Judicial review – SIMONICITY

JR Risk

There was the usual rush of case hand-downs ahead of the end of the court term last week. Some of them caused me to reflect on this thing we talk about with clients all the time: JR risk. Even an unsuccessful judicial review of a planning permission can cause huge delays and problems for the developer (and don’t some objectors, often protected against any significant costs exposure even if they are unsuccessful, know it?) and if one or more of your grounds actually lands in your favour, back the decision goes for re-determination, possibly against a different political or economic background: bonanza…

I was also thinking about the government’s 16 July 2026 consultation paper Judicial Review Reforms Beyond Nationally Significant Infrastructure. Following on from its reforms to the judicial review process in relation to nationally significant infrastructure projects (see my 31 May 2026 blog post Keeping Up: JR Changes, Deadlines, the government is now considering a series of proposals that might be introduced more broadly to developments consented under the Town and Country Planning Act 1990 and Transport and Works Act 1992. These include:

removing the paper permission stage and for removing the right of appeal for cases which are deemed totally without merit at the oral permission hearing – whether for all planning cases or just for major infrastructure projects and other strategically important developments;

designating all claims relating to ‘major infrastructure projects’ and other ‘strategically important developments’ as “Significant Planning Court Claims” so that target timescales for dealing with the case apply and so as to ensure that each case is reviewed by the Planning Liaison Judge to ensure it is allocated to a judge with an appropriate level of expertise;

encouraging the use of case management conferences – whether for all planning cases or just for major infrastructure projects and other strategically important developments;

applying more broadly the new target timescales that will apply to nationally significant infrastructure project claims from 1 October 2026, namely: shortened deadlines for the service of the pre-permission documents from seven days to three; target timescale for having the oral permission hearing three weeks from the claimant’s deadline for filing a reply to the acknowledgment of service; shortened deadline for filing and serving the detailed grounds of defence from 35 to 28 days.

extending the target timescales for NSIP appeals in the Court of Appeal to ‘major infrastructure projects’ and other ‘strategically important developments’, namely (1) for permission to appeal: determination to be given four weeks from the application for permission to appeal and (2) for the hearing of a substantive appeal: four months from the application for permission to appeal.

Consultation responses are invited by 27 August 2026.

I can see that much of this is sensible tightening of processes and timescales – indeed it is exactly what we need with the actual planning application process but that is another story. Will it serve to dissuade meritless claims or materially reduce “JR risk”? I’m not so sure.

So what can we do, as planning lawyers and planners, to reduce JR risk on any potential project? It is so difficult. The uncomfortable reality is that the system now has almost countless legal trip hazards, given the numerous overlapping legislative regimes at play. Of course we can try to make the planning application “legally bullet-proof”, by way of (now the norm on larger projects) a legal audit of the draft application package; we can seek to make sure that there are no procedural slip-ups on the part of the local planning authority; we can review the planning committee report (even in draft, the High Court has recently confirmed: see my 12 July 2026 blog post Draft Planning Committee Reports: Sharing Is Caring) and seek to rectify before the decision any errors that we see. But there is always the residual risk that something has slipped through, and for sure the claimant will be looking to identify as many grounds as are seen to have any real mileage, because they only need to win on one ground and in litigation (particularly public law litigation) there are very few legal areas of absolute certainty. Some clients may indeed be driven to take out an insurance policy against the financial impacts of a judicial review, which has its place although inevitably expensive and not a panacea.

Without commentary on the specific legal rights and wrongs, these were some of the recent cases that caught my eye:

Guardians of Whitewebbs Park CIC v London Borough of Enfield (Sir Tim Kerr sitting as a judge of the High Court, 27 July 2026)

This was the quashing of planning permission for the proposed redevelopment of a former golf course in the green belt to provide Tottenham Hotspur’s women’s and girls’ football training academy together with associated development. The land is owned by Enfield Council which had entered into an agreement for lease with the council, which had then in due course granted planning permission. The permission was challenged by claimant on six grounds, one of which was abandoned before the full hearing of the case. Whilst the judge rejected grounds that alleged that the officer’s report had misinterpreted or misapplied a local plan policy in relation to heritage assets, that the report had not properly considered the scheme’s impacts on the openness of the green belt and that there had been apparent bias on the part of the council, the judge allowed the claim on the basis that (1) there was a breach of section 100D of the Local Government Act 1972 given that two background papers had not been published alongside the officer’s report that would have showed a disagreement between expert ecologists about whether the required biodiversity net gain (BNG) could be achieved and that (2) the planning committee had been materially misled by officers in relation to concerns about whether the required BNG could be achieved.

It is interesting to note that the council was defending the claim until shortly before the June 2026 hearing but, following the change of political control of the council the previous month, it informed the court that it would no longer defend the case, leaving Spurs to contest the claim.

The planning committee resolved to approve the application on 11 February 2025 and whilst the claimant did request reconsideration of that decision, this was not any of the grounds on which the judicial review was eventually brought. Only after the permission was eventually issued on 22 July 2025 was a “lengthy and detailed pre-action protocol letter from the claimant’s solicitors” sent on 2 August 2025 – by which time it was of course too late for the council or applicant to do anything about the grounds pleaded.

R (Staunch Campaign Limited) v North Northamptonshire Council (Sir Peter Lane, 30 July 2026)

This was an unsuccessful challenge by a local campaign group to planning permission granted for a large commercial development. The claimant relied on five grounds of challenge, all based on alleged breaches of the Conservation of Habitats Regulations 2017 in the way in which the council had determined the application.

R (Royal Mint Court Residents’ Association) v Secretary of State (Dingemans LLJ and Lieven J, 31 July 2026

This was the unsuccessful challenge to the government’s decision to grant planning permission for the proposed new Chinese Embassy at Royal Mint Court, just to the east of the Tower of London. Again there were five grounds of challenge on a variety of grounds: unlawful approach to the enforcement of planning conditions and obligations (given the identity of the People’s Republic of China as the applicant); unlawful failure to disclose a Security Statement (summarising a risk assessment that had been commissioned by the PRC) and a Blast Assessment (commissioned by the local planning authority); non-compliance with Article 7 of the Town and Country Planning (Development Management Procedure) England Order 2015 (on the basis that applications were redacted so as not to show all internal room layouts proposed), and unlawful failure to identify and assess human rights.

We also had the publicity given to the apparent end to another east London planning law saga, the Holborn Studios litigation, ten years after the first planning permission was granted (later quashed in 2017 following a judicial review brought by Holborn Studios) for redevelopment of a building then occupied by Holborn Studios. A second planning permission was granted in 2019 and then again quashed in 2020 following a judicial review again brought by the same claimant. Planning permission was then granted for a third time, by a planning inspector on appeal, in 2024 and was quashed by the High Court in 2025. Landmark Chambers has announced Court of Appeal allows appeal in Holborn Studios litigation although in fact unusually the appeal was allowed by way of a consent order dated 17 July agreed between the parties and endorsed by the court, following Holborn Studios having been placed in administration. Ten years…!

It would be interesting to reflect on whether the government’s latest proposals to reform judicial review would have enabled any of these disputes to have been resolved at an earlier stage (I doubt it) and indeed what else might be effective. For instance, in some cases surely there may be a role for what I suggested in my 12 July 2026 blog post:

“The data in relation to any large scheme can be complex and nuanced. And if there is a mistake, a potential claimant for judicial review currently (ridiculously) has the luxury of being able to stay quiet, deliberately, until the permission is issued, perhaps months later after the section 106 agreement has been completed, before then popping up with his or her grounds of challenge once it is too late for the council or applicant to do anything about them (the obvious solution would be for the High Court’s pre-action protocol in relation to judicial review in the Planning Court to set out an expectation that a potential claimant should usually send its pre-action letter promptly once it ascertains that grounds for potential challenge have first arisen rather than being able to wait until the permission has issued but I’ve said that too many times to no effect).”

