Manorwood Consultancy Limited v South Oxfordshire District Council

Mr Justice Kimblin: Introduction

1. The Claimant has a development agreement in respect of land off Winterbrook Road, Wallingford on which it proposes to erect five houses. But the site falls just outside the Built Up Area Boundary (‘BUAB’) in the Wallingford Neighbourhood Plan Review (2025; ‘the WNPR’). This came as a surprise to the Claimant. It now seeks to challenge the consultation processes which were undertaken by the Interested Party and the Defendant before the WNPR was made and adopted as part of the development plan for the area.

2. The Defendant does not accept that this application for judicial review was made in time. For this reason Lang J adjourned the question of permission to apply for judicial review to a hearing, with determination of the substantive merits to be determined immediately thereafter if permission were given to proceed.

3. The issues in respect of the timing of these proceedings are as follows: i) The merits of the substantive claim. The merits of the claim are relevant to the question of whether to extend time. I have therefore considered the substantive merits first of all. ii) The Claimant could overcome the Defendant’s objection to the timing of the claim in two ways. First, for this challenge which is to the adequacy of the consultation, are there any statutory time limits on the commencement of proceedings? This requires interpretation of s. 61N Town and Country Planning Act 1990 (‘the 1990 Act’) which provides for six week periods during which particular stages of neighbourhood plan making may be challenged by judicial review. Notwithstanding the fact of interpretation of s. 61N by this court, the Court of Appeal and Supreme Court, this issue of interpretation remains in issue; iii) The second way for the Claimant to overcome the timing objection arises if time runs from the date on which the ground of judicial review arose, rather than the date of adoption of the WNP. That is the third issue. Should the Court extend time or should permission be refused because the claim was not started promptly or by reason of undue delay: CPR 54.5(1) & 3.1(2)(a); s. 31(6) Senior Courts Act 1981? Facts

4. The Claimant approached the local planning authority (the Defendant) and obtained pre-application advice to the effect that the principle of development was acceptable. The site was within the built-up area of Wallingford: “Residential development on the site is therefore considered to accord with policy H1 of the SOLP [South Oxfordshire Local Plan] provided an important open space of public, environmental, historical or ecological value is not lost, nor an important public view harmed, or there are other specific exceptions/circumstances defined in the Wallingford Neighbourhood Plan. It is also important to note that a key policy requirement is that housing must be designed to be outstanding or innovative, and of exceptional quality which would significantly enhance its immediate setting. Policies WS1 and WS3 of the neighbourhood plan follows the principles of policy H1 in encouraging development within the built area of Wallingford.”

5. On the strength of this advice on the policy position, in May 2023, the Claimant applied for planning permission for five two storey dwellings, and discussed the application with the Interested Party, the Town Council. At that stage, the Wallingford Neighbourhood plan did not include a development boundary.

6. In June and July 2023 the Interested Party commented adversely to the Defendant as to the merits of the scheme, and set up a steering group to review the Wallingford Neighbourhood Plan. During the autumn of 2023, that resulted in an informal process of engagement with the public via local physical and virtual media as I describe further below. On 3rd February 2024, a consultation commenced and lasted for nine weeks. It was intended to follow Regulation 14 of the Neighbourhood Planning (General) Regulations 2012. This required publicity in a manner that is likely to bring it to the attention of people who live, work or carry on business in the neighbourhood area.

7. The national planning practice guidance (‘NPPG’) addresses involvement in preparing a draft neighbourhood plan. It explains that [paragraph 48] “Other public bodies, landowners and the development industry should, as necessary and appropriate be involved in preparing a draft neighbourhood plan or Order.”

8. The evidence of Wendy Tobbit, co-chair of the WNPR Steering Group, explains that four house builders and one strategic land promoter were specifically consulted, after discussion at a Steering Group meeting. Each of these developers promoted sites in the bracket of 60 to 500 dwellings.

