Plans for specialist court are revised

The Ministry of Justice (MoJ) has backtracked on its plans to set up a specialist planning chamber within the Upper Tribunal to hear planning judicial reviews and will instead create a planning court within the High Court.

High Court: proposals aim to build on fast-track system introduced in July 2013
High Court: proposals aim to build on fast-track system introduced in July 2013

The MoJ announced last week that a specialist planning court is to be established within the High Court, with a "separate list under the supervision of a specialist judge".

The ministry unveiled plans to transfer planning work to a new specialist planning and land chamber in the Upper Tribunal in a consultation published last year.

But it said keeping planning cases in the High Court would build on a planning fast-track system introduced in July 2013 intended to identify planning-related judicial reviews at an early stage and ensure that they are referred to relevant members of the judiciary. Early indications are that the fast-track has had a "promising start", according to the MoJ.

It added that creating the planning court within the High Court would ensure that it would be "up and running more quickly without introducing uncertainty around the development of new rules and case management procedure that a planning chamber in the Upper Tribunal would have required".

Planning silk Richard Harwood QC, of Thirty Nine Essex Street, said the MoJ's announcement that a planning court would be set up in the High Court involved a "degree of rebadging" of the existing fast-track system, but added: "It does go further than that."

He said there would be a separate list of planning judges who would sit in the planning court, whereas at the moment the judges who hear planning cases in the High Court are drawn from a much larger group and are not necessarily planning specialists. "Inevitably, the list is going to be smaller," said Harwood. "It will get the right judges in."

Michael Bedford, a barrister at Cornerstone Barristers, said the planning court would mean there would be "less risk of getting a judge that doesn't know about planning".

He added: "One of the problems you find at the moment is that you get a High Court judge or deputy, but you won't necessarily get one that knows about planning."

Duncan Field, partner at law firm Wragge & Co, said he expected the planning court to "speed things up and it should result in a higher standard of decision-making".

The handling of immigration and asylum-related judicial review cases, which have made up the bulk of the cases before the High Court, was transferred in November 2013 to a specialist Upper Tier tribunal.

Planning and Environmental Bar Association chair Morag Ellis QC, of Francis Taylor Building, said that while this would mean a reduction in the High Court's workload, the planning court would still be welcome because it would ensure specialist judges hear planning cases.

She added: "The desirability of a specialist court is not only to do with timetabling. Having a guarantee of specialist judges was the main attraction for us."

The MoJ also suggested that it could revisit rules introduced last year to cap claimants' exposure to costs in environmental judicial reviews. In last year's consultation it did not propose any changes to protective costs orders (PCOs), which limit the exposure of claimants to defendants' costs in cases that fall under the Aarhus Convention - an EU-wide agreement that environmental cases should not be prohibitively expensive.

But the MoJ's consultation response said that, once the outcome of a European Court of Justice case in which Brussels challenged the UK government's position on costs is known, the government "intends to examine whether the approach to PCOs in environmental cases should be further reviewed".

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