's have a preliminary hearing.
78. MR GOATLEY: There is an application by us.
79. THE DEPUTY JUDGE: There is an application notice by Bloor Homes to be joined and to strike out --
80. MR LEIGH: Be that as it may, my Lord, 23 August, we wrote that DAC wrote to the admin court responding to this argument about the preliminary point and accompanying that was a letter dated 24 June. If it follows the order my letter follows, it is the letter followed by the copy of the Erewash case.
81. THE DEPUTY JUDGE: I think you are going to have to hand it to me. For some reason the clip includes the letters from Bloor Homes' solicitors but does not include the others.
82. MR LEIGH: Right.
83. THE DEPUTY JUDGE: The letter from Rugby.
84. MR LEIGH: It was the same letter that had the copy of the website on it, my Lord. (Handed).
85. THE DEPUTY JUDGE: The reason we have not looked at this is simply because there is no dispute that the Council had got it wrong.
86. MR LEIGH: No, my Lord. It simply goes to this question of discretion because although we lost, hardly surprisingly -- I have a duty to my client and in my submission this is one of those cases.
87. THE DEPUTY JUDGE: I am listening to you, Mr Leigh, I am not trying to shut you out, I am just trying to identify the documents. I will just read the whole letter then I have got the whole thing in context.
88. MR LEIGH: I am grateful. (Pause).
89. THE DEPUTY JUDGE: Yes.
90. MR LEIGH: My Lord, this follows correspondence between the parties and your Lordship now sees in that third paragraph I was going to read, written on 24 June, "As you will be aware..."
91. THE DEPUTY JUDGE: I have just read it.
92. MR LEIGH: My Lord, the point is this, that in all the circumstances, those that I have iterated, but to remind your Lordship because it is relevant, the publication on the website and the publication in the newspaper and the correspondence from Rugby Borough Council, in my submission it is understandable even if it is unfortunate -- and your Lordship's applied as your Lordship has to, the law -- it is perfectly understandable therefore why the claimant waited until the last moment trying to sort things out with the Council. That is why I said they filibustered, but I don't say whether that was done with a deliberate view to talk him out of time or not, I don't know. But they managed to keep him waiting until the Friday before the weekend when they finally said, no, we are not going on reconsider our adoption.
93. THE DEPUTY JUDGE: He was instructed by a planning consultant.
94. MR LEIGH: He got a planning consultant on board once the thing had been adopted, he did not participate in the original (Inaudible).
95. THE DEPUTY JUDGE: No, I understand that.
96. MR LEIGH: He had got a planning consultant once he had seen the policy come up because the parish council were the IP.
97. THE DEPUTY JUDGE: Right. Wouldn't a planning consultant be aware that the challenge periods, however you calculate them, are what one might call "drop dead" periods; you can have no extension of time. It is pretty well known in the planning world, isn't it?
98. MR LEIGH: Yes, I suspect he knew he was running up against the buffers, if I can put it that way. Clearly, what he hadn't realised -- and by definition he wouldn't have known because he didn't have the benefit of your Lordship's judgment on this -- he wouldn't have known because there was no 113 case, the only one being Barker which looked like it went the other way, for what it's worth. He wouldn't have known on the Friday that, actually, he only had until Monday to do it otherwise alarm bells would certainly are gone off. For that matter, my Lord, DAC were not (Inaudible) familiar with the planning regime equally. Had he had a phone call, even though they weren't on the record, if they had had a phone call from a silk taking over a case that was going to be challenged, everybody would have picked up the date. One's bound to say that most people, without the benefit of your Lordship's judgment --
99. THE DEPUTY JUDGE: It didn't take my judgment for Mr Crean to understand the provisions.
100. MR LEIGH: I must say, whether your Lordship thinks it is a fair or unfair point, in my submission, one's not entirely sure what Mr Crean really meant, whether -- I have deliberately not taken any instructions at all from what Mr Crean --
101. THE DEPUTY JUDGE: I think "before 2 August" means before 2 August, doesn't it?
102. MR LEIGH: It looks like that's what he meant but whether he meant that because he had (Inaudible). One thing I can say to your Lordship is that no one on this side of the room took the view that this had to be done by the Monday. The view was that it could be done by the following day. And therefore no matter what leading counsel said in his opinion I can tell your Lordship that leading counsel did not say this had to be done today.
