Boat Plans African Queen | Judicial review further details of the proposed changes

Boat Plans African Queen

When I reported last week on the Criminal Justice and Courts Bill, I had not had a chance to look into the other details of the proposed changes to the judicial review process that were set out in the government’s response to their original consultation paper.

It is now clear that the idea of a separate planning review tribunal (as part of the Upper Tribunal) has been abandoned, apparently as a result of opposition by the senior judiciary. Nor does the Government now intend to make any changes to the scope of legal aid for planning challenges under sections 288 and 289 of the Town and Country Planning Act 1990, or to the ability of local authorities to challenge infrastructure projects. The government has also dropped its suggestion that legal standing (locus standi) to bring a legal challenge in planning matters should be restricted.

The government has spun its climb-down in terms that imply that we are still going to have a fast-track Planning Court, but all that is suggested in the first instance is that there should now be a separate listing of planning cases within the Administrative Court list which should be expedited (or ‘fast-tracked’ to use a favourite word in government circles these days), and that the judges assigned to hear cases in this list should be ‘planning’ judges, i.e. judges with specialist knowledge and experience of planning law and procedure. A move in this direction had already been made last year, so this simply confirms a welcome initiative that should lead to a more reliable outcome in planning cases that come before the court. It was a change I had called for in the earlier version of this blog as long ago as June 2006 (under the title “Judicial Lottery”, which can still be found on the internet at http://planningmatter.blogspot.com/ ). Incidentally, I see that I also canvassed in that article the idea of transferring legal challenges to planning decisions to something in the nature of the Employment Appeals Tribunal or, in present day terms, a Planning Chamber in the Upper Tribunal. Someone in the MoJ must have been reading the blog!

One source of difficulty where a permission hearing is required before a claim proceeds (either under CPR Part 54 or section 289, and now also under section 288) is the award of the costs of that hearing. The government has now decided that where an oral permission hearing is successful costs will not be awarded against a party at that stage but will fall to be determined at the end of the substantive hearing. The courts will still have a general discretion in this area, to ensure that justice is done. It is suggested that the Civil Procedure Rules should be amended to indicate that the costs of an oral permission hearing should usually be recoverable.

While we are on the subject of permission hearings, there is a long-standing anomaly that whereas the initial application for permission in Part 54 cases is usually on the papers, there has to be a hearing in section 289 cases (and presumably now also in cases under section 288). It would be sensible to change the rules so that an initial application for permission under section 289 (and now also section 288) should be on paper, renewable for oral hearing in the same way as Part 54 cases. In fact, the whole leave procedure should be brought into line, so that all of these cases are treated in the same way. Another anomaly, indeed a source of injustice, is the lack of any right of appeal against a refusal of leave in a section 289 case, whereas there is a right to renew an application under Part 54. These procedures need to be brought into line, especially now that section 288 cases are also going to need permission to proceed.

On the question of costs, I note that it is not proposed to restrict the availability of Protective Costs Orders for judicial review in environmental cases (which would include planning). These are cases that come within the scope of the Aarhus Convention and the Public Participation Directive, and the restriction on the availability of protective costs orders which is proposed in other judicial review cases would be a breach of this country’s obligations under the convention if it were to be applied to cases involving environmental issues. In these cases a claimant’s costs are capped at £5,000 where the claimant is an individual and at £10,000 in other cases, and at £35,000 for the defendant.

© MARTIN H GOODALL

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Boat Plans Skiff | More restrictions on judicial review

Boat Plans Skiff

In an article by the Justice Secretary, Chris Grayling, published in the ‘Daily Wail’ this morning, he calls for further restrictions on the right to apply to the High Court for the judicial review of ministerial decisions in planning and infrastructure cases. [The web version can be found at - http://www.dailymail.co.uk/news/article-2413135/CHRIS-GRAYLING-Judicial-review-promotional-tool-Left-wing-campaigners.html ]

He makes no bones about that fact that he is taking a strongly partisan political approach to this issue, seeing it as an avowedly Right-Left struggle. The first four short paragraphs of his article are pure bile, complaining about a growing number of “professional campaigners” who, he alleges, are “taking over charities, dominating BBC programmes and swarming around Westminster” (!) Worst of all, in Grayling’s view, is that they “articulate a Left-wing vision”. He seems to be particularly annoyed that former advisers and politicians are joining the ranks of what he calls “serial campaigners”, and he singles out the charity sector as an area where “advisers from the last Government can be found in senior roles”. He seems to be equally unhappy about moves in the opposite direction, “with campaigners lining up to try to become Labour MPs”.

