Planning chamber becomes Planning Court in JR proposals

Angus Walker reports on the outcome of the second judicial review consultation that took place late last year and in particular on the impact on planning cases.

Hot on the heels of a series of judicial review reforms announced early last year, the Government consulted on quite a large number of further reforms last autumn, as reported here. Yesterday, it published its proposals in the light of the responses made.

Background

Judicial review is the process where a judge reviews a decision by a public body. The challenges to decisions are usually of procedural defects, although a challenge can be made that no reasonable body could have reached the decision that the body did - so-called 'Wednesbury unreasonableness', after the case that established the principle. Actually, the Wednesbury council was not 'Wednesbury unreasonable' in the case in question, which makes its legacy a bit unfair.

Fast forward 65 years and the judicial review industry is burgeoning, with 12,800 claims lodged in the first nine months of 2013. Only a small proportion of claims are successful, their main purpose being a delaying, or according to the Government, publicity, tactic. The Government is thus looking at ways to discourage and weed out clearly unmeritorious claims.

The consultation response document is here but here is a summary, split into what the Government is going to do. A point made by respondents to several proposals was that if you restrict access to justice down the line, an earlier stage becomes more like a full hearing of the case as a result - a so-called 'dress rehearsal'. The Government acknowledged this but is still pressing ahead with the reforms.

Reforms that made it

A permission stage is to be added to challenges to planning appeal decisions, to bring them in line with other types of judicial review. In other words, you have to get the court's permission to bring a challenge before you can have a hearing, although no doubt as with other cases sometimes the permission stage and the substantive hearing are 'rolled up' together.

The pointlessness test (by which I mean that even if there was a technical error with a decision, the same decision would have been reached if the error hadn't happened) is to be watered down a bit - claims will be rejected if it is 'highly likely' that the same decision would have been reached, rather than the current test of it being 'inevitable'.

Most of the reforms to be carried forward in whole or in part are about money. Legal aid will only be payable for cases that are granted permission (albeit backdated to include bringing the claim), and new tests are introduced for cases that settle before that, the idea being that the ones that probably would have been granted permission will still get legal aid, otherwise there will be less incentive to settle.

If a party loses on the papers and then insists on an oral hearing and loses that too, the presumption will be that they will have to pay the other side's costs for the oral hearing.

'Leapfrogging' - where if a case is inevitably going to the Supreme Court it can miss out the Court of Appeal - is to be extended as proposed in the consultation, to apply to more courts, to apply to cases of national importance or which raise significant issues, and no longer require the consent of all parties.

Reforms that partly made it

The Government had just introduced the 'planning fast track' with time limits for speedy consideration of planning judicial reviews in the High Court, and it seems to be having an effect. Nevertheless it pressed on with proposing a specialist planning chamber of the upper tribunal. However, as heralded in the Autumn Statement last December (paragraph 1.220 - I hadn't realised the significance of the phrasing at the time), the Government has decided to create a specialist planning court within the High Court instead. I was a bit sceptical about the planning chamber so I am glad about that.

The Government press release says that the 400 planning cases a year will no longer 'clog' the main High Court list. Well excuse me, but I don't think that 400 cases could be said to be 'clogging' a total of over 13,000 cases. The planning cases are the victims of clogging, not the causes of it.

The Government is not going to beef up the ability to make 'wasted costs orders' (WCOs - where the lawyer, or legal representative, representing someone was found to have acted improperly, unreasonably or negligently), but will require the courts to consider telling the lawyer's regulatory body about the WCO. I would have thought 'unreasonable' wasn't as bad as the other two - clients may insist on pressing on with very little chance of success.

The Government considered removing 'protective costs orders' (PCOs - where there is a limit to the amount of the other side's costs that a party might be liable for) for non-environmental cases, since people are likely to be more gung-ho about claims if they aren't risking paying the other side huge amounts of money. It has decided not to remove them altogether, but it will make them much more restricted. Environmental cases have to be separated out, because the Aarhus convention covering these mean that claiming can't be 'prohibitively expensive', but they still might get changed once some proceedings in the European Court of Justice have been decided. I thought they meant this case, but it was decided in December, so perhaps I'm wrong.

The Government is also going to make 'interveners' - third parties who join an action - more liable for costs (unless the court has asked them to join), and 'non-parties' - financial backers behind claimants - more liable too, which could be interesting as their identities may become public when they didn't want them to.

Reform that didn't make it

Only one proposal is not to go ahead at all, and it is the only one of particular interest to Planning Act 2008 aficionados. It was to forbid local authorities from bringing judicial review claims against decisions on nationally significant infrastructure project (NSIP) applications (except where they are the promoter and consent is refused). The Government has decided to drop that particular proposal, noting that no local authority had actually brought a claim yet (surely it didn't need a consultation to discover that) and that if the alternative is a local authority challenge or some unfocused claims from local groups, the former might actually speed things up (although I am sceptical that those are really alternatives).

In fact there haven't been that many judicial reviews at all, so far.

• Innovia challenge to Hinkley Point C land surveys - unsuccessful;
• Greenpeace challenge to Nuclear Power National Policy Statement - unsuccessful;
• TSLM challenge to Heysham-M6 link road decision - unsuccessful;
• Greenpeace challenge to Hinkley Point C decision - dropped;
• An Taisce challenge to Hinkley Point C decision - unsuccessful so far;
• FCC challenge to Rookery South decision - in court today;
• Halite challenge to Preesall decision - successful.

The most recent challenge was the Halite one, made in May 2013, so we have gone nine months without a new claim.

Reforms still under consideration

An alternative to being able to judicially review the 'public sector equality duty' that public bodies must have regard to is still being considered, by the Government Equalities Office.

What happens next

The Government is not hanging about - the proposals that require primary legislation (i.e. an Act of Parliament) have been included in the Criminal Justice and Courts Bill that was laid before Parliament yesterday - see clauses 32-36 and 50-57.

The Planning Court is to be established by 'this summer', which I think means by 21 September.