How To Stay Out Of Trouble In The Planning Court

When cat herders describe their job to a friend, they probably say “It’s like editing a legal textbook written by 20 barristers from the same set of chambers, to an over-arching style guide, and a deadline”.

As editor of the new second edition of “Cornerstone on the Planning Court” (Bloomsbury Professional), Michael Bedford QC would make an excellent herder of cats. Or maybe Cornerstone Barristers are just a collaborative bunch. After all, “Cornerstone on the Planning Court” is part of a series that includes Cornerstone on “Anti-Social Behaviour”, on “Information Law” and on “Social Housing Fraud”.

The first edition of Cornerstone on the Planning Court (which shall I call COTPC1) was published in September 2015, just under 18 months after the Planning Court was created. Our office copy is well-thumbed, corner-folded and spine-broken. Beyond the Civil Procedure Rules and practice directions (which, folks, don’t tell you half of what you need to know!), it has provided the main source of rigorous but practical guidance as to the operation of this new forum, now the sharp end for most litigation of relevance to planners and planning lawyers but which structurally occupies an uncertain space as a specialist list within the Queen’s Bench Division of the High Court (see also my 8 July 2018 blog post, The Planning Court).

The Planning Court has proved remarkably popular. By traditional litigation standards, the permission stage is rapid, followed by a final hearing for those cases which have not been sieved out through that process. Cases earmarked as “significant” are allocated to judges who are particularly experienced in planning law matters. There has also been an enormous throughput.

With Landmark Chambers, we carried out some analysis last year of the cases which have come before the court, which I summarised in my 15 August 2020 blog post, Introducing The Planning Court Explorer. We also held a recorded webinar where Duncan Field and I were joined by John Litton QC, Jenny Wigley QC and Tim Buley QC – PC in 2020: Has the Planning Court proved a success?

The nature of the court, separate but not separate from the wider judicial review functions of the Administrative Court, serves to obscure even basic statistics as to its overall caseload. So I was really taken by a video post last week from Mark Howells at Kings Chambers, Data and statistics of planning judicial reviews (6 April 2021) a deep dive into zipped files and data entries for information which surely should be made more easily available.

With so much new case law, together with changes to costs protection procedures, COTPC2 is a welcome update.

The second half of the book, pages 245 to 451, comprises the relevant Civil Procedure Rules themselves and related practice directions, protocols and forms. The first half of the book combines insightful summaries of the historical development of planning law and its current components, together with judicial review and statutory challenges (at a level which would be a good read even for those new to the subject) and of the many key legal principles arising in Planning Court claims, with detailed from-soup-to-nuts practical guidance for practitioners as to every aspect of the litigation process.

The foreword to COTPC2 is by Holgate J, who takes care to distinguish between decision-making procedures within the planning system which “determine the merits of the competing arguments in each case. The Court exists to deal solely with any public law issues that arise from those decisions and to do so as efficiently as possible, avoiding unnecessary delay”. He refers to “two of the fundamental foundations of our constitution: the rule of law and the separation of power between the courts, the legislature and the executive. These govern the Planning Court just as much as any other part of our legal system”. He quotes Lord Carnwath in the Suffolk Coastal case, one of the most influential cases since COTPC1:

“…the judges are entitled to look to applicants, seeking to rely on matters of planning policy in applications to quash planning decisions (at local or appellate level), to distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgment in the application of that policy; and not to elide the two”.

We have been warned.

The constitutional role of administrative law is of course a topical issue. My 12 September 2020 blog post, Faulks Review Of Administrative Law: Call For Evidence reported on the review instituted last year by the Government. Many of us were somewhat fearful as to what might emerge but the March 2021 report is to my mind an impressive, considered, piece of work.

My only disappointment is that the “no nonsense” approach of the Planning Court in many respects, particularly in relation to timescales, might have been endorsed as appropriate for wider adoption but instead we seem simply to have been acknowledged as operating in our own little world…

Particular congratulations should go to Celina Colquhoun (39 Essex chambers), as the only planning barrister on the review panel.

The Government has published a consultation document setting out proposed reforms to administrative law in response to the recommendations in the review, with a deadline of 29 April 2021. I noticed this week that ironically the Ministry of Justice has already received a threat of judicial review, from a solicitors’ firm, on the basis that the deadline is considered to be too short.

But I’ll pause there because this post was intended as a review of a book about Planning Court judicial review rather than a review of a proposed judicial review of a proposed review of judicial review.

There is one overwhelming selling point of COTPC2 for me: in the nicest possible way, it will help me sleep.

After all, who of us does not stay awake worrying about phantom missed deadlines, overlong bundles, unnecessary witness statements, late settlement notifications and everything else that can possibly go wrong?

We all want to stay out of trouble in the Planning Court, so thank you Michael and colleagues.

Simon Ricketts, 10 April 2021

Personal views, et cetera

PS This week’s Planning Law, Unplanned clubhouse session (6pm on 13 April) will have as its theme your most bizarre planning inquiry/court hearing/site visit/planning committee stories. We want to hear them on the night, with a prize to the best.

Author: simonicity

Partner at boutique planning law firm, Town Legal LLP, but this blog represents my personal views only.

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