2013: The legal year

Five key legal developments from the past year are highlighted by Jamie Carpenter and Catherine Early, along with key issues for the year ahead.

On the evidence of the past year, local government secretary Eric Pickles' ambition of reducing lawyers' role in development management decision-making is still a long way from being realised. With the Localism Act and the National Planning Policy Framework still bedding down, applicants and planning authorities alike have been keen to test them in the courts.

Ongoing legal challenges on matters such as Strategic Environmental Assessment, the decision-making system for Nationally Significant Infrastructure Projects and neighbourhood planning suggest that barristers will stay busy next year. We spoke to planning lawyers about the key legal developments of 2013, and asked them to highlight key cases for 2014.

March: High Court decision on prematurity

Two High Court judges this year ruled in favour of the secretary of state approving major housing projects that did not conform with councils' local plans.

Tewkesbury Borough Council had contested the decision by communities secretary Eric Pickles to permit two housing developments of a total of 1,000 homes near the village of Bishop's Cleeve in Gloucestershire. The applications were contrary to the council's development plan, but as this was outdated, the secretary of state gave it reduced weight.

Pickles had agreed with the inspector that the most significant material consideration was the requirement for a five-year housing land supply, which the council could not demonstrate. The emerging development plan was given little weight as it was at an early stage. In March, a High Court judge ruled that the Localism Act did not "eliminate the role of the secretary of state in determining applications opposed by local planning authorities".

A similar case was brought in July by Stratford-on-Avon District Council, which appealed against Pickles' decision to allow a development of up to 800 homes to be built in Shottery. It argued that its draft core strategy proposed to restrict the number of new homes to either 560 or 840 over the 20-year plan period, with a maximum estate size of 100 homes.

But the judge ruled that the law did not require that a "blanket stop" be put on development that might impact on the formulation of future policy.

Both authorities had sought to rely on the principle of "prematurity", arguing that allowing an application before the local plan was adopted would amount to jumping the gun. Gary Sector, legal director at solicitors Addleshaw Goddard says: "The amount of weight the secretary of state will place on prematurity is low or limited."

Ian Green, legal director at solicitors DLA Piper, says: "Localism only really works if a local authority is bang up to date with its local plan. If not, national policy and the secretary of state can run roughshod over it."

April: New cost capping regime comes into force

On 1 April, new rules to cap claimants' exposure to legal costs in environment-related judicial review cases were introduced. The new rules cap the costs recoverable by a defendant from a claimant in such cases at a maximum of £5,000 where a claimant is an individual, and at £10,000 in any other circumstances. The new rules, which apply to judicial review challenges within the scope of the Aarhus Convention - an agreement that environmental court procedures should not be prohibitively expensive - also cap the costs recoverable by a claimant from a defendant at £35,000.

Previously, claimants concerned about exposure to legal costs in such cases would have needed to apply on a case-by-case basis for a protective costs order, which were granted at the courts' discretion.

Simon Ricketts, head of planning at law firm King & Wood Mallesons SJ Berwin, says that the new rules are likely to lead to more claims. "It does give potential claimants much more confidence that they are not going to be exposed to potentially unlimited costs," he says.

According to Claire Dutch, a partner at law firm Hogan Lovells, the new rules are leading to "too many people taking a punt" as they are giving potential claimants "too much comfort on costs". She says: "I think it is persuading interest groups to pursue cases that otherwise would have fallen by the wayside."

But Michael Bedford, a barrister at Cornerstone Barristers, says that the jury is still out on what impact the change is going to have. "There was a big fear that it would lead to an explosion of challenges," he says. "It's too early to say that those fears are justified. I've not yet seen any significant upsurge."

Dutch says that the government's recent consultation on further reforms to the judicial review system suggests that the new cost-capping regime could prove to be short-lived. The consultation sought views on "how the approach to costs for judicial review can be adjusted to encourage claimants and their legal representatives to consider more carefully the merits of bringing a judicial review and the way they handle proceedings".

July: Judicial review time limit halved

In July, new rules slashing by half the deadline for applying for a judicial review of planning decisions came into force. A requirement stipulating that judicial review challenges should be lodged promptly and in any event within three months has been replaced with a six week time limit. The change followed a claim from Prime Minister David Cameron that judicial reviews were hampering economic growth and that many applications were "completely pointless".

Ricketts says that the new "much tighter timescale" is helpful as it means six weeks less inactivity once planning permission is granted. "Effectively, there used to be a three-month standstill period. That has now been halved as a result of changes to the rules," he says. According to Ricketts, since the rules changed in July, it has meant that "developers and local authorities haven't had to sit on their hands for three months waiting for a claim to come out of the woodwork".

However, Dutch questions whether the new time limit will prove to reduce the number of legal claims. "It's more likely that people will bang in a claim," she says, arguing that potential claimants will have less time to think about whether they have solid grounds for a case. "It's going to increase the amount of bad claims," she says.

But for Stephen Ashworth, a partner at law firm Dentons, the change has "sharpened people up a bit". "People are perfectly able to get their challenges in within six weeks," he says. "I've not seen any change in the quality of challenges."

Bedford says that the change brings the deadline for judicial review challenges in line with the time limits for statutory challenges, such as those against decisions made by the secretary of state or the Planning Inspectorate. "There have been few cases where people have said they haven't been able to achieve a meritorious challenge because they ran out of time," he says.

