Judicial Review - It's a matter of time...Add To My Clippings Alt Text

By Judith Damerell

What’s new…?

The time limit for submitting a claim for judicial review (JR) of a planning decision has been reduced to six weeks. This is a reduction from the previous period of three months.

Tell me more…

The JR process begins with a formal application being made to the court for permission to bring JR proceedings.

The amended rules require the JR application (claim form) to be filed at the High Court within a maximum of six weeks after the date when the alleged grounds of the proposed claim arose. The overriding requirement to bring a claim ‘promptly’ has been done away with.

Anything else…?

Under the old rules, before a JR application is submitted, an applicant must have taken steps to comply with the applicable JR pre-action protocol – a further set of court rules intended to enable parties to settle issues without the need to start court proceedings.

To accommodate the shortened JR time limit, the requirement to comply with the relevant protocol in planning cases has been relaxed. Parties should still try their best to comply with the protocol but the court should not apply cost sanctions where it agrees that it has not been possible for a party to be compliant as a result of the shorter JR time limit.

If on considering the initial paper permission application a Judge decides the claim is “totally without merit”, under the new rules the claimant loses the right to an oral re-consideration of the application.

In the event that a claimant is initially refused permission to apply for JR, on the papers, it is proposed that a fee of £215 for oral re-considerations of the permission application will apply from October. However, this fee will not be payable where the result of the oral re-consideration is that the claimant is successful and formal permission to apply for JR is granted by the Judge.

And the applicable law…?

The Civil Procedure (Amendment No 4) Rules 2013 (SI 2013/1412), which came into force on 1 July 2013, amended Parts 52 and 54 of the Civil Procedure Rules 1998 (SI 1998/3132) so as to implement the proposals for reform (of JR proceedings) published by the Ministry of Justice on 23 April 2013. Of particular interest to those within the property and development industry is the amendment to Rule 54.5 which states that, as referred to above, where an application for JR relates to a decision made by the Secretary of State or 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.

The new rules do not apply to a JR application where the alleged ground(s) for the application arose before 1 July 2013.

Why is it time for a change?

Ultimately, three objectives behind the rule changes can be identified:

  • Prevention of spurious JR claims being used as a delaying tactic;
  • Early identification and dismissal of groundless cases; and
  • Reduction in the number of, and delays to, claims being heard.

The number of JR applications relating to all topics has been increasing in recent years. It is reported, however, that in 2011 only one in six applications was granted approval to proceed beyond the permission stage, and fewer than 150 JR cases were ultimately successful (i.e. favoured the applicant).

Although the number of (annual) planning related JR cases has increased, these still only represent a small proportion of the overall number of JR claims, with immigration cases topping the bill.

Nevertheless, it is planning cases on which the government has been focusing its attention. This is because JR is increasingly being used as a tool to frustrate much needed development and infrastructure projects. It is felt that in all too many cases, the alleged grounds for JR have little or no prospect of success, but legal proceedings will nevertheless have the effect of stalling the affected project (with the likely knock-on effect, for example, of contractual uncertainty and increased costs to the parties wishing to bring forward the proposed development).  

The Prime Minister, when introducing the consultation which ultimately led to the rule changes, argued that many JRs are “completely pointless”, cost the tax payer unnecessarily and slow down economic growth. The Justice Secretary, Chris Grayling, echoed these comments, albeit that he also acknowledges that JR is an important way to hold authorities to account.

Success or failure?

A considerable number of arguments for and against the rule changes have been advanced from various sectors, but we cannot yet tell what the outcome of the new rules will prove to be. Some relevant issues are summarised below:

  • In general, planners and developers are likely to find that the new rules assist them, for the reasons set out above - avoiding costs/delay and giving certainty of deliverability of a planning consent;
  • There is now a single 6 week period within which JR applications must be submitted (i.e. without the, often ambiguous, overriding requirement to bring claims ‘promptly’);
  • The 6 week period mirrors other planning (process) timeframes, providing a welcome degree of uniformity;
  • Adopting a less rigorous approach to the adherence of the JR Pre-action Protocol (as a quid pro quo for the reduced procedural time limit for bringing a JR claim) may in practice achieve the opposite of the Government’s objectives. It has, for example, been argued that this will result in an increase in precautionary applications being submitted without due consideration of the merits of the potential proceedings (which might have otherwise have been achieved during the formal pre-action stage); 
  • A shorter time period may mean that claimants will now be more willing to ask the court to exercise its discretion to allow a claim outside the six week window;
  • Reduced timeframes will result in objectors having less time to prepare a JR application. This will affect ‘commercial’ objectors and interest groups alike, and may in turn result in unfairness to parties (particularly perhaps those who lack significant resources).

Finally, a more fundamental proposition is that, whilst the changes will hopefully reduce the number of misguided claims, the root cause of the problem lies in the time it takes for JR applications to be considered by the Administrative Court. Currently, it takes on average six to nine months for the permission stage to be reached and, potentially, a further nine to twelve months for a substantive hearing. This situation is, arguably, in large part due to the court lacking the resources to deal with the high volume of applications – there are only a relatively small number of the judiciary who specialise in planning law. The position is only likely to be rectified by an increase in judicial resources, which will inevitably require an increase in government funding. This is perhaps unlikely at the present time.

You can read the ...a little bit of law article on Judicial Review and Planning here.

For more information on these new rules and/or more generally the wider JR, planning and development context, please contact Judith Damerell, Head of Planning, or your usual Lewis Silkin contact.

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October 2016