Strict time limit for planning judicial reviews would create ‘injustice’
Jan 24, 2013
The Government’s proposal for a strict, short time limit in planning judicial reviews would give rise to ‘a real sense of injustice and to actual injustice’ says the UK Environmental Law Association (UKELA).
The proposal is part of the Ministry of Justice’s package of measures ‘to stem the growth in applications for judicial review’. But UKELA points out that the general increase in judicial review cases is ‘very largely a result of increased asylum and immigration claims’, not planning judicial reviews.
All parties make use of the Administrative Court in Judicial Review cases. Disappointed objectors challenge the grant of planning permission, developers challenge decisions against them and public authorities challenge decisions that conflict with their policies. UKELA considers that the existing court procedures and better resources can be used to allow the Government to achieve its objective of preventing legal challenge from unjustifiably delaying important economic activity, whilst preserving the rule of law.
All judicial reviews are subject to the same time limit: applications must be made ‘promptly and in any event not later than three months after the grounds to make the claim first arose’. The government is proposing to reduce that to six weeks for planning judicial reviews, the same time limit that applies to statutory challenges to Secretary of State planning decisions under section 288 of the Town and Country Planning Act 1990. But UKELA points out the circumstances of claimants in the two types of cases are different. Challenges under section 288 ‘are brought by parties who have taken part in an appeal process, who know the material which was at issue, who received a copy of the decision letter and who expected it to arrive. Such parties are able to equip themselves to deal with an adverse result - they can be ready.’ Claimants bringing judicial review cases, however, ‘will usually have been significantly less involved in the process’ – for example residents’ groups concerned about a development - and will therefore need longer to consider their position and prepare to bring the case.
UKELA considers that the proposal may well work against the Government’s aim to reduce uncertainty in the development process. It is better to allow sufficient time for the parties to exchange properly considered correspondence and allow for the parties to moderate their stances at an early stage, than to force the issue of hastily drafted claims.
The government’s consultation also expresses concern that the current rules allow claimants too many opportunities to argue their case, particularly where their case is weak. It proposes removing the right of a Claimant to a hearing of their application for permission to apply for judicial review if a judge considering the claim on the papers rejects it as ‘entirely without merit’. UKELA points out that if a claimant does seek an oral renewal of a claim which has already been declared to be ‘entirely without merit’, the court has the power to order costs against the claimant. This is a real deterrent, and UKELA is aware of instances where this has already occurred in these circumstances.
The Ministry of Justice’s consultation includes a number of other proposals, including to raise some court fees and introduce new ones. UKELA notes that the document contains no reference to the Aarhus Convention[i] or existing access to justice provisions in EU legislation, which require that environmental judicial reviews are not ‘prohibitively expensive’. This is an issue which requires clarification so that all parties know where they stand.
[i] The Aarhus Convention on access to justice in environmental matters which the UK has signed up to
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