103. THE DEPUTY JUDGE: If you issued an opinion on 1 August and the opinion says you must issue the proceedings before 2 August I think logic dictates that you have to do it the same day.
104. MR LEIGH: My Lord, I can't resist the obvious conclusion to follow from the words used by leading counsel. I can tell your Lordship, certainly your Lordship may well have the same practice, if there is such a deadline that you have given advice the day something has to be done, you make sure someone's told --
105. THE DEPUTY JUDGE: I am not making any speculations at all, I am merely reading the words that Mr Crean used.
106. MR LEIGH: Yes and my Lord I can try and argue around it, it doesn't help me, I accept. Leading counsel, whether fortuitously or deliberately gave a view as to when it should be filed. All I can tell your Lordship is in the rush to get things done no one had it in their mind and certainly no advice was given that it had to be issued. The reason I make that point plain among other things is the fact that the Council themselves thought it all had to be done by the next day. That is why I go back to the point of discretion, my Lord, it is a matter for you, but in my submission this claimant, frankly, unfortunate would be an understatement. He tried to sort it out the right way with the Council, they had managed to string him along deliberately or otherwise until the Friday, he got counsel's opinion only on the Monday when he realised he wasn't getting anywhere and therefore do I need or do I have a challenge. Counsel advised very thoroughly, leaving aside that they published it to the world, thoroughly thought there was a point and he issued on the day that he thought, until we had your Lordship's judgment, that the matter had to be filed.
107. In my submission, in those circumstances the claimant is not, if I can put it this way, entirely to blame for the predicament he finds himself. Having thought he issued it just in time, he missed the deadline, and Bloor found itself a goal stopper, but if I may say, it is more by luck than anything else, if I may say because it was only the claimant's misfortune that he filed the next day. I put it in that way because we are talking about claim. He went about this thoroughly seriously: planning consultant, then leading counsel, then issue, DAC were on the regard some time later and then he suddenly finds that, actually, his substantive point, which no one's ever going to consider, gets knocked out because it turns out your Lordship interprets the statute differently from what many people might have thought it otherwise meant. In those circumstances therefore, whilst this is a novel point, and the claimant, the IP, has succeed in a legal point that it makes, this is an appropriate case where your Lordship can say, no, it is not appropriate to order costs or at least to reduce costs perhaps in these circumstances. The claimant didn't hang around waiting for the last moment, he was engaged in a dialogue; engaged in a dialogue which Rugby Borough Council, the party who were actually the ones to whom the challenge is aimed at, had indicated to the world at large and to him in particular that he had until the 2nd. Therefore, although Bloor come along and raise the point, it could have been raised by Rugby and if they'd been here no doubt they would have persuaded your Lordship the same way. But I would have been making the same submission, albeit more forcefully because I would say to your Lordship, this is a case where the claimant, effectively, has been led up the garden path on this point, he has been misled by the Council. Whether that is a case for maladministration for a different jurisdiction. But for the purposes of this costs application and my resistance thereto, when one looks at it this way it would be appropriate to reduce or eliminate any costs. As I said before I don't even know quite what those costs are, I don't know what we're arguing about because no schedule was served as it ought to have been when we turned up two days ago, Tuesday. My Lord, those are my submissions on the principle.
108. THE DEPUTY JUDGE: Thank you. Mr Goatley, on the question of principle?
109. MR GOATLEY: My Lord, on the question of principle, what we know, and I hear some of the language that my learned friend has used in the context of a dialogue with the Council, they are obviously not a party for whom I appear or represent, but I have seen nothing to indicate that it would be fair to characterise the discussions as in any way actively misleading or leading anyone up the garden path. They clearly were in error as to that which they put as to the end date on their website, in the published notice and in the correspondence, 24 June, to which you have been referred. That is an error of calculation which appears on the face of the record and there is not much more to be said about that.
