QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| NOTTINGHAM CITY COUNCIL
|- and -
|CALVERTON PARISH COUNCIL
Richard Turney (instructed by Public Access) for the Respondent
Hearing date: 19th February 2015
Crown Copyright ©
Mr Justice Lewis:
THE LEGAL FRAMEWORK
The Local Development Scheme and Development Plan Documents
"(3) The local planning authority's local development documents must (taken as a whole) set out the authority's policies (however expressed) relating to the development and use of land in their area"
The Development Plan
"(b) the development plan documents (taken as a whole) which have been adopted or approved in relation to that area and
(c) the neighbourhood development plans which have been made in relation to that area"
"(6) If regard is to be had to the development plan for the purposes of any determination made under the planning Acts the determination must be made in accordance with the development plan unless material considerations indicate otherwise".
Challenges to the Validity of Development Plan Documents
"113 Validity of strategies, plans and documents
"(1) This section applies to–
(c) a development plan document;
and anything falling within paragraphs (a) to (g) is referred to in this Section as a relevant document.
"(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.
"(5) The High Court may make an interim order suspending the operation of the relevant document–
(a) wholly or in part;
(b) generally or as it affects the property of the applicant.
"(6) Subsection (7) applies if the High Court is satisfied–
(a) that a relevant document is to any extent outside the appropriate power;
(b) that the interests of the applicant have been substantially prejudiced by a failure to comply with a procedural requirement.
"(7) The High Court may—
(a) quash the relevant document;
(b) remit the relevant document to a person or body with a function relating to its preparation, publication, adoption or approval.
"(8) An interim order has effect until the proceedings are finally determined.
"(10) A procedural requirement is a requirement under the appropriate power or contained in regulations or an order made under that power which relates to the adoption, publication or approval of a relevant document.
"(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);
"The arguments on each side are evenly balanced. The defendants can say: "The plaintiff has three years in which to bring his action. If the last day is a Saturday or Sunday, or other dies non, he ought not to leave it till the last day. He ought to make sure and issue it the day before when the offices are open." The defendants can rely for their view on the reasoning of Russell L.J. in Hodgson v Armstrong  2 Q.B. 299, 323 et seq., and the cases to which he refers.
"The plaintiff can say: "The statute gives me three years in which I can bring my action. If I go in to the offices on the last day, and find them closed, I ought not to be defeated on that account. I should be allowed to go next day when the offices are open. Otherwise, I should be deprived of the three years which the statute allows me." The plaintiff can rely for this view on the reasoning of Sellers L.J. in Hodgson v. Armstrong, at pp. 309 et seq. and the cases to which he refers."
"Those arguments are so evenly balanced that we can come down either way. The important thing is to lay down a rule for the future so that people can know how they stand. In laying down a rule, we can look to parallel fields of law to see the rule there. The nearest parallel is the case where a time is prescribed by the Rules of Court for doing any act. The rule prescribed in both the county court and the High Court is this: If the time expires on a Sunday or any other day on which the court office is closed, the act is done in time if it is done on the next day on which the court office is open. I think we should apply a similar rule when the time is prescribed by statute. By so doing, we make the law consistent in itself: and we avoid confusion to practitioners. So I am prepared to hold that when a time is prescribed by statute for doing any act, and that act can only be done if the court office is open on the day when the time expires, then, if it turns out in any particular case that the day is a Sunday or other dies non, the time is extended until the next day on which the court office is open."
"Accordingly, in my judgment the result is as follows. There are a number of cases which support the general rule that a statutory period of time, whether general or special, will, in the absence of any contrary provision, normally be construed as ending at the expiration of the last day of the period. That rule remains, but there is a limited but important exception or qualification to it, which may be derived from a line of authorities which include Hughes v. Griffiths, Mumford v. Hitchcocks, the judgment of Sellers L.J. in Hodgson v. Armstrong, and the Scottish cases. If the act to be done by the person concerned is one for which some action by the court is requisite, such as issuing a writ, and it is impossible to do that act on the last day of the period because the offices of the court are closed for the whole of that day, the period will prima facie be construed as ending not on that day but at the expiration of the next day upon which the offices of the court are open and it becomes possible to do the act. In this appeal, there is nothing in the facts of the case which ousts the prima facie application of this exception, which accordingly applies. I therefore concur in allowing the appeal."
"The problem, as a matter of statutory construction, is to determine whether, when Parliament provides that some act must be done within a limited period (say 21 days) in the knowledge that there will be circumstances in which it is not possible to do that act on the last day of that period (in this case, the 21st day), Parliament is to be taken to have intended, by the use of the word "within", that the act must be done before such time as it becomes impossible to do it; or whether, it being impossible to do it on what would otherwise be the last day, Parliament intended that the act might be done on the first day after that day on which it is again possible to do it. As Lord Denning MR accepted in the passage to which I have referred either view is tenable; which to adopt was essentially a matter of policy. The question is: what is Parliament to be taken to have intended by the words which it used? That question was answered by this Court in Pritam Kaur. Parliament must be taken to have intended that the act can be done on the first working day after day on which the period would otherwise have expired. The powerful reasons to the contrary, set out in the judgment of Russell LJ in Hodgson v Armstrong  2 QB 299, at page 323, did not prevail. It is not now open to us to consider whether we would have preferred the reasoning of Russell LJ to the reasoning of Sellers LJ in that case."
"The ground of the decision was thus that there was a general rule that if the last day prescribed for doing an act, for which it was necessary that the court office should be open, fell on a day when the court office was closed, time was extended to the next day when the court office was open"
Accordingly, Arden J. held that the application had been made within the period, prescribed by the statute for making such applications.
"83 Another point which arises is what happens if it is impossible to give notice on, or during the final part of, the last day. For instance, in relation to filing, the court office may be closed on the last day because it is Christmas Day or another Bank Holiday, and the court office will be closed at some point in the late afternoon on the last day. Equally, the respondent's office may be closed for the same reasons.
"84 Where the requisite recipient's office is closed during the whole of the last day, I consider that the notice will be validly filed or served if it is given at any time during the first succeeding day on which the office is open (i e the next business day). So if the final day for giving a notice of appeal would otherwise be Christmas Day, filing or service can validly be effected on 27 December (unless it is a weekend, in which case it would be the following Monday). This conclusion accords with that reached in Pritam Kaur v S.Russell & Sons Ltd.  Q.B. 336. As Lord Denning MR said, at p 349,
"when a time is prescribed by statute for doing any act, and that act can only be done if the court office is open on the day when time expires, then, if it turns out … that the day is a Sunday or other dies non, the time is extended until the next day on which the court office is open."
I agree, and I can see no reason not to apply the same principle to service on a respondent in relation to the respondent's office. The fact that fax transmission can be effected at any time does not cause me to reconsider that conclusion.
"85 It might be argued that it follows from this that time should be similarly extended to the next business day, in cases where, even if only for a few hours, the required recipient's office is closed before midnight on the final day (as will always be true of the court, and will almost always be true of any other recipient). In my opinion, while there is a real argument based on consistency to support such a proposition, it is not correct, at least where the office in question is open during normal hours. While there is no reason to deprive an appellant of his full statutory seven or 14 days, if, for instance he transmits his notice of appeal by fax, or even if he posts the notice through a letter box in the door of the respondent's office, just before midnight on the last day for service, it does not follow that he should have cause for complaint if he cannot file the notice at the court office, or serve it on the respondent in person, outside normal office hours. I believe that this conclusion is consistent with the law as it is understood in relation to time limits for filing and service, when it comes to the operation of the Limitation Act 1980."
The Making of An Application to Quash