UK: Infrastructure Judicial Reviews Slow As Consultation Planned

Last Updated: 4 September 2013
Article by Angus Walker

Today's entry reports on the latest state of play with judicial reviews of infrastructure planning decisions, and forthcoming proposals to speed up planning judicial reviews.

The Planning Act 2008 regime for nationally significant infrastructure projects has yielded 12 decisions so far, and judicial reviews (JRs) have been launched against four of these, one twice.

The decision to approve the Hinkley Point C nuclear power station application was made on 19 March, and two JRs were launched against it. One was by the Irish equivalent of the National Trust on the ground that Ireland should have been consulted on transboundary effects and the second was by Greenpeace, on an alleged breach of policy on long-term storage of nuclear waste.

On the same day the Heysham to M6 Link Road was approved, and this was JRed by a local transport group on a number of grounds. Thirdly, the Rookery South resource management facility in Bedfordshire emerged from special parliamentary procedure after over a year only to be judicially reviewed by another waste company, and finally the promoter of the Preesall gas storage project judicially reviewed the decision to refuse it.

Here's the latest on the JRs. The Heysham JR was heard in Manchester on 22-23 July - the only one to have got that far - but the judgment has not yet been issued. The two Hinkley Point C claims have both been rolled up (i.e. the arguments as to whether they should be heard have been combined with the hearing itself) and listed for 5-6 December. The Rookery South claim was allowed to go to an oral hearing on the papers but this has not yet been listed, it may be heard in London or Birmingham. Finally, the Halite claim has been rolled up and listed for 15 October.

It previously seemed that the claims were progressing quite speedily, but other than Heysham it doesn't any more. The Hinkley claims will not be heard for more than seven months after they were made. There is more of a queue of claims in London than elsewhere and the rather more rapid hearing of the Heysham claim is evidence of this. One of the parties in a JR is often in no hurry to have it heard and so if there are negotiations on availability for dates, this tends to delay things too.

Changes afoot

The Planning Act regime has always required claims to be launched within six weeks of the decision they are disputing (more accurately in the case of a Development Consent Order, the publication of the order), and the remainder of planning recently changed from 'promptly and in any event within three months' to six weeks as well. That's all very well, but the greater delays occur after the claim has been made. I have heard various reasons for this including those mentioned above, and there are indeed probably several reasons, as there are many factors involved.

One solution, advocated by Lord Carnwath amongst others, is to separate planning out from the remainder of judicial reviews, which are mainly concerned with immigration, and have a specialist court to hear planning JRs. Planning JRs would thus not be caught up in the same queue as immigration JRs and would be more likely to progress faster. That's not guaranteed, of course, since the court could be under-resourced and just as slow. There would also be the benefit of specialised expertise being applied to planning cases, but that has a down side as well, since it would be concentrated amongst very few people. The existing Lands Chamber of the Upper Tribunal could be one vehicle for this.

Another possibility might be more of an 'outcome-based' proposal, of binding timescales or non-binding targets for dealing with claims. I can't imagine the judiciary will welcome being bound or cajoled in this way, though. The obvious solution would be 'more resources', but the government is likely to be interested in changes that don't cost too much.

The Ministry of Justice is committed to consulting on further reform of judicial review, having announced in its response to the consultation on earlier changes to judicial review back in April:

The Government continues to believe that there may be scope to further streamline the process of Judicial Review, particularly for crucial infrastructure and housing projects. We are working to develop any further measures for reform by summer 2013.

I'm not sure when summer technically finishes - 21 September? - but I understand that the MoJ may is likely to launch its consultation in September or October.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Angus Walker
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