110. THE DEPUTY JUDGE: No.
111. MR GOATLEY: But I have to say to go beyond that is, in my respectful submission, there is nothing before the court to indicate that any finding to that effect would be justified. It is quite strong language I would respectfully suggest to use in those circumstances.
112. What we do know is that, clearly from a relatively early date, from the date of the adoption, 21 June, there was clearly direct correspondence to 24 June. Whether or not -- and this is a matter just looking at the conduct of the parties -- whether or not one is looking at either the 1st or 2nd August, frankly, if what we are told is that the first time that some form of licensed access occurred with an identified legal representative, Mr Crean, was on Friday 29 July; very, very close to the expiry of the 6-week period. That is what Mr Leigh told us was the --
113. THE DEPUTY JUDGE: Yes, he said was he instructed over the weekend.
114. MR GOATLEY: Indeed. So on any basis, it was right at the end of that period and I am not entirely clear as to what is said about the nature of the correspondence that was meant to have occurred, because once a local authority has adopted a core strategy, it has adopted a core strategy. I am not quite sure what the correspondence was intending to achieve by way of somehow seeking to informally unadopt.
115. THE DEPUTY JUDGE: Well there is no power to revoke the adoption decision. All the authority can do is promote an amendment to the plan and that has to go through the planning procedures.
116. MR GOATLEY: Correct, my Lord.
117. THE DEPUTY JUDGE: All it could do, I suppose, was indicate that if there was an application to challenge it, it would submit to judgment.
118. MR GOATLEY: That would be the high point of what we could do.
119. THE DEPUTY JUDGE: The only other way is to promote an amendment to the development plan.
120. MR GOATLEY: Indeed, it is not in the same nature as the Planning Act which effectively allows a process of revocation of planning permission, or something that of nature, there is no mechanism for that. Whether or not the claimant has sought to ensure that he is properly advised by suitably qualified lawyers in respect of these matters is, with respect, a matter for him, but with a view saying that this is someone who is taking the matter seriously, I am not sure that that is a submission which is happily made out by the chronology related by Mr Leigh, where the first time that a lawyer appears to have been consulted in respect of these matters is, on any basis, very, very close to the expiry of the relevant period, even when it was going to be the 1st or the 2nd.
121. THE DEPUTY JUDGE: One is left asking the question, well, if the MP hadn't been contacted on the Friday, and Mr Crean had been instructed as a matter of urgency, what would have then happened on the Monday?
122. MR GOATLEY: Indeed. My Lord, in terms of that state of affairs, I would respectfully submit that that does not justify your Lordship exercising discretion as to a matter of principle in that way. In any event that is between the claimant, who I would respectfully submit, (Inaudible) had to properly advise himself and that there is no indication that, prior to Mr Crean's intervention that occurred, and your Lordship has already picked up the point which I won't labour, as to what Mr Crean had in any event said in his written opinion. That is a matter in any event as between the Council and the claimant. My Lord, part of the reason as to why is the interested party here: the interested party here is not as a matter of vague, generalised interest. It is because its interests were being specifically interfered with by reason of the claim that was made. Has your Lordship got a copy of the claim form available?
123. THE DEPUTY JUDGE: As I understand it, Bloor has an interest in a piece of land which would be affected, which would benefit from policy which is being sought to being quashed.
124. MR GOATLEY: It would but it would go beyond that. I would like to take your Lordship to details of claim --
125. THE DEPUTY JUDGE: Yes.
126. MR GOATLEY: -- which went with the claim form. It is the second page of the details of part A claim.
127. THE DEPUTY JUDGE: Yes.
128. MR GOATLEY: It is under interim remedy, (ii), there was an injunction to restrain the first defendant which was Rugby Borough Council for purporting to determine any planning application on land affected by core strategy policy H.
