The Lord Chief Justice's annual report 2015 was laid before Parliament on 13 January 2016. It refers to the establishment of the Planning Court stating that the new procedures have greatly increased the speed in which planning cases were dealt with. In particular the report refers to the reforms to applications for statutory review brought in by the Criminal Courts and Justice Act 2015 (CCJA). The Act introduced a permission stage in applications for statutory review. The Civil Procedure Rules (CPR), have been amended to set out the procedure for statutory challenges, and largely reflect the procedure for judicial review. While we have covered the changes to judicial review in previous briefings we set out the reforms to statutory challenges to planning decisions, which came into force at the end of 2015, in further detail below.
In summary the changes involve a new permission stage prior to proceeding with the challenge, an amendment to the time limit for challenge and the inclusion of the ability to bring a statutory challenge against certain costs orders.
New permission stage for planning statutory review
The new permission stage requirements will apply where the relevant date of the action, decision or order to be challenged is after 26 October 2015. The planning statutory reviews (PSR) to which the new permissions stage will apply are listed below:
- Challenging highways orders pursuant to section 287 TCPA
- Challenging the validity of orders, decisions and directions under section 288 of the Town and Country Planning Act 1990 (TCPA) (challenging the determination of a planning appeal)
- Challenging decisions relating to listed buildings under section 63 Planning (Listed Building and Conservation Area) Act 1990
- Challenging decisions relating to hazardous substances under section 22 Planning (Hazardous Substances) Act 1990
- Development Plan document challenges and challenges relating to other strategies, plans and documents under section 113 Planning and Compulsory Purchase Act 2004.
Procedure for and time in which a PSR must be brought
The procedure is governed by Practice Direction (PD) 8C – 'Alternative procedure for statutory review of certain planning maters'. This follows broadly the procedural steps adopted by judicial review although there remain some significant differences between the two procedures.
An application for permission to challenge will have to be made within a six week period beginning the day after 'the relevant date'. The relevant date will usually be the date of the decision or order under challenge, but in each case the individual provision should be checked.
On 13 April 2015, section 92 of the Criminal Justice and Courts Act 2015 came into force. It was a tidying provision to harmonise the start period for the calculation of the six week period for specified statutory challenges. Section 92 amended the date on which the time period is to run so that the six week challenge period will not start to run until the day after the event under challenge occurs, for challenges under the TCPA to neighbourhood development orders and development consent obligations, and challenges under the Planning Act 2008 to national policy statements and orders granting development consent.
These amendments bring the start date of the six week time period in line with those for judicial review of a decision made by the Secretary of State or local planning authority under the planning acts taken after 1 July 2013 in England and Wales. The Civil Procedure Rules states that a claim must be commenced 'not later than six weeks after the grounds to make the claim first arose.'. The courts have interpreted 'after the grounds' as excluding the day on which the challenge first arose.
The test for granting permission to challenge is the usual one, i.e. whether the grounds disclose an arguable case.
Note that when considering whether to grant permission the High Court may make an interim order suspending the operation of the order or action that is being challenged until the final determination of permission or, where permission is granted, the substantive proceedings.
Appealing a permission decision
There are also specific provisions which apply for appeals in relation to a PSR. Where permission to apply for a PSR has been refused at a hearing in the High Court, the claimant may apply to the Court of Appeal for permission to appeal. Where the High Court has recorded the claim as totally without merit the claimant may still apply to the Court of Appeal but the application will be determined on paper without an oral hearing. The application must be made within 7 days of service of the order of the High Court refusing permission to apply for a PSR.
The Court of Appeal has the power to give permission to apply for a PSR (in which event the case will proceed in the High Court unless ordered otherwise) instead of giving permission to appeal.
Challenging costs orders
A right to challenge a relevant costs order made in connection with an order to which section 288 TCPA applies (new section (1A)) came into force on 26 October 2015. The right to challenge a costs order applies whether or not the substantive decision is challenged. However, permission is required. This also applies to cost challenges under section 62 of the Planning (Listed Buildings and Conservation Areas) Act 1990.
The main purpose of these further reforms was to remove unmeritorious statutory challenges to planning decisions from the system as early as possible, and thereby to avoid the delays and the pressure on the resources of the Planning Court entailed in such proceedings.
The Lord Chief Justice's annual report 2015 was laid before Parliament on 13 January 2016. Referring to the establishment of the Planning Court it states that the new procedures have greatly increased the speed in which planning cases were dealt with.
The report notes that at the end of October 2015 the time from lodging to substantive hearing had reduced to 27.3 weeks, down from 46.9 weeks in February 2014. The number of live planning cases (both “significant” and non-“significant”) at the end of October 2015 stood at 222. The report notes that this represents a significant reduction in the number of live cases, which, at the end of 2013, stood at 314.
It would appear that for now the reforms are having an effect in reducing the time between lodging a challenge and the hearing. It would also appear that a proportion of challenges are not making it to the substantive hearing stage.