This very much sets the tone and the background for what follows. Grayling alleges that charities “target the legal system as a way of trying to get their policies accepted”, particularly through the medium of judicial review. He objects to these people being able to challenge the decisions of government and public bodies in the courts, aided and abetted, as he puts it, by “teams of lawyers who have turned such legal challenges into a lucrative industry”.

It is at this point that the real lies start, and as the Nazis’ propaganda and police chief, Joseph Goebbels once observed, the bigger the lie, the more easily it will be swallowed by a gullible public. Grayling casually remarks that there are now thousands of judicial review applications each year, but he carefully omits to mention that, as a proportion of all JR applications, planning and infrastructure-related JR applications account for less than 2% of the whole!

As I have previously pointed out in this blog [Judicial review – the statistics on Tuesday, 20 November 2012 and Judicial review - statistics update on Sunday, 2 December 2012], the numbers of JR (i.e. non-statutory) cases relating to town and country planning and infrastructure cases in recent years have been: 1998 – 112; 1999 – 116; 2000 – 121; 2001 – 142; 2002 – 119; 2003 – 122; 2004 – 119; 2005 – 140; 2006 – 142; 2007 – 151; 2008 – 184; 2009 – 165; 2010 – 148; 2011 – 191. (I don’t have the figure for 2012, but it is unlikely to show any really dramatic increase.)

The first point which is immediately apparent is the very low numbers, compared with the total of JR applications in those same years. These figures pale into insignificance, compared with the headline total of 11,200 JR applications in 2011 which ministers are so fond of quoting (or mis-quoting). Most of these were in fact immigration/asylum cases. Even as a proportion of ‘other’ JR applications (i.e. other than immigration/asylum and criminal cases), planning-related cases account for only about 7 or 8 per cent (9% at most, in some years). Furthermore, it is not possible to discern any indication that there has been any increase in hopeless applications in this area of the law. The notion that ministers have been peddling that there is a rising tide of hopeless JR applications, made simply as a delaying tactic to frustrate development and infrastructure projects, is clearly nonsense. In most years, at least a third of planning-related JR application were given permission to proceed, which is a much higher proportion than the average for other types of JR application.

Grayling’s assertions are based on an outright lie! But that does not deter him from proposing further restrictions on judicial review in addition to those introduced only a couple of months ago.

What these proposals actually are is not vouchsafed to us in his vituperative article in the Mail. According to the Press Association, a consultation paper is due to be published today, and we shall know more of what is afoot when this emerges. However, the PA report suggests that under these new plans, “campaigners will be banned from launching challenges” and that “local councils will also no longer be able to judicially review major infrastructure projects in their area”. It is also suggested that Grayling wants to penalise unsuccessful JR applicants with payment of a greater proportion of the government’s costs. Never mind the Aarhus Convention – a document that Grayling no doubt dislikes as much as he hates all those pesky lefties.

It is difficult to imagine a man less suited to being the Minister of Justice (and Lord Chancellor) than Chris Grayling (unless it might possibly be Michael Gove).

[UPDATE (14.17 6.9.13) : The consultation paper can now be accessed at - https://consult.justice.gov.uk/digital-communications/judicial-review. I may blog on this topic again when I have had the chance to read it in detail.]

© MARTIN H GOODALL


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Boat Plans Aluminium Australia | Judicial Review – the new rules

Boat Plans Aluminium Australia

Readers who keep up-to-date with such matters will already be aware that the government’s new restrictions on applications for Judicial Review (‘JR’) came into force on 1 July.

