Statutory Challenges – Changes on the Horizon

Statutory Challenges – Changes on the Horizon

CategoryArticles Author Victoria Hutton Date

This note looks forward to next month (October) when it is expected significant changes to certain statutory challenges will come into force. These involve the introduction of a permission stage prior to proceeding with the challenge, a small amendment to the time limit for challenge and the inclusion of the ability to bring a statutory challenge against certain costs orders.

The Criminal Justice and Courts Act 2015 (‘CJCA 2015’) was enacted on 12 February 2015. A number of provisions have yet to come into force, amongst them is section 91 of the together with Schedule 16. These provisions contain amendments to the Town and Country Planning Act 1990 (‘TCPA 1990’), the Planning (Listed Buildings and Conservation Areas) Act 1990 (‘P(LBCA)A 1990’), the Planning (Hazardous Substances) Act 1990 (‘P(HS)A 1990’) and the Planning and Compulsory Purchase Act 2004 (‘PCPA 2004’).

The most significant amendment will be the inclusion of a permission stage in statutory challenges under section 287 and 288 of the TCPA 1990, section 63 of the P(LBCA)A 1990, section 22 of the P(HS)A 1990, and section 113 PCPA 2004.

Any application for permission to challenge under the various statutory provisions discussed above will have to be made within a six week period beginning the day after ‘the relevant date’, usually being the date of the decision or order under challenge. This is a change from the current position which requires the statutory challenges to be brought within a six week period which starts to run from the date of decision or order.

In order to ‘tidy up’ inconsistencies between various statutory planning challenges s92 of the CJCA 2015 (in force since 13 April 2015) harmonises the start period for the calculation of the six week period for other statutory challenges. Section 92 CJCA 2015 amends the date on which the time period for challenging neighbourhood development orders (s61N TCPA 1990), development consent orders (s106C TCPA 1990), national policy statements (s13 Planning Act 2008) and orders granting development consent (s118 Planning Act 2008) is to run. The aforementioned provisions used to state that a challenge must be made during the six weeks beginning with the date of the action under challenge, they now state that the six-week period will not start to run until the day after that event under challenge occurs.

The sum of these amendments will bring the start date of the six week time period in line with that in Judicial Review proceedings. Under Civil Procedure Rule 54.5(5) a claim must be commenced ‘not later than six weeks after the grounds to make the claim first arose.’ The Courts have interpreted the phrase ‘after the grounds’ as excluding the day on which the challenge first arose.[1]

[1] See R(Berky) v Newport City Council [2012] EWCA Civ 378; [2012] CMLR 44 (per Carnwarth LJ at para 32 and Moore-Bick LJ at para 48).

It is also worth noting that the other major amendment to be made by section 91 and schedule 16 CJCA 2015 will be to allow for challenges to be made to awards of costs in relation to planning and listed building decisions in the same way as the substantive decisions themselves may be challenged under s288 TCPA 1990 or s63 P(LBCA)A 1990.

As expected, the Civil Procedure Rules are to be modified in line with the changes in section 91 and schedule 18 CJA 2015. There will be a new Practice Direction 8C governing statutory challenges and changes will be made to Part 52 and PD54E. Those changes will come into force on the day which section 91 comes into force. The changes to Part 52 will enable applicants who have been refused permission by the High Court to seek permission from the Court of Appeal (see Civil Procedure(Amendment No.4) Rules 2015, Rule 10).

Although no official announcement has been made, it is expected that the relevant amendments will come
into force next month. Clearly these changes will have significant ramifications for those bringing and
defending statutory challenges and practitioners would be wise to be conversion with the relevant amendments before they come into force.

Victoria Hutton.
This article is taken from the September 2015 Planning, Environment & Property Newsletter.

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