9. Ms Tobbit’s position is that it was disproportionate for a Town Council to consult every single applicant for planning permission, currently in the planning system, or every resident. There is a high burden on a Town Council in a location with high land values, significant constraints in the near vicinity and with the consequential need to engage with large development proposals in the town. The approach was therefore a focussed one.

10. After the Regulation 14 consultation, the Town Council submitted the plan proposal, i.e. the draft WNPR, to the Defendant. The Defendant was then bound to, and did, publicise and consult pursuant to Regulation 16 of the 2012 Regulations, which has essentially the same requirements as Regulation

14. That took place over a four-week period in June/July 2024.

11. On 19th November 2024, the Defendant received a report from the Independent Examiner. In his report, he explained that the role of an independent examiner is clearly defined in the legislation (which refers to a ‘local examiner’). He had been appointed to examine whether the draft WNPR meets the basic conditions and statutory requirements. He did so by written representations.

12. The ‘basic conditions’ are set out in paragraph 8, Sch 4B of the 1990 Act. They are: i) have regard to national policies and advice contained in guidance issued by the Secretary of State; ii) contribute to the achievement of sustainable development; iii) be in general conformity with the strategic policies of the development plan in the area; iv) not breach, and otherwise be compatible with, the assimilated obligations of EU legislation (as consolidated in the Retained EU Law (Revocation and Reform) Act 2023 (Consequential Amendment) Regulations 2023; and v) not breach the requirements of Chapter 8 of Part 6 of the Conservation of Habitats and Species Regulations 2017.

13. The Independent Examiner disagreed with the Interested Party and the Defendant on whether the changes made to the plan by way of the review amounted to material modifications. He considered that the designation of the BUAB was a material modification. He concluded that the BUAB policy (Policy WS3.1) required examination and a referendum.

14. As to the examination, the Independent Examiner considered: i) the extent to which the definition of the BUAB meets the basic conditions in general, and is in general conformity with the strategic policies in the development plan; ii) the mechanisms used to define the boundary, and the way in which the development industry was involved; and iii) the details of the proposed boundary of the BUAB.

15. The Independent Examiner found in favour of the Interested Party’s position on the first two points. As to the detail of the boundary, i.e. the third point, one developer contended that it had not been engaged in the process of defining the boundary. The Interested Party’s response was: “(the) WNP Review Steering Group followed the statutory process for consulting interested parties, including developers, landowners, the community, and statutory consultees. All landowners were given equal opportunities to contribute to the statutory consultation process. No landowners or developers were excluded from the WNP Review consultation process. Nicholas King Homes was invited, along with other developers with an interest in Wallingford, to take part in both (the pre-submission and submission) consultation processes, and submitted their representations on both occasions.”

16. On this basis, the Independent Examiner concluded that all developers had and took the opportunity to comment on the BUAB boundary. This point was made in the Executive Summary: “The Plan has been underpinned by community support and engagement. All sections of the community have been engaged in its preparation.”

17. The Claimant disagrees. It knew nothing of the WNPR until it was too late to influence it. The Consultation Issue The Claimant’s Case

18. The Claimant considers itself to have been misled and unfairly excluded. It had a positive response from the Defendant in 2021 which accepted the principle of residential development on the site. In this knowledge, it applied for planning permission and the application was presented to the Interested Party twice during 2023. Therefore both the Interested Party and the Defendant were fully appraised of the intentions for the site.

19. Other developers were specifically contacted and asked for their views on the review of the neighbourhood plan. This was important because a major feature of the review was the new concept and policy to designate a boundary to the built-up area. That policy would become a part of the development plan and to be outside of the boundary would be an important consideration in determining a planning application. The Independent Examiner recognised this because he required the WNPR to go to a referendum because the modification, i.e. the BUAB, was a material one.

20. The Interested Party did not approach the Claimant, contrary to its approach to other developers. The publicity at Regulation 14 and 16 stages by the Interested Party and the Defendant was not such as would be likely to bring the review to the attention of those who did not live and work in Wallingford, and it was not consistent with the guidance in the NPPG. It is evident that the Independent Examiner was under a misapprehension as to the proper involvement of relevant stakeholders and it was incorrect to conclude that all developers had been consulted.

