A new Planning Court comes into operation today, with the objective of ensuring that planning cases are heard by specialist judges and significant cases are dealt with quickly.
- The introduction of the Planning Court is part of a wider Government push to reduce the time and cost expended on legal challenges to planning decisions. It follows on from the introduction of the Planning Fast Track last year.
- Judicial reviews and statutory challenges relating to a wide range of planning matters commenced from 6 April 2014 will be automatically allocated to the Planning Court. The judge in charge of the list also has the discretion to transfer any other case to it.
- It is likely that planning cases that have already been started will be transferred if they come within the ambit of the Planning Court.
- Judges within the Planning Court will have particular planning expertise.
- Planning Court cases which are classed as "significant" will benefit from shortened target timetables.
The Government has recently consulted on a number of measures to reform judicial review and address its concerns that a large number of unmeritorious claims are slowing down the system and causing expensive and unnecessary delays in planning matters.
A number of reforms have already been introduced. In particular, the Government introduced a "Planning Fast Track" in the Administrative Court with the objective of prioritising the management of planning judicial reviews in order to reduce delays. Judicial review is a two stage process: first the claimant must obtain permission to proceed with the case and then, if permission is granted, the case moves forward to a substantive hearing. Under current targets, the substantive hearing in a Planning Fast Track case should be held within three months of all the evidence being submitted (or around four months from permission being granted).
Although still a relatively recent innovation, the Planning Fast Track is widely seen as a success in terms of having substantially sped up planning judicial reviews. It has, however, been less successful in ensuring that cases are allocated to specialist judges. The new Planning Court seeks to build on the improvements made by the Planning Fast Track.
What cases will be heard in the Planning Court?
The Planning Court will hear both judicial reviews and statutory challenges relating to the planning matters specified in CPR 54.21(2)(a). These include (but are not limited to) planning permission and development consents, compulsory purchase orders ("CPOs"), EU environmental legislation and domestic transpositions of such legislation (including assessments for development consents, habitats, waste and pollution control) and planning policy documents. Specific statutory applications which will be dealt with by the Planning Court in the future are likely to include challenges to planning decisions under section 288 Town and Country Planning Act 1990 ("TCPA"), appeals under section 289 TCPA and challenges to development plans and strategies under section 113 Planning and Compulsory Purchase Act 2004.
Notably, the Planning Court does not automatically cover purely domestic environmental cases. However, the Panning Liaison Judge (the judge in charge of the specialist list) will have the discretion to permit any other case to be heard in the Planning Court.
What about planning cases started before 6 April 2014?
Claims issued before 6 April 2014 which fall within the jurisdiction of the Planning Court are likely to be transferred to the Planning Court from that date. A large proportion of these cases will already have been allocated to the Planning Fast Track.
Who will be the judges in the Planning Court?
Mr Justice Lindblom has been appointed to the role of Planning Liaison Judge and will have overall responsibility for the Planning Court. Given that planning is a technical area of law, the Government's objective is that the judges within the Planning Court will be specialists. The hope is that this in turn will allow for more robust decisions which are less likely to be appealed, thereby reducing delay in planning cases. There will, however, be a need to ensure that there are a sufficient number of appropriately qualified judges available to deal with the cases. A separate Planning Court involves a risk that non-specialist Administrative Court judges who might have dealt very well with planning cases will now no longer be available to deal with them.
What is the timetable for Planning Court cases?
The Planning Liaison Judge will have the power to categorise Planning Court claims as "significant". Cases will be categorised as significant when they relate to developments which have a significant economic impact locally or beyond their immediate locality, raise important points of law, generate significant public interest, or by virtue of the nature or volume of technical material are best dealt with by judges with significant experience of handling such matters. Parties who wish to make representations on the categorisation of the case as significant should do so when issuing the claim or lodging the acknowledgement of service.
Where a judicial review has been categorised as significant, the following target timescales will apply:
- Applications for the permission stage to be dealt with within 3 weeks of the deadline for filing the Acknowledgement of Service (and the normal time limit for filing an acknowledgement of service is 3 weeks after the papers have been served on the defendant public authority and interested developer);
- Oral renewals of applications for permission to be heard within one month of the application; and
- Substantive hearings to take place within ten weeks of the deadline for the defendant to submit its detailed grounds (and the deadline for detailed grounds is normally five weeks after service of the order telling the defendant/interested developer that permission has been granted).
The result is that in a judicial review where permission is granted without an oral hearing the whole case up to the main hearing should take less than 6 months and it should take no more than a few additional weeks where the permission stage needs to go through an oral hearing process.
Where a statutory appeal has been categorised as significant, the following target timescales apply:
- Applications for permission under section 289 TCPA (enforcement appeals) to be determined within one month of issue; and
- Substantive statutory applications, including applications under section 288 TCPA, to be heard within six months of issue.
If the Planning Court follows the approach of the Planning Fast Track, these target timescales will be taken seriously. Parties should therefore be prepared to meet them, and to not expect hearings to be rescheduled to take account of counsel's availability.
Overall the measures are intended to assist the expeditious and efficient resolution of planning cases. It is not clear, however, how far the changes will make a significant difference. In the past the Administrative Court has had very significant delays in dealing with cases and there was less focus on having specialist judges dealing with planning cases. However, the Planning Fast Track (and other changes which have reduced the backlog in the Administrative Court) have already cut the time that cases are taking to be dealt with and there has been a greater focus on trying to ensure that planning cases are dealt with by judges with experience of planning. Other Administrative Court procedural rules will generally still apply. It is more likely to be over the coming years as the Planning Court develops a distinctive set of rules and way of dealing with matters that the changes will be felt rather than there being a substantial immediate impact.