Judicial review: It's about time

Judicial review: It's about time

Published:

Author: Tim Willis

At present, an application for a judicial review of a decision made by a public body must be made 'promptly' and within three months of that decision being taken in any event.

In a planning context, the apparent vagueness and uncertainty of this wording has resulted in a number of legal challenges involving a determination as to whether a claimant has indeed acted 'promptly' in bringing their claim to court. The point is important, as any unreasonable delay in that respect could result in the dismissal of the judicial review application, even if that is brought within the so-called three-month-long stop period.

In the light of this and overarching concerns over the delay to development schemes arising from the judicial review process, the Government has now announced that it will introduce important changes to judicial review time periods in relation to planning and procurement decisions. These changes are likely to be introduced in summer 2013.

In summary, the changes will:
. shorten the time for bringing a judicial review of planning decisions from three months to a fixed period of six weeks
. reduce the time for challenges to procurement decisions (i.e. those that relate to decisions to award public contracts) from three months to four weeks
. disapply the pre-action protocol for planning and procurement cases (given the reduced time scale within which such challenges are to be made)
. increase the fee payable for any application for judicial review from £60 to £215

In pushing through these changes, the Government has argued that the tactical use of meritless judicial review applications to delay development is stifling economic growth and that the measures being put in place will discourage such applications being made.

Leaving aside the arguments made by critics that the Government should revisit its own economic policies in order to stimulate growth, it is extremely unlikely that the proposed changes will have any significant impact on growth or current practice because:
. the increased Court fee is still relatively small and will not deter potential claimants given the overall cost of pursuing a judicial review action
. most practitioners and their clients already ensure that any judicial review claim is lodged within a 'notional' six week period in any event, so as to avoid any potential arguments over 'delay'
. the need for the court's 'permission' to proceed with a judicial review action acts as a filter for those claims which raise no reasonable or arguable grounds of claim
. fewer than 2% of judicial review actions relate to planning decisions in any event

It will be important for land owners and developers to address these imminent changes in any contractual documentation, so that it reflects the reduced time periods proposed.