Planning protesters may soon need more cash to pursue judicial review

Just over a year ago, the Prime Minister identified the judicial review process as one element of the 'bureaucratic rubbish' that was preventing Britain from thriving.

Richard Garlick
Richard Garlick

His evidence for the scale and the growth of the problem was widely questioned, as he repeatedly cited numbers that were inflated by an explosion in asylum and immigration reviews that had little bearing on economic performance, and certainly had no impact on the planning process.

Nonetheless the many developers and local authorities that feel they have to spend huge resources warding off judicial review welcomed the Government’s decision to re-examine the system.

That process concluded this week, with Lord Chancellor Chris Grayling announcing changes, to be implemented through his new criminal justice and courts bill, amongst other measures.

Following months of consultation, the government has stepped back from some proposals that had threatened to put judicial review out of the reach of many objectors to planning decisions. People will not need, as had previously been suggested, to have a "direct interest" in a decision to be able to lodge a review bid.

Local authorities will still be able to challenge Nationally Significant Infrastructure Project permissions, and legal aid eligibility criteria for challenges to inspectors’ or secretary of state decisions will remain unaltered.

Grayling has also pulled back from his proposal to move planning judicial review cases out of the High Court, to be heard instead in a new dedicated planning chamber in the Upper Tribunal. Instead, the cases will remain in the High Court, but in a specialist planning court.

How the treatment of cases in this court will differ from the treatment given to those in the High Court’s fast track process, launched last July and showing early signs of success, is unclear. But most will welcome the creation of a court of specialist planning judges, as long as it is sufficiently resourced.

At the same time, however, the government is planning to create a raft of measures that may erect financial obstacles to many claimants. People who financially support judicial review claimants, without being party to the claim themselves, would in future be more exposed to costs awards if their case is unsuccessful. So would claimants who seek an oral hearing to challenge refusal of a written application to lodge a review, as well as people who intervene in existing proceedings.

There will be many who will argue that it’s quite right for proponents of claims that are found to have no merit to take more responsibility for the costs that those claims have generated. But there will also be concerns that fear of financial exposure will prevent bad decisions from being challenged
Some expert observers believe that the United Nations’ Aarhus Convention, which aims to ensure that people are not denied access to justice on environmental matters, will protect those challenging planning decisions from excessive financial exposure.

But others are not so sure, suggesting that some planning disputes' status as "environmental" cases could be contested in court. What’s more, Grayling’s document reveals that the government wants, European legal verdicts permitting, to revisit the rules that currently cap claimants’ costs in judicial reviews that relate to environmental matters.

Hence there seems a very real prospect that the government’s plans could make judicial review less accessible to those who lack deep pockets. It is essential that the system preserves people’s ability to mount well-founded challenges to badly-made planning decisions, and it is important that Parliament amends the bill accordingly in its passage through the house.

Richard Garlick, editor, Planning//

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