The changes that relate to legal challenges to planning decisions are quite simple. They do not affect legal challenges to appeal decisions made by planning inspectors or by the Secretary of State, under sections 288 and 289 of the 1990 Act. The new rules only affect legal challenges to other decisions, such as the grant of planning permission by a local planning authority (or by the Secretary of State, for example on a called-in application under section 77) which are brought under Part 54 of the Civil Procedure Rules.

Where the application for JR relates to a decision made by the Secretary of State or a local planning authority under the Planning Acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose. No change is made to the identification of the date when “the grounds to make the claim first arose”, and so in accordance with the decision of the House of Lords in Burkett, that date is the date on which the planning permission under challenge was actually issued, not the date of the committee meeting or the date of the delegated decision when it was resolved to grant planning permission.

In simple cases, the two events can occur on the same day or within a day or two of each other, but in more complex cases several weeks or months can sometimes elapse between the decision to grant permission and the actual issue of that permission. In practice, this may give objectors a bit more time to get themselves organised, as the kind of decisions that tend to be challenged by way of JR are often the ones that involve some complexity. Nevertheless, objectors who wish to challenge such a decision should not hang around. Lawyers need to be instructed as early as possible to advise on a potential High Court application, so that if they advise that an arguable case can be put forward, the necessary application can be issued and served within the 6-week time limit.

This latest amendment to the Part 54 of the Civil Procedure Rules does not affect the power of the Court to extend time, so the absolute six-week cut-off that applies to section 288 applications does not apply to JR applications under CPR Pt.54. The position now is really no different from that which obtained before the House of Lords’ decision in Burkett, a situation with which we all seem to have coped at the time. In appropriate cases, the court will no doubt be prepared to extend time, although it will clearly not do so if the failure to apply within six weeks is simply the result of unpreparedness on the part of the claimant or simple dilatoriness, whether on the part of the claimant or on the part of their legal advisers.

The new rules amend Part 52 so as to remove the right to renew the application for permission to proceed with a claim for JR at a hearing in open court following a previous refusal of permission on the papers, but only if the judge who refused permission on the papers certifies that the claim is totally without merit. I confess to having some misgivings about this, but it is to be hoped that judges will exercise this power sparingly, and only in the most obvious cases.

The new rule under Part 54 (the six-week time limit) applies only in respect of those cases in which the grounds for JR arose on or after 1 July 2013. The new rule under Part 52 (oral hearing of a renewed application) does not apply to an application for permission to bring proceedings for JR that was made before 1 July.

Increases in the court fees payable in these proceedings had already been introduced under previous rule changes.

© MARTIN H GOODALL


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Boat Plans Butler | The mountain has laboured and

Boat Plans Butler

Bearing in mind all the brouhaha on the part of ministers over their proposals to put under-performing LPAs into special measures, so that developers can bypass them and apply for planning permission direct to the Planning Inspectorate, the outcome of just one council (Blaby, Leicestershire) being caught in the net is somewhat underwhelming. In the circumstances, there doesn’t seem to be much point in poring over the detailed regulations that were brought into effect on 1 October for dealing with these applications under section 62A of the 1990 Act.

Some county authorities were also in the frame over their handling of minerals and waste applications, but De-CLoG has been forced to delay any action in these cases due to doubts over the statistics on which a decision to put these authorities into special measures would have been based. This is not to say that one or more authorities at county level may no longer be in line to have their minerals and waste applications handled under section 62A, but it may be some time before we know whether any and if so which of these authorities will be told to go and sit on the naughty seat.

© MARTIN H GOODALL

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Boat Plans At Mystic Seaport | And now – A1 to C3

Boat Plans At Mystic Seaport

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below does not accurately reflect the current position. For completely up-to-date and fully comprehensive coverage of this topic, we would strongly recommend readers to obtain a copy of the author’s new book on the subject - ”A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

Planning officers who are worried about the recently introduced rules allowing change of use from B1(a) (office use) to C3 (residential use), will soon have more to worry about. The government is preparing proposals to allow conversion of “some” retail floorspace (I don’t know yet what sort of premises might be involved) to residential use.

