Richard Harwood QC considers the means of challenging planning and related decisions and suggests possible reforms.
The planning system is facing two simultaneous reviews, albeit from different perspectives. The Planning White Paper has looked at its general processes, whilst the Independent Review of Administrative Law is addressing judicial review and similar measures in the Administrative and Planning Courts. My chambers colleagues Vikram Sachdeva QC and Celina Colquhoun are members of that latter review.
An issue lurking in both reviews is the means of challenging planning and related decisions. Remarkably, and for no particularly good reason, they are subject to a variety of different procedures. This simply gives rise to confusion, expensive and occasionally catastrophic errors. It is necessary for practitioners to have the different processes well in mind, and it is time for reform.
Types of proceedings
There are four types of proceedings in the Planning Court, and a further related procedure in the Divisional Court. Judicial review is a residuary category and so is mentioned last of the Planning Court procedures:
i) A planning statutory review in the High Court
This is an application made to the High Court made under specified statutes: Town and Country Planning Act 1990, s 288 (against decisions of Ministers or Planning Inspectors on planning appeals or call-ins of planning applications and on revocation or discontinuance orders and completion notices; also tree preservation orders); Town and Country Planning Act 1990, s 287 (simplified planning zones and highway orders under the Act); Planning and Compulsory Purchase Act 2004, s 113 (development plans); Planning (Listed Buildings and Conservation Areas) Act 1990, s 63 (against decisions of Ministers or Planning Inspectors on listed building consent appeals or call-ins and on revocation or modification orders); Planning (Hazardous Substances) Act 1990, s 22 (against decisions of Ministers or Planning Inspectors on hazardous substances consent appeals or call-ins). Permission to apply to the Court is required for these claims. These procedures are governed by CPR Part 8 and Practice Direction 8C and are closely modelled on judicial review. There are differences in standing, time limits and remedies to those in judicial review.
ii) An application to the High Court under Part 8
There are various other rights to apply to the High Court. Unlike planning statutory reviews claims do not require the permission of the Court to proceed and are governed by CPR Part 8 and Practice Direction 8A. These claims include the confirmation of compulsory purchase orders, certain road traffic regulation orders, alterations to the definitive map of rights of ways, certain environmental impact assessment claims and the designation of Areas of Archaeological Importance (Ancient Monuments and Archaeological Areas Act 1979, s 55).
iii) An appeal to the High Court
Certain planning decisions are challenged by appeal to the High Court: Town and Country Planning Act 1990, s 289 (against decisions of Ministers or Planning Inspectors on enforcement notice, tree replacement notice and (in Wales) section 215 amenity notice appeals); Planning (Listed Buildings and Conservation Areas) Act 1990, s 65 (challenging listed building enforcement notice appeals); and for hazardous substances enforcement notice appeals (Planning (Hazardous Substances) Regulations 2015, reg 19, 20.
iv) Judicial review
Covers all proceedings which are not in the above. The most common are challenges to the grant of planning permission by local planning authorities (since objectors have no ability to appeal to the Minister against an approval). Other judicial reviews will include approvals by local authorities of details under planning permissions, designation of listed buildings and conservation areas, decisions on whether to take enforcement action, the validity of various enforcement related notices, decisions to make compulsory purchase orders or a refusal to confirm a compulsory purchase order, some highways and road traffic regulation orders, and various planning policies. Judicial review is also applicable to some aspects of planning or enforcement appeals. Certain decisions are subject to judicial review with special statutory time limits: national policy statements (such as the ongoing Heathrow litigation); development consent orders authorising nationally significant infrastructure projects, and neighbourhood plans. Judicial reviews of magistrates or Crown Court decisions on planning or European related environmental matters would be within the Planning Court remit.
Challenges to the decisions of the magistrates or the Crown Court on appeal by case stated fall in principle within the general Administrative Court jurisdiction, but they could be taken within the Planning Court’s jurisdiction under the lead judge’s discretion. That discretion can be exercised widely: the first hearing in the Planning Court was a challenge to a decision not to designate a battlefield site, a matter which does not fall within any of the listed categories.
Reform of the multiplicity of types of proceedings
Despite reforms in 2015, there are a number of instances where multiple proceedings have to be brought over decisions in the same document. For example, if planning permission is granted in an enforcement notice appeal then the local planning authority would have to bring a section 288 application against the planning permission and a section 289 appeal against the enforcement notice appeal being allowed. A third-party challenger would have to make a section 288 application against the permission and bring judicial review proceedings against the notice appeal.
There are a steady stream of errors involving the wrong forms or timescales, a recent example being Bellamile v Ashford Borough Council  EWHC 3627 (Admin). Whilst the judicial review and planning statutory review procedures are very similar, the other two claims are different and outdated.
There is no readily discernible reason why these different procedures are used and reforms have been limited in scope, for example the equalisation of some of the time periods in 2015. The requirement to secure the permission of the Court to bring a statutory review was introduced for those applications under planning Acts by the Criminal Justice and Courts Act 2015, but not in other legislation. The Bill as originally published contained a permission requirement for section 288 applications but for no other planning cases (such as a listed building consent appeal in the same decision). Bob Neill MP tabled amendments to widen the permission requirement to the other planning statutory reviews. Those were taken up by the Ministry of Justice. However, the amendments did not tidy up the other applications as they would have involved securing the agreement of Departments other than DCLG/MoJ and in the case of compulsory purchase orders raised a policy question of access to the courts by those facing CPO.
The opportunity ought to be taken to rationalise the modes of challenge. The most effective reform would be to abolish statutory reviews and appeals to the High Court under section 289 (and equivalents) and have all proceedings brought by judicial review. Where appropriate the statute can provide that particular decisions may not be challenged by other means and specify the time period for bringing proceedings so that it cannot be extended. This is done of course for the planning appeal and policy decisions which are subject to statutory reviews and by statute for certain judicial reviews. There is no case for a major change in those protected decisions and others which may be subject to a, usually rare, extension of time for proceedings and the potential for collateral challenge by the individual in resisting proceedings.
Such a reform will also broaden the range and flexibility of remedies available to the Court: some of the statutory reviews are limited to the quashing of unlawful decisions and lack the ability of judicial review to fashion a suitable, proportionate remedy.
More modest reforms would be to change the statutory appeals to the High Court into applications to the Court. This would, for example, remove section 289 of the Town and Country Planning Act 1990 and place all challenges to enforcement notice appeal decisions under section 288 planning statutory reviews. This proposal was made as long ago as 1989 by Robert Carnwath QC in his report Enforcing Planning Control (at para 6.6). Another modest change would be to complete the 2015 reforms by requiring all applications to the Court under the planning/environmental statutory provisions to have permission before proceeding.
A further issue is the position of the appeal by case stated. Its process is for the appellant to ask the court which is the subject of the appeal to state a case, that is, to set out the subject matter of the proceedings, its findings of fact, the arguments raised, its findings as to the law and conclusions and then the questions for the appellate court. The process is slow and prone to argument and ex post facto rationalisation. Whilst necessary when magistrates’ courts did not give reasoned judgments, it seems to no longer be required or desirable. Appeals should therefore proceed in a more conventional manner of a challenge to the reasoned judgment.