There I’ve said it again.

Simon Ricketts, 1 August 2026

Personal views, et cetera

Draft Planning Committee Reports: Sharing Is Caring

This is an issue which comes up all the time in practice. The appellant is keen to have sight of a draft of the officer’s proposed report to planning committee in relation to its application but the officer is nervous whether to do so, particularly where the matter is contentious, in case to do so would found a potential ground of challenge for an objector on grounds of breach of natural justice.

Ironically, the more contentious the proposal, the more anxious the applicant’s team will be to see the report in draft before it is issued. In my experience, this is not to influence the judgments reached in the draft report (no officer would accept that), but rather to ensure that there are no material inaccuracies and no misstatements of the relevant legal and policy tests, any of which if uncorrected could lead to a successful judicial review of any planning permission subsequently issued. The trip hazards for councils (and therefore indirectly for applicants) are innumerable and growing. The data in relation to any large scheme can be complex and nuanced. And if there is a mistake, a potential claimant for judicial review currently (ridiculously) has the luxury of being able to stay quiet, deliberately, until the permission is issued, perhaps months later after the section 106 agreement has been completed, before then popping up with his or her grounds of challenge once it is too late for the council or applicant to do anything about them (the obvious solution would be for the High Court’s pre-action protocol in relation to judicial review in the Planning Court to set out an expectation that a potential claimant should usually send its pre-action letter promptly once it ascertains that grounds for potential challenge have first arisen rather than being able to wait until the permission has issued but I’ve said that too many times to no effect).

Of course, if the report to committee is published, as it has to be, at least a week before the meeting, there is nothing to prevent any party, including the applicant, from identifying errors and seeking for them to be remedied by publication of an addendum report, or by oral comments at the meeting itself, but surely it’s a big enough ask to expect committee members to read and understand the main report itself in time for the meeting, without them having to address the subsequent inevitable flow of addendum reports and miscellaneous late representations (each of which legally has to be taken into account). It’s surely become a fiction that any but the most diligent of committee members has indeed actually read and understood all of the available material? The main report should surely be the document of record.

It’s helpful then that Deputy High Court Judge Tim Smith has now handed down judgment in R (Davis) v Isle of Wight Council (Tim Smith sitting as a Deputy High Court Judge, 8 July 2026), where the ground of challenge by the claimant (an objector to a proposed renewable energy scheme) to a local planning authority’s grant of permission was that the sharing with the applicant by the authority’s officer of her draft report, giving the applicant the exclusive opportunity to influence the final version, was a breach of natural justice that caused prejudice to the claimant.

On the facts he found that it wasn’t but more interestingly he ventured to set out some factors to note “for determining when it will be fair or unfair to share a draft report to Committee selectively”:

“106. As I see it, relevant considerations include at least the following:

Firstly, and most importantly, it should be non-negotiable that the officer responsible for the report has exercised some independent judgement in relation to any input received. Plainly, an officer who allows the applicant to draft the report to Committee and then accepts it without review would be abdicating their professional responsibility entirely. One would hope that no case before the court ever asks for a ruling on behaviour as deficient as this. But it is much more likely that, as here, the officer is asked to consider comments made on a pre-existing draft report. Whatever the fact pattern, some active engagement with the suggestions must be demonstrated by the author. Mere passive or unthinking acceptance of the comments will not be sufficient;
An officer’s exercise of discretion might be revealed in how he or she receives and acts upon comments. That may be clear on the face of the evidence, for example if suggestions have been made but have demonstrably been rejected. It may also be explained in a witness statement from the officer in question, applying the requisite degree of scrutiny over such ex post facto evidence (see Ermakov v Westminster City Council [1995] EWCA Civ 42 and R (United Trade Action Group) v Transport for London [2021] EWCA Civ 1197 (“UTAG”));
At a more granular level, whether the officer’s view was arrived at unprompted by any comments may also be a relevant factor. To illustrate the shades of grey involved in such an exercise, in oral argument I posited with Counsel two hypothetical scenarios that are closely linked but different. In the first scenario the officer shares a draft report with the applicant, noting about one aspect of it “This is a relevant issue. I propose to tackle it like this. What do you think?”. In the second scenario the request from the officer is “This is a relevant issue. How do you think I should tackle it?”. I do not suggest that one approach is always permissible and the other not, but equally one can see that the former is preferable to the latter in evidencing unprompted thought on the part of the officer;
The substance of the comments accepted will also be a relevant factor. Some may be inconsequential, some may be pivotal. Although not an exhaustive list, comments might be offered on the following aspects of a report (in ascending order of significance): (i) correcting typographical errors, (ii) correcting internal inconsistencies clear on the face of the report, (iii) correcting factual inaccuracies which are readily ascertainable from the application documents themselves, (iv) introducing additional material not found amongst the application documents but which is readily ascertainable from public sources – for example ONS data, (v) evaluative comments on particular issues (having regard also to how significant the issue is in the determination of the application), (vi) comments on how the officer conducts the planning balance required by section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004, and (vii) comments on the substantive recommendation being made to members of the Planning Committee; and
The greater the degree of transparency around the assistance obtained, the less arguably unfair its use will be. Revealing that the draft report was shared for comments will go so far, but revealing the comments actually received and showing how many of them were accepted will be better.

107. Having considered the effect (both individually and cumulatively) of comments on a draft report, there is also – as Mr Parkinson rightly submitted – a need to take a step back and look at the fairness of the decision-making process as a whole. This will entail a number of additional considerations, a non-exhaustive list of which includes:

a) Whether third parties had their own opportunity to comment on the report prior to it being considered by the decision-maker, and

b) Whether third parties had additional opportunities to influence the decision-maker on the decision to be taken (for example, were they afforded the opportunity to make a presentation at the Planning Committee meeting?)”

To my mind, this is all good advice, largely representing current good practice in those situations where authorities are already willing to share drafts. I hope it will encourage those authorities which have to date been reluctant to take an equivalent approach. Their concern as to risk of legal challenge is not just misplaced but outweighed by the greater risk of legal challenge arising from uncorrected errors in the published report, and by the desirability of reducing the need for lengthy addendum reports and errata lists.

Final thought: we do need to think through how to ensure that grounds for legal challenge do not unnecessarily arise by way of mistakes in officers’ reports where decisions are taken by way of delegated authority, which is likely to be more frequently the case given the imminent changes covered in my 13 June 2026 blog post Delegation Nation – where there is not the required discipline of publishing the report a week ahead of the decision. This in my view increases the need for drafts to be checked by applicant teams, particularly in potentially contentious situations.

Simon Ricketts, 12 July 2026

Personal views, et cetera

Keeping Up: JR Changes, Deadlines

Aside from the hot weather, what may well keep you awake at night (if you’re like me) is the fear of getting something wrong and that is particularly the case when there is the prospect of litigation. For a potential defendant or interested party, have we left some stone unturned (on a whole beach of small, sharp, often buried, stones) that may give rise to the opportunity for judicial review? For a potential claimant, have we missed a deadline such that any claim may be closed out?

(For ease I’m using the term “judicial review” in this post as a broad term covering statutory challenges as well but even that distinction isn’t a pedantic one in this rocky place: different rules apply to different forms of planning litigation).