The spin put on it by Uncle Eric at a recent conference, when he foreshadowed these proposals, referred to “dormant out-of-date offices, empty shops and boarded up buildings”, which he intends to turn into new homes. He believes this will bring life back to town centres. Some town planners might not agree. Would it really strengthen the ‘vitality and viability’ of shopping centres, or just produce more dead frontage? No doubt primary retail frontages will be excluded, and we shall have to see the detail of De-CLoG’s proposals before we can understand the possible impact, and (perhaps more important for our day-to-day work) precisely how the new PD rights will work in practice. One can only hope that they will be less ambiguous than those set out in the recent amendment to the GPDO in May.

Pickles also seems to have wittered on in the same speech about “giving rural communities new power to turn old barns and outhouses into new homes and businesses”, which he claims will boost the rural economy whilst protecting the open countryside from development. The recent changes to the GPDO definitely do not permit change of use of agricultural buildings to residential, so is the government seriously proposing to make it possible to do this in future? We shall have to see what emerges in the promised consultation document, which is promised before the end of this month, and then in the resulting amending legislation – in the form of yet another amendment to the GPDO.

If the GPDO is to be amended yet again, maybe this would be a good opportunity for De-CLoG to sort out the muddle in paragraph N of their amending order in May, so as to drop the requirement that the LPA should “have regard to the NPPF as if the application were a planning application” and make it clear that the only considerations to be taken into account are those relating to any transport and highways impacts of the development and any contamination risks or flooding risks on the site. Otherwise, why make these changes of use permitted development at all?

© MARTIN H GOODALL


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Boat Plans At Mystic Seaport | Office to residential a ministerial warning

Boat Plans At Mystic Seaport

NOTE: There have been significant changes to the law since this blog post was published, and so the material printed below (including the appended comments) does not accurately reflect the current position. For completely up-to-date and fully comprehensive coverage of this subject, we would strongly recommend readers to obtain a copy of the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

Last week, in a written ministerial statement to the Commons on Thursday 6 February, Planning Minister Nick Boles fired a warning shot across the bows of councils seeking to resist or frustrate office to residential conversions as PD under the new rules introduced last May.

A number of points about which there had previously been some uncertainty were clarified. First, it is clear that the government did envisage multiple conversions in large office buildings; Boles mentioned the potential of some buildings to provide more than 100 homes. A number of such schemes have already achieved prior approval.

Boles criticised the disproportionate use of Article 4 Directions by some councils. He made it clear that the Secretary of State, whilst he no longer has to approve Article 4 Directions, is still prepared to use his reserve power to cancel Directions that are not justified, and several such Directions are currently under review in De-CLoG, and may either be cut down in their geographical scope or cancelled altogether. At the time of Boles’ statement, 8 authorities had made directions preventing office to home conversions under the GPDO. Islington and Broxbourne were singled out as authorities that had applied these directions disproportionately.

De-CLoG is also aware that some LPAs are still unclear on the correct intention of the detailed provisions in the GPDO amendment, and do not appear to have correctly applied the intended tests to determine applications for prior approval, or have sought to levy developer contributions where they are not appropriate (on matters unrelated to the prior approval process). To ensure the permitted development rights are utilised fairly across England, De-CLoG intends to update their planning practice guidance to councils to provide greater clarity on these points. Unjustified financial levies should not be applied in an attempt to frustrate the creation of new homes, Boles said.

The government is clearly determined to ensure that the PD rights for office to residential conversion granted last May are not frustrated by a small minority of councils who are trying to undermine these changes. This can be taken as a clear steer to the Planning Inspectorate as to the way in which any unjustified refusal of prior approval should be dealt with on appeal. Clearly any refusal based on criteria other than the three narrowly defined topics listed in the GPDO are liable to be overturned. I drew attention a short time ago to a decision in Camden which cited every conceivable objection under the sun. It seems very unlikely that Camden stands much chance of defending that refusal on appeal, and an award of costs against the council looks almost inevitable.