129. THE DEPUTY JUDGE: I think that is what might be described in other places as a bold suggestion.
130. MR GOATLEY: I think bold, indeed. Surprising and bold.
131. THE DEPUTY JUDGE: Because it would involve the court usurping the role of the planning authority.
132. MR GOATLEY: Indeed it would, my Lord. I have to say, I would use slightly different language when considering it myself but certainly your Lordship's formulation is certainly good enough for these purposes. But what it meant was that here was a claim directed either to the Secretary of State or to Rugby but which was intended deliberately and explicitly to interfere with a planning application which had been made by Bloor.
133. THE DEPUTY JUDGE: Mr Goatley, I don't think it is suggested for a moment that Bloor doesn't have a legitimate interest and I would not have permitted Bloor's joinder as an interested party if they weren't enjoying a legitimate interest. I do see the very specific nature of the concern from that application for relief.
134. MR GOATLEY: It was more an interest in policy (Inaudible) in and of itself would have been sufficient to be an interested party, but that is where it arose. The claimant, having seen what both Bloor said in correspondence and the Council said in correspondence, quite early on to the court about this point, was clearly at liberty at that stage to have folded his tent and decided not to pursue the matter at all. He choose not to do so, that is his right, to choose to elect and continue on with the claim, but it is not a matter where somehow then this is all novel. It may be a novel point in how it has arisen but as your Lordship has set out in judgment, upholding the argument which we have put, that is what the clear wording is and there appears to have been an absence of reflection on the part of the claimant as to whether in fact there was a good justification for pursuing and continuing with the claim. That of course is his legal entitlement to do so in the light of what was submitted on behalf of Bloor, and for that matter the Council, but when it comes to exercise of your Lordship's discretion, this is not a question of closed eyes; it is a question of open eyes.
135. THE DEPUTY JUDGE: Yes.
136. MR GOATLEY: My Lord, unless I can help you further on that issue of principle, that is why I say that costs should be awarded.
137. THE DEPUTY JUDGE: Thank you.
Judgment on costs
138. Following my judgment, Mr Goatley applies for the interested party's costs in successfully bringing and pursuing the application to strike out the s.113 claim. Mr Leigh resists that application as a matter of principle on behalf of the claimant and he points to a number of factors. I will not state them in detail but will summarise them as follows. Firstly, he says that the claimant acted responsibly in seeking to reach agreement with the local planning authority over the policy under challenge before he took any precipitate actions, presumably by issuing proceedings. Secondly, he was, to use a colloquialism, led up the garden path by Rugby Borough Council, who in several places and on several occasions mis-stated the date for challenges ending on 2 August. I have referred in my judgment to the statement on the Council's website and there is also correspondence including a letter from Rugby dated 24 June 2011 which formed part of the discussions between the claimant, his planning consultant and the Council which clearly states in the third paragraph that the Council's understanding that the challenge period would end on 2 August. For the reasons I have given in my judgment I have found that view to be an erroneous one. Nonetheless, Mr Leigh says that the claimant cannot be blamed for being so misled by the Council and he suggests that the Council may have filibustered to a degree with a strategy challenge period running out by drawing out negotiations. I have seen nothing to suggest that they have done anything other than negotiate in good faith and dispute no doubt the points which are raised by the claimant. Be that as it may, Mr Leigh says the Council were at fault and his client is not to be criticised for seeking to negotiate and for acting at the last minute. He tells me that there is no evidence to this effect, that it was only on the Friday before the challenge period expired, namely 29 July, that it became clear, whether through the planning authority or the local MP, that the planning authority was not going to accede to the claimant's suggestions regarding Policy 5.3, that it became necessary as a matter of urgency to instruct leading counsel. I am told by Mr Leigh that Mr Crean was instructed as a matter of urgency over the weekend on a license basis by the planning consultant, that he gave his opinion on the Monday in the afternoon and that such was his concern as to the urgency of the matter that although solicitors had not at that stage been instructed -- and of course Mr Crean was aware that if proceedings were to be issued then solicitors must be instructed -- he put the claimant in touch with his current solicitors who, whilst not formally instructed, held his hand, as it were, with regard to the issuing of proceedings.
