Martin Edwards and Clare Parry ask whether the specialist court has lived up to expectations
The Planning Court is now just over one year old. At the time of its introduction it was widely welcomed, promising an increased level of specialism on the bench, faster timetables and new procedural directions with the objective of reducing delay. So, one year on, has it lived up to expectations?
Initial inception
It was back in December 2012 that the then-government launched proposals to overhaul the judicial review system. More specific concerns had also been raised about the delay caused by legal challenges to planning permissions. In recent years there had been a perception that the number of planning and environmental claims had increased noticeably. Given the number of major changes to planning legislation, most notably in the Localism Act 2011, and the introduction of the National Planning Policy Framework (NPPF), this was hardly surprising.
Furthermore, the decision of the Supreme Court in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69 brought about a change in approach to the interpretation of planning policy that heralded an increase in judicial oversight of planning decisions.
Consequently, in April 2013, a number of planning-related changes were made. The time limit for bringing planning-related judicial review claims was shortened from three months to six weeks (although in reality the old time limit was as soon as practicable and in any event no later than three months), removing the right to an oral hearing when permission had been refused on the basis that the claim was totally without merit, and introducing a fee for oral renewals. A system for fast-tracking certain claims was also brought in.
However, the government felt that, in relation to planning, these changes did not go far enough. In September 2013 the Ministry of Justice issued a consultation paper in which it expressed concern that “unmeritorious claims… can delay the progress of major infrastructure projects which are intended to stimulate growth and promote economic recovery”.
The argument was that unsuccessful judicial review claims caused delay to the implementation of developments. In 2011, on average it took 313 days for a judicial review claim to reach a final hearing and 370 days in planning cases. Despite this only a small number of cases were being expedited – just 15 in 2011.
It was also acknowledged that judges sitting in the Administrative Court heard a wide range of cases. In 2012, 40 High Court judges heard 120 substantive planning cases with most hearing only one case each. Non-specialist judges generally took longer to hear planning cases.
Creation of the court
Following consultation the government decided to create a specialist Planning Court, lower the threshold for refusing relief and allow appeals to leapfrog to the Supreme Court.
It rapidly got down to business. Having opened its doors for the first time on 6 April 2014, the first permission hearing took place and the first judgment was handed down the next day.
While the Planning Court remains part of the Administrative Court, it deals with all judicial reviews and statutory challenges involving planning matters in accordance with CPR Part 54.21 and Practice Direction 54E. This includes all appeals and applications relating to enforcement notices and lawful development decisions, planning permission, other development consents, Transport and Works Act 1992 applications, wayleaves, highways, compulsory purchase, village greens and EU environmental challenges.
The judge in charge of the Planning Court is Lindblom J. Cases can commence in London, Birmingham, Cardiff, Leeds or Manchester. The chances are that claims will come before a specialist judge. The president of the Queen’s Bench Division nominates specialist planning judges to deal with claims that are “significant”. These are cases where they:
- relate to commercial, residential or other developments which have significant economic impact at local level or beyond;
- raise important points of law;
- generate significant public interest; or
- by virtue of the volume or technical material are best dealt with by judges with experience of handling such matters.
If a case is “significant” then permission to bring the claim should be decided within three weeks of the acknowledgment of service. Oral renewal applications are to be heard within one month, applications for permission under section 289 of the Planning Act 1990 (enforcement notice appeals) are to be decided within one month of issue and statutory applications are to be heard within six months of issue. Judicial review cases are to be heard within 10 weeks of submission of the detailed grounds.
Delving beneath the stats
How has it fared? In a recent study covering the period from the start of the Planning Court until 20 February 2015, based on information available from Westlaw, BAILII and Lexis, 109 planning cases were heard.
While this list may not be complete, it does appear to provide a fairly reliable indication of how the new Planning Court is working. It showed that the average time for all cases that went to a full hearing was 261 days, split between 272 days in the first half of the period of study and 250 days in the second half. However, this latter figure may have been skewed by two very long cases (taking 930 and 652 days respectively) and if these were taken out of the equation then the second-half average would come down to just 230 days compared to 370 days in 2011. By any yardstick that is an impressive achievement in itself.
However, there remain some areas of concern. It appears that there were a small number of cases that took a very substantial amount of time and there is a logjam in appeals to the Court of Appeal. On the other hand it is possible that some of these longer cases are as inevitable as they are unavoidable. Time alone may tell.
Looking at the raw data, it appears that these 109 cases were heard by 33 judges, of whom only 12 heard one case each. No judge heard more than 10 cases. Some specialist deputy judges were also used. Some of those hearing large numbers of cases (such as Patterson J and Lindblom J) had lengthy and successful careers at the planning bar before being appointed to the bench and bring to the court considerable experience of planning.
Overall eight judges heard more than five cases (as at the end of May 2015):
- Hickinbottom J – 9
- Supperstone J – 9
- Patterson J – 9
- Lindblom J – 8
- Lewis J – 6
- Collins J – 6
- Lang J – 6
- Cranston J – 6
Importantly, in recent months the ranks of specialist judges have been strengthened further by the appointments of Gilbart J, Dove J and Holgate J and therefore one of the primary purposes behind the establishment of the Planning Court – having complex cases heard by judges with specialist practical experience – has been met.
In another welcome move, the Planning Court has established a users’ group to provide a forum for discussion of topical issues and practical concerns, providing both judges and the barristers and solicitors who appear before them with an avenue for informal feedback which can only help further enhance the efficiency of the court.
The verdict
Overall it is fair to say that the first year of the Planning Court has been most encouraging. Generally speaking, cases are taking less time to hear and the recent recruitment of more specialist judges is a clear sign that the evident progress made so far will continue, if not accelerate.
However, this is not the end of the story. More changes are imminent as a result of the Criminal Justice and Courts Act 2015. This will introduce a requirement for permission in section 288 planning appeal statutory challenges and development plan challenges under section 113 of the Planning and Compulsory Purchase Act 2004.
Furthermore, section 84 controversially amended section 31(2) of the Senior Courts Act 1981 so that for claims issued after 13 April 2015 the High Court “must refuse to grant relief on an application for judicial review… if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”.
It is possible that this will lead to further litigation that in some cases might drag the court into considering the planning merits of a development in order to determine whether the outcome would or would not have been substantially different.
Whatever the outcome, it is hoped that the politicians will now leave the Planning Court alone so that it can continue with the progress made so far without having to absorb even more change.
Martin Edwards and Clare Parry are barristers at Cornerstone Barristers
