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 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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