In a recent speech to the CBI the prime minister stated that the government would be looking at ways to streamline the judicial review process. The government sees judicial review as one of many procedures that are slowing down development and the economic benefits that it brings. It is understood that a public consultation exercise on proposals will follow soon.
It is not clear whether the prime minister, when referring to the slow judicial review process hampering development, is talking just about attempts to overturn the grant of planning permission by local planning authorities using the judicial review process. He may or may not also be talking about the statutory challenge process, also in the High Court, to overturn other planning decisions such as the grant of planning permission on appeal by the secretary of state. While the two processes have similarities there are some key differences.
The judicial review process requires a claimant seeking to overturn the grant of planning permission by a local planning authority to bring its claim within three months, but also without undue delay. Following Uniplex (UK) Ltd v NHS Business Services Authority – a European Court of Justice case – there has been a body of further case law which has debated whether the time limits for bringing a claim for judicial review are uncertain and that this breaches European law, so that where the claim is founded on elements of European law then the time limit is to be three months.
This would increase the potential length of time before developers can commence development knowing they are free of any potential judicial review claim. The time limit to bring a statutory challenge claim is a fixed six weeks. One of the elements that the government will look into is reducing the current three-month time limit to bring a judicial review. It would seem to be common sense for both processes to have a fixed period of six weeks to bring a claim. This would reduce the period of uncertainty for developers. But it would also reduce the opportunity for the parties to settle without the need to litigate.
It could be argued that in reality judicial review claims delaying development is not as big a problem as the prime minister alleges. The judicial review process contains a requirement to obtain permission to proceed from the High Court before the claim can proceed to a full court hearing. The permission stage, if uncontested, usually takes just a few months. There is currently the ability for a claimant to seek an oral hearing if, on the papers, permission to proceed is not granted.
Closing the ability to do this would limit the length of time that the permission stage could take and result in certainty being achieved more quickly. The permission stage does not apply currently to statutory challenges.
Again, there seems to be merit in creating consistency between the two processes and for permission to be required to proceed with a statutory challenge as well as with a judicial review. A full hearing can take around a whole year to reach court; this is largely due to lack of capacity in the Administrative Court rather than a procedural requirement.
Driven by the European requirements of the Aarhus Convention, the government is about to bring in financial caps that will limit the exposure of claimants to pay the legal costs of the defendant local planning authority and vice versa. This surely will do more harm to the speed of the development process than any of the suggested changes to speed the process up.
If claimants, such as local objector groups, have only a limited exposure to costs, then it would seem to follow that there may well be an increase in claimant groups prepared to bring claims for judicial review. One of the measures mooted by the prime minister in his speech was increasing fees for making judicial review applications. The limit on liability to pay costs runs totally counter to such a proposal. If fees were to be increased to the point of being a barrier to claims being brought then it could be alleged that the Aarhus Convention is being breached.
My final thought is this: how does reducing the ability to bring judicial reviews fit with the government’s localism agenda?
Jason Towell is a partner at Cripps Harries Hall