Ignorance of the law is no defence, least of all for a lawyer, but the challenge of being on top of it all, and the consequences if not, only seem to increase. It’s not even straight-forward for my firm of 40 or so planning lawyers with constant knowledge sharing and a regular throughput of contentious matters. How much more difficult can it be for smaller teams, or local authority legal departments, or lay claimants seeking advice from non-specialists? (Oh and to state what should still be obvious: AI systems are a false friend: Cork v Smith (ICC Judge Mullen, 22 May 2026) – “legal professionals bear ultimate responsibility for their work and cannot outsource the process of legal research or of legal reasoning to an AI. It is a tool to be used with caution. AI has the potential to be wholly unreliable. AI may of course provide a jumping off point for research and legal reasoning but it does not, at least at present, do away with the need for proper research and thought on the part of a legal professional, even a very junior legal professional”).

I suspect that even many specialist planning lawyers read recent planning law cases like the following two with somewhat of a sense of “there but for the grace of God”:

R (Luton and District Association for the Control of Aircraft Noise) v Secretary of State for Transport (Court of Appeal, 21 May 2025)

From October 2025, the Civil Procedure Rules had been changed, reducing the time limit from 21 days to seven days for applying to the Court of Appeal for permission to appeal against a High Court’s judgment in relation to a challenge to a nationally significant infrastructure project decision. The claimant group, presumably unaware of this change, sought permission within the old 21 day deadline but not within seven days. The change had been one detailed element of a wider package of reforms which had first been announced in January 2025 (see my 25 January 2025 blog post – at which stage that specific change hadn’t been included), in response to Lord Charlie Banner KC’s review into legal challenges of NSIPs (see my 28 October 2024 blog post).

The Court of Appeal considered the context of the change to the deadline, namely Parliament’s objective of reducing the timescales for processing DCO judicial reviews, and refused the extension of time and thus the application for permission to appeal.

Arun District Council v Secretary of State (HHJ Karen Walden-Smith sitting as a High Court Judge, 15 May 2026)

With section 288 challenges to inspectors’ appeal decision letters, within six weeks of the decision the claim not only needs to have been filed with the Court but a sealed version of the claim (and sealing by the court can take a few days, which is another story) has to have been served (in accordance with specific legal requirements) on the defendant (in practice the Government Legal Department) and on any interested parties. Here the claimant council purported to serve the interested party by emailing its planning consultant (without including all of the relevant documents and indeed relying on a “onedrive” link). The planning consultant did not confirm that he was authorised to accept service on behalf of his client. Correct service was finally effected, 32 days late. Again, the judge refused an extension and the claim was dismissed.

More changes ahead

On 20 May 2026 HM Treasury announced further restrictions on legal challenges to infrastructure project decisions in a policy paper, Getting Britain Building: Reforming judicial review for infrastructure as part of the government’s attempts to reduce delays to the delivery of nationally important infrastructure, not just continuing the direction of travel recommended in the Banner review but also in the light of the Fingleton review (Nuclear Regulatory Review 2025: enabling nuclear delivery through regulatory reform).

The paper states that in “response to the Fingleton Review, the Government has committed to two further areas of reform: developing a government-backed indemnification scheme to give developers greater financial certainty when facing legal challenge; and extending NSIP judicial review reforms to other major planning regimes, including those under the Town and Country Planning Act.”

There are also two radical proposals outlined in relation to judicial review:

“We are … proposing to introduce two optional mechanisms to the current process for consenting NSIPs – subject to detailed design and the passage of underpinning legislation – which would allow for proportionate protection from judicial review:

a. a parliamentary authorisation mechanism, which would be intended to provide the greatest degree of legal certainty for a narrow category of the most critical energy projects identified on a case-by-case basis by the Energy Secretary, and where Members of Parliament then judged this appropriate; and

b. a challenge window mechanism, which would allow Secretaries of State to respond in a more agile fashion to potential issues before finalising a planning consent, and limit the ability to raise other issues after the final consent was published.”

Under that first proposal, the House of Commons would be able to confirm the Energy Secretary’s determination that a particular energy project be designated as of “Critical National Importance”. “The normal process for submission and examination of the Development Consent Order (DCO) would then continue – but with the final decision put before the House of Commons again at the end of the process, and a further vote held. If approved, the DCO would be afforded a distinct statutory status specified in the underpinning legislation, akin to an Act of Parliament. As a result, the DCO would be protected from judicial review on issues other than human rights grounds.”

Under that second proposal, the “relevant Secretary of State would publish their draft decision, and as now a fixed window would then open during which any judicial reviews must be lodged. The Secretary of State would then have a period in which they could consider and address these issues before amending a final DCO. As a consequence, where any judicial reviews on the same grounds were subsequently pursued, the courts would have a clearer basis to refuse permission or relief – making use of the provisions already introduced via the Planning and Infrastructure Act on meritless claims. The law would also be changed such that the courts would refuse permission for a judicial review to proceed on any issues not brought up during the consent process or challenge window.“

These changes will not be quick: “The Government recognises these are significant reforms raising important legal, constitutional and practical questions, and will be engaging openly with the judiciary, developers, investors, legal practitioners, local authorities, and affected communities as the policy is developed and implemented.

We will set out further detail ahead of the necessary underpinning legislation being introduced.”

I suspect that what most of us are particularly interested to see is the extent to which recent and proposed changes may herald changes to judicial procedure in relation to planning decision-making more generally, outside the rarefied area of NSIPs. I have thought for a long time that in the case of decisions in relation to large development projects (where the actual permission may in practice only be issued months after resolution to grant), the system could be improved by treating the resolution to grant as triggering an initial deadline either for judicial review, or at least for service of a full pre-action letter, such that potential claimants would no longer have the ability to keep their powder dry until the planning permission has been finally issued and it is too late for the decision maker to remedy any potential issues of contention.

What is the appropriate balance to be arrived at as between, on the one hand, appropriate restraints on public bodies from acting unlawfully and, on the other hand, minimising unnecessary delays to administrative processes (whatever they may be) through ultimately unmeritorious legal arguments? Many of us could stay up all night arguing about that, for sure.

Simon Ricketts, 31 May 2026

Personal views, et cetera

Some Week, Some Thoughts

This post will mostly be about judicial review but if instead you have come here for a summary of the implications arising from the joint government/Mayor of London package of support for housebuilding in London (23 October 2025) why not listen to my interview with Concilio’s Nick Dines and we’ll see you back here in 35 minutes?

Judicial review…

Depends which side you’re on doesn’t it.

There have been at least two interesting judgments in the last couple of weeks, interesting for different reasons which nothing to do with the substantive issues involved. I’m not going to summarise the actual cases because they are both covered well (by my Town Legal colleagues Archie Hunter and Adam Choudhury respectively) in Town Legal’s latest weekly planning judgments update (you can subscribe gratis via the button at the foot of the update):

C G Fry & Son Limited v Secretary of State (Supreme Court, 22 October 2025)

R (HyNot Limited) v Secretary of State (Saini J, 15 October 2025)

All I wanted to say about CG Fry, given all the excellent summaries that are already out there (including Archie’s), was:

Fortune favours the brave. This is a case which was lost by CG Fry at first instance and in the Court of Appeal (all this of course following an unsuccessful planning appeal at which the same arguments were run). Who might have given up rather than carry on, with the exposure to costs arising? Great credit is due to Lord Charlie Banner KC. Would you in that position be resilient enough to hold to your initial opinion and to retain the trust of those relying on it? I’m thinking back to Richard Harwood KC in Dill v Secretary of State (Supreme Court, 20 May 2020) – where the stats were the same: LLW. I’m thinking back also to Estelle Dehon KC in R (Finch) v Surrey County Council (Supreme Court , 20 June 2024) – ruled unarguable on the papers, unarguable at renewal hearing, arguable by the Court of Appeal on two grounds, dismissed then by the High Court and then by the Court of Appeal before success in the Supreme Court: LLWLLW. Within boundaries (some cases are sure-fire losers), litigation is inherently uncertain. Judgments of lower courts may be overturned on appeal. It isn’t over till it’s over. I’ll come back to that theme in my comments on HyNot.

