All Planning Act judicial review decisions appealed

This entry is an update on the status of judicial reviews of decisions under the Planning Act 2008.

Background

Once a consent - or refusal - has been issued for a nationally significant infrastructure project (NSIP) there is a six-week window within which claims for judicial review (JR) of the decision can be made.

Since it came into effect just over four years ago, 16 decisions have been made on NSIPs - fifteen positive and one negative. Of the 16, four were judicially reviewed. The four have all been decided in the High Court, but I have now learned that all four have been appealed to the Court of Appeal.

Status of JRs

One is already ancient history - the Heysham to M6 Link Road decision was judicially reviewed as a result of a claim by Transport Solutions for Lancaster and Morecambe but they lost in the High Court in a judgment published in October 2013. Their appeal was then dismissed by the Court of Appeal last November and work has now started on the project.

The second is for the Hinkley Point C new nuclear power station. An Taisce ('an tashka'), the Irish National Trust, sought judicial review of the decision to give consent to the project but they lost in the High Court in a judgment published in December 2013. They were refused consent to appeal to the Court of Appeal by the High Court, refused consent by the Court of Appeal to appeal to it on the papers and have renewed their application for a last-chance oral hearing due to take place on 27 March.

The third is for the Preesall Gas Storage project. This time the promoter Halite Energy sought judicial review of the decision to refuse consent for the project, and they were successful in the High Court in a judgment published in January. The challenge was against the decision of the Secretary of State for Energy and Climate Change, Ed Davey MP, and he has now appealed the High Court judgment. I don't have any details of the grounds of claim nor a timescale yet.

The fourth is for the good old Rookery South energy from waste project, which continues to be fought over in the courts. Waste company FCC Environmental, one of the parties having land compulsorily acquired by the project, sought judicial review of the decision to give consent but lost in the High Court. The judgment hasn't been published yet, it was given 'ex tempore' (i.e. at the time - the opposite of 'reserved judgment' when it is delivered later) orally at the end of the hearing on 6 February. FCC Environmental has also appealed to the Court of Appeal, so the Rookery project's legal hold-ups continue. Again I don't have details of grounds or timescales.

Analysis

Although only a quarter of the decisions on applications made under the Planning Act 2008 have been judicially reviewed, so let's not get too carried away, 100% of those JRs have been appealed to the Court of Appeal. It seems that for the three positive decisions, if you have an opponent who launches JR proceedings they won't give up until they have exhausted the avenue of litigation altogether. The Preesall case is a bit different, since the JR was successful and the other party has appealed it.

The length of time taken for these judicial reviews is a matter of concern because with the exception of the Heysham to M6 Link Road, they will probably end up adding more than a year to the time before work can start on the project (provided the positive decisions stand, or in the case of Preesall, a positive decision is reinstated).

In September 2013 the government launched a consultation on further judicial review reform, 'further' because they had just introduced reforms in July following an earlier consultation. By means of the second consultation document (it seems) the government announced that a Planning Fast Track process had been introduced. This contains targets for various steps taken in the High Court, set out at paragraph 43 of the consultation document.

Not content with waiting to see whether that had enough effect, the government pressed on with further reform and is going to create a specialist Planning Court within the High Court, plus other changes in the Criminal Justice and Courts Bill now before Parliament. Indeed, as a result of blogging on this issue I have been asked to give evidence to that bill's committee of MPs next week.

All these reforms only relate to the High Court, though, so if NSIP JRs are routinely being appealed to the Court of Appeal, that takes them out of the scope of the reforms and unabated delays could still occur.

Having said that, the Court of Appeal does appear to be generally faster than the High Court, so this is less of a problem, but it is not insignificant. For Hinkley, for example, it has still added more than three months to the timetable. Time to extend the Planning Fast Track to the Court of Appeal, perhaps?