The Ministry of Justice has begun consulting on proposals for further reform to judicial review.

The proposals follow reforms that were introduced in July (a shorter six-week time limit for bringing a claim in planning cases, no right to an oral renewal for any claim that is totally without merit and an increased fee). The Planning Fast-Track was also introduced in July, which comprises a series of measures and procedures to identify planning cases at an early stage, ensure these cases are referred to appropriate members of the judiciary and set a number of targets for their progress.

The Government remains of the view that the system is open to abuse and is concerned about the time and money (particularly from the public purse) that is being wasted in dealing with unmeritorious cases. This Law-Now summarises the changes with a specific focus on planning.

The planning-specific proposals for reform are:

  1. The creation of a Specialist Planning Chamber in the the Upper Tribunal (Lands Chamber) (which already has powers to hear judicial reviews) and the transfer of planning judicial reviews and statutory challenges to it. The Government expects that the Specialist Planning Chamber will reassure developers that any challenges will be resolved quickly.
  2. The deployment of specialist planning judges to the Lands Chamber. The Government recognises that non-specialist judges take longer to determine planning cases.
  3. The adoption of accompanying procedural rules setting down specific time limits for determining statutory challenges and judicial reviews.
  4. The introduction of a permission filter in section 288 challenges to Secretary of State planning appeal decisions to restrict weak cases progressing further.
  5. Consideration of further restrictions on the extent to which local authorities can challenge decisions on nationally significant infrastructure projects under the Planning Act 2008, unless they are the applicant for development consent.
  6. Whether taxpayer funded legal aid should continue to be available for challenges to the Secretary of State’s planning decisions under sections 288 and 289 following an appeal or call-in decision.

The consultation also contains a number of general measures for reform of judicial review, which, although not planning-specific, will impact on planning related cases if taken forward:

  1. Narrowing the test for standing.
  2. Rebalancing financial considerations (including revised proposals for Transforming Legal Aid and limiting the availability of Protective Costs Orders).
  3. Speeding up dealing with procedural defects (rather than a substantive illegality) where the alleged flaw complained of would have made ‘no difference’.
  4. Extending "leapfrogging" to allow cases concerning, inter alia, nationally significant infrastructure projects to be expedited to the Supreme Court from the court of first instance (without going through the Court of Appeal).

The consultation document can be found here. The consultation closes on 1 November 2013.