On 1 July 2013, the Civil Procedure (Amendment No. 4) Rules 2013 (“the Rules”) came into force. Their crucial importance, in terms of the planning system, is that they made changes to the time limit for bringing a claim for judicial review in planning cases. But they also made other important amendments to the Civil Procedure Rules (“CPR”).
The effect of CPR 23.12 is that, if the court dismisses (inter alia) an application for permission to apply for judicial review and it considers that the application is totally without merit, the court’s order must record that fact.
The Rules amended CPR 54.12 to provide that where the court, without a hearing, refuses permission to proceed with judicial review and records the fact that the application is totally without merit in accordance with CPR 23.12, the claimant may no longer request that decision to be reconsidered at a hearing.
Although CPR 23.12 in its earlier form was introduced in October 2004, there appears to be a dearth of case law on what renders an application “totally without merit”. While the facts of R (on the application of Communities United Party) v Secretary of State for Communities and Local Government [2014] EWHC 765 (Admin) may seem somewhat unusual, the court’s decision is nevertheless illustrative.
There the claimant applied for permission to seek judicial review of the decision of an inspector to uphold an enforcement notice on appeal. The breach of planning control alleged was a material change of use of a building from use as a dwelling house to use as a combined dwelling house and business premises.
The judge dismissed the application, recording it as totally without merit. He gave the following reasons: (1) the claimant’s standing was doubtful; (2) the proper remedy lay not in judicial review, but in an appeal to the High Court under section 289 of the Town and Country Planning Act 1990; (3) such an appeal had to be lodged within 28 days, and required the leave of the court; (4) the application had accordingly been brought in the wrong form, and out of time; (5) no explanation carrying any weight had been given for that; and (5) the inspector, on the facts, had made a decision that she was entitled to reach and she had not erred in law.
John Martin
