The government has taken the first step in meeting a Conservative election promise to consider changes around the operation of judicial reviews(JR’s). Some claim the move intends to restrict the use of judicial review, which could lead to poorer planning decision-making. Others think the opposite.
Waverley residents could cast their minds back to the series of Judicial Reviews on ‘Your Waverley’s Local Plan – which delayed development for years on the Dunsfold Aerodrome site. The largest brownfield site in the borough – leaving the countryside under threat – and now under concrete. Protect Our Waverley (POW) and The Campaign for the Preservation of Rural England (CPRE) lost the argument, funded by their supporters – but cost the developer and the cash-strapped council a small fortune.
In October, a panel of senior lawyers and academics convened by the Ministry of Justice called for evidence about the operation of the system of (JR). The call for evidence document made clear that significant changes to how the system operates are being considered. This first stage of this review enacts a Conservative Party general election manifesto promise to look at JR review in the wake of the successful legal challenge to prorogue parliament last year.
The panel is tasked with ensuring that the JR system, by which the public can legally challenge decisions by public bodies – is not “abused to conduct politics by another means or create needless delays”, and has no specific remit to look at the planning system. Nevertheless, planning lawyers have expressed concerns the review could ultimately result in the right to challenge planning decisions and policies being curtailed.
In the planning system, judicial review is used to challenge both policy decisions and, crucially, individual planning approvals in the absence of any other right of appeal for third parties. Planning solicitor Nicola Gooch, a partner at law firm Irwin Mitchell, said:
“It’s a very necessary check in the system because it’s the only check in the system. There does need to be a route to challenge flawed decision-making.”
The recent Westferry Printworks case, where the secretary of state’s consent to a £1 billion scheme promoted by a Conservative Party donor he had been to dinner with was quashed, and the February judgment that stopped the construction of a third runway at Heathrow, both demonstrate that judicial review decisions can be hugely significant and can cause major difficulties for the government.
Richard Blyth, head of policy at the Royal Town Planning Institute, agreed that judicial review is
“an issue of grave importance in the arena of planning”.
Some lawyers and campaign groups said the terms of reference of the review, the make-up of the “independent” panel – chaired by former Conservative minister, Lord Faulks QC, who has previously said judicial review should be curtailed – and the questions asked in the call for evidence all implied it had been set up to limit its use.
Carol Day, legal consultant at environmental charity the RSPB, said it was “clear” the review was heading “in the direction of reduced accountability and reduced scrutiny. The wording really seeks to gather evidence to reduce the scope of JR.”
Duncan Field, partner at planning law firm Town Legal, said the call for evidence questions suggested the government wanted to legislate for judicial review, rather than allowing its continuing reliance on a set of common law principles. “The aim of any legislation is likely to be to control and restrict the use of judicial review,” he said. This could, he added, include restricting the list of grounds for judicial review, “shielding” certain types of decisions from challenge, limiting remedies available and restricting who may bring challenges.
It is not clear that there is a big problem of judicial review misuse in the area of planning, since the setting up of a dedicated Planning Court in 2014. Field said only 375 cases have been heard by the court, which he said was a small number compared to the total number of planning decisions taken in the past six years. Meanwhile, Day said the RSPB’s evidence on environmental challenges showed they had been reducing in recent years.
Mike Kiely, chairman of local authority body the Planning Officers’ Society, said the Planning Court had overseen a “significant improvement” in the administration of JRs. “The court has a strong culture of not interfering in planning decisions where it’s a reasonable judgment,” he said.
Unsurprisingly, Day said the RSPB was “very concerned” about the consultation, while Richard Buxton, senior partner at law firm Richard Buxton Associates, which is known for acting on behalf of campaign groups, said:
“The wholescale restriction on accountability” would be “disastrous”, not just in terms of planning “but to the whole concept of the rule of law.”
The QC behind the successful Westferry legal challenge, Landmark Chambers’ Sasha White, said he too was “greatly concerned” over the move, particularly in the context of the Planning For The Future White Paper. “In a world where getting permission is easier, such an important check on consent is even more important,” he said.
Gooch also described the timing of the review as “provocative”, particularly given that judicial review is also used to challenge policy decisions. “Here we’ve got a government doing radical things, and at the same time looking to reduce the scope and ability of people to challenge it,” she said.
For some developers and local authorities, however, a reduction in the scope of JR could be welcome, reducing legal risk and cost. White said curtailing JR could “make developers’ and planning authorities’ lives easier”. Meanwhile, Kiely said he would support reforms designed to make it easier to award costs against claimants bringing “reckless” claims, which he said typically cost planning authorities £5,000 to £10,000 each time even when they were weeded out by judges early on.
However, Field warned that the threat of JR acted as an incentive for better decision-making, which he said: “benefits local authorities and developers as much as objectors and campaign groups”. White added: “To know decisions are subject to proper scrutiny is a really powerful mechanism for preventing illegality of decision-making at the outset”.
In addition, developers themselves are among the biggest users of JR, often using them to challenge awards to rivals. According to the Planning Court Case Explorer set up by Town Legal and Landmark Chambers, land promoter Gladman is the “private” organisation which has been involved in the most Planning Court challenges, with 12 cases, compared to just five involving Friends of the Earth. Gooch said: “A lot of developers won’t necessarily be pleased. It is after all the last resort for balancing competing interests.”