Planning Law, Judicial Review and a hapless Prime Minister – a spivs’ charter?

David Cameron’s speech at the CBI Conference on Monday (19^th November) has caused something of a stir.

It was in essence about delivering what “British business needs” in order to deliver “the key steps to Britain thriving in the global race to succeed” and this rather betrays not only a lack of understanding on the PM’s part but also where he is getting most of his advice from.

But you could be forgiven for thinking that he had announced the end of public consultations as we know them; was preparing to repeal the Equalities Act; and as for Judicial Review, well light the blue touch paper and stand well back.  

The reality, in the cold light of day, is a little different.

The consultation element really reflects what had already emerged in the Cabinet’s new set of Principles in the summer. But he was wrong to say “When we came to power there had to be a three month consultation on everything”. The previous Code allowed for exemptions which Ministers frequently exploited. And the Government says it will continue to honour the 12 week rule where the Compact with the voluntary and community sector actually applies to rather a lot of consultations.

And as for the announcement that the Government will stop doing Equality Impact Assessments, it would appear that what he wants to do is stop civil servants wasting time on “reams of bureaucratic nonsense”. But that is what civil servants do. They do EIAs because it is good management practice to try to foresee the implications of policy-making. It should be about ensuring that doing so doesn’t impact on their ability to do so.

On the subject of judicial reviews he wants fewer of them. Don’t we all?

This will apparently be achieved by reducing the time limit in which people can apply to challenge a decision (currently promptly and in any event within three months of the date of the decision complained of); increasing fees for making judicial review applications to make it harder to get a challenge off the ground; and cutting the number of opportunities to challenge a refusal of permission for a judicial review from four to two.

But most of the massive growth in Judicial Reviews is in asylum and immigration cases which do not impact on business and its ability to compete both at home and globally. They do nothing to stop government from taking steps to assist business.

For a very helpful consideration of the statistics see Martin Goodall’s blog where he says that “Cameron’s assertion is grossly misleading”. Likewise, Angus Walker says the number of planning-related Judicial Reviews is actually quite small and does not appear to be rising.

For a wider consideration of the Judicial Review considerations see Adam Wagner and Mark Elliot.

The DCLG was keen to clarify the position with a spokesman saying:”This story (see The Telegraph – “End of the right to challenge planning rulings”) is misleading. We are not changing local residents’ rights to object to a planning application, nor are we changing the planning appeal process. There are a limited number of judicial reviews about planning decisions each year, and they generally relate to errors in law or failure to follow due process.” 

Chris Grayling the justice secretary in a statement released to coincide with the speech said that the government intends to seek views on a package of options. He said:

“The purpose of this is not to deny or restrict access to justice, but to provide for a more balanced and practicable approach, ensuring that weak, frivolous and unmeritorious cases are identified early, and that legitimate claims are brought quickly and efficiently to a resolution. In this way, we can ensure that the right balance is struck between reducing the burdens on public services, and protecting access to justice and the rule of law.”

So there you have it, nothing about making British business more competitive. But the story hasn’t been “Grayling disagrees with PM”. Maybe it should be. We will have to wait and see. 

But everything we find inconvenient is not inherently wrong. It is not malicious. Sometimes the only way that local people, and we mustn’t forget that both elements of the Coalition have ‘Localism’ in one shape or another very much at the heart of their respective philosophies, or businesses can prevent public bodies acting illegally is by way of a Judicial Review application. The most recent high profile example of this is the sucessful challenge by Virgin Rail to the West Coast Main Line franchise award which exposed fundamental flaws in the procedures adopted by the DfT. Judicial Review can be a major force for the public good along with instilling the necessary discipline of good honest open transparent administrative decision making.

But the suspension of normal legal process is not acceptable in ordinary peace-time conditions. Judicial Review is not just about planning decisions. It's about the ability to hold decision makers to account and preserve the rule of law. Jeffrey Jowell argues far more eloquently than I that we should not interfere with the right to challenge decision makers in his Guardian piece “Diminishing judicial review will reverse 50 years of legal progress”.

And of course the Courts have long had the discretion to stop proceedings e.g. abuse of process, vexatiousness or non-justiciablity; or even to refuse relief even where the claim has succeeded see e.g. Berkley v SoSE and Walton v Scottish Ministers.

In any event the reforms contemplated are going to be difficult to achieve while complying with EU law, particularly that concerning environmental protection. See for example the decision in Uniplex (UK) Ltd v NHS Business Services Authority dealing with promptitude and the principle of legal certainty where the Court held that cutting down the three month period by imposing a promptitude requirement was unlawful at least in European terms. See also Collins J in R (U & Partners) v Broads Authority [45] when he says “Having regard to the importance of promptness in challenging grants of planning permission, serious consideration should in my view be given to amending CPR 54.5 so as to impose a six week limit for all such challenges”.

But promptness survives in respect of claims based in domestic law and where claims are issued on both domestic and EU law points the promptness rule will apply to the former but not the latter see R (Berky) v Newport.

The time limit for challenges to decisions of European Institutions is two months and there could hardly be an issue if that was to be the new time limit for Judicial Review but anything shorter, in my view, betrays a lack of understanding of the system.

Judicial Review is not the same as a planning appeal statutory challenge where the issues and arguments have already been identified and distilled down as a result of the application, the officer’s report, the appeal papers and the Inspector’s report.

And there is always a great deal of time required in putting funding in place to mount a Judicial Review challenge. Indeed there is already a recognition that judicial review costs are already far too excessive for environmental groups to be able to use Judicial Review to address environmental wrongs. Reliance on the Aarhus Convention and Protected Costs Orders are ways in which potential complainants are seeking to still be able to bring their concerns before the courts. Indeed the most recent proposals appear to conflict with measures announced by the MoJ to reduce the cost risk for certain parties of bringing Judicial Review proceedings in environmental cases which do not however alter the fundamental provisions.

The Court of Appeal has modified the criteria for PCOs in planning cases involving points of EU environmental impact assessment law (see R (on the application of Garner) v Elmbridge Borough Council in respect of general public interest requiring an effective review process in environmental cases) and the courts are alive to exploitation of that e.g. R (on the application of Young) v Oxford City Council [2012] EWCA Civ 46 where Richards LJ held that even though the case could broadly be termed an environmental case it did not engage directly effective provisions of EU law.

That said there is a way to reduce the number of Judicial Review applications. Leaving aside the need for clear unequivocal legislation promulgated in a calm and thoughtful manner with transparent guidance and decision making processes (always a given!) I advise local planning authorities (and frequently did when in-house) that the easiest way to avoid sucessful Judicial Review is to make fewer and hopefully no avoidable mistakes in the decision making process.

Take into account that which you should, don’t take into account that which you shouldn’t and don’t act unreasonably or in any of the other ways that prompt challenges e.g. pre-determination, bias, conflict of interest etc.

The rule of law is not something to be toyed with. We are not some tin pot dictatorship (yet) and my own view, for what it is worth, is that the ‘make it up as you go along’ approach will almost certainly lead to more Judicial Review not less. Decision makers will feel emboldened; they will take advice on and ‘weigh-up’ the risk of challenge against the perceived benefits of corner cutting in the drive to make ‘business friendly’ decisions before cracking on regardless safe in the knowledge that they know best. It is in short a spivs’ charter and nothing good will come of it.

But the courts will not stand idly by.