The High Court is now to include a formally designated Planning Court and permission to apply will be required for section 288 applications against planning decisions in the latest government reforms to judicial review and related proceedings. Ministers have just published their response to the latest reform proposals and the Criminal Justice and Courts Bill 2014 proposing changes to judicial review.
In September 2013 the Ministry of Justice started consultation on Judicial Review: Proposals for further reform. One concern was the effect of challenges on development proposals. There are up to 400 planning High Court challenges a year, spread across judicial review and statutory appeals and applications. Since many cases succeed, and many others are proceedings by developers against the refusal of planning permission, the number of unsuccessful challenges to the grant of planning permission is modest. A more substantial worry has been the time taken to deal with cases in the Administrative Court and the quality of judicial decision-making in what is a legally and practically highly nuanced field.
In July 2013 the Administrative Court introduced the Planning Fast Track with the aim of having more planning cases (particularly major schemes) dealt with quickly and by specialist judges. This scheme has speeded up the consideration of cases, although it has been less successful so far in getting them before expert judges. The MoJ consultation paper proposed to transfer planning High Court work to a new Planning and Land Chamber in the Upper Tribunal.
The issues in planning High Court cases have been speed and quality of decision-making. My personal response to the consultation included the comments:
“The creation of the Planning Fast Track is capable of dealing with both problems. It has already shown a much quicker disposal of cases, although the allocation of the cases to specialist judges needs to be carried out with more rigour. It is not clear that there are insufficient specialist judges…The problem has been a matter of allocation of specialists to cases. If more planning judges are required then this can be addressed by the new High Court appointments, the appointment of more planning specialists who are recorders as deputy High Court judges (section 9(1), Senior Courts Act 1981) and if it is expedient to facilitate the disposal of planning cases, the appointment of planning QCs and other senior planning lawyers as deputy High Court judges under section 9(4) of the Senior Courts Act 1981.
The creation of a Planning and Lands Chamber is unlikely to resolve either problem and may create more difficulties. Firstly the Lands Chamber is not staffed to deal with planning cases. It does not have employed lawyers who would have to be transferred from the Administrative Court. Those of its judges who are suitable to take planning challenges already sit in the Administrative Court.
Whilst current High Court judges and deputies could be appointed to a new chamber, the danger is that some of the judges who handle planning cases very well at present (such as public law specialists) will not become members of the chamber and so there will be a reduction in the available expertise. Planning lawyers could be appointed as part-time judges to the chamber, but they could be appointed as deputies in the High Court in any event. The calibre of judges needs to remain high and it may be difficult to recruit salaried (that is, full time) judges for a planning chamber at the same quality.
The Lands Chamber…is not an obvious vehicle for the speedy disposal of planning challenges.
The process of setting up a Planning and Lands Chamber will cause its own disruption to the handling of planning cases, not least because two of the leading planning judges…will have to manage the change.
Consequently the most effective way of progressing planning cases is to continue with the Planning Fast Track, ensure that cases are allocated to suitable judges more often and appoint more planning specialists to the High Court bench or as deputies if required.”
Organisational changes tend to be a matter of balanced pragmatism rather than principle and there were a range of views, including amongst judges. The senior judiciary ultimately came together behind keeping planning cases in the High Court but renaming the fast track the ‘Planning Court’. Legal respondents tended to prefer the High Court option. The Lord Chancellor has sensibly taken the view that speeding up planning cases would not be assisted by the effort of setting up a new tribunal, and so proposes to turn the Planning Fast Track into a new Planning Court. The detail of this is left – presumably to the judiciary – but ought to involve very limited rules changes.
The consultation response notes some judicial review procedural reforms proposed by consultees. These include reducing the timescales for the production of detailed grounds of resistance from 35 to 28 or 21 days and codifying skeleton argument deadlines for claimants and respondents at 21 and 14 days respectively (rather than the 21 and 14 working days which are formally required at present).
Permission to apply requirements in section 288 applications
There has been debate for a long time as to whether a permission stage should be introduced in section 288 applications. Presently those applications go straight to a final hearing. That has the virtue of speed but does mean that some unarguable cases reach full hearings. The Lord Chancellor is proposing that permission is required to bring section 288 cases in England. The statutory mechanics of the proposed changes are contained in clause 57 of the Criminal Justice and Courts Bill.
The procedures are not set out in the Government’s consultation response, although the senior judiciary said that summary grounds of defence should be required at the permission stage.
A permission stage will be effective provided that it is operated quickly and proportionately. Section 288 substantive hearings do not usually take longer than a day, so lengthy permission hearings should be discouraged. There is also an unresolved question whether appeals to the Court of Appeal against the refusal of permission to apply should be allowed. Such appeals are not allowed in section 289 enforcement cases but are permitted in judicial review. This has been an important safeguard in judicial review. There are plenty of cases where permission to apply for judicial review was refused in the High Court, granted in the Court of Appeal and the claim was ultimately successful.