21. The Interested Party’s choice of those who it would consult on the review was irrational. It did not meet the statutory requirements, nor follow the guidance, without any good explanation for the exclusion of the Claimant and others in a similar position. It was self-evident that the neighbourhood plan could and would affect all sites, large or small. The idea that it was disproportionate to consult all developers is not supported by any evidence or analysis. The Defendant’s Case

22. The Regulation 14 consultation was longer than was required. The minimum is six weeks, but this was extended to nine weeks. The publicity was via a variety of means and media. The Interested Party published the draft plan on its website and there were copies in the library and information centre. There was a two-day exhibition. Social media and local publications carried posts and articles. A notice was placed in a publication which circulates amongst planning professionals. In addition to these broadcast methods, there was direct consultation.

23. These actions by the Interested Party satisfied the requirement for publicity. Publicity is not the same as consultation, which requires direct communication. There was no duty to consult the Claimant and the Claimant identifies no requirement within the regulations to do so. The choices made by the Interested Party to publicise the WNPR were “likely” to bring the review to the attention of people who live, work or carry on business in the neighbourhood area. There was nothing irrational about those choices. Rather, it was for the Claimant to take steps to stay informed. Discussion and Conclusion on the Consultation Issue

24. Ms Parry recognised that the fact that the Claimant did not know about the WNPR was, without more, no basis on which to allege unlawfulness in the consultation on the plan. She therefore focussed her submissions on both the nature of the publicity and the disparity of treatment of the Claimant and other developers.

25. The Regulation 14 requirement for publicity is not prescriptive as to the mode of publicising the details of the proposal and how to engage with the production of the plan. Rather, the regulation is concerned with the outcome or the result of the publicity which the qualifying body (here the Interested Party) must achieve. That outcome or result is to bring the plan process to the attention of people who live, work or carry on business in the neighbourhood area.

26. The choice of methods to achieve that outcome or result is left to the qualifying body. This is not a publicity obligation as is found in respect of some statutory schemes which expressly requires a notice to be placed in a particular publication or on particular land. The approach in Regulations 14 and 16 is easily understood in the context of neighbourhood plans which may come forward in a great variety of types of settlement. The method of publicity is to be chosen according to the local circumstances.

27. The standard to be achieved is set out in Regulation

14. The threshold is one of likelihood. The publicity should be likely to bring the plan to people’s attention. This standard brings with it the inevitable consequence that some people who may have had something to say may not know of their opportunity and may miss it. That is the standard which Parliament considers appropriate for the exercise of publicising a new or modified neighbourhood plan. Absent clear failures in publicity, this is a difficult target for a Claimant to attack.

28. However, Ms Parry’s argument was nuanced. She drew attention to the requirement to bring the plan to the attention of people who carry on business in the area. It should not be forgotten that such people may be based well outside the neighbourhood area albeit that they have important interests within the area. Ms Parry emphasised the importance of sufficient publicity to ensure that such people were likely to have the plan drawn to their attention, and she was correct to do so.

29. Whether something is likely to come to people’s attention is, in part, a function of how attentive those people are. Publicity is a two-way street. People can choose to ignore it, be indifferent to plans for their local area or show an active interest. As I shall come to in respect of the law relating to extensions of time for bringing judicial review proceedings, the court expects those with interests in land which are potentially affected by development management and development plan decisions to take steps to keep themselves informed: see paragraph 62(ii) below. In my judgment, the same position applies in respect of development plan documents.

