Judicial review - further details of the proposed changes

When I reported last week on the Criminal Justice and Courts Bill, I had not had a chance to look into the other details of the proposed changes to the judicial review process that were set out in the government’s response to their original consultation paper.

It is now clear that the idea of a separate planning review tribunal (as part of the Upper Tribunal) has been abandoned, apparently as a result of opposition by the senior judiciary. Nor does the Government now intend to make any changes to the scope of legal aid for planning challenges under sections 288 and 289 of the Town and Country Planning Act 1990, or to the ability of local authorities to challenge infrastructure projects. The government has also dropped its suggestion that legal standing (locus standi) to bring a legal challenge in planning matters should be restricted.

The government has spun its climb-down in terms that imply that we are still going to have a fast-track Planning Court, but all that is suggested in the first instance is that there should now be a separate listing of planning cases within the Administrative Court list which should be expedited (or ‘fast-tracked’ to use a favourite word in government circles these days), and that the judges assigned to hear cases in this list should be ‘planning’ judges, i.e. judges with specialist knowledge and experience of planning law and procedure. A move in this direction had already been made last year, so this simply confirms a welcome initiative that should lead to a more reliable outcome in planning cases that come before the court. It was a change I had called for in the earlier version of this blog as long ago as June 2006 (under the title “Judicial Lottery”, which can still be found on the internet at http://planningmatter.blogspot.com/ ). Incidentally, I see that I also canvassed in that article the idea of transferring legal challenges to planning decisions to something in the nature of the Employment Appeals Tribunal or, in present day terms, a Planning Chamber in the Upper Tribunal. Someone in the MoJ must have been reading the blog!

One source of difficulty where a permission hearing is required before a claim proceeds (either under CPR Part 54 or section 289, and now also under section 288) is the award of the costs of that hearing. The government has now decided that where an oral permission hearing is successful costs will not be awarded against a party at that stage but will fall to be determined at the end of the substantive hearing. The courts will still have a general discretion in this area, to ensure that justice is done. It is suggested that the Civil Procedure Rules should be amended to indicate that the costs of an oral permission hearing should usually be recoverable.

While we are on the subject of permission hearings, there is a long-standing anomaly that whereas the initial application for permission in Part 54 cases is usually on the papers, there has to be a hearing in section 289 cases (and presumably now also in cases under section 288). It would be sensible to change the rules so that an initial application for permission under section 289 (and now also section 288) should be on paper, renewable for oral hearing in the same way as Part 54 cases. In fact, the whole leave procedure should be brought into line, so that all of these cases are treated in the same way. Another anomaly, indeed a source of injustice, is the lack of any right of appeal against a refusal of leave in a section 289 case, whereas there is a right to renew an application under Part 54. These procedures need to be brought into line, especially now that section 288 cases are also going to need permission to proceed.

On the question of costs, I note that it is not proposed to restrict the availability of Protective Costs Orders for judicial review in environmental cases (which would include planning). These are cases that come within the scope of the Aarhus Convention and the Public Participation Directive, and the restriction on the availability of protective costs orders which is proposed in other judicial review cases would be a breach of this country’s obligations under the convention if it were to be applied to cases involving environmental issues. In these cases a claimant’s costs are capped at £5,000 where the claimant is an individual and at £10,000 in other cases, and at £35,000 for the defendant.

© MARTIN H GOODALL