A blog about planning, planning law and planning policy

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The information on this blog is not intended to be advice, legal or otherwise. You should not rely on it and I do not accept liability in connection with it. If you do have a planning law question on which you would like advice, seek legal advice from a suitably qualified solicitor. Specific advice should be sought for specific problems.

Judicial review changes

David Cameron today launched an attack on judicial review and excessive procedural requirements. He bemoans excessive EU legislation, saying “Consultations, impact assessments, audits, reviews, stakeholder management, securing professional buy-in, complying with EU procurement rules, assessing sector feedback this is not how we became one of the most powerful, prosperous nations on earth”.

Now I have some sympathy with the criticism of over-consultation and difficult EU legislation.  We have constant consultation on statutory instruments and what look like inappropriate EU laws.  But what does Government do with the consultation results?  When I was  Chairman of the Law Society’s Planning & Environmental Law Committee we were consulted on the Community Infrastructure Levy regulations.  We pointed out they had no transitional provisions, so they would be retrospective.  Did anyone take any notice?  The final draft was published with the same omission.  Only a last minute representation by us ensured that pre-regulation planning permissions were not caught.

The Government complains about the operation of the Habitats Directive and George Osborne sets up an inquiry at Defra into how infrastructure projects can go ahead more easily despite its provisions, but this is useless unless the Directive is changed.  Yet there is no appetite for this, despite the directive causing problems in several Member States.

And so the spotlight turns on judicial review, the mechanism by which government is held to account for compliance with the law.  The time limits are to be reduced and the appeals are to be truncated.  The threat of JR, leading to declarations of invalidity, is serious.  It delays investment (while the challenge period of three months passes, or if there is a challenge, until it finishes leaving the decision intact).  But this threat will not be reduced by reducing the time limit. And nor should it be.  Because Government must comply with the law.  We live in a country which prides itself on its adherence to the rule of law – “be you ever so high, you are not above the law”.  In that way we guarantee freedom and liberty.

The answer is not to attack JR, but to have better laws and better decisions.  For example, why are there limits on what a section 106 agreement can do?  Why can it not address travel plans?  Why must it always be enforceable against all persons deriving title from the original covenantor?  Why must we have design and access statements?  Why can local planning authorities not use a planning obligation as a reason to grant planning permission where there are already five planning obligations contributing to the same infrastructure project.

Is it surprising that we don’t have better decisions when even the Growth and Infrastructure Bill is confused about the difference between a planning obligation and the instrument by which the planning obligation is entered into?  And how are we going to fare when planning obligations are reviewed for viability, with no definition of viability?  Or when the cause of lack of viability is affordable housing  – how can we tell it is affordable housing rather than a bad bargain with the landowner?

The need is for good laws, and a Government which is confident it can deliver decisions in compliance with those laws.  We should not be limiting the right to challenge unlawful decisions.

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