Isn’t it interesting that the outcome of the case turned upon the decision of a previous government that the “easy” way to give Ramsar sites the same protection as habitat sites that are protected under the Conservation of Habitats Regulations (special areas of protection and special protection areas) was simply to set that out in national policy rather than by way of amending the relevant legislation? That is now being rectified, belatedly, by way of a government amendment to the Planning and Infrastructure Bill. But isn’t there a lesson when it comes to the NPPF itself or rather the proposed National Development Management Policies, envisaged by mechanisms set out in the Levelling-up and Regeneration Act 2023 as being statutory documents with equivalence to statutory local development plans. Parliament clearly considered that it would not be enough for NDMPs to be given weight through policy-expression but we are all waiting to see in what form these NDMPs are finally going to emerge.

Lastly, it’s nice to read a Supreme Court judgment that is so straightforward and clear in its expression – and descriptive of the planning system in a way that any of us would recognise. It’s not always the case (mentioning no names, *coughs* Hillside).

Now to HyNot, again some excellent summaries out there (including Adam’s) so I just wanted to focus on the judge’s comments about “promptness” in bringing judicial review proceedings and on whether the “arguability” threshold should be higher in some cases:

This was a permission hearing, where the claimant simply needed to persuade the judge that the claim was arguable.

What was under challenge was the grant of consent by Secretary of State for Energy Security and Net Zero of the “HyNet Carbon Dioxide Transportation and Storage Project – Offshore” The project “comprises 3 geological gas storage sites in the Liverpool Bay Area beneath the East Irish Sea. The proposal is designed to store 109 million tonnes of carbon dioxide and is a core part of the Government’s legal commitment to Net Zero. It is expected to create 2,000 construction jobs. The Development (called the Liverpool Bay CCS project) is part of a nationally significant infrastructure development in the North West which will have a very significant regional and national economic impact.”

The second paragraph of the judgment describes the claimant as follows: “The Claimant company and the group of individuals behind it do not like CCS in relation to power generation. They oppose it because they believe that CCS in relation to power generation and ‘blue’ hydrogen production is a costly and time-consuming distraction that will lock society into continued fossil fuel use and prevent investment in other more proven climate solutions. The Claimant is a Company Limited by Guarantee which was incorporated the day before this claim was filed. The name chosen by the incorporators of their company, “HyNot”, reveals the nature of its opposition to what, as appears below, is loosely known as the “HyNet Cluster”. The Claimant represents a campaign group which its director, Nicky Crosby, describes as being a loose group of campaigners from different environmental and climate campaign backgrounds, such as Frack Free Dee, Friends of the Earth, Extinction Rebellion, Chester Sustainability Forum, and CAFOD.”

Unlike more usual planning cases where there is now a six weeks’ deadline for bringing judicial review proceedings, this was a claim where the traditional judicial review deadline applied that the claim must be brought “promptly … and in any event not later than 3 months after the grounds to make the claim first arose”. The claim was brought on the last day within the three months’ deadline.

After finding the claim to be unarguable, the judge found that he would also have refused permission on the basis that the claimant failed to act “promptly”: “challenges to major infrastructure call for particular urgency. Whilst the volume of documentation was substantial, that did not in my judgment justify the delay, especially in circumstances where the Claimant ultimately filed only on a protective basis, without a pleaded case. I consider that the Claimant was aware of all of the information it required to enable it to bring proceedings on the grounds pleaded approximately 8 weeks before it filed its ‘protective’ claim. Certainly, by the end of April 2025 it was aware of the essential substance of the grounds that would have been available to it, and that is all that was required (see British Gas at paras. [141]-[145]). Detailed disclosure normally follows the grant of permission for judicial review, which is the trigger for the duty of candour and cooperation with the court and is not necessary before a claim can be brought (see British Gas at [145]). There is no reason why the Claimant could not have filed (whether ‘protectively’ or with proper pleadings, to be amended if required) much sooner. It is apparent, however, that the Claimant took the position that it could simply wait until the last day of the three-month period to file. The courts have stated emphatically that that is not the case.”

Whilst Saini J found the claim to be unarguable, there is an interesting concluding passage in the judgment recording that counsel for the government had urged the judge in submissions “to apply a more demanding test of the Claimant at the hearing than the traditional arguability test familiar at the permission stage”, relying on case law starting with the 1994 Mass Energy case. Counsel (Charles Streeten) “argued that the Claimant must satisfy a heightened test described as a “reasonably good prospect of succeeding” at a substantive hearing. The following facts were said to justify this more onerous hurdle: (1) the urgency (illustrated both by the categorisation of this claim as Significant under CPR 54D paras. 3.1 and 3.2 and by the measure of expedition ordered by Mould J); (2) the fact that a decision on permission has been adjourned to a hearing listed for half a day; (3) that the Court will have the benefit of extensive written and oral submissions from all three active parties; and (4) that the claim substantially affects the interests of a third party (the Developer).” Whilst this proved unnecessary for his reasoning, Saini J went on to consider this argument “obiter” as lawyers like to say, i.e. even though it was not determinative and therefore less binding in terms of creating any legal precedent, although in my view still interesting. He considered “that there was substantial force in Mr Streeten’s submissions. A court does retain the discretion to require more of a claimant in establishing the merits of its case at a hearing of the type convened before me concerning an urgent matter of national importance, where there has been substantial pre-reading, detailed skeletons and oral submissions over half a day from all relevant parties. The grant of permission in a planning case on the type of facts before me is in itself highly likely to cast a long shadow over a development of national interest, with substantial financing and construction arrangements involving many third parties. I can see the force of an argument that much more than mere arguability of a claim (such as establishing that the claim is more likely than not to succeed) should be required in circumstances where such prejudice will be caused. Uncertainty as to the legal position is itself highly prejudicial in commercial arrangements.”

All this is relevant in the light of continuing thinking by the government as to ways of closing down unmeritorious judicial review cases. I referred in my 25 January 2025 blog post to the government’s announcement as to changes to be made to procedures governing legal changes of development consent order decisions in relation to nationally significant infrastructure projects (now the subject of provisions within the Planning and Infrastructure Bill), following first the report by Lord Banner KC and subsequent consultation that I summarised in my 28 October 2024 blog post Banner Review Into Legal Challenges of NSIPs (NB there really are other barristers out there I feel sure, I’m not being sponsored or anything). Lord Banner had recommended that there may be a case for raising the permission threshold for judicial review claims challenging DCOs (“There is much to be said for raising the threshold for permission to apply for judicial review of DCOs, to the heightened Mass Energy threshold, so that only those claims likely to succeed are allowed to proceed to a substantive hearing. There is no right, either under UK constitutional principles or international law, for an arguable but weak or mediocre claim to proceed to a full hearing rather than being weeded out beforehand)”, but the government was not inclined to accept this; perhaps the courts are beginning to get there of their own volition in relation to challenges of nationally significant projects? (Although what is the risk that a claim such as that in Finch is prematurely ruled out?). The big question is of course: if these measures are appropriate for challenges to nationally strategic infrastructure projects, why should they not be introduced in relation to planning-related challenges more generally?

To my mind, it is good to see the tough line taken by Saini J on promptness. Given the six weeks’ deadline for planning-related judicial review cases, why is there even still the traditional “prompt but in any event within three months” test, which can be so uncertain in its practical application? I’m currently dealing with a case, in relation to a proposed commercial development, where the claimant (a public authority) filed a day out of time, the challenge delaying significantly a development project, resulting in, according to my client’s evidence, several million pounds of lost rental income. The court has taken over three months before finally allowing the claim to be filed out of time. What sort of signal does this send? Is there some sort of institutional bias towards large infrastructure developments?

