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Opinion: New planning court must avoid stoking more claims

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Opinion: New planning court must avoid stoking more claims

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Published by Jon Land for 24dash.com in Central Government and also in Housing, Local Government

Opinion: New planning court must avoid stoking more claims Opinion: New planning court must avoid stoking more claims

Marnix Elsenaar, head of planning at law firm Addleshaw Goddard, assesses the pros and cons of the government's proposed specialist planning court.

First we saw chancellor George Osborne lending a hand in reforming the planning system to remove barriers to growth.

Now justice secretary Chris Grayling is getting in on the act with his proposals for a specialist planning court, potentially backed by specific time limits for determining statutory challenges and judicial reviews.

Since the advent of localism, challenging planning decisions through the courts has become unavoidable for some parties. Last month's Ministry of Justice consultation aims to ensure that "crucial development projects no longer get mired in unnecessary legal delay". Grayling said the proposals would "speed up the judicial review process" and "drive out meritless cases which clog up courts".

On the face of it, these proposals are welcome. For example, blocking parties without a "direct or tangible" interest from getting involved in cases would remove developers' ability to oppose rivals' schemes on purely commercial grounds.

Members of the public and many working in the public sector often fail to grasp the cost of delay. Those investing in sites and preparing applications are risking huge sums in delivering public benefits through the regeneration of our towns and cities. The costs of delay fall squarely on the shoulders of developers and their shareholders. If councils lose a judicial review, taxpayers bear the cost and suffer the economic consequences of developments not proceeding.

The proposed changes aim to level the playing field. This doesn't just mean sharing the costs, it also means making the system quicker and improving the quality of decisions. The proposals will give all parties an equal interest in ensuring that unnecessary costs are not incurred.

In taking forward the proposals, the government needs to tread a fine line between implementing procedural and costs reforms and not falling foul of human rights legislation or the Aarhus Convention on access to justice. But the huge growth in judicial review applications means something has to be done.

The numbers make plain reading: less than 4% of judicial review applications are successful. Applications have almost trebled from 4,500 in 1998 to 12,400 in 2012. But in 2012, just one in six were granted permission to proceed beyond initial consideration. According to government figures for 2011, just 163 of the 422 judicial review applications that went on to a final hearing without being withdrawn or settled were decided in favour of the applicant.

So the need for a quicker, more effective system for disposing of claims is not in doubt. But here's the rub. It would be some irony if a quicker, cheaper system encouraged more claimants to challenge decisions. On the face of it, Grayling's announcement is good news for developers. But government must beware of any unintended consequences.

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