You should read this if you are a developer whose schemes have been or are likely to be delayed by third party legal challenges.
The 20-second summary:
As we discussed in our previous blog, more changes to the judicial review (JR) regime are on the way. The Ministry of Justice issued an 8 week consultation on 6 September which includes a raft of new proposals. The aim of the reforms is to try to prevent delay to development projects which are often held up, or sometimes killed off altogether, by legal challenges brought by third parties.
We focus on some of the areas that we believe are most significant below, but in summary the main proposals on which Government seeks views are:
- A new Planning Court staffed by specialist Planning Judges to deal with Planning judicial reviews and statutory challenges to decisions made by the Secretary of State;
- Restrictions on the ability of local authorities to challenge decisions relating to Nationally Significant Infrastructure Projects (NSIPs);
- Removal of the possibility of legal aid funding from challenges relating to Secretary of State decisions;
- Restrictions on the classes of people who have “standing” to bring JR cases;
- Requiring an early consideration in cases where only a procedural defect is alleged, or where the result is not likely to be any different even if the decision is overturned and applying a different threshold for cases to proceed where that is demonstrated early on;
- Limiting challenges based on the public sector equality duty;
- “Rebalancing financial incentives” meaning:
- Restricting legal aid payments in cases where permission for JR is not granted;
- Allowing costs awards against claimants who lose at an oral permission hearing;
- Increasing the potential use of wasted costs orders;
- Restricting the use of PCOs in non-environmental cases;
- Limiting costs by restricting the right for third parties to intervene in challenges; and
- Expansion of the Courts from which cases are eligible to “leap-frog” to the Supreme Court to include the new Planning Court.
A new Planning Court for Planning JR cases should reduce delays and provide better decisions
One of the most helpful areas of the consultation is the proposal for a new “Planning Chamber” where decisions relating to major developments would be taken by expert Planning Judges. The consultation proposes that the Lands Chamber of the Upper Tribunal is expanded so that it becomes the Land and Planning Chamber and this will be the forum to deal with Planning JRs and other High Court Challenges, such as s.288 cases (challenges to Secretary of State decisions). Alongside this proposal, the Government is also consulting on the introduction of a filtering of s.288 cases so that they will also have to go through a permission stage like JR cases already do.
As many developers will be aware, there is still concern about there being too much delay in Planning cases. The consultation notes that asylum JRs have already been removed from the Administrative Court, which should free up a lot of time. It also notes that since July 2013 the Admin Court has operated a “Planning Fast-Track” to identify Planning cases and allocate them to Judges with appropriate expertise. Whilst it may still be too early, in our experience we are yet to notice any changes in the speed of the cases or the expertise of allocated Judges.
This proposal therefore seems worthy of support as does the suggested introduction of a filtering of S.288 cases, not least because it means currently that claimants are unaware of the defence to a challenge – or whether there will even be one – until very close to the hearing date.
Restrictions on the ability of LPAs to challenge NSIP decisions may be legally flawed
The paper includes proposals to restrict the ability of local authorities to launch JR challenges in the case of NSIPs. The reasoning behind this proposal is that local authorities have ample opportunity to participate in the process during the pre-application consultation and that avoiding such challenges would save one arm of Government spending taxpayers’ money on challenges to NSIPS which would be defended by central Government, again all at the taxpayers’ expense.
Whilst we understand the rationale set out for this proposal, it is not clear whether such a proposal would work – if the complaint of the challenger is that there has been a procedural error in the decision, or that the evidence in the examination has been unlawfully applied, it is no answer to say that the examination proceedings have been subject to third party determination in public because the complaint is about the manner of determination. Hence we suspect that this proposal will need at the very least to be limited, for it to work legally.
The same principle applies to the proposal to remove the possibility of legal aid funding from cases relating to Secretary of State decisions. The justification for this recommendation is that these cases have already been through a fully independent examination process, i.e. an appeal, but again it is the manner of the determination that is being challenged rather than the merits of the case.
Ability to award costs awards against claimants unlikely to have effect in environmental cases
The consultation discusses a number of proposals under the heading of “rebalancing financial incentives”, all of which are aimed at encouraging claimants to “consider more carefully the merits of bringing a judicial review and the way they handle proceedings.” The five areas that are considered are restricting payment to legal aid providers unless permission for JR is granted, the costs of oral permission hearings, wasted costs orders, protective costs orders and costs relating to third party interventions.
In our view, anything which might provide a more robust approach to claimants needing to satisfy the means and merits test when applying for legal aid would be welcome.
However, due to the availability of automatic PCOs in environmental challenges (for Planning cases, it is very easy to fit within the confines of an environmental case), the proposals relating to the ability to make costs awards against claimants who lose at a permission hearing are unlikely to mean anything in practice without falling foul of principles supporting access to environmental justice in the Aarhus Convention.
In our view, similar difficulties surrounding the Aarhus Convention will also apply to the proposals to restrict the classes of people who have “standing” to bring JR cases. The existing complaint is that JRs are being opened up to lobbying or pressure groups who have no involvement in the particular decision and that this should be prevented by changing the test for who can bring a claim. Whilst, we endorse the sentiment behind the proposal, in our view it is unlikely that, in reality, Planning cases would benefit because it is not difficult to find a claimant or interest group which does have a direct interest in the subject matter of the JR. To the extent that the proposal does apply to Planning cases, there is also the difficulty presented by the Aarhus Convention.