139. Mr Leigh says that in these circumstances, particularly given the mis-statement of the position by the planning authority, the claimant, Mr Hinde, should not be held responsible for the costs of Bloor Homes. In my judgment, despite Mr Leigh's valiant efforts, the costs should be paid by the claimant to the interested party. The interested party has succeeded. It is, up to a point, a novel point, but the importance and absolute nature of many of the time limits in the area of planning law has been known to those who practice in this area for many years, they have been present in one form or another for many years. It is important for those concerned in this area to properly observe the statutory provisions and to inform themselves when any change is made, I have made as much clear in my judgment. These were new provisions and if some assumed that there was no change from s.287 that can be down to inadvertence by reason of the failure to consult the difference in the wording between the two and to reflect upon what that meant. Be that as it may, Bloor Homes had a legitimate interest for pursuing the strike-out application; not only do they have land which is affected by the policy, they were faced with the threat made in the claim form to seek an injunction to prevent the planning authority from making planning determinations utilising that policy. In my judgment, that relief, whilst it may have been going too far and may have involved usurping the functions of the planning authority via the court, nonetheless represented a threat which Bloor Homes were entitled to have resolved by the application which they had made. I am sympathetic to the claimant to the point that prudence was used in order to seek to negotiate an outcome with the Council, but ultimately there was little that could be done by way of agreement. A Development Plan Document is not to be lightly discarded, as Mr Goatley points out, it is a public document and it fixes the framework for planning determinations for its lifetime. Indeed, the presumption in determining planning applications is set out in s.38(6) of the 2004 Act. It can only be changed by the expiry of the plan or by amendments promoted to the plan following the procedures under the relevant subordinate legislation and under the relevant 2004 Act.
140. The only other alternative course which could have been taken by the Council is that they could have indicated that they would be willing to submit to judgment if a statutory challenge were made. I find it hard to believe that the Council would have agreed immediately to promote an amendment to their plan having so recently adopted it, given, as everyone knows, the time it has taken to pursue amendments to Development Plans is time consuming and costly and would not have brought about a solution for a significant period of time, probably a number of years. It leaves therefore the only prospect of agreement being an agreement to submit to judgment which itself carries with it the prospect that there would have had to have been made a challenge under s.113 for there to have been a submission.
141. On any view the claimant left the matter to a very late stage in the day and it is not suggested that the planning consultant who he had employed before seeking leading counsel's advice was unaware of the importance of the absolute nature of the time limits. Even had the Council's mis-statement at the end of the challenge period been 2 August, the late instruction of leading counsel over the weekend of 30/31 July was very late, indeed even for a challenge to be made by 2 August. The claimant is to that extent the author of his own misfortunes by seeking legal advice very late in the day. It is also clear that leading counsel advised the claimant as I have already mentioned in my judgment to bring the claim before 2 August. In that curious document I have described in my judgment, which says it is both an opinion and skeleton argument, leading counsel wrote this as paragraph 4:

"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."

142. It is clear therefore that whatever submissions are made to me now, leading counsel advised that the claim had to be made before 2 August. Since that advice was given on 1 August, it is plain that it meant it had to be issued that day. Whilst leading counsel might have spelled that out a little more, but it is clear he was saying that the challenge should be made before 2 August. The claimant did not, as far as I am aware, attempt to issue the proceedings until 2 August. Neither leading counsel nor his solicitors are to be criticised given their late instructions, but nonetheless the claimant was given clear advice and chose in any event to leave the matter of seeking advice to the very last moment. In those circumstances, whilst I sympathise with the attempts to negotiate and with the failure by the Borough Council to properly construe s.113, those matters which are not down to Bloor Homes. The mis-statement of the time period it not one which was shared by Bloor Homes and whatever complaints might be made against Rugby Borough Council there, they are not here, and a costs order cannot be sought against them today.
143. I do not consider that it is appropriate to penalise Bloor Homes, who took the point fairly, anticipated it at length in correspondence, thus allowing the claimant an opportunity to reflect on the pursuance of these proceedings and in my judgment for these reasons it would be proper to award Bloor Homes its costs of the application to strike out.