Remedies and the prospect of a different outcome
Where a judicial review has been brought within time by a person with standing and the impugned decision has been found to be unlawful, the normal rule is that the decision will be quashed unless the Court can be satisfied that there would be no different decision on a redetermination. There is still some discretion not to quash if there is particular prejudice or the claimant has not particular interest in the point upon which they have won, but the Court may grant other relief, such as a declaration. The High Court will already consider at the permission stage whether the alleged error might have made a difference. In a clear case of ‘no difference’ it will refuse permission on that basis. There are many cases where such arguments need detailed consideration and if the case is otherwise arguable then it will need to proceed.
The Ministry of Justice has been concerned that cases are brought which if successful will not achieve anything. It proposes that permission to apply for judicial review or a remedy should be refused if the error was ‘highly unlikely’ to have made a difference. Anything more than a ‘minor doubt’ would still enable the Court to grant permission or a remedy. The senior judiciary did not agree with the proposal.
The Bill proposes to introduce this change by amendments to section 31 of the Senior Courts Act 1981, contained in clause 50. Relief or permission to apply for judicial review must be refused:
“if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”
These formulation throws up a number of issues. The level of the threshold set by ‘highly likely’ will be a fertile subject of debate. It is intended to be weaker than the ‘no difference’ or ‘no real prospect’ approach but the questions are how much difference it makes, both in theory and practice and whether any such degree of change is desirable.
The provision deals with the outcome for the applicant, but as Sedley J observed in R v Somerset County Council ex p Dixon  J.P.L. 1030:
“Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs—that is to say misuses of public power”
The outcome for the applicant might not change but an important error may be established. The scope for declaratory remedies and public interest challenges is at least complicated by the current formulation.
Whether a decision would be substantially different has to be looked at in the principle and detail of the decision. A challenge which resulted in the quashing of an unlawful part of a planning condition would lead to a small change to the permission, which might have turned out to be important.
There is a real question whether statutory changes to matters presently within the Court’s discretion help or hinder the legal process.
The Ministry of Justice also propose further general changes to judicial review by introducing statutory provisions on protective costs orders, requiring information on the funding of proceedings and bringing in a presumption that interveners pay all the parties’ costs of the intervention. These are set out in clauses 51 to 56 of the Bill and will need quite careful consideration. Their impact on planning cases will be quite modest.
Further planning changes that can be considered
There are a number of inconsistencies in the planning High Court challenges regimes which ought to be resolved:
(i) As it stands, some proceedings will still not need permission: development plan challenges under section 113 of the Planning and Compulsory Purchase Act 2004 and the limited number of challenges which can still be brought under section 287 of the Town and Country Planning Act 1990 (simplified planning zones and highways orders);
(ii) It may be a drafting oversight, but the Bill does not introduce a permission requirement to challenges to listed building consent appeal decisions under section 64 of the Planning (Listed Buildings and Conservation Areas) Act 1990 which is the equivalent to section 288;
(iii) Whilst the challenge period is notionally six weeks, the periods start and finish at different times under sections 113, 287 and 288 and in challenges to national planning policy statements and development consent orders under the Planning Act 2008;
(iv) The four week period for bringing enforcement notice appeals under section 289 was to resolve enforcement matters more speedily, although the two week difference from section 288 does not deliver any great advantage. There is a strong case for equalising the challenge period at six weeks;
(v) If planning permission is granted on an enforcement notice appeal, any challenge has to be brought by separate proceedings under both sections 288 and 289. This duplication is a waste of time and money. A similar complication arises on listed building challenges;
(vi) Section 289 appeals are confined to appellants to the enforcement notice, persons interested in the land subject to the notice and the local planning authority. Third party challenges to enforcement appeal decisions have to be brought by judicial review. There is a sound basis for instituting a person aggrieved test into section 289 and the equivalent listed building provisions;
(vii) The power under section 288 is to quash the decision and the Court does not have the full range of judicial review remedies. Whilst that is usually not problematic, there are circumstances where more flexible remedies would assist, including the partial quashing of decisions;
(viii)Judicial review challenges to the adoption of supplementary planning documents and other local development documents which are not part of the development plan are subject to the general judicial review time limit of three months and promptly.
These have some bearing on the speed of decision making, but more effect on the cost to parties and the Courts of working through overly complex procedures and the potential for error. With the exception of the planning policy judicial review time limit, all of these issues would require primary legislation. Since the Bill is addressing planning High Court challenges there is the opportunity to consult upon, and make those changes, during its passage.