Judicial Review: Planning permission

Judicial Review: Planning permission


Author: Tim Willis

In September 2013, the Ministry of Justice issued its consultation paper Judicial Review - Proposals for Further Reform, which sets out proposals to further speed up the judicial review (JR) process following the grant of planning permission.

This consultation follows on from the reduction of the JR challenge period for planning decisions, which took effect on 1 July 2013.

The main features of the current consultation paper are:
. the proposed creation of a new specialist 'planning chamber', which would deal specifically with legal challenges to planning decisions
. changes to court rules/ procedure in order to streamline the process and deal with 'meritless' legal challenges more quickly
. the narrowing of the category of persons able to launch JR proceedings

Supporters of the proposals have argued that the:
. proposals will lead to the early disposal of 'tactical' challenges which seek only to delay development
. quality of decision making will improve as only judges specialising in 'planning' cases will sit in the new chamber
. ultimately the opportunity for further delay - arising from appeals to a higher court based on erroneous interpretation of planning policy/law - will be minimised

However, critics of the proposal claim that:
. there is already a significant backlog of outstanding JR actions and these proposals will not assist in the short/medium term
. unless more specialist planning judges are appointed, these proposals will not solve, but merely move, the problem of delay from the Administrative Court to the proposed planning chamber
. the narrowing of the category of person capable of challenging decisions impacts directly on the 'localism' agenda and may prevent local people (and in some cases local council's), from seeking to challenge controversial planning decisions

It is this last point that has generated most debate to date.

At present, the court has a relatively wide discretion in deciding whether a claimant can bring a JR claim. The proposals suggest that a more 'direct and tangible interest' in the proposed development should be shown. This may ultimately prevent residents groups or other bodies from having sufficient interest to take proceedings.

Ironically, this concern could lead to any proposed reform being itself challenged by way of JR proceedings on human rights grounds - particularly given the constraints that these reforms may have on local people or 'groups' challenging proposals for HS2.

Purely from a developer's standpoint, it is disappointing that there are no proposals allowing for an automatic extension of time for implementation of a planning permission where development is stalled by legal challenge.