144. Mr Goatley, what about quantum? No schedule has been served, has it?
145. MR GOATLEY: My Lord, no. In part, my anticipation as to why no schedule has been served is because it is necessary to differentiate between those of the application and any other that have been incurred on the part of Bloor Homes. What I would in which case invite your Lordship to do is to make an award of costs in respect of only the application and the costs of the hearing of that application for Bloor Homes, on a standard basis, to be the subject of assessment if it cannot be agreed. There can't be a prejudice in that sense to the claimant because the claimant would clearly have been provided with an appropriate schedule of costs that would be provided if they are not agreed between parties and clearly that can revert to the hearing.
146. THE DEPUTY JUDGE: Mr Leigh?
147. MR LEIGH: If we are thrust down that route then, your Lordship, there is probably little I can say in principle. I only get the costs of whatever this application is.
148. THE DEPUTY JUDGE: That is plainly correct.
149. MR LEIGH: Yes. However what I am just turning my mind to is the position where they ought to have served a schedule for today because obviously the principle is to keep costs generally down in litigation. Since we are all here, in the normal way, these things would have meant that these things would have been agreed or resolved today. Sending things off for costs assessments actually does add quite a burden to the costs in a case.
150. THE DEPUTY JUDGE: I am quite content, Mr Leigh, if it helps that the issue of costs can be dealt with summarily by me on the papers; I have done that in many cases. I am quite happy for a schedule of short costs submissions to be submitted to me by both sides and I will deal with the costs on the papers. It is an appropriate case for summary assessment. I appreciate we have not completed the case in a day so technically it could be a detailed assessment case, but I can see the force in not putting the parties to the cost of a detailed assessment. (Pause).
151. MR LEIGH: Could we, subject to my learned friend saying he thinks otherwise, take that approach, namely that in the ordinary way, let's see whether the solicitors can sort a figure out between them in the horse-trading manner that these things occur. If they can't, then we make some submissions if there's any dispute. Otherwise we can simply submit an agreed figure to your Lordship as an agreed figure for summary assessment.
152. THE DEPUTY JUDGE: Shall I set a timetable? That then gives you a framework within which to do that.
153. MR LEIGH: Yes.
154. THE DEPUTY JUDGE: Mr Goatley, do you have any objection to this approach?
155. MR GOATLEY: Not at all, my Lord, it seems commendably concise.
156. THE DEPUTY JUDGE: It seems pointless putting the parties to the expense of a detailed assessment. What I will do is that firstly the claimant shall pay the interested party's costs of and occasioned by the application to strike out on the standard basis. Those costs shall be agreed and if they cannot be agreed within 21 days of the sealing of the order then the costs will be determined by myself on the papers. The parties to make submissions within 28 days of the sealing of this order as to the submissions which they would wish to make on costs. In the following order, the interested party to serve a schedule on the claimant within 28 days of the sealing of the order and upon the court with its short submissions as to the costs which should be recoverable, and the claimant to reply within 7 days or 14 days, Mr Leigh?
157. MR LEIGH: Can we ask for 14?
158. THE DEPUTY JUDGE: The claimant to reply with its submissions in writing within 14 days thereafter and the interested party, if so advised, to have a final right of reply within 7 days. And make it clear that the determination of the court of the costs I reserve to myself on the papers since it is pointless giving it to anyone else who is not familiar with the case.
159. MR LEIGH: Thank you, my Lord. That leaves the question of asking for permission to appeal.
160. THE DEPUTY JUDGE: Sorry, can I just say I am not going to make it part of the order, but I am perfectly content to receive the submissions of the parties which would go to the administrative court in any event, but that can be copied to me at my chambers e-mail address.
161. MR GOATLEY: Thank you very much.
162. MR LEIGH: Thank you, my Lord.
163. THE DEPUTY JUDGE: It doesn't need to be part of the order, but I am quite happy for you to copy me in as you send the submissions to the admin court, it will speed matters up.
