Yesterday the Government announced the creation of a new Planning Court to deal with judicial review and similar challenges to planning decisions. It also announced some changes to the rules on challenges, especially challenges to decisions of the Secretary of State and Inspectors on planning appeals.
The intention is that the Planning Court will be part of the High Court and be up and running by this summer. Interestingly this change is to deal with only about 200 judicial review cases each year, those are the planning cases, out of over 10,000 JRs each year[1].
Planning and JR keep strange company these days and some of the rules changes are to be found in the Criminal Justice and Courts Bill, introduced in the Commons yesterday which deals amongst other thing with penalties for possessing extreme pornographic images. Perhaps the most important change for planning is that challenges (under s.288 of the Town and Country Planning Act 1990) to Secretary of State and Inspector decisions will in future need the permission of the court, as is the case for proper judicial review. In addition, the court will be able to filter out cases where although there has been a procedural failure, the decision would be the same. The driver for a lot of these changes is the uncertainty caused by a court challenge; few developers want to commit to a development when the planning permission may be quashed. So judicial review is a very good delaying tactic, and in the meantime, economic conditions may change. The Government says that out of the 440 JR challenges which went to a hearing in 2011 (that is all categories, not just planning) only 170 were successful. So the other 270 will have delayed things. But we must remember that at least 240 of the 440 will have been non-planning cases[2], so only about 75 planning projects will have suffered that delay. There will of course have been delays for all 200 planning projects which were subject to JRs whether they went to trial, were settled or abandoned.
Other noteworthy changes include making it easier to leapfrog straight from the High Court to the Supreme Court, missing out the Court of Appeal where it is clear the case will end up in the Supreme Court anyway, and the disclosure of those who back claimants financially, a device used to reduce costs awards and so protect the backers if the claim is unsuccessful.
Those making or on the receiving end of judicial review claims need to take careful legal advice and the changes (only some of which I have highlighted) make this more important. But these changes should please the development industry.
[1] The Government’s response paper says it will take almost 400, but later reveals that in 2012 there were only 200 planning cases.
[2] We can deduce this from the following paragraph in the consultation response issued yesterday: “Applications more than doubled from 4,300 in 2000 to 12,600 in 2012. Yet, of the 440 which went on to a final hearing without being refused permission, withdrawn or settled in 2011 just 170 went in favour of the applicant. In 2012 the vast majority of applications, more than 10,000, were for immigration and asylum cases – and almost 200 were on planning issues.”
170 successful cases out of a total of 440 JRs that proceeded to a hearing is a pretty high success rate – over 38% or nearly 2 in 5 cases. Rather than saying “only” 170 were successful, with the implication that they are just an irksome and unwarranted nuisance, it actually suggests that the right to go to judicial review is quite clearly needed and there are a lot of planning cases that are not being properly decided. It’s a greater success rate than that normally quoted for planning appeals (around 1 appeal in 3 allowed), yet no-one is suggesting that the right of appeal against a council’s refusal of planning permission is a troublesome nuisance that should be curtailed …. yet.
This is a government that listens.