Richard Harwood OBE QC analyses the introduction of a Planning Court this week and outlines the key changes.
The Planning Court will come into existence on 6 April 2014. For the most part the procedures for claims will remain those under the Civil Procedure Rules for judicial review (CPR 54), statutory applications (CPR 8) and statutory appeals (CPR 52). What is distinctive so far is the introduction of tight timetables for the consideration of important cases.
The Planning Court
Planning Court claims will form a specialist list within the Queen’s Bench Division . To what extent the running of the Planning Court will be separate from the Administrative Court remains to be seen . Planning Court claims will be issued in the Administrative Court Office, either in the Royal Courts of Justice or one of its regional/national centres: Practice Direction 54E, paragraph 2.1. The Court is an evolution of the Planning Fast Track which was introduced into the Administrative Court in July 2013 with the aim of ensuring that important planning cases were heard quickly before specialist judges .
There will be a Planning Liaison Judge in charge of the Planning Court specialist list . Mr Justice Lindblom was appointed as the Planning Liaison Judge for the Planning Fast Track and is now the Lead Judge of the Planning Court.
The new CPR 54.21(2) sets the jurisdiction of the Planning Court by defining a ‘Planning Court claim’ as:
“a judicial review or statutory challenge which —
(a) involves any of the following matters —
(i) planning permission, other development consents, the enforcement of planning control and the enforcement of other statutory schemes;
(ii) applications under the Transport and Works Act 1992;
(iv) highways and other rights of way;
(v) compulsory purchase orders;
(vi) village greens;
(vii) European Union environmental legislation and domestic transpositions, including assessments for development consents, habitats, waste and pollution control;
(viii) national, regional or other planning policy documents, statutory or otherwise; or
(ix) any other matter the judge appointed under rule 54.22(2); and
(b) has been issued or transferred to the Planning Court.”
As expected the Planning Court has jurisdiction over certain judicial reviews. Statutory challenges are not defined in the Civil Procedure Rules, and the expression appears to be new to the CPR. It would include applications to the High Court to challenge the validity of various decisions, actions or orders and appeals which challenge validity, such as appeals under section 289 of the Town and Country Planning Act 1990 against enforcement notice appeal decisions. Open for debate is whether it includes civil or criminal appeals by way of case stated or a judicial review of a criminal case. The Planning Court’s jurisdiction would not extend to other civil proceedings which collaterally raise matters within these topics. Planning injunctions will be outside its remit.
The Court will cover a wide range of topics, reflecting the traditional compass of the Planning Bar, including highways, compulsory purchase and village greens. The approach to environmental law is interesting. The Planning Court will deal with European Union environmental law and its domestic transpositions but does not automatically have jurisdiction over purely domestic environmental law. So a challenge to an environmental permit for a waste or Integrated Pollution Prevention and Control installation which falls in part under European law is within the remit, but a purely domestic environmental permit matter is not. Statutory nuisance proceedings are not automatically for the Planning Court.
It appears to be intended that the Planning Liaison Judge will be able to transfer other cases to the Planning Court, but sub-paragraph (ix) has been mangled in drafting: ‘any other matter the judge appointed under rule 54.22(2)’ does not make any sense.
A Planning Court claim will only be one which has been issued in or transferred to the Planning Court . The Practice Direction requires Planning Court claims to be issued or lodged in the Administrative Court Office and marked by the claimant as ‘Planning Court’, but it does not in terms say that any case within the category must be a Planning Court claim.
Significant cases and timetabling
The Planning Liaison Judge will be able to categorise Planning Court claims as ‘significant’: Practice Direction 54E, para 3.1. It may be that this can be done by class as well as individually. According to the Practice Direction, significant Planning Court claims include claims which:
“a) relate to commercial, residential, or other developments which have significant economic impact either at a local level or beyond their immediate locality;
b) raise important points of law;
c) generate significant public interest; or
d) by virtue of the volume or nature of technical material, are best dealt with by judges with significant experience of handling such matters.”