September: Dedicated planning court proposed

A Ministry of Justice consultation on further reforms to the judicial review system ran from September to November. In the document, the ministry said it was considering creating a dedicated court with specialist planning judges to deal with planning-related legal challenges. The document said that the proposed "Land and Planning Chamber", which would be part of the Upper Tribunal, would deal with planning judicial reviews and challenges to secretary of state decisions under the Town and Country Planning Act 1990.

Tim Taylor, head of planning at law firm Forsters, says that proposed specialist planning court is an "excellent idea", adding that the fact that "too many" challenges are currently heard by non-planning judges is a source of frustration. A specialist court would lead to speedier - and better - decisions, he argues. "Planning is a very different discipline," says Taylor. "If you have a judge who is well-versed in planning it means you can rely on a fair decision."

However, questions have been raised over whether the specialist court will in fact be needed should changes to the judicial review system that are already in motion prove effective. Ricketts says that the consultation paper revealed that a fast-track for judicial review cases involving planning issues had been in place since July. "No-one in the planning law world was aware of the fast-track," he says. "If the planning fast-track actually works, maybe there isn't an immediate need for a specialist court."

Bedford adds that immigration cases were shifted out of the High Court to the Upper Tribunal at the start of November in a move that could prove to free up time for planning cases. Bedford points out that immigration cases have made up the bulk of judicial review challenges before the High Court and believes that transferring these to the Upper Tribunal could "put us back in the position we were in seven or eight years ago (when) the planning side of things worked fairly well". He says: "It's not entirely easy to see that there is a case at the moment for introducing a further reform."

October: Changes in village green registration

New rules governing the registration of a town or village green (TVG) came into force in October. The reforms are part of the Growth and Infrastructure Act 2013. Applications for TVGs will now have to be made within one year of the land ceasing to be used for recreational purposes, rather than two as is currently the case.

Landowners will be able to protect their land from TVG applications by depositing a statement with their local authority. This will bring to an end any period of recreational use of land.

Applicants have to prove 20 years' use of the land in order for a TVG to be designated, so the landowner's statement effectively resets the clock on this, explains Trevor Ivory, partner and head of planning at Percival Howes.

He believes that the new rules will stop TVGs being used as a weapon by those who want to stall development.

Often, such groups would apply for TVG status as a last resort after all stages of the planning process had been exhausted, he says.

"A town or village green application could undermine all the work that had been done up to that point," he says.

Ivory envisages fewer TVG applications in the future, though he warns there is still a risk period of one year after land has ceased to be used for recreation, when a TVG application could be lodged.

However, Richard Snape, professional support lawyer at Davitt Jones Bould, says that there are still pitfalls. "People are now registering village greens left, right and centre in case there's a planning application in future," he says.

The government has consulted on further reforms to tighten the definition of "trigger events", after which people cannot apply for village green protections for land, and "terminating events", under which restrictions to register a piece of land as a village green are lifted.

Coming up: key rulings to look out for next year

Supreme court ruling on HS2

Campaign group HS2 Action Alliance (HS2AA) has appealed against the ruling by two of three Court of Appeal judges that the government did not have to conduct a Strategic Environmental Assessment (SEA) of the plans for the project.

An SEA is needed for public plans and programmes that are required by law, says Duncan Field, partner at Wragge & Co. Although the government's ambitions for high-speed rail do not stem from legislation, the case will decide whether that wording should be read literally, he says. "You could take a more liberal approach, in that HS2 is an official government-endorsed project," he says.

Angus Walker, partner at Bircham Dyson Bell, says: "If it is held that HS2 does need SEA, then other projects that are someone's brainchild rather than required by legislation might require SEA."

Judicial review of a major infrastructure project

In October, energy company Halite Energy was given leave to proceed with its judicial review of energy minister Greg Barker's refusal of its plans for an underground gas storage facility in Lancashire.

Barker said he refused the application because it was missing some geological data, which he claimed meant that Halite had not demonstrated the site's suitability. The refusal was against the recommendation of a panel of three commissioners set up to examine the project.

Walker says that, out of four pending judicial review decisions on major infrastructure projects, the Halite Energy case could be the most far-reaching in its consequences. "It is likely to set out the conditions under which a refusal of consent might be reversed," he says.

Green says: "The outcome will show the extent to which the secretary of state can go his own way in the light of recommendations of the panel."

Daws Hill Neighbourhood Forum challenge

A High Court judge in March rejected a legal challenge by a residents' group against a decision by Wycombe District Council to exclude two development sites from the group's neighbourhood area.

This was the first legal challenge made under the neighbourhood planning provisions of the Localism Act 2011. The Daws Hill neighbourhood forum argued that, of all the sites covered by the plan, the two sites being excluded were most likely to have developments that affected them. It sought a ruling to force the council to reconsider the boundaries of its neighbourhood area.

Mr Justice Supperstone ruled against the neighbourhood forum. Paul Stinchcombe QC of Thirty Nine Essex Street says that the main point the case established is whether the local authority is in the driving seat of neighbourhood planning or the neighbourhood forum. "What is the point of having a neighbourhood forum if you can't be involved in the most important planning applications and development sites?"

The neighbourhood forum has been given leave to appeal and the case is due to be heard in February 2014.

Jamie Lockerbie, associate at Pinsent Masons, says that if the judge's position is upheld, the only recourse for neighbourhood groups in a similar position will be judicial review.



Scottish legal preview 2014


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