In April of 2014 a new Planning Court (“the Court”) was introduced within the Queens Bench Division. This was as a result of a Government consultation which sought to stem the growth in applications for judicial review. That consultation entitled “Judicial review: Proposals for Reform” closed in January 2013. As a result of that consultation the Court was specifically introduced to deal with claims under judicial review or statutory challenge which involve the following matters:
- planning permission, other development consents, the enforcement of planning control and the enforcement of other statutory schemes;
- applications under the Transport and Works Act 1992;
- highways and other rights of way;
- compulsory purchase orders;
- village greens;
- European Union environmental legislation and domestic transpositions, including assessments for development consents, habitats, waste and pollution control;
- national, regional or other planning policy documents, statutory or otherwise; or
- any other matter a planning court judge considers appropriate and issues or transfers to the Planning Court.
Although this was seen as a step in the right direction, the Government still felt that there was a need to reduce the burden of judicial review and a further consultation was entered entitled “Judicial Review: Further Proposals for Reform”. That consultation sought views on how to deal with some key areas which the government felt needed further improvement. This included; how the courts should deal with Judicial Reviews when the outcome would not be affected by the issue complained of; the need to balance financial measures to allow those involved to have a proportional interest in the costs of a case, speeding up appeals and the need for expert judges in a new specialist planning chamber for major developments.
The further consultation ended in November 2014 and subsequently led to the introduction of The Criminal Justice and Courts Act 2015 (“the Act”), which was introduced on the 28th October 2015. Specifically the Act purports to “remove unmeritous statutory challenges to planning decisions as early as possible to avoid delays and the pressure on the resources on the planning court”.
Some of the important changes that were made under the Act are as follows:
- Would there be a Substantially Different Outcome (s84 the Act)
When considering relief, the Court is to have regard to whether a substantially different outcome would be ordered if the issue complained of did not happen.
- Financial Information (section 85 the Act)
The High Court or Upper Tribunal cannot grant permission for the judicial review to proceed unless specified information about the financing of the judicial review is provided at the outset to. Two presumptions are also introduced 1) that interveners will pay their own costs and 2) in some cases that the intervener will pay for the costs they have forced the other parties to expend by their intervention.
- Capping of Costs (sections 88 & 89 the Act)
This section sought to codify and govern the concept of a Protected Costs Order which was already established in case law. A Protected Costs Order is an order limiting one party’s liability to pay another party’s costs in connection with any stage of the proceedings. The aim is to limit substantial costs in cutting edge litigation.
- Permission Stage (Section 91 and Schedule 16 the Act)
Certain planning decisions, orders and actions may be challenged by way of a statutory review. From the 26th October 2015 an applicant seeking to apply for Statutory Review must now apply for permission to do so. This means that cases will be assessed on merit before being allowed to proceed to the substantive hearing.
- Six Week Period (section 92 The Act)
In certain planning related challenges (ie legal challenges relating to neighbourhood and development orders, development consent obligations, national policy statements and orders granting development consent) amendments provide that the six week period within which to bring a challenge does not start to run until the day after the decision or other action which is the subject of challenge is made.
To ensure the above is effected a new Practice Direction (“8C Alternative Procedure for Statutory Review “) has been added to the Civil Procedure Rules along with a new version of PD54E “Planning Court Claims”. These guides (read in conjunction with the other rules and guides within the Civil Procedure Rules) provide the important procedural points and guidelines associated with making any Planning Statutory Challenge.
Effect of the changes?
The Lord Chief Justice submitted his annual report to Parliament on 13 January 2016. Within that report he has commented on the effect of the changes introduced over the last year and notably there is a clear improvement in how cases are being dealt with. Specifically, he noted that the establishment of the Planning Court and its related procedures has greatly increased the speed that planning cases have been dealt with. He commented that the time from lodging to substantive hearing had been reduced to 27.3 weeks in October 2015 from 46.9 weeks in February 2014. This has almost halved the time it takes for a case to reach the substantive hearing. He also noted that there was a significant reduction in the number of cases from 314 in 2013 to 222 at the end of October 2013.
It would appear based on these statistics that the burden on the courts has improved significantly over the last year by the changes implemented.
This article shouldn’t be taken as legal advice, but if this is an issue that affects you please do get in touch with our planning team on 01392 210700 or by emailing firstname.lastname@example.org.