UK: Local Authorities Can't Challenge Dcos And Other Judicial Review Proposals

Last Updated: 18 September 2013
Article by Angus Walker

Today's entry looks at a further consulation aimed at speeding up - and weeding out - planning and other judicial review challenges.

As heralded in previous blog entries, the Ministry of Justice has now launched a consultation on further reforms to planning judicial reviews. Essentially, it addresses who can launch claims, what can be challenged, who hears them, and who pays for them. That seems pretty comprehensive, but the reforms are all only indirectly aimed at the main issue: how long they take.

The consultation document is here and the closing date is 1 November. It has the most questions - 43 - I've seen for a while.

Who can launch claims

The only proposal directed specifically towards the Planning Act 2008 regime is to remove the ability for local authorites to challenge decisions under the Act, unless they are the promoter. That is a pretty strange proposal as not only have there not been any such challenges to date, but I have not heard of any threatened ones either. The government is presumably worried that there are proposals that may get challenged in the future - certain super-sewers or new runways, perhaps. Should such worries mean that councils are denied the ability to challenge decisions, though?

The consultation also asks questions about the 'standing' of challengers in general, asking if it should prevent people without much genuine involvement in a situation bringing challenges. The government suggests adopting restrictions used in other situations, such as standing under EU law ('a direct and individual concern'), under the Human Rights Act 1998 (a victim of the alleged breach), for statutory challenges under the Town and Country Planning Act 1990 ('a person aggrieved'), or for entitlement to legal aid (the potential for the decision to produce benefit to the person, their family or the environment). A useful reminder on what restrictions on standing currently exist, at least.

What can be challenged

There are proposals to reduce the ability to claim for 'procedural irregularity', i.e. that something went wrong with the process that was followed, but where there would have been no difference to the outcome if the irregularity had not occurred. The government is worried, though, that this would simply transfer cost, time and effort to arguing whether there would have been a difference to the outcome or not. I am reminded a bit about the Growth and Infrastructure Act 2013 provision to challenge requests for irrelevant information to accompany a planning application, which I think suffers from the same problem.

Who hears them

Something that was news to me is that a 'Planning Fast-Track' has been in place at the High Court since July, where a specialist 'Planning Liaison Judge' reviews all cases launched under the Planning Act 2008 to ensure that a specialist planning judge is appointed to consider the case and sees it all the way through. The only result on google for 'Planning Fast-Track' in that sense is this consultation document - not quite a googlewhack. Maybe it's also news because there haven't been any new challenges since May.

The government wants to go further though, and as hinted previously, is consulting on setting up a specialist Planning Chamber of the Upper Tribunal, to be merged with the existing Lands Chamber to become the - wait for it - Land and Planning Chamber. Planning judicial reviews will be diverted to this chamber instead of joining the same queue in the High Court as immigration cases and the rest. This will probably make the biggest difference to speed of all the proposals, provided the expanded chamber has sufficient resources.

Who pays for them

There are quite a few proposals to change the scope to award costs in judicial review cases such as expanding the scope of wasted costs orders (where someone caused other people to spend more unnecessarily, and has to pay for this), restricting the scope of protective costs orders (where a limit is set on how much of someone else's costs you might have to pay), and the ability of third parties joining a case to claim or be required to pay costs. The section is euphemistically headed 'Rebalancing Financial Incentives'.

There is a proposal to restrict legal aid for 'statutory challenges' under the Town and Country Planning Act 1990 where the government has already taken a decision on the application at an inquiry.

Finally, there are a few miscellaneous proposals. There are questions on 'leapfrogging' where cases go straight to the Supreme Court instead of via the Court of Appeal, and questions on impacts, i.e. if any consultees think any groups will be particularly disadvantaged by the proposals.

All in all this is a pretty root and branch consideration of how to slim down and speed up planning and other judicial review challenges. I am reminded of the Planning Act itself, where each stage of the authorisation process was addressed with proposals to speed it up. I am all for speeding cases up - the Hinkley Point C challanges made in May will be heard in December, for example - but the government must be careful to balance its zeal for growth with the principle of access to justice.

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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