And on the question of court delays, is anyone else experiencing unusually long delays before securing decisions at the permission stage on the papers? I have one case where we filed on 6 May. Still… nothing.

Getting the balance right in relation to sieving out unmeritorious judicial review cases is so important given the implications not just for the project under challenge but in terms of giving reassurance to all those operating in the planning system that every document does not need to be “gold plated” as an insurance against even unmeritorious challenge. The fear of a claim for judicial review (successful or otherwise) is skewing every stage of the system!

Finally, as a result of an amendment to the Planning and Infrastructure Bill tabled by a conservative peer, also a working planning KC (*checks notes* him again!!), the government is put forward its own amendment which will build on the current provisions in the Town and Country Planning Act 1990 which allow for an extension of the time for implementing a planning permission which has been challenged by way of judicial review. At present, under section 91 (3), if proceedings are brought to challenge the validity of a planning permission, the deadline for implementation is extended by one year. The amendment will extend the deadline by a further year if the proceedings have permission to go to the Court of Appeal and by two years if they have permission to go to the Supreme Court. In the case of outline planning permissions, reserved matters submissions will be extended by equivalent periods.

All good and necessary but any steps to speed up judicial proceedings, and to sieve out doomed claims as at early as stage as possible, would of course be more likely to address the root problem.

Simon Ricketts, 24 October 2025

Personal views, et cetera

Court of Appeal Cuts Down Epping Forest

It was interesting YouTube viewing this afternoon (29 August 2025) wasn’t it? A press summary has been released, which is what Bean LJ read out. A longer full text judgment will be published later today or Monday.

I cover Eyre J’s first instance ruling in my 20 August 2025 blog post Planning Law Is Being Used For Politicking About Asylum Seekers. But we can now forget about that ruling. The Court of Appeal has overturned it, with robust criticism both of Eyre J’s approach and, it must be said, that of Epping Forest District Council.

Kemi Badenoch, leader of the Conservative Party, has subsequently issued a statement urging council’s seeking similar injunctions to “KEEP GOING!”. That is reckless advice.

Nigel Farage, leader of Reform, has Xed:

“The government has used ECHR against the people of Epping.

Illegal migrants have more rights than the British people under Starmer”

Again, recklessly wrong, inflammatory even. And, as you will see, the rights of asylum seekers (not “illegal”, not “migrants”) under the European Convention on Human Rights played no part in the Court of Appeal’s reasoning.

Eyre J’s rulings in Epping Forest District Council v Somani Hotels Limited (19 August 2025) were:

To refuse to allow the Home Secretary to be joined as a party to the proceedings

To grant an interim injunction requiring the hotel to be vacated of asylum seekers by 12 September, until a final ruling in the proceedings at a full hearing which will take place in mid-October 2025

To refuse an interim declaration that the use of the hotel for asylum seekers’ accommodation is a breach of planning control (Epping Forest District Council subsequently, wrongly, represented in its subsequent press statement that the declaration had been granted but had to retract that when contacted by Planning magazine!).

Today’s appeals by the Home Secretary and Somani Hotels Limited were in respect of the first two matters and were successful.

Home Secretary to be joined as a party

From the press summary of the Court of Appeal’s judgment:

“The judge denied himself the opportunity to consider the wider range of public interest factors which would be relevant to this application; these, in our view, rendered it more than just merely ‘desirable’ that the Home Secretary be enabled to participate in the court process. The judge needed to put himself in a position to determine the application from the most informed perspective.”

Grant of the temporary injunction

The Court of Appeal found that although the question of whether to grant an interim injunction is a matter for the discretion of the judge, only to be set aside where the appeal court identifies “a flaw or flaws in the judge’s treatment of the question to be decided, such as an error of law, a gap in logic, or a failure to take account of some material factor, which undermines the cogency of the conclusion”, the judge had made “a number of errors of principle which undermine his decision.”:

(from the press summary:)

“The provision of accommodation for asylum seekers pursuant to the Home Secretary’s statutory duty is a national issue requiring a structured response. Ad hoc interim injunction applications seeking closure of particular sites may each have some individual merit, but the judge’s approach ignores the obvious consequence that closure of one site means that capacity needs to be identified elsewhere in the system, and may incentivise local planning authorities who wish to remove asylum accommodation from their area to apply to the court urgently before capacity elsewhere in the system becomes exhausted. The potential cumulative impact of such ad hoc applications was a material consideration within the balance of convenience, but was not considered by the judge, perhaps because he did not have the advantage in reaching his decision of evidence and submissions from the Home Office.”

Incidentally, the Court of Appeal goes on to describe as “unattractive” an argument raised by the Home Secretary as to a hierarchy of human rights with particular weight to be given to the fact that “the Home Secretary’s statutory duty is a manifestation of the UK’s obligations under Article 3 of the European Convention on Human Rights”. Even if in Farage language the government “used ECHR”, this is no basis for the Court of Appeal’s ruling.

“The fact that the judge gave even limited weight to the fact of protests occurring, including unlawful protests, outside the hotel, were “worrying aspects of the judgment. If an outbreak of protests enhances the case for a planning injunction, this runs the risk of acting as an impetus or incentive for further protests, some of which may be disorderly, around asylum accommodation. At its worst, if even unlawful protests are to be treated as relevant, there is a risk of encouraging further lawlessness. The judge does not appear to have considered this risk, again perhaps because he had denied himself the advantage of hearing submissions on the merits from counsel for the Home Secretary.”

By judicial standards this again is trenchant criticism by the Court of Appeal of Eyre J’s approach.

Epping’s previous delays in taking any steps whatsoever:

“For much of the period of four years from 2020-2024 Somani had been running the Hotel as accommodation for asylum seekers without enforcement action from the Council. When, in 2023, Somani sought planning consent to change its use, for over a year Epping did not process the application, notwithstanding the statutory duty upon it to do so within eight weeks. The Council was aware by February 2025 that the Hotel was once again to be used to house asylum seekers, and by its letter of 15 May 2025 Somani made clear that it had been advised by the Home Office that a planning application was unnecessary.

The Council took no steps in response to this letter whether by issuing an enforcement notice or otherwise. There was no threat of court proceedings.

Somani was first made aware of any step of this kind when it received the court papers and a court bundle running to over 1600 pages together with a detailed skeleton argument prepared by leading and junior counsel. The tactics used on the Council’s behalf in this regard were not only procedurally unfair to Somani, but ought to have reinforced the argument that the delay was a significant factor in the balance against the grant of interim relief.”

The hotel’s actions were wrongly characterised as “deliberate”:

“The judge found as a fact that Somani had acted “deliberately” in declining to seek change of use permission under planning law after April 2025; he was critical of them for taking this line. He was wrong in both respects. Those undeserved criticisms (which were repeated several times in the judgment) plainly played a material part in the judge’s ultimate decision. If the Council had considered Somani to be in breach of planning laws, it could have taken enforcement measures provided for within the 1990 Act. It did not do so. In short, the judge’s exercise of discretion in this case was seriously flawed by his erroneous reliance on the “deliberate breach” as a significant factor in favour of the grant of an interim injunction.”

The temporary nature of the injunction

“We emphasise here, as we did at the outset, that the issue for the judge in August was whether to grant a temporary injunction until the trial in October. The judge appears to have given very little weight to the desirability of preserving the status quo until that point. The risk of injustice to the residents of the Hotel by being dispersed by 12 September, when the trial of the claim was to take place only some six weeks later, seems to have had oddly little resonance with the judge.”

What now?

We now await the full hearing of the case in mid-October, where a central issue will be whether there is a breach of planning control in the first place. For the avoidance of doubt that question is not addressed by the Court of Appeal in its judgment – and did not need to be at this stage. Of course, it is conceivable that there will never be a full hearing if the Home Office decides no longer to use the Bell Hotel in any event.