30. In this case, it was a simple matter for a developer to monitor the websites of either or both of the Interested Party or the Defendant. It could do so without having a base in Wallingford. Likewise, it could follow social media feeds from the Interested Party. Still further, there was a notice in the planning press which is national in its distribution. It was plainly necessary for the Claimant to follow such policy changes, having regard to the changing factual and policy positions on housing land supply. As Ms Dring submitted, neighbourhood plans bring particular policy consequences as to the application of the presumption in favour of sustainable development which might otherwise be triggered by the absence of a five-year supply of housing land: see the National Planning Policy Framework at paragraphs 11 d) and

14. That is a part of the rationale for the interested party keeping its plan up to date in a context where other parts of the development plan may become out of date, and it is a part of the rationale in the Claimant in seeking to challenge it in these proceedings.

31. In my judgment, the Interested Party undertook more than adequate publicity. I also find that the choice of consultees was reasonable and proportionate. There was no obligation to consult any developer directly. The NPPG does not guide qualifying bodies in that way. It merely flags that some circumstances may make such consultation either necessary or appropriate. However, the decision on the scope of such consultation is one which admits of a very wide range of reasonable responses. The decision to consult those who were promoting the larger sites is a decision which was properly open to the Interested Party. There was no obligation to approach all those who had planning applications before the Defendant planning authority. Indeed, the fact that the Claimant had a live planning application makes it more surprising that it did not take effective steps to monitor the development plan situation. There is nothing irrational in either the Regulation 14 nor the Regulation 16 consultations. The Defendant’s decision to make the WNPR was lawful.

32. The sole ground of claim which is pursued by the Claimant has not been made out. Accordingly, the claim is dismissed on this basis. In my judgment, having had the advantage of full argument, the prospects on the merits are at best modest. That is the assessment which I have carried forward to the scenario in which the Claimant is required to seek an extension of time to file the claim form. Before I turn to that question, I address the issue of interpretation of s. 61N of the 1990 Act. Time When the Ground of Claim First Arose Judicial Review – Neighbourhood Plans

33. Decisions in respect of the making and adoption of neighbourhood plans are to be made by judicial review. There are time limits to issue the claim form within s. 61N of the 1990 Act. Those time limits apply by reason of s. 38C(1) and (2)(d) of the Planning and Compulsory Purchase Act 2004, which also have the effect of modifying s. 61N of the 1990 Act when it applies to neighbourhood plans. For judicial review of a neighbourhood plan, the result is that s. 61N of the 1990 Act provides as follows: “61N Legal challenges in relation to neighbourhood development orders (1) A court may entertain proceedings for questioning a decision to act under section 38A(4) or (6) of the Planning and Compulsory Purchase Act 2004 only if— (a) the proceedings are brought by a claim for judicial review, and (b) the claim form is filed before the end of the period of 6 weeks beginning with the day after the day on which the decision is published. (2) A court may entertain proceedings for questioning a decision under paragraph 12 of Schedule 4B (consideration by local planning authority of recommendations made by examiner etc) or paragraph 13B of that Schedule (intervention powers of Secretary of State) only if— (a) the proceedings are brought by a claim for judicial review, and (b) the claim form is filed before the end of the period of 6 weeks beginning with the day after the day on which the decision is published. (3) A court may entertain proceedings for questioning anything relating to a referendum under paragraph 14 or 15 of Schedule 4B only if— (a) the proceedings are brought by a claim for judicial review, and (b) the claim form is filed before the end of the period of 6 weeks beginning with the day after the day on which the result of the referendum is declared.”

34. The provisions on the validity of plans and certain orders contained within ss. 287 and 288 of the 1990 Act and s. 113 of the Planning and Compulsory Purchase Act 2004 (‘the 2004 Act’) do not apply to neighbourhood plans. Rather, the requirement of s. 61N of the 1990 Act is that any challenge be brought by judicial review: R (Fylde Coast Farms Ltd) v Fylde BC; [2021] UKSC 18; [2021] 1 WLR 2794 (‘Fylde’) at [35].

