Will judicial review changes reduce planning delays?

As part of the Government’s latest series of measures aimed at speeding up the planning system, changes to the judicial review procedure in planning cases come into effect today. But will they make a difference?

The following changes to the procedure for bringing judicial reviews (JR) of planning decisions come into force today:

• A reduction in the time limit for bringing a JR from three months to six weeks.
• Where a court has refused permission to seek JR after a review of the papers, the fee for seeking a hearing to contest the refusal is increasing from £60 to £215.
• The right to seek a hearing to try to overturn a refusal of permission is withdrawn if the judge has found that the claim is “totally without merit”

These changes are intended to reduce the delay that JR can have for development and are part of the Government’s latest round of reforms aimed at speeding up the planning system.

The change in the fee is fairly marginal and, if you are in a position to be thinking about a JR, then you are probably not going to be deterred by the fee.

The curtailed right to have a hearing will provide certainty a little quicker in a limited number of cases and the reduced time limit will also have a positive impact, especially where no JR challenge is brought to a planning permission. In those cases it will enable developers to proceed with development sooner without the risk of abortive costs if a successful JR claim is brought.

In reality though, this change offers only a marginal benefit as only the very smallest developments are ready to begin construction within three months of receiving planning permission. The number of pre-commencement planning conditions that local planning authorities impose on planning permissions, when added to the other preparatory steps that need to be undertaken before development commences, means that few developments are going to suddenly start appearing out of the ground six weeks after planning permission is granted because the risk of JR has gone away.

On the other hand, the reduced time limit may actually result in an increase in JR challenges being brought; with potential claimants finding that they need to submit a claim prematurely in order to protect their position while taking proper advice and discussing their claim with the local planning authority.

None of these changes address the real impact of JR however; the time it takes to get a claim to a substantive hearing. If permission is granted for a JR to proceed then the case then disappears into the black hole that is the Administrative Court Office and it can frequently take more than twelve months from the granting of permission for the matter to be heard by a judge. During this time nothing useful is happening, the JR process being very front-loaded and all evidence having to be submitted in the early stages. The parties are simply waiting for the Court to fix a hearing date.

The numbers of JRs being brought has increased dramatically in recent decades and planning is only a relatively small percentage of the overall number of claims; the largest source of claims being immigration proceedings. This surge in numbers is the real cause of delay and until the number of judges available to hear cases increases, the delays will continue for many developments notwithstanding today’s changes.