It is inconceivable that any council would now succeed with an application for an interim injunction, save in the most extreme circumstances, ahead of a ruling following that final hearing, or a final hearing in any future case that is brought. There would be significant cost risks for any council that took that “KEEP GOING!” advice seriously.

Finally, as the court made clear, this case (like this blog post) is “not concerned with the merits of Government policy in relation to the provision of accommodation for asylum seekers, in hotels or otherwise.”

Simon Ricketts, 29 August 2025

Personal views, et cetera

DCO JR Changes, #silkyplanoraks

Congratulations to those in our planning world who have been recommended to be appointed as King’s Counsel in the latest round – Zack Simons (presumably now #silkyplanoraks), Sasha Blackmore and Harriet Townsend.

It occurs to me that belated congratulations are also due to Sarah Sackman KC MP, who many of us know primarily as a superb planning and public law advocate, first at Francis Taylor Building and then Matrix Chambers, but who of course became MP for Finchley and Golders Green in July 2024. She took silk on being appointed as Solicitor General on entering the House of Commons and since 2 December 2024 has been Minister of State in the Ministry of Justice.

I mention Sarah’s background because it is important: we have one of our own, who understands the practical nuances of planning and public law and the operations of the judicial review process, at the heart of government.

There has been much press attention this week on the Prime Minister’s announcement on 23 January 2024, Prime Minister clears path to get Britain building as to changes to be made to procedures governing legal changes of development consent order decisions in relation to nationally significant infrastructure projects, following first the report by Lord Banner KC and subsequent consultation that I summarised in my 28 October 2024 blog post Banner Review Into Legal Challenges of NSIPs.

However, the proposals themselves were announced in more detail in a written statement to the House of Commons that day by Sarah Sackman: Infrastructure Planning and Judicial Review Reform. Working through that statement, first of all the background is set out:

“The delivery of major infrastructure projects is central to the Government’s mission to drive growth and unlock clean power. The largest and most complex of these projects currently require a Development Consent Order (DCO) under the Nationally Significant Infrastructure Projects (NSIPs) regime established by the Planning Act 2008.

The number of legal challenges against DCOs has spiked in recent years, with 58% of decisions being subject to legal challenge. Delays to these major projects have serious implications, including holding back the delivery of essential benefits to the country and imposing considerable additional costs on development.

Despite 30 challenges being brought against major infrastructure projects, only four decisions to approve a project have been overturned by the courts. It comes as research shows that, on average, each legal challenge takes 1.4 years to reach a conclusion and the courts have spent over 10,000 working days handling these cases. Such cases impact upon the use of public money, with major road projects paying up to £121 million per scheme due to delays in legal proceedings. Whilst it is fundamental that the public can challenge the lawfulness of government decisions, there is scope for rebalancing the judicial review process to improve efficiency and reduce delays to NSIPs.”

Few of us would disagree with this.

The statement then sets out the specific changes that are to be introduced in relation to claims for judicial review in relation to DCOs:

Once the claim is made, there will not be an initial High Court stage where a judge considers “on the papers” whether the case is arguable, instead the issue of arguability and as to whether the case should proceed to a full hearing will be considered by a judge at a short hearing. (This is already the case in relation to applications to challenge inspectors’ decision letters in relation to enforcement notice appeals under section 289 of the Town and Country Planning Act 1990, where indeed there is no subsequent right to apply to the Court of Appeal for permission to proceed if the High Court judge finds the challenge to be unarguable,. Indeed, the deadline for bringing such challenges is four rather than six weeks!).

This change follows Lord Banner’s recommendation. The government’s consultation paper had floated the possibility of extending the change to all judicial reviews but this week’s announcement is entirely limited to DCO judicial reviews.

If the judge at that short permission hearing deems the case to be “totally without merit” (i.e. bound to fail), it will not be possible to ask the Court of Appeal to reconsider. At present if the judge considers “on the papers“ that a case is totally without merit, the claimant cannot renew its application for permission before a judge at a short hearing, but can only appeal to a Court of Appeal judge who will determine the appeal on the papers. So, there will be one bite at the cherry – at a short hearing before a High Court judge – rather than two paper stages with no hearing. Given that “totally without merit” grounds are not difficult to identify, is this really very radical?

“non-mandatory” case management conferences will be introduced – sensible and reflecting one of Lord Banner’s recommendations.

All DCO judicial reviews will be designated as significant planning law claims. This is important because specific timescale targets then apply at the High Court stage (not the Court of Appeal) as to how speedily they should be dealt with. However, the issue is somewhat academic given that according to Lord Banner’s report all DCO judicial reviews to date have in practice been treated as significant planning law claims!

The government will “work with the judiciary to introduce target timescales for NSIP judicial reviews in the Court of Appeal and in the Supreme Court”. Given the delays that do happen at these later stage this would be very welcome.

Unsurprisingly the announcement has generated flak on the one hand from those who see the changes as reducing access to justice (see e.g. the Law Society’s position, Society counsels caution over JR curbs (25 January 2025), with comments from Law Society president Richard Atkinson that “Removing the paper permission stage could increase both the cost and length of permission hearings”. “‘It is possible that the certainty of higher costs – especially so early in the case, before permission is even granted – could discourage a claimant to the extent that it raises concerns for access to justice”. “Requiring oral hearings for all permission applications may also lengthen these proceedings, as it prevents those that could be easily dealt with from progressing more quickly.”) and on the other hand from those primarily acting for promoters who see the measures as not going far enough (see e.g. Judicial review reform ‘one step’ to enabling UK infrastructure development (24 January 2025) where infrastructure planning law guru Robbie Owen is quoted as saying that “these changes to judicial review are a step in the right direction but they are relatively minor and do not move the dial nearly enough. The government should be providing for any nationally significant infrastructure project that is a critical national priority to be immune from judicial review altogether, by the DCO for the project being confirmed by parliament through a one clause bill after it has been through the DCO process successfully”)

I don’t agree with either extreme. Mr Atkinson is wrong in what he says: any judicial review claimant at the moment needs to factor in the likely need for a permission hearing in any event (of the 27 challenges determined at the time of the Banner report, only 7 had received permission on the papers – and only 2 did not renew after being refused on the papers. 8 proceeded to a full or rolled-up hearing in any event). Robbie’s approach in my view goes too far the other way and takes away the necessary backstop that is needed by way of judicial review.

However, I do think there is more that could be done by way of changes in due course, in some cases not limited to DCO judicial reviews:

Why not reduce the challenge deadline for DCO judicial reviews from six weeks to four weeks, but at the same time take the opportunity to rectify the issue frequently arising on statutory challenges of all kinds as regards the current need to serve on the parties within that period, by allowing claimants seven days to serve on the defendant and interested parties, after the claim has been filed? By the time the DCO decision has been issued, any claimant will have been engaged for a long time in the process and will have secured access to legal advice. All that remains to be scrutinised is the Secretary of State’s reasoning for the decision – follow the precedent set in the case of enforcement notice appeals.

In the case of non DCO judicial reviews within the remit of the Planning Court, tighten up the requirement for pre-action protocol letters, such that the guidance makes clear that they should be sent as soon as grounds for potential judicial review are considered by a potential claimant to arise, for instance when a local planning authority has resolved to grant planning permission but ahead of the permission being issued. Presently, most potential claimants store up their potential grounds of challenge until the permission has been issued and there is nothing in practice that the local planning authority can do to remedy the position even if it accepts the position set out in the PAP letter. There could be the warning that non-compliance with this guidance may be taken into account in decisions as to the award of costs and as to cost-capping.