35. These provisions were interpreted in Fylde. At first instance, the judge had to decide whether the claim was in time. The judge refused the claimant’s application for permission to proceed with the claim, holding that although the claim was framed as a legal challenge to the decision of the planning authority to make the plan, it in fact went to the legality of the planning authority’s earlier consideration of the examiner’s report and that, since the claim had been made more than six weeks after the publication of that decision, it was outside the time limit laid down by section 61N(2) of the 1990 Act. The Claimant’s appeal to the Court of Appeal was dismissed.

36. The Supreme Court (Lord Briggs and Lord Sales, with whom Lord Lloyd-Jones, Lady Arden and Lord Stephens agreed) set out seven steps in neighbourhood plan-making, at [2], and see further [27-33]: “Speaking generally, the making of neighbourhood development orders or plans requires the taking of what may loosely be described as seven consecutive steps, mainly by the relevant local planning authority. They are, in summary: (1) designating a neighbourhood area; (2) pre-submission preparation and consultation; (3) submission of a proposal; (4) consideration by an independent examiner; (5) consideration of the examiner’s report; (6) holding a local referendum; (7) making the order or plan.”

37. The Supreme Court held that s. 61N of the 1990 Act only dealt with stages five, six and seven. It did not create new or replacement rights of public law challenge to decisions made at those stages but, rather, simply imposed new conditions on the exercise of the right of public law challenge to unlawful acts or omissions which already existed under the general law. Therefore, the only purpose of s. 61N was to subject those existing rights of challenge to the twin conditions in each of its subsections, namely that they be brought by way of judicial review and commenced within a non-extendable six-week time limit.

38. The facts in Fylde brought it within stage five, namely the respondent Borough Council’s decision not to include the appellant’s land within the settlement boundary, contrary to the independent examiner’s recommendation. The time limit in subsection (2) therefore applied and the claim was out of time: [51]. Therefore, the Supreme Court did not have to decide whether a claim would be in time if it was based on a ground of review which arose prior to stage five, as this case does.

39. Rather, the Supreme Court set out the competing arguments in respect of ‘challenge early’ and ‘challenge at the end’ options. Necessarily, the scenarios which were canvased in argument do not address all factual circumstances, nor could they. The broad conclusion of the Court was [55]: “In section 61N Parliament has clearly adopted a particular solution which it considered appropriate in this particular context. It is plausible to expect that in a new procedure introduced into the TCPA and the 2004 Act by the Localism Act 2011 with the aim of promoting public participation in certain decisions by holding referendums, Parliament would not wish to allow the outcome of a referendum to be set at nought by reason of technical legal arguments which could have been sorted out before the referendum was held. That would risk creating scepticism and disaffection with the new procedure which could undermine rather than promote public engagement.” The Parties’ Submissions

40. Ms Parry, for the Claimant, and Ms Dring for the Defendant had engaged cooperatively and helpfully in narrowing the issues in advance of the hearing. They agreed that Ground 1 is not within any of the stages for which s. 61N provides a specified time limit. It is within stage 2, namely pre-submission preparation and consultation. If, as the Claimant submits, the ground of review first arose on 13th February 2025 when the WNPR was made, then the claim is in time. On the other hand, publicity and consultation on the Regulation 14 plan was concluded on 6th April 2024 and so the claim was filed almost a year after the ground of review first arose.

41. Ms Parry contrasts the specific with the general. Where Parliament has itself balanced the benefits and harms of a challenge to a particular stage of the process it has made specific provision. However, and particularly in respect of earlier stages in the plan-making process, Parliament has not restricted the right to challenge. The preponderance of authority favours the ‘wait until the end’ approach.

42. Ms Dring emphasises that a ‘challenge early’ approach makes it possible to cure any error and to avoid unfairness, for example through additional publicity and consultation. The obverse of that point is that a claim so far out of time may undermine the result of the referendum. In this case, there was an overwhelming majority in favour of the WNPR.

