Article | Counting the days

Many legal procedures and notices have timescales within which certain steps have to be carried out.  It is important to count the days correctly in these cases as Michael Higgin explains.

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Michael Higgin

Michael Higgin

There are a number of situations where it is necessary to compute time periods.  Often a piece of legislation will require an action to be taken within a certain period of time so it is important to know when that period starts and ends.

“From” is exclusive

One such area is the timescale within which to object to local development plans (LDPs).  Under section 113 of the Planning and Compulsory Purchase Act 2004 the timescale to do that is six weeks “starting with” the relevant date.  In the 2012 case of Barker v Hambleton District Council the Court of Appeal repeated the accepted principle that “starting with” is an inclusive phrase, whereas the word “from” is exclusive.  Where the word “from” is used, the period begins on the day after the relevant date.

In the Barker case the applicant had mis-counted by making their application to object to the LDP on the very last day of a six week period beginning on the day after adoption by the council of the LDP.  They were therefore out of time.

For example, a lease granted for one year “from” 1 January does not expire on 31 December, but on the following 1 January.  It is much clearer to use words such as “starting on”, “commencing on” or “from and including” as there is a difference between legal understanding and common understanding on this point. 

Local Development Plans

An interesting subsidiary point in the case is that Local Development Plans are (perhaps not so radically) treated as adopted on the actual day upon which they are adopted and not the following day.  This will be so even if the council meetings to adopt are held in (or run into) the evening.

How to serve notice?

The other interesting point in the case is that Mr Barker had tried to commence his proceedings by pushing the application in an envelope under the door of the court at 7.46 pm, because there was no letterbox and the doors to the court had closed at 5.45 pm.  The counter at which applications could be issued had closed at 4.30 pm.  Because the application had been made a day late the Court of Appeal did not need to decide whether stuffing it under the door in an envelope would have been adequate service or not.  However, in the High Court (where the judge had taken a different view about the six weeks’ period) the judge had held that the application needed to have been processed and formally sealed by court staff in order to be effective, so pushing it under the door “out of hours” would not have been sufficient.

The moral of the Barker v Hambleton DC case is not to leave appeals and applications to the last minute!