Following on from EG’s recent review of the Planning Court’s progress in streamlining challenges, Claire Fallows and Morag Ellis QC consider the position at the Court of Appeal and the impact of recent changes to the rules on costs
The introduction of a specialist Planning Court has helped to speed up challenges to planning decisions at first instance, including both judicial reviews of decisions by local authorities and statutory challenges to decisions of the secretary of state and the Planning Inspectorate.
However, many applicants take their fight on to the Court of Appeal, with associated costs and delay for developers.
Right of appeal
There are a variety of potential paths through the appeal court, depending on the circumstances. The High Court may have refused an application for permission to seek judicial review or (permission having been granted) refused the resulting full claim or statutory challenge.
All such matters can be the subject of an appeal. Even where the High Court finds a claim to be “totally without merit” on the papers (denying the right to a further oral hearing in that court), the right to apply to the Court of Appeal remains.
Permission to appeal is required (if not granted by the lower court). An application must usually be lodged by way of an appellant’s notice at the Civil Appeals Office within seven days of judgment.
Applications for permission are generally considered without a hearing in the first instance. Where the court refuses permission on the papers alone, the appellant may request that the decision be reconsidered at a hearing, which may be before the same judge.
However, if the application is held to be “totally without merit”, the appellant has no further appeal route.
The Court of Appeal may give permission to appeal, in which case directions will be issued as to how the matter will proceed. Alternatively, it may, where appropriate, give permission to apply for judicial review, in which case the matter will proceed in the High Court, unless the Court of Appeal orders otherwise. The potential for delay while all of the available routes are exhausted remains considerable.
Avoiding delays
In order to keep case management as streamlined as possible, the courts welcome and encourage active co-operation between the parties. In the High Court, there will often be scope in planning cases for agreeing most, if not all, of the facts and, at the least, an agreed chronology will always be welcomed by the court. It should also be possible in many cases to agree what the determining issues are.
On appeal, the appellant’s skeleton argument is required at permission stage and there will be the judgment from the court below, both of which should assist in setting out issues on an agreed basis and therefore help to improve the accuracy of time estimates, shorten hearings and reduce costs.
There is, however, no requirement in the Civil Procedure Rules at present for such agreed statements, so it can prove difficult in practice to engage a party who wishes to use the appeal to play for time, leaving only the award of costs as a fairly rough and ready sanction. There can also be reluctance in practice to fund counsel to undertake such work up front, when there is no guarantee of their availability being taken into account in listing (see below).
The grounds of appeal must identify concisely the respects in which the judgment of the court below is said to be wrong. The reasons for those contentions must be explained in the skeleton. Both applications and skeletons should focus on good points only to avoid wasting court time.
In view of the volume of work faced by the courts, it is important to remember that judges have limited time to assess the information provided and reach a decision. Particularly at permission stage, the information provided to the courts should be focused and distilled. Skeletons should set out the case comprehensively but succinctly. Authorities should be carefully selected.
Where an appellant seeks permission to appeal, respondents are encouraged, within 14 days of service of the appellant’s notice, or skeleton if later, to file a brief statement of any reasons why permission should be refused. This helps judges to focus on the key issues between the parties.
Costs
Claims relating to environmental matters often fall to be treated as “Aarhus Convention claims”, so named as the signatories of the 1998 Aarhus Convention must allow cost-effective access to justice. Under rule 45.41, automatic cost caps apply to judicial reviews within the Aarhus Convention such that costs recoverable are limited to £5,000 from individual claimants and £10,000 in other cases.
Defendants’ costs liabilities are limited to £35,000. As planning decisions frequently encompass environmental matters, the scope for parties to gain protection under the rule is wide.
There are, however, apparently arbitrary differences between the rules pertaining to costs in judicial reviews and statutory challenges, even though claimants will, in many instances, be seeking effectively the same result, ie the quashing of a planning permission.
Rule 45.41 does not apply to statutory challenges to decisions of the secretary of state and inspectors, which therefore remain subject to the more onerous tests for protective costs orders established through case law (known as the Corner House tests). Recently, in Venn v Secretary of State for Communities and Local Government [2014] EWCA Civ 1539; [2014] PLSCS 332, Sullivan LJ declined to extend the application of rule 45.41 to a claim which he found to be an environmental challenge within the Aarhus Convention, because he held that such a change could only be achieved by legislation.
Nevertheless, he described the resulting mismatch as “systemically flawed”.
Further potential hurdles for would-be challengers have been created by Part 4 of the Criminal Justice and Courts Act 2015. This provides for new rules whereby claimants for judicial review will be required to provide financial information including details of the “source, nature and extent of financial resources available… to the applicant” to meet the liabilities of the litigation, above a threshold to be specified.
The court is to have regard to the financing of proceedings when determining costs after a judicial review and must consider whether to order the financier of a claim to pay costs on an application for permission, a substantive hearing and appeal-related hearings. It remains to be seen how these new rules will operate in practice.
An interesting parallel development in recent months has been the application of internet crowd funding techniques to litigation costs. This new approach has been applied, for example, in a claim for judicial review in relation to the government’s decision to accept a large energy-from-waste proposal in Lancashire as a nationally significant infrastructure project.
Obvious questions which arise in the Aarhus context are whether such funders are to be treated as individuals or a group, which will have implications for the size of cap on costs. The potential threshold for financial information under the proposed new rules will also be likely to affect such initiatives.
Wider questions about litigation responsibility in relation to hard-pressed public bodies and concerning advisers’ duties to funders arise, as the internet is inherently unsuitable for the dissemination of privileged legal advice as to the merits of a claim. Currently, these developments are unregulated.
A fair balance?
It is essential to have a fair system open to everyone that enables decisions to be subject to thorough scrutiny by the courts. However, at the same time, there is a need for effective decision making, to provide certainty for those who seek to rely on the decisions subject to challenge. Maintaining an appropriate balance is no easy task.
The measures taken to speed up and streamline access to justice do appear to be helping. However, a claim held to be “totally without merit” by both the High Court and the Court of Appeal may still take five months or more to be resolved.
The financial cost to the developer by way of legal fees and the costs of delay can far exceed the costs potentially recoverable from an individual applicant. Developers must factor the risk of litigation into their plans and insurance is an option in certain circumstances. The question as to whether the current system strikes a fair balance remains open.
Listing windows
Efforts are being made to ensure that planning appeals are dealt with promptly by the appeal court.
Appeals are targeted to be heard within a certain “listing window” running from the date of issue to the date of the hearing.
Such hear-by dates were recently revised for cases filed after 31 July 2015. For planning appeals, the relevant windows are four months (where the appeal court grants permission on paper) and five months (where permission is granted at an oral hearing).
Where permission was granted in the lower court, the listing window is only two months.
Meeting the timetable requires the swift handling of applications for permission. This can result in hearings being scheduled at very short notice and irrespective of counsel’s availability, adding to costs as new barristers are brought up to speed.
Claire Fallows is a partner at Charles Russell Speechlys and Morag Ellis QC is a barrister at Francis Taylor Building