Boles’ Commons statement serves not only as a warning to LPAs who may have been seeking to prevent or frustrate office to residential conversions, but should encourage developers to take a robust stance in appealing any refusal of prior approval, especially if it cites spurious reasons for refusal. There would seem to be no legal basis on which affordable housing provision or contributions can be demanded, or any other financial contributions from developers under section 106. There may, on the other hand, be a potential liability to pay CIL (although I don’t pretend to be an expert on that topic). So far as I can see, no conditions can lawfully be imposed on a prior approval of such development, bearing in mind that (subject only to the prior approval process) such developments are Permitted Development, so that the only applicable conditions can be those actually imposed by the GPDO itself.

UPDATE: In case any readers have not noticed, power to impose conditions on a prior approval was given by the 2014 amendment to the GPDO, but they must be strictly confined to the limited matters that are the subject of the prior approval application. The scope for imposing conditions is therefore much more limited than it would be in the case of a planning permission.

© MARTIN H GOODALL

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Boat Plans And Patterns | Yet more interesting times

Boat Plans And Patterns

You may have noticed that blog posts have been a bit thin on the ground recently, due to the continuing pressure of work. Unfortunately, it does not look as though I am going to be able to find the time to write anything further here for at least the next 10 days.

This is rather frustrating, as there has been an awful lot going on recently, which is just begging to be written up here. Among the many recent innovations, the Planning Inspectorate has published a new Procedural Guide to Planning Appeals and Called-in Planning Applications, and the government has announced a faster planning appeals process, leading (it is hoped) to earlier decisions. This will involve ‘front-loading’ the appeals process, including a requirement to submit a full appeal statement with the appeal form, which will make a lot more work for appellants at the outset of the appeal process. The new rules will apply to appeals in respect of applications determined after 1 October, but I shall have to defer discussing these and other innovations to a subsequent post.

Meanwhile, new regulations have been published for applications under section 62A of the Town and Country Planning Act 1990 (introduced by Section 1 of the Growth and Infrastructure Act 2013). This is the provision that enables certain applications to be made direct to the Secretary of State, bypassing the local planning authority.

Three new statutory instruments have been made relating to conservation areas and demolition, which I have not had time to look at yet. These, too, come into effect on 1 October.

In addition to this, we have also had the new web-based planning advice that is set to replace all the old familiar circulars. I confess that at a first glance, I was not impressed, but this too is a topic to which we shall return.

As I mentioned in passing a few weeks back, further changes to planning fees have been introduced by The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2013 (SI 2013/2153) (2013 Regulations). Yet again, 1 October is the date when these come into force.

Then, of course, there are Chris Grayling’s proposals for further changes to judicial review. I haven’t had time to look at these in any detail yet, but they include the idea of a special planning court, which could be a welcome innovation. But this will depend on how it is implemented. It is a subject to which I will return in due course.

Uncle Eric has not been idle himself, and on 2 September he was boasting to the House of Commons how very busy De-CLoG has been during the summer, when everyone else was away with their buckets and spades. This has included a report on the future of our high streets. (They haven’t got a future, basically.) He also touched on the plans to extend permitted development rights, previously discussed in this blog, and new guidance published on 28 August calling for councils to deliver more town centre parking spaces, to tackle street clutter and to get rid of ‘sleeping policemen’ (road humps). He also wants to encourage residents to rent out parking spaces in their front gardens. (This had already caused apoplexy among some planning officers.)

Uncle Eric also drew attention to powers introduced by the Localism Act 2011 for the listing of assets of community value, including local pubs, to prevent their sale and redevelopment. And then, of course, there was Uncle Eric’s wheelie bin crusade. And so on, and so on.

So, there will be an awful lot of material for planning professionals to digest in the near future, and a lot of changes that are going to happen on 1 October.