164. MR LEIGH: Thank you.
165. THE DEPUTY JUDGE: Yes, you were going to make an application?
166. MR LEIGH: Yes. Clearly your Lordship's familiar with the principles applicable under CPR 52.
167. THE DEPUTY JUDGE: Yes.
168. MR LEIGH: A real prospect of success or some other compelling reason. Perhaps to save time, but perhaps in no particular order. With the utmost respect your Lordship's judgment has found the matter clear in the way your Lordship gave the judgment. In my submission this is an important point of general application in the planning field. It is the first time the point has arisen. It is a point which, again, and I do this respectfully --
169. THE DEPUTY JUDGE: Mr Leigh, you are entitled to disagree with me in making your application for permission to appeal without too much diffidence.
170. MR LEIGH: But being courteous, your Lordship found the point fairly clear one way. No matter how hard I tried, your Lordship did not find any of my points attractive.
171. THE DEPUTY JUDGE: If it helps you, I didn't write the judgment until this morning, Mr Leigh.
172. MR LEIGH: I am grateful for the time you have taken, my Lord, because at least we have a basis for understanding the ratio of this case. But in my submission this is a sort of point that actually, notwithstanding the terms of your Lordship's judgment, many practitioners may find a surprising result. In other words, the change that s.113 has brought about is not simply a replacement of a challenge procedure it relation to the new development suite of documents, but is a slightly different practice now compared to the more familiar procedure under section s.287, that will come as surprise. That doesn't itself mean it is a good point in appeal, but in my submission there is still remaining a view that actually s.113 wasn't intending to do this. I understand what Lord Neuberger said applying the provisions of that Act. In my submission they ought not to be transposed over here. In my submission, CPR 2.8 was intended to apply. What is of striking relevance is the effect of your Lordship's judgment -- this application of 2.1 of the CPR, subject to paragraph 2, "These rules apply to all proceedings in the High Court", in other words 2.1 applies to everyone --
173. THE DEPUTY JUDGE: I have quoted it in my judgment.
174. MR LEIGH: Yes. My Lord, I understand how your Lordship can find that the rules do not apply to the jurisdictional time limit, but in my submission, actually as I've argued before, the mechanism and the birthright of the ability to file is something that comes from the order because you get no sense of that from the Act itself. In my submission, it would be appropriate for that point to be tested. I add to that, or as an alternative, I say this is a particularly important point in this way: although your Lordship did not consider that even de bene esse what was said in Hansard was unhelpful. In my submission, it is clear from the words that the MPs were uttering that they assumed, albeit wrongly it seems, that this was simply a transposition, albeit different words, but a transposition familiar 287, 288.
175. THE DEPUTY JUDGE: Mr McNulty said that the precedent for the six weeks was s.2874. He didn't say what he meant by a precedent and he said nothing about when the six weeks was to be calculated.
176. MR LEIGH: Yes, but we understand, all of us, that of course 287/288, be it a different language, means you don't include the date itself in the calculation, and the reason you don't --
177. THE DEPUTY JUDGE: I know what your view is, but whatever your view and its merits ultimately may be, it wasn't something which is even touched upon by the Minister.
178. MR LEIGH: Of course, it wouldn't be the first time that, in effect, some legislation has actually done something which it didn't intend to do.
179. THE DEPUTY JUDGE: No but to get home on Pepper v Hart not only do you have to meet the threshold requirements of ambiguity, obscurity or an absurd result, but you have to show that by reference to the Parliamentary material, the issue is clear.
180. MR LEIGH: Well, although we differ on this, my Lord, I would say, putting to one side, stepping over the requirements of Pepper v Hart, when one looks at Hansard, there is plenty of material, even in those limited words, to show what was meant to be was 42 days, excluding the day in question. The reason I make that is because when one looks at this case now, although your Lordship used my example where if one has a decision on one day you lose an extra day, it is not just you lose the extra day a midnight. If a local authority, seizing upon this judgment thinks about, it all it has to do is meet on a Monday or best still on a Tuesday after a long Bank Holiday weekend and applying your Lordship's interpretation, the potential claimants lose the ability to file on a Saturday and a Sunday.
181. THE DEPUTY JUDGE: But that happens anyway under the existing --
182. MR LEIGH: No, my Lord.
183. THE DEPUTY JUDGE: Yes it does, Mr Leigh, because whether you start the time running from the day of the order or the day after, the local authority can always make its decision just before a Bank Holiday weekend, before Christmas or any other time. We are talking about the difference of a day here, we are not talking about anything else. We need to be realistic about that.
