Changes to planning statutory review

Planning iStock 000002733689Small 146x219Significant changes to the procedural aspects of statutory planning related challenges have come into force, writes Stephen Morgan.

Overview: tidying up procedural inconsistencies

Up until now, there was has been no general filter system to weed out unmeritorious statutory challenges to planning appeal decisions (s.288 of the Town and Country Planning Act 1990 – TCPA 1990) and to other planning related actions, decisions and orders. This is in notable contrast to challenges by way of judicial review (JR) to the grant of planning permissions and enforcement notice appeal decisions.

However, this anomaly in relation to planning statutory review (PSR) is removed by section 91 and schedule 16 of the Criminal Justice and Courts Act 2015, from 26 October 2015, subject to transitional provisions addressed below (see the Criminal Justice and Courts Act 2015 (Commencement No. 3 and Transitional Provisions) Order 2015). These provisions will introduce a new “front loaded” approach and culture in respect of such challenges based on current JR procedure, as set out in Practice Direction 8C (PD 8C). Practitioners should also note that there is specific provision for appeal in respect of PSR in CPR 52.15B and PD 52B.

As well as introducing the new requirement for permission for PSR, these provisions change the procedure for challenging planning costs award decisions. Challenges on cost decisions arising in planning appeals have previously, somewhat confusingly, been by way of JR. This is in spite of the fact that the lawfulness of the substantive decision could itself only be challenged by way of the statutory procedure.

The new requirement for permission

Challenges that this requirement applies to

The relevant statutory challenges (termed PSR) for which permission is now required are set out in Schedule 16 (which amended Part 12 of the Town and Country Planning Act 1990 – TCPA 1990) and include:

(1) Challenging the validity of orders, decisions and directions under section 288 of the TCPA 1990. Section 288 is the mechanism for challenging the determination of a planning appeal.

(2) Challenging highways orders (made under ss.247, 248, 247, 251, 257 and 258 TCPA 1990) pursuant to s. 287 TCPA 1990.

(3) Challenging various decisions relating to listed buildings under section 63 of the Planning (Listed Building and Conservation Area) Act 1990.

(4) Development plan document challenges and challenges relating to other strategies, plans and documents under section 113 of the Planning and Compulsory Purchase 2004.

(5) Challenging decisions relating to hazardous substances applications pursuant to section 22 of the Planning (Hazardous Substances) Act 1990.

The new requirements do not apply where the relevant date of the action, decision or order to be challenged is before the 26 October 2015 (see article 4 of the Order).

Procedure

This is governed by PD 8C, which adopts the procedural steps applied in JR. The main features are:

(1) A detailed statement of the Claimant’s grounds is required, together with a statement of the facts relied upon. The details of any Interested Party must be provided.

(2) The Claim Form must be accompanied by any written evidence relied upon together with other specified relevant documents filed in two copies of a paginated and indexed bundle.

(3) The Defendant must, if wishing to take part in the review, file an acknowledgement of service (AoS) within 21 days of service of the claim form. The AoS must provide summary grounds for contesting the claim, if the Defendant intends to do so. As for JR, failure to provide an AoS does not prevent the Defendant taking part at the substantive hearing, if permission is granted to proceed with the claim.

(4) The Court will generally consider the question of permission without a hearing. If permission is refused, the Claimant may not appeal but may request, within 7 days of service of the reasons for refusal, that the decision is reconsidered at a hearing. Where the court refuses permission to proceed and records the fact that the application is totally without merit in accordance with CPR r.23.12, the Claimant may not request reconsideration at a hearing. However, as noted below, there is a right of appeal.

Test for the granting of permission

The test is the usual one of whether the grounds disclose an arguable case.

Interim Orders

When considering whether to grant permission in each of the above cases, 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.

Appeals in Respect of Permission Decisions

Provision for appeals in relation to a PSR is found in CPR Part 52, r.52.15B, and PD52B as follows:

(1) Permission for appeal against a refusal of permission to apply for a PSR may be sought from the Court of Appeal within 7 days of the refusal by the High Court.

(2) Where the refusal records the review is totally without merit in accordance with r.23.12, permission may be sought from the Court of Appeal within 7 days of the service on the claimant of the refusal by the High Court.

(3) The Court of Appeal may, instead of giving permission to appeal, give permission to apply for PSR. Where permission to do so is given, the case will proceed in the High Court unless the Court of Appeal orders otherwise.

Procedure for challenging costs decisions

If a person is aggrieved by a relevant costs order made in connection with an order to which section 288 TCPA 1990 applies, then that person can now challenge that decision under section 288 (see new ss. (1A) inserted by paragraph 4 of Schedule 16). This applies whether the substantive decision is challenged or not. However, in either case, permission is required. The same applies to challenges under section 62 of the Planning (Listed Buildings and Conservation Areas) Act 1990.

The transitional provisions in article 4 of the Order apply also to challenges relating to decisions on costs.

Comment

These should be welcome changes bringing consistency to the procedural aspects of statutory and non-statutory planning related challenges. How far the additional burden on the Courts as a result of the permission stage, particularly in respect of s.288 challenges, is outweighed by the weeding out of unmeritorious claims remains to be seen. There seems little doubt that a not insignificant proportion of challenges that are presently heard in Court will not make it to the substantive hearing stage.

One previous major anomaly relating to statutory challenges was the absence of any requirement for the Defendant to file grounds in defence - see the comments of Collins J. in Bovale Ltd v SoSCLG [2008] EWHC 2143 (Admin) and the response of the Court of Appeal [2009] EWCA Civ 171 saying that it was a matter for the Rules Committee and not the courts. That anomaly has now been addressed as part of the new permission requirements. This belated change clearly should be beneficial to all involved in PSR.

Stephen Morgan is a barrister at Landmark Chambers. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..