One thing Uncle Eric said made me laugh. He reckons that, with these various changes and the ‘simplification’ of ministerial planning advice, there is going to be little or no work left for planning lawyers to do. I think we may find that as result of some of these changes there will be more work for us than ever!

© MARTIN H GOODALL


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Boat Plans Aluminium Australia | Judicial review – a different solution

Boat Plans Aluminium Australia

One of the drawbacks of judicial review, as anyone who has ever been involved with the process will be very well aware, is that when a decision is quashed by the court the decision under challenge is not reversed; it is simply set aside, leaving the decision-maker to retake the decision. The decision-maker in redetermining the matter can very easily reach the same decision again, provided that they do so in a way that avoids the legal error that led to the original decision being quashed. There are several examples of which I am aware where there have been successive quashing orders of a retaken decision; but the public body or authority involved will nearly always get their own way in the end. Thus a successful action seeking to judicially review an unlawful action or decision all too often proves to be a pyrrhic victory.

The court cannot substitute its own judgment for that of the LPA or other body whose decision is under challenge, because the court simply does not have before it all the relevant facts that would need to be taken into account and weighed up in retaking the decision, nor does it have the necessary expertise to exercise a technical (as distinct from legal) judgment. But in planning cases, at least, it would be entirely possible to introduce amending legislation (whether primary legislation or, possibly, a simple rule change) to provide that when planning permissions and perhaps certain other planning-related decisions by LPAs are quashed, jurisdiction would then pass to the Secretary of State (in practice, the Planning Inspectorate on his behalf) to redetermine the application as if it had been made to him in the first instance. This might or might not involve a public inquiry, depending on the circumstances of the case. A mandatory order requiring the issue of an enforcement notice (admittedly very rare in practice) might also be transferred to the Secretary of State for implementation.

I am not aware of this suggestion ever having been put forward before, although I would not be at all surprised to learn that something of this sort may have been canvassed at some time in the past. However, I do not expect that it is an idea that government (of any political persuasion) is likely to take up, unless there is a groundswell of opinion resulting from dissatisfaction at the outcome of the current judicial review process in planning cases.

© MARTIN H GOODALL

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Boat Blind Plans | Judicial Review of office to residential changes

Boat Blind Plans

The High Court granted permission last Friday to four London borough councils to go ahead with applications for judicial review of the amendment of the GPDO that took effect on 30 May, allowing change of use of offices (B1) to residential use (C3). The hearing is currently scheduled for 4 December.

The fact that the High Court has granted permission for a full hearing merely indicates that there is at least an arguable point in the case, but this cannot be taken as an indication that these challenges will succeed. The ability of local planning authorities to make an Article 4 Direction if they are concerned about such changes in their area must surely be a strong argument against the legal challenge that has been mounted against this extension of permitted development rights. The timing of the application for judicial review might also be a problem for the local authority claimants if De-CLoG chooses to raise this (as I pointed out in this blog some time ago).

The number of prior approval applications received by some London Boroughs under the new rules has caused surprise and alarm in those authorities, but I am not convinced that an attempted judicial review of this subordinate legislation is the right way forward.

On the other hand, one of the grounds of challenge relates to the way that applications for exemption from the new PD rights were considered by De-CLoG. I did have misgivings about this at the time (which I mentioned in a previous blog post). This is one aspect of the matter in respect of which the government could be vulnerable.

If the hearing timed for 4 December goes ahead on that date, judgment will probably be reserved and is likely to be delivered either just before or shortly after the Christmas/New Year break. An appeal to the Court of Appeal by whichever party loses could well be on the cards, so a final answer may not be known for some months yet, maybe well into 2014. Meanwhile, there is nothing to stop applicants getting on with their prior approval applications. In fact the possibility (however remote) that these permitted development rights could be withdrawn as a result of this legal challenge may encourage an even greater number of prior approval applications to come forward in order to get these proposals through before the drawbridge can be pulled up.

© MARTIN H GOODALL

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