43. So far as the structure of s. 61N is concerned, she submits that it would be perverse to apply a different approach to timing for challenges to stages which precede stage

5. There can be no principled basis for a six-week time limit to a stage 5 issue, but for ordinary judicial review time limits to apply to earlier stages. Discussion and Conclusion

44. S. 61N has restricted the time period during which it is open to a potential claimant to challenge the lawfulness of recommendations of a local (or, independent) examiner (s. 61N(2)), and the lawfulness of a referendum (s. 61N(3)). Beyond those two specific stages in neighbourhood plan making, there is s. 61N(1) which relates to the decision to make the neighbourhood plan, or a revision or modification of the plan. Therein lies the problem – does s. 61N(1) permit a claimant to challenge the legality of the plan-making process in respect of a ground (other than a s. 61N(2) or (3) point) which arose and which could have been challenged much earlier?

45. The Supreme Court in Fylde found that, [47] “It would be a strong thing to conclude that Parliament had, by section 61N, which is silent about anything prior to stage 5, abrogated all those rights arising under the general law.” The Supreme Court was not required by the facts in Fylde to expressly grapple with the consequences of s. 61N for a ground of claim arising before stage

5. However, it is clear that Parliament has not removed those common law rights to apply to the court for review of the legality of those steps in the plan-making process. S. 61N is restrictive, not permissive, but it is only restrictive in clear and focused ways, per s. 61N(2) and (3). It is notable that s. 61N places no time-restriction on the filing of a claim form in respect of a challenge to stages 1 to

4. If there is a dispute about the designation of the neighbourhood area, one finds no relevant express limits in s. 61N.

46. I do not accept Ms Dring’s submission that it would be perverse to have a six-week time limit for filing a claim form for a challenge to, for example, the recommendations in an Inspector’s report, but to have no such time limit in respect of a challenge to the legality of earlier stages of the plan-making process. For the reasons which were extensively set out by the Supreme Court in Fylde there are reasonable policy arguments which go in both directions on the topic of when to challenge. It is not perverse to provide a means of obtaining a remedy in respect of a plan which has an unlawful basis. The statutory scheme in s. 61N places no restriction on a challenge to the making of a plan, save for those expressly specified in s. 61N(1), namely: a claim by judicial review within six weeks beginning with the day after the day on which the decision is published.

47. S. 61N(1) does not confer a distinct and separate right to challenge, unaffected by s.61N(2) and s.61N(3). S. 61N(1) cannot be used to escape the effect of the two restrictions which the section expressly addresses.

48. What then is scope of s. 61N(1), applying normal principles of statutory construction? In construing the statute, the courts are seeking to ascertain the meaning of the words used in a statute in the light of their context, in a way which best gives effect to the purpose of the statutory provision; and the court’s task, within permissible bounds, is to give effect to that purpose, having regard to the state of affairs at the time of the enactment: R (N3 and another) v Secretary of State for the Home Department [2025] 2 WLR 386 per Lord Sales and Lord Stephens with whom Lords Reed, Hodge and Lloyd-Jones agreed, at [62-65]. It is unified exercise, addressing both text and purpose, not one in which a linguistic exercise is performed before and in isolation from context and purpose. It is a false approach to compartmentalise these aspects: Senior President of Tribunals (Sir Keith Lindblom) Singh and Arnold LLJ in CG Fry & Sons Ltd v SSLUHC [2024] EWCA Civ 730;[2024] PTSR 2000 at [68].

49. In my judgment, s. 61N(1) limits access to the court only in so far as it requires a claim for judicial review to be issued within six weeks of the publication of the decision to make the neighbourhood plan, provided that the ground on which review is sought is not within the scope of s. 61N(2) or (3), and for the following reasons.

50. First, in my judgment, the restrictive purpose of the section as found by the Supreme Court is one in which the restrictions are specific, targeted at identifiable stages of the neighbourhood plan-making process, leaving other stages to be governed by s. 61N(1). It would be contrary to that purpose to interpret s. 61N(1) as limited to grounds of review which had arisen during the three months prior to the publication of the decision to make the plan, failing which the proposed claimant would have to obtain an extension of time, and overcome objections as to lack of promptness.