Much litigation in this field nowadays is crowdfunded. The Government might give thought as to whether greater controls are required as to the use of crowdfunding in relation to litigation and particularly whether sufficient information is given to potential contributors as to the precise nature of the action contemplated, its prospects of success and the implications of a successful outcome (i.e. usually simply resulting in redetermination) and how funds are used if no action is lodged.

More information should be made available by the courts, particularly the orders made at permission stage so as to inform decisions taken by subsequent claimants and as to the High Court’s and Court of Appeal’s performance as against timescale targets.

Lastly, what possible basis is there for not extending the changes announced to cover legal challenges to the adoption of local plans and in due course spatial development strategies?

There is always a need for judicial overview of decision making. But there is also always a need for speed – justice delayed is justice denied. Bridget Rosewell’s review was an important catalyst for improvement in relation to the Planning Inspectorate’s administration of planning appeal inquiries, at no cost to the quality or fairness of the process itself. The DCO judicial review changes announced this week to my mind are in a similar vein, although I do agree with Robbie that they are relatively minor. Let’s not give up looking for those incremental gains.

Simon Ricketts, 25 January 2025

Personal views, et cetera

Banner Review Into Legal Challenges of NSIPs

Making the planning system work more effectively should not be party political. So it is at least a good start to see that conservative life peer Charles Banner KC’s Independent review into legal challenges against Nationally Significant Infrastructure Projects (28 October 2024), commissioned by the previous government, has now been published by the current government. There is nothing very radical in it but, when it comes to making the planning system and associated litigation process work better, surely so much comes down to a version of Sir Dave Brailsford’s theory of marginal gains (see for example the undoubted success which was Bridget Rosewell’s review of planning inquiry processes).

LCB (is that yet an acceptable acronym?) had been appointed alongside fellow barrister Nick Grant in March 2024 to “explore whether NSIPs are unduly held up by inappropriate legal challenges, and if so what are the main reasons and how the problem can be effectively resolved, whilst guaranteeing the constitutional right to access of justice and meeting the UK’s international obligations.”

As per the Government’s press statement that accompanies the review, the Ministry of Justice has now separately published a call for evidence, based on his recommendations, ending on 30 December 2024 – “the Government is of the view that further analysis of a broader evidence base is necessary before decisions can be taken on the Review’s recommendations”.

Charlie Banner and Nick Grant had clearly put in the hours. It’s a well-thought through document. The review contains much useful background as to the current position, including analysis of the 34 challenges to DCOs which have been brought (30 of which have challenged the grant of a DCO and of which 4 claims were successful), average timescales for each stage of the process and some of the wider implications arising. This is valuable work – I’ve grumbled previously as to how unnecessarily difficult it can be to extract data like this.

They interviewed over 60 people with experience in the field (I’ll declare an interest as being one of many spoken to. I’m feeling rather guilty now for the whole hour that I took up…).

Ten recommendations are made, which I summarise as follows, adding anything particularly interesting from the Government’s accompanying call for evidence as I go:

Recommendation 1 – For so long as the UK remains a member of the Aarhus Convention, there is no case for amending the rules in relation to cost caps in order to reduce the number of challenges to NSIP.

Views not sought on this option. The call for evidence notes the government’s separate call for evidence seeking views on options to bring the UK’s policies into compliance with its obligation under the access to justice provision of the Aarhus Convention (30 September 2024)

Recommendation 2 – There is no convincing case for amending the rules in relation to standing to reduce the number of challenges to NSIPs.

Views not sought on this option.

Recommendation 3 – The current three bites of the cherry to obtain permission to apply for judicial review is excessive and should be reduced to either two or one: (1) an oral hearing in the High Court with a target timescale of within four weeks of the deadline for filing of acknowledgements of service and (2) consideration on the papers in the Court of Appeal within four weeks of the application for permission to appeal against the refusal of permission to apply for judicial review.

The commentary in the call for evidence document is interesting, pointing at the potential for any such changes to apply to judicial reviews of other planning decisions:

“If the proposed change could result in time and cost savings for litigants and the courts, whilst maintaining adequate access to justice, there could be merit in considering this change not only in the context of NSIPs but also for judicial reviews of other planning decisions in general.

The Government is, however, of the view that more evidence is required to inform a decision on the implementation of this proposed change. We would, therefore, welcome views on the expected benefits and potential risks of this change, both in the context of the NSIP regime and in wider judicial review cases.”

Recommendation 4 – There may be a case for raising the permission threshold for judicial review claims challenging DCOs, which could be achieved by amendments to the CPR.

“The Government is of the view that in addition to the practical risks highlighted in the report, there is a more fundamental concern that raising the permission threshold in this way could unduly restrict the right of access to justice…the Government would however welcome views with supporting evidence, where available, on the likely benefits and potential risks of raising the permission threshold as discussed in the report.”

Recommendation 5 – On balance the case has not yet made out for a panel of judges with specialist NSIP experience to be eligible to hear judicial review challenges to DCO decisions.

The call for evidence document notes that there are currently 35 full time High Court judges authorised to consider planning cases, four of whom specialised in planning as practitioners prior to joining the judiciary.

“The Government would welcome views on whether this idea should be taken forward, whilst recognising that the authorisation of judges to hear certain types of case is part of judicial allocation and deployment which is a matter for the judiciary. We would particularly welcome views from members of the judiciary.”

Recommendation 6 – The Civil Procedure Rules should provide that DCO judicial reviews are automatically deemed Significant Planning Court Claims.

(This is important because stricter target timescales apply. All DCO judicial reviews to date have been treated as such – so this should not be controversial…).

“Given the national significance of NSIPs and the complexity of the claims against them, there is a case for formalising the existing practice of designating all judicial review cases concerning DCO decisions as Significant Planning Court Claims. The Government would, however, welcome views on the practical benefits of formalising this existing practice.”

Recommendation 7 – Automatic pre-permission case management conferences should be introduced in relation to judicial review claims challenging DCOs.

Views sought.

Recommendation 8 – Target timescales should be set for the Court of Appeal to target timescales for determine applications for permission to appeal, and (where permission is granted) thereafter substantive appeals.

“The Government considers that a better understanding of the causes of the current delays at the Court of Appeal and the Supreme Court is needed to determine whether imposing target timescales would help to ensure consistent timely processing of DCO judicial reviews at the appellate courts. In addition, although the report suggests that the relatively limited number of DCO judicial review claims means that these timescales should not be too onerous on the courts, we would welcome views, particularly from the senior judiciary, as to how the introduction of target timescales might affect the operation of the appellate courts.”

(NB somewhat deferential? There are undoubtedly delays at the appeal stages. delays which look to mere mortals to be capable of reduction…)

Recommendation 9 – The President of the Supreme Court should be invited to consider amending the Supreme Court Rules to introduce target timescales for the determination of applications to the Supreme Court for permission to appeal in judicial review challenges to DCOs.

Same commentary as for recommendation 8.

Recommendation 10 – The Planning Court and Court of Appeal should be invited to publish data on a 3 month rolling basis which, at minimum, should indicate the number and percentage of cases which in the last 3 month period have met the target timescales either for NSIP cases specifically or Significant Planning Court cases generally, or both; as well as what the average and maximum turnaround times have been in that period (for both the permission and the substantive stages).

“This recommendation to invite the Planning Court and the Court of Appeal to improve the way they publish data on the progress of DCO judicial reviews and/or planning cases would not directly address the issue of delays, but it could, as the report notes, provide stakeholders with greater transparency and help inform consideration of further procedural reforms. The report also suggests that this could be easily implemented at little or no additional cost. The Government would welcome views on the likely benefits and potential costs of this proposal.”

