The recent changes regarding the process of statutory challenge as they relate to planning and planning related cases, now known as Planning Statutory Reviews (PSRs) are now generally in line with the rules regarding planning judicial review applications (JRs) in that permission of the Court will be required before proceeding to a substantive hearing. “The main purpose of this reform was to remove unmeritorious statutory challenges to planning decisions as early as possible, and thus to avoid the delays and the pressure on the resources of the Planning Court entailed in such proceedings”.
However, there will still be significant differences between JRs and PSRs. First, there are still different timeframes for the bringing of planning JR cases other than those defined as “Planning Act” JR cases under the Civil Procedure Rules (CPR). The time limit for such a JR challenge will still be
“(a) promptly; and
(b) in any event not later than 3 months after the grounds to make the claim first arose”.
Secondly, and of critical importance for PSR claims, is that the time period for bringing claims is absolute and governed by statute. As such, those timeframes cannot be extended under the Court Rules. The position regarding the timeframe for JRs is different in that the limitation periods for issue and service etc are governed by the Civil Procedure Rules (CPR) rather than statute. The Court may grant an extension of time if there is good reason for the delay and where an extension of time won’t cause substantial hardship or prejudice.
Thirdly, the Court forms for PSRs and JRs are different; PSRs are governed by Part 8 of the CPR with reference to Part 54 of the CPR and the supporting practice directions. The JR process is set out in Part 54 of the CPR. The language used in Part 8 and 54 is different and although the new process for PSRs closely follows that for JR, the Court fees are significantly different.
Fourthly, the issue of costs will still be dealt with differently. The Court of Appeal case in Vennsets out the difference between PSRs and JRs as regards costs protection. The former may not have the benefit of being considered an Aarhus Convention Claim (ACC) with the protection such status affords. A Protective Costs Order (PCO) may be sought by claimants seeking a PSR but the criteria the Court will consider will include:
- whether the issues raised are of public importance;
- that the applicant has no private interest in the outcome of the case;
- the financial resources of the applicant and respondents; and
- if the order is not made that the applicant will probably discontinue the proceedings
Such an application for a PCO is therefore by no means certain to be successful. This anomaly still needs to be addressed. A claimant pursuing a challenge in respect of planning issues would be able to seek ACC protection on costs where the claim is a JR; however that same claimant would not be able to seek ACC protection when pursuing a PSR even when the substance of the two claims were similar.
The recent changes do rectify some anomalies between the two separate processes, for example, the trigger of the six week period for challenge under PSR and JR is now the same and the decision in Barker has effectively been overturned by Schedule 16 of the Criminal Justice and Courts Act 2015.
Not all planning challenges are subject to the six week time period when seeking permission of the Court, for example challenges under Section 289 of the Town and Country Planning Act 1990. To pursue such a challenge, one must look to practice direction 52D; the application for permission to appeal under Section 289 must be made within 28 days “after notice of a decision is given to the applicant”. That time limit may be extended but that application to extend time must be made in the originating application.
Conversely some highway matters are now subject to the new regime and applicants will need to seek permission when challenging highway, footpaths and bridleway orders under s247 and s257 of the Town and Country Planning Act 1990. Despite the new changes there are still plenty of pitfalls for the unwary.