51. Second, plan-making takes time which is almost always measured in years. In the case of the WNPR there was already a neighbourhood plan in place, and the task was to review it. That took about eighteen months from (September 2023 to February 2025). In a process which is intended to be iterative and responsive to new information and the balance of views expressed, the particular effects on an individual or a sector are prone to change.

52. Plan making involves strategic decisions, setting broad policy, honing site-specific policy, allocating land to particular uses and designating features which were once referred to as interests of acknowledged importance. The range of stakeholders and interests is accordingly very large in comparison to all but the very largest-scale applications for permission or development consent.

53. The consequent iterative nature of the process and the requirement for independent examination are opportunities for proper sources of complaint to be rectified or mitigated. I do not consider it likely that Parliament intended to effectively compel legal challenges in advance of the use of the processes which are inherent to the statutory scheme.

54. In particular, the basic conditions which are examined and reported upon include matters of law. The examiner is directed to assess important elements of legal compliance of the plan (see paragraph 12(iv) and (v) above). In my judgment, this feature of the statutory scheme points away from a requirement to take any objection in that regard by way of judicial review. If a claimant did so, the claim is likely to be met by a prematurity argument.

55. Third, the further context is the range of remedies available in judicial review. They are broader than the range of remedies in most forms of, and the most frequently relied upon, rights of statutory review. The remedy could be a declaration which has little impact on the continued application of the plan. The claim may be satisfied soley by receipt of the court’s reasoned judgment. Therefore, it does not inevitably follow that an in-time claim leads to administrative inconvenience.

56. The Court has tools available to calibrate the response to the specific circumstances and merits of a claim, if it has any merit. The outcome which concerned the Supreme Court which I cite at paragraph 39 above may be avoided either: (1) in respect of a challenge to a referendum because that it the focus of s. 61N(3), or; (2) by appropriate tailoring of the remedy, if any. On the other hand, a claim and resultant remedy may have severe effects on the future planning and development of an area. The range of potential effects is broad, but Parliament should be taken as having legislated in the knowledge of the controls and discretion available to the court in respect of remedy.

57. As the Supreme Court identified, there are reasonable policy arguments for different legislative schemes. This Court’s task is merely to interpret the statute in accordance with normal principles and consistently with Fylde. It is not this Court’s role to prefer one approach over another. Directing myself in this way, I have concluded that the Claimant in this case filed the claim form in time because s. 61N(1) permits a claimant to ask the court to review the legality of steps leading to the decision to make the plan, save for those parts of neighbourhood plan making which are within the scope of s. 61N(2) and (3).

58. However, in the event that I am wrong in that conclusion, I now go on to consider whether I would have granted an extension of time. Extension of Time

59. In the alternative to her first argument that time only runs from the making of the WNPR in this case, Ms Parry applies to the Court to extend time. The general principles and those which relate to planning are well known.

60. Whether to extend time requires consideration of a wide range of factors, not simply the reasons for the delay. These include the merits of the claim, prejudice and detriment to the parties and to good administration and also the public interest more generally: Maharaj v National Energy Corporation of Trinidad and Tobago [2019] UKPC 5; [2019] 1 WLR 983 at [38].

61. The Court may find there to have been unlawfulness but go on to exercise its discretion to refuse to grant the relief sought because of undue delay: s. 31(6) and (7) Senior Courts Act 1981.

62. The Court of Appeal comprehensively summarised the principles and approach to applications to extend time for an application for permission to apply to judicially review the grant of planning permission in R (oao) Thornton Hall Hotel Ltd [2019] EWCA Civ 737 (The Master of the Rolls, Lindblom L.J., Irwin LJ) at [21]. The principles and approaches which are also of clear relevance to an application to extend time in respect of judicial review of a neighbourhood plan include: i) A fair balance is to be struck between the interests of those whose land is affected and the public interest: R (oao) Gerber v Wiltshire Council [2016] EWCA Civ 84 per Sales L.J., as he then was, at [46]; ii) If statutory procedures of notification have been followed, an objector’s lack of knowledge would not be sufficient to justify an extension of time, absent very special reasons: Gerber at [49]; iii) What will constitute promptness is case-sensitive, including as to the merits of the substantive case, with a clear-cut case increasing the willingness of the court to extend time: Finn-Kelcey v Milton Keynes Borough Council [2009] Env L.R. 17 at paragraphs 25 to 29, per Keene L.J.