Parties may make representations as to whether a matter should be characterised as significant on issuing the claim or lodging an acknowledgment of service. If a case is identified as significant it should come before a specialist judge and be dealt within in a tight timetable. By paragraph 3.4 of the Practice Direction target timescales for hearing significant cases are:
“a) applications for permission to apply for judicial review are to be determined within three weeks of the expiry of the time limit for filing of the acknowledgment of service;
b) oral renewals of applications for permission to apply for judicial review are to be heard within one month of receipt of request for renewal;
c) applications for permission under section 289 of the Town and Country Planning Act 1990 are to be determined within one month of issue;
d) substantive statutory applications, including applications under section 288 of the Town and Country Planning Act 1990, are to be heard within six months of issue; and
e) judicial reviews are to be heard within ten weeks of the expiry of the period for the submission of detailed grounds by the defendant or any other party as provided in Rule 54.14.”
These timescales are subject to the overriding objective of the interests of justice but the parties should be prepared to meet them. Target timescales are already being used in the Planning Fast Track and are being enforced quite rigorously see Mr Justice Lindblom’s comments in London & Henley (Middle Brook Street) Ltd v Secretary of State for Communities and Local Government  EWHC 4207 (Admin).
Summary grounds of resistance
At present the procedural rules for claims within the Planning Court are not changed from those which presently operate in the Administrative Court. There are good arguments for any Planning Court innovations (such as shorter skeleton deadlines) being applied across the Administrative Court. One change is contained in the Practice Direction :
“The Planning Court may make case management directions, including a direction to any party intending to contest the claim to file and serve a summary of his grounds for doing so.”
The ability to require summary grounds is important. At present there is no obligation upon defendants in statutory applications or appeals (such as under section 288) to disclose their case until they file their skeleton submissions.
Permission to apply under section 288
There has been debate for a long time as to whether a permission stage should be introduced in section 288 applications challenging planning appeal or call in decisions. Presently those applications go straight to a final hearing. That has the virtue of speed but does mean that some unarguable cases reach full hearings. Clause 57 of the Criminal Justice and Courts Bill proposes that permission is required to bring section 288 cases in England.
There is an unresolved question whether appeals to the Court of Appeal against the refusal of permission to apply should be allowed. Such appeals are not allowed in section 289 enforcement cases but are permitted in judicial review. This has been an important safeguard in judicial review.
Other proposed changes
A series of further changes to primary legislation on Planning Court challenges are being considered by the Ministry of Justice and the Department of Communities and Local Government. Amendments were tabled at the Public Bill Committee stage by Bob Neill MP to address the following points :
(i) Extending the requirement for leave to the other means of High Court challenge under planning legislation;
(ii) At present, challenges to the award of costs in planning appeals and call-ins have to be brought by judicial review;
(iii) A set of amendments would make a series of alterations to the procedure for High Court challenges to enforcement appeal decisions:
(a) It applies a general standing test of person aggrieved;
(b) The challenge may include any grant of planning permission, consent or lawful development certificate, avoiding the need to commence section 288 and 289 proceedings to challenge the grant of planning permission or an LDC in an enforcement notice appeal and similar duplication in listed building cases;
(c) The proceedings are changed from an appeal to an application. That simplifies the procedures as section 288 claims are applications under CPR Part 8, and section 289 claims are appeals under CPR Part 52;
(d) Redundant references to case stated are removed;
(iv) Partial quashing orders would be allowed under section 288;
(v) The starting point for the six week challenge periods would be rationalised, to begin the day after the decision (as with section 288 and judicial review) rather than some including the day of the decision.
Ministers have agreed to give careful consideration to these proposals. Reform may even be able to go wider and merge sections 288 and 289 as suggested by Robert Carnwath QC in his 1989 report Enforcing Planning Control.
 CPR 54.22(1) inserted by the Civil Procedure (Amendment No.3) Rules 2014, rule 3.
 The Planning Court will at least have its own letterhead: Explanatory Memorandum to the Civil Procedure (Amendment No.3) Rules 2014 para 9.1.
 For a discussion of the evolution of the Planning Court proposals see The High Court’s new Planning Court by Richard Harwood QC (February 2014)
 CPR 54.22(2).
 CPR 54.21(2)(b).
 Practice Direction 54E, paragraph 3.6.
 Practice Direction 54E, paragraph 3.5.
 New Clauses 1 to 8. Discussed on 27th March 2014