Thu, 09 Apr 2015
The Planning Court marks its first anniversary this week. The Court formally opened for business on 6 April 2014, the first permission hearing was heard on 7 April 2014 [1] and the first judgment was handed down on the same date [2].
[1] R (Jones) v English Heritage [2014] EWHC 2259 (Admin), granted permission at a renewal hearing on 7 April 2014: Ian Dove QC (now Mr Justice Dove) and James Corbet Burcher appeared for the Claimant
[2] R(Earl Shilton Action Group) v Hinckley and Bosworth BC [2014] EWHC 1764 (Admin), determined by way of a rolled up hearing on 7 April 2014: Richard Kimblin appeared for the Claimant
Members of the No5 Chambers Planning and Environment Group have been regularly instructed in Planning Court and related appellate litigation throughout the last 12 months: Please click here for a list.
The introduction of the Planning Court list and CPR Practice Direction 54E have been welcomed across the planning and environmental sector for increasing specialism on the bench, driving faster timeframes for the resolution of claims, and making new standardised and bespoke procedural directions.
It should be noted, however, that the Planning Court was introduced part-way through an era of major change in litigation across the planning sector, and within public-administrative law as a whole.
First, the total number of planning and environmental claims issued annually has increased over the past five years. The causes are complex. New legislation, policy reform and a general broadening of the claimant base have all played a major role. Key events have included the Localism Act 2011, the Supreme Court’s judgment in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 (21 March 2012), the publication of the National Planning Policy Framework (27 March 2012), and the amendment of the CPR Part 45 in respect of Costs Limits in Aarhus Convention Claims (from 1 April 2013).
Second, more recently, the Criminal Justice and Courts Act 2015 has introduced a series of forthcoming legislative amendments. Some reforms are of a general procedural nature, notably the introduction of a permission stage for challenges to statutory appeal decisions under section 288 of the Town and Country Planning Act 1990 and section 113 of the Planning and Compulsory Purchase Act 2004 on a date to be appointed (Schedule 16 of the 2015 Act). Section 84 will amend section 31(2) of the Senior Courts Act 1981 with effect from 13 April 2015, with the following significant amendment, For claims issued after that date, the High Court “must refuse to grant relief on an application for judicial review...if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.” The statutory wording was much criticised in both the Commons and the Lords during the passage of the Bill. In the short to mid-term, it seems highly likely that it will generate as much further litigation as it was intended to limit.
It is therefore too early to assess the overall impact of the Planning Court. However, the merits of a specialist court are already evident and it is clear that in the post-Tesco v Dundee world that the Court will continue to play a central role in all day-to-day planning work for some time to come.