63. In addition to these principles and approaches there is the accentuated need to act promptly in planning cases which has attracted the phrase ‘the greatest possible celerity’ – Simon Brown J in R (oao) JL Thomas and Co Ltd [1991] 1 Q.B. 471 at [484G]. The basis for requiring the greatest possible celerity is the right which a planning permission confers on the land and on which the landowner can rely unless and until a permission is quashed. Do essentially the same considerations apply to a neighbourhood plan? In my judgment, they do. Policies and allocations deliver an important part of the vision and strategy for the plan area. For some allocations, there will be related policy requirements for delivery and rate of delivery.

64. I was not referred to any planning case which related to an extension of time to challenge the making of a local or neighbourhood plan document. In the local plan context this is for the obvious reason that s.113 of the 2004 Act, as to challenges to the validity of local plans, includes a six week time limit which cannot be extended. Prior to its amendment in 2015 to include a six week time limit, S.287 of the 1990 Act was permissive of an application to extend time. It is the provision which applied prior to the 2004 Act provisions for challenges to development plans. I was not referred to any example of an application to extend time under those provisions.

65. There is a clear reason for the delay, namely lack of knowledge. When the Claimant learned of the plan review, it acted promptly. Ms Parry was candid in accepting that there would be some detriment to good administration, but, she submitted, is to be set against the unlawfulness in the WNPR.

66. I raised the topic of detriment to good administration in the context of the available remedies. It is one thing to quash the WNPR, another to quash only the policy which creates the BUAB, still another to quash only the relevant part of the BUAB that affects the Claimant and still further to consider the possibility of remedy by way of declaration. The parties agreed in argument that such a range of remedies was available and those lesser remedies caused accordingly less detriment. Conclusion on Extension of Time

67. In my judgment, the authorities are strongly against an extension of time of any significant length, save in the most exceptional circumstances. Here the circumstances are far from exceptional.

68. I have found that the underlying substantive issue is one in which the Claimant could have helped itself. The fact of the consultation was there to be seen and many people did see it and take part. There is no clear cut case in the Claimant’s favour nor a legal error which demands to be addressed: see paragraph 62(iii) above for the principle.

69. The length of the extension sought is substantial. That is a strong factor against an extension of time. However, it is tempered by the nature of the substantive ground, namely a consultation which did not come the Claimant’s attention. I have not taken an unfair approach of holding the very ground on which review is sought against the Claimant in order to refuse permission. Nevertheless, the law is clear that lack of knowledge is of no great assistance to a claimant in these circumstances, per paragraph 62 (ii) above.

70. I would have refused an extension of time if I had reached a different conclusion on the second issue, i.e. the interpretation of s 61N(1). Likewise, I would have refused a remedy pursuant to s. 31(6) and (7) Senior Courts Act 1981.

71. The fact that I have reached this conclusion on extension of time is in itself instructive. It illustrates the potential effect of construing s. 61(N)(1) in the way contended for by the Defendant. It would effectively mean, in the large majority of cases, that claims relating to stages prior to stage 5 in the neighbourhood plan making process would have little prospect of passing the permission stage if the grounds were raised after the plan was made, or introduce unhelpful legal processes at stages which should be collaborative and open. For the reasons which I gave on the second issue, I do not consider that to be what Parliament intended. Conclusion

72. I grant permission to apply for judicial review. Ground 1 fails. The claim is dismissed.

73. I am grateful to both counsel for their efficient conduct of the claim and for their assistance.