The government’s controversial judicial review reforms came into force on 1 July. Despite opposition, the government has pressed ahead with its plans to protect development projects from weak, frivolous and unmeritorious judicial review claims. Claire Dutch and Victoria DuCroz consider whether the reforms will achieve these aims in reality.
The changes at a glance
As from 1 July:
- The time limit for issuing proceedings for judicial review will be reduced to six weeks in planning cases, a departure from the previous requirement to submit a claim “promptly” and in any event not later than 3 months from the date on which the cause of action arose. The transitional provisions state that the 6 week period will not apply where the cause of action arose before 1 July;
- In order to accommodate such shortened time limits, the requirement to comply with the Judicial Review Pre-action Protocol in planning cases is relaxed. Parties should still attempt to comply with it but the court will not apply normal cost sanctions where it is satisfied that it has not been possible to comply because of the shorter time limit; and
- In cases where, on the papers, the Judge concludes that the claim is “totally without merit” the right to an oral re-consideration of the permission application will be lost.
It is anticipated that the proposal to charge a fee of £215 for oral re-considerations of the permission application will be introduced in October. This fee will be waived if, as a result of the re-consideration, permission is granted.
Drivers for change
The number of judicial review applications has been steadily increasing in recent years and rose from 6,692 in 2007 to 11,359 in 2011. However, in 2011 only one in six applications was granted permission to proceed beyond the permission stage and fewer than 150 applications were ultimately successful. Although the number of planning related judicial reviews has increased, planning cases still represent only a small proportion of the total number of claims annually. The vast majority of the judicial review cases relate to immigration – 8,649 immigration cases as opposed to 191 planning cases in 2011.
However, it is planning cases that have caused the government the most concern. Many large development and infrastructure projects have suffered from spurious judicial review claims. Even if a claim is not ultimately successful, its existence casts a shadow over the financial viability of the project and impedes its delivery, at a time when such development is badly needed for economic growth.
The reforms follow a period of consultation carried out at the end of last year during which significant objections to the proposals were raised. When announcing the consultation at a CBI conference in London, David Cameron argued that many judicial reviews were “completely pointless” and that the increase in claims is costing the tax payer too much and slowing economic growth. The Justice Secretary, Chris Grayling, whilst acknowledging that judicial review is an important way to hold authorities to account, also expressed concern about “ill-conceived cases” that are burdening an already overstretched Court system as well as adding unnecessary cost, lengthy delays and uncertainty to the development industry.
The aims of the reforms are therefore threefold: first, to deter ill-conceived claims that lack merit and are used as a stalling tactic; second, to filter out weak or hopeless cases early; and third, by reducing the number of claims, to reduce delays in the claims being heard.
Will the changes work?
Such reforms will no doubt be welcomed not only by local planning authorities but also by the development industry, many of whom have suffered unnecessary delays whilst on the receiving end of a frivolous judicial review application. The reforms will provide more certainty for development projects and in particular where land contracts are conditional upon the grant of a challenge-free planning permission.
Helpfully, the somewhat ambiguous previous requirement to submit a claim “promptly” – a fertile ground for legal argument – has now been removed. There is now a straight-forward 6 week time limit. That time limit also mirrors the periods for submitting other planning challenges – those under s288 of the Town and Country Planning Act and those relating to Development Consent Orders for nationally significant infrastructure projects. This consistency is welcomed as the rationale for having different time limits for challenges to Secretary of State planning decisions has never been entirely clear. However, concerns remain about how effective the reforms will be in reality. In particular, will the reforms actually reduce the number of claims?
The government’s stated desire to reduce the number of judicial reviews does not rest easily with the changes to the Protective Costs Order regime that were introduced earlier this year. These reforms place a cap on a claimant’s costs liability in certain cases, thus giving claimants the confidence to “take a punt” on a claim.
A significant amount of the opposition to the reforms has centred on the reduced time limit for the submission of judicial review applications. 67% of those responding to the consultation opposed the reduction. The effect of the reform has necessitated the relaxing of the requirement to comply with the Judicial Review Pre-Action Protocol. The Protocol is considered by some to be a useful tool for the claimant to test and consider whether their application has any merit. It is unlikely that claimants will be able to comply with the Protocol in the time available. This is likely to result in more hastily prepared applications that are submitted on a precautionary basis to ensure that an application is made in time, but without any proper consideration of the merits.
Further, will the shorter time period lead to an increase in satellite litigation where claimants ask the court to exercise its discretion to allow a claim outside the six week window?
Commentators have also argued that the reduced time limit will manifest in unfairness. It will not give interest groups and objectors sufficient time to formulate an application. Certain claims may have some merit, but as there has been insufficient time to consider the grounds in detail, they may not be properly presented and are likely to be rejected at the permission stage. The unintentional result of the reforms could therefore be an increase in the number of applications that are made, albeit a substantial number are likely to be thrown out at the permission stage either because they have no merit or because, whilst they have merit, there was insufficient time to properly prepare the application.
However, many consider that the real problem is the delays experienced at the Administrative Court once a claim has been lodged. Even if the reforms do have the effect of deterring ill-conceived claims, this provides only half of the answer. The reforms are unlikely to significantly speed up the time it takes for judicial review applications to be considered. Under the current system, the main delays occur in the time it takes for the permission stage to be reached (on average six to nine months) and then for the substantive hearing (which can be anything up to a further nine to twelve months).
These lengthy time periods are in part due to the number of judicial review applications being made, but also because the Administrative Court is woefully under-resourced. Although it is anticipated that certain immigration cases may move to the Upper Tribunal in October which should help matters, a particular problem appears to be that there are only a limited number of judges who are planning law specialists available to consider the planning claims. Arguably it is these processing delays that cause developer uncertainty and have the potential to slow economic growth. What is needed is a responsive court system which is equipped to turn around judicial review claims as quickly as possible.
A planning court: the real answer?
Calls have been made for a separate division of the Upper Tribunal to be established, solely dedicated to dealing with planning related judicial review applications. This view is supported by a number of senior members of the judiciary. A separate “planning court” could work in speeding up the process and would also help in developing planning as a specialised jurisdiction with consistent decision making and practices. However, this would work only if it is properly resourced. In this time of harsh government cutbacks and reduced funding, it is difficult to see such proposals coming forward in the near future or in a form that will result in a significant improvement in the time taken for judicial review applications to be determined.
In the meantime, one hopes that the reforms will help in giving public authorities and the development industry some certainty to enable the delivery of much needed development and infrastructure. Ultimately, however, the reforms are only part of the solution. If the government is serious about reducing delays to the judicial review system it needs to inject greater resources into the Court system.
An earlier version of this article was published in Legal Week on 19 July 2013.