Wednesday, 17 July 2013

Judicial Review – the new rules

Readers who keep up-to-date with such matters will already be aware that the government’s new restrictions on applications for Judicial Review (‘JR’) came into force on 1 July.

The changes that relate to legal challenges to planning decisions are quite simple. They do not affect legal challenges to appeal decisions made by planning inspectors or by the Secretary of State, under sections 288 and 289 of the 1990 Act. The new rules only affect legal challenges to other decisions, such as the grant of planning permission by a local planning authority (or by the Secretary of State, for example on a called-in application under section 77) which are brought under Part 54 of the Civil Procedure Rules.

Where the application for JR relates to a decision made by the Secretary of State or a local planning authority under the Planning Acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose. No change is made to the identification of the date when “the grounds to make the claim first arose”, and so in accordance with the decision of the House of Lords in Burkett, that date is the date on which the planning permission under challenge was actually issued, not the date of the committee meeting or the date of the delegated decision when it was resolved to grant planning permission.

In simple cases, the two events can occur on the same day or within a day or two of each other, but in more complex cases several weeks or months can sometimes elapse between the decision to grant permission and the actual issue of that permission. In practice, this may give objectors a bit more time to get themselves organised, as the kind of decisions that tend to be challenged by way of JR are often the ones that involve some complexity. Nevertheless, objectors who wish to challenge such a decision should not hang around. Lawyers need to be instructed as early as possible to advise on a potential High Court application, so that if they advise that an arguable case can be put forward, the necessary application can be issued and served within the 6-week time limit.

This latest amendment to the Part 54 of the Civil Procedure Rules does not affect the power of the Court to extend time, so the absolute six-week cut-off that applies to section 288 applications does not apply to JR applications under CPR Pt.54. The position now is really no different from that which obtained before the House of Lords’ decision in Burkett, a situation with which we all seem to have coped at the time. In appropriate cases, the court will no doubt be prepared to extend time, although it will clearly not do so if the failure to apply within six weeks is simply the result of unpreparedness on the part of the claimant or simple dilatoriness, whether on the part of the claimant or on the part of their legal advisers.

The new rules amend Part 52 so as to remove the right to renew the application for permission to proceed with a claim for JR at a hearing in open court following a previous refusal of permission on the papers, but only if the judge who refused permission on the papers certifies that the claim is totally without merit. I confess to having some misgivings about this, but it is to be hoped that judges will exercise this power sparingly, and only in the most obvious cases.

The new rule under Part 54 (the six-week time limit) applies only in respect of those cases in which the grounds for JR arose on or after 1 July 2013. The new rule under Part 52 (oral hearing of a renewed application) does not apply to an application for permission to bring proceedings for JR that was made before 1 July.

Increases in the court fees payable in these proceedings had already been introduced under previous rule changes.


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