184. MR LEIGH: My Lord, I am being realistic, this is 42 days. Your Lordship's example if I may say is wrong for this reason: if a decision is made on a Monday, based on a 287 challenge, the decision is on a Monday, you have up to and including the Tuesday to make your challenge because of the way the rules work. In other words a local authority would not normally meet on a weekend, so they meet on a Monday. On the normal way you would have until the Tuesday, 6 weeks hence. With your Lordship's ruling, it means if they meet on a Monday, because that day includes it, they have to get everything done by the Monday which means in the 42 days time running, you effectively lose the final weekend. If they do it just after a Bank Holiday weekend, let's say they do it on a Tuesday, you lose four days: 10 per cent of the 42 days. I appreciate they will always have 42 days, but because you can only file when the court's open, you will lose up to four days if a local authority is canny or otherwise fortunate. If it makes its decision in such a manner following, say, a Bank Holiday weekend, you will have to get your challenge in, effectively losing four days. In my submission, that is arguably the absurdity of interpreting it in this way.
185. THE DEPUTY JUDGE: I don't see why that does not apply to any other time limit, Mr Leigh. I fail to follow that example. It is illogical and it applies equally to a time limit which expired the following day.
186. MR LEIGH: Well if it expired the following day, because the thing would be made let's say on the Tuesday, you would have that day back again. It is because you count the day itself of the decision you run out of time.
187. THE DEPUTY JUDGE: I don't think you can say any more than you lose a day as a result of this. Local authority has always been able to make a decision whenever it is proper for it to fix its decision that can be before Bank Holiday, before holidays and the like. Indeed, I recall a complaint was made that the decision letter of the Secretary of State in T5 was made just before Christmas. These are always problems which arise. Griffiths gives you your answer. The fact is that there needs to be certainty, time periods are fixed, and sometimes you may not know about a decision to challenge it, even though there is an absolute period for many days, sometimes not weeks. The point you are making is not particular to this particular issue, it is particular to strict time limits with preclusive provisions.
188. MR LEIGH: My point is made in this way, that we are cutting down what is already a very limited period which itself can be cut down further because of things like Bank Holidays and so on. My point simply is that part of my application for seeking permission to appeal is because of the effect of a ruling in this way is that what is a very limited period becomes even less of a limited period. And of course I am bound to say as your Lordship would appreciate that actually this was not the intention of Parliament, the limited period was not meant to get even more limited. Your Lordship will recall the words of the MP who thought the whole thing was unreasonable anyway, being six weeks, but that is the period that planners have been working with for sometime under 287 and 288. But in my submission this would be an appropriate case to consider whether all these authorities and looking at the interpretation of, even on its face, s.113 was intending to do what your Lordship says it does. I can't improve those by repetition and it may be they do not persuade your Lordship, but in my submission, it is not just a novel point, it is an important point and there may be some ambit in there for someone to revisit the matter.
Decision on permission to appeal
189. THE DEPUTY JUDGE: Thank you. Mr Leigh, I am afraid you are going to have to ask the Court of Appeal. I have reached a very clear view as to the result in this case. I consider the claim is unlikely to succeed on appeal. I have considered whether there are other good reasons to grant permission to appeal; I am afraid you simply haven't persuaded me. Here we have a change in statutory wording, we have a long established practice of preclusive challenge provisions based fixed periods of time and it is important to look at the words that Parliament chose when fixing the challenge period for the new statutory development plans. It is also clear from Mucelli what the approach of the superior courts is to periods of this nature and to the relationship between statutory periods and the rules of court. It seems to me therefore, given those matters, I am not persuaded that there are other good reasons for granting permission and, as I say, you must ask the Court of Appeal.
190. MR LEIGH: Thank you.
191. THE DEPUTY JUDGE: But thank you for your submissions and, Mr Goatley, thank you for your submissions, too.
192. MR GOATLEY: My Lord.