The Government is also welcoming views as to:

The review and its methodology more generally and whether there is indeed a case for streamlining the process for judicial reviews of DCO decisions

other possible changes that could help reduce judicial review related delays to the delivery of NSIPs and provide parties greater certainty in the process. Any proposed change must, however, ensure the right of access to justice is maintained in line with the UK’s domestic and international legal obligations.

Simon Ricketts, 28 October 2024

Personal views, et cetera

Table from review

Planning For Industrial Growth & Investment

Sir Keir Starmer’s speech on 14 October 2024 at the international investment summit held at the Guildhall in the City of London generated much media coverage. This blog post is going to look briefly at the references he made in that speech to the planning process.

But first of all, I do draw attention to the important document published by the Government alongside the conference: Invest 2035: the UK’s modern industrial strategy (14 October 2024), now being consulted upon until 24 November 2024.

Some snippets:

“Eight growth-driving sectors have been identified: Advanced Manufacturing, Clean Energy Industries, Creative Industries, Defence, Digital and Technologies, Financial Services, Life Sciences, and Professional and Business Services.”

“A core objective of the Industrial Strategy is unleashing the full potential of our cities and regions. The Industrial Strategy will concentrate efforts on places with the greatest potential for our growth sectors: city regions, high-potential clusters, and strategic industrial sites. The Government is committed to devolving significant powers to Mayoral Combined Authorities across England, giving them the tools they need to grow their sectoral clusters and improve the local business environment through ambitious Local Growth Plans. Partnership with devolved governments will make this a UK-wide effort and support the considerable sectoral strengths of Scotland, Wales, and Northern Ireland.”

“The Industrial Strategy and growth-driving Sector Plans will be published alongside the Spending Review in Spring 2025.”

Under the “energy and infrastructure” section:

“An effective planning system is a fundamental enabler for business investment in our growth-driving sectors. At the national and regional level, planning constraints hold back growth, including in high-performing life sciences clusters like Cambridge and clean energy industries hubs such as Tees Valley and the North-East. Firms require predictability and efficiency when applying for consent for projects, but this is not being provided by existing processes. Businesses have told us that the planning consent process is too lengthy and uncertain – infrastructure projects spend an average of 65 months in pre-construction phases, the highest among peer countries.”

“Targeted, long-term infrastructure investment is a vital catalyst to the success and stability of major city regions and clusters of our growth-driving sectors. Businesses agree that the UK has for too long failed to provide a long-term vision and clear statement of intent to support this. A lack of housing in some places across the UK also prevents labour markets from operating effectively and prevents successful agglomerations. Further, additional data centre capacity and access to fast, secure, and reliable digital connectivity is essential to enabling economic growth and to reap the transformational productivity benefits of digitalisation and the adoption of AI. Continued investment is needed to meet our ambitious targets to bring gigabit-capable broadband to all of the UK, and standalone 5G to all populated areas, by 2030.”

Under a section entitled “Growing high-potential clusters”:

“The Industrial Strategy will concentrate efforts on places with the greatest potential for the growth sectors: city regions, high-potential clusters, and strategic industrial sites. The success of the Industrial Strategy’s growth-driving sectors can only be achieved if these clusters reach their full potential, supported through a place-based approach to policy.

Local Growth Plans are a cornerstone of the place-based approach. These locally owned, 10-year strategies will set out how Mayoral Combined Authorities (MCAs) will use their devolved powers and funding to drive growth in their region. They will build on the region’s unique strengths and opportunities to support sectors, identify wider business environment priorities, and provide a framework to unlock private investment. They represent strategic partnerships between central Government and MCAs to identify priorities for growth and will be aligned to the Industrial Strategy.

Alongside this, the Government will explore how to build on existing place-based initiatives to support high-potential clusters and align them behind the Industrial Strategy. This includes considering how the Industrial Strategy can be a ‘lens’ for informing the recommendations for New Towns locations, creating new large-scale settlements in places where high housing demand constrains the growth of high-potential clusters.”

Now to Keir Starmer’s summit speech. I have copied and pasted the passages most relevant to the planning system. (I do apologise that the format of the transcript makes it appear rather lyrical)

“Now, I don’t see regulation as good or bad.

That seems simplistic to me.

Some regulation is life-saving…

We have seen that in recent weeks here, with the report on the tragedy of Grenfell Tower.

But across our public sector…

I would say the previous Government hid behind regulators.

Deferred decisions to them because it was either too weak or indecisive…

Or simply not committed enough to growth.

Planning is a very real example of that…

Or – for our friends from across the pond…

‘Permitting’ is a really clear example of that…”

“we’ve also got to look at regulation – across the piece.

And where it is needlessly holding back the investment we need to take our country forward…

Where it is stopping us building the homes…

The data centres, the warehouses, grid connectors, roads, trainlines, you name it…

Then mark my words – we will get rid of it.

Take the East Anglia 2 wind farm.

A £4 billion investment.

One Gigawatt of clean energy.

An important project – absolutely.

But also the sort of thing a country as committed to clean energy as we are…

Needs to replicate again and again.

Now regulators demanded over four thousand planning documents for that project…

Not 4000 pages – 4000 documents.

And then six weeks after finally receiving planning consent…

It was held up for a further two years by judicial review.

I mean – as an investor…

When you see this inertia…

You just don’t bother do you?

And that – in a nutshell…

Is the biggest supply-side problem we have in our country.

So it’s time to upgrade the regulatory regime…”

Is the focus of his criticism the influence on the planning system of those aspects which are regulated (or at least the subject of oversight) from the likes of the Environment Agency and Natural England, is it the planning system itself, or is it the role of the courts? Or all of the above? I’m not sure that Anglia Two was particularly an example of where the regulatory regime needs to be (or at least can in a straight-forward way be) “upgraded”, but the previous government of course did of course commission Lord Banner KC in March 2024 to lead a review to “explore whether NSIPs are unduly held up by inappropriate legal challenges, and if so what are the main reasons and how the problem can be effectively resolved, whilst guaranteeing the constitutional right to access of justice and meeting the UK’s international obligations.” It would have been better if perhaps the current government had published the report (assuming it is concluded) alongside Monday’s speech because, guess what, it may point to some of the answers. When can we see it?

DCOs authorising construction of the East Anglia ONE North and East Anglia TWO Offshore Wind Farms with associated onshore and offshore development were granted on 31 March 2022, the case for challenge having been found to be arguable. The challenge to those DCOs, brought by a campaign group Substation Action Save East Suffolk Limited was rejected in the High Court on 13 December 2022 (relatively speedy as far as this sort of litigation is concerned – the Planning Court does generally make sure that cases move at a pace). As is often the way, the greater delay then came at Court of Appeal stage, with the Court of Appeal only dismissing the group’s appeal on 17 January 2024. Any planning lawyer will say the same: get the Court of Appeal operating at the pace of the Planning Court. The Court of Appeal’s judgment in R (Substation Action Save East Suffolk Limited) v Secretary of State (Court of Appeal, 17 January 2024) was summarised by my Town Legal colleague Jack Curnow here.

Some of you will have been at, or heard the subsequent 50 Shades of Planning podcast recording of, our recent Town Legal/Landmark Chambers 100 Days of Labour event. I did ten minutes on what had emerged to that point in relation to commercial and infrastructure development. If only we had waited a week or so! People may find interesting this table of decisions on recovered appeals, call-ins and DCOs (in relation to all types of development) since 4 July 2024, prepared by Town Legal’s Victoria Porter alongside Landmark Chambers’ Edward Arash Abedian, and which shows a 100% approval rate for each to date…

Simon Ricketts, 16 October 2024

Personal views, et cetera

The Guildhall, in the City of London

The Updated Town Legal/Landmark Chambers Planning Court Case Explorer

None of the usual commentary this week. Instead I wanted briefly to share with you that Town Legal and Landmark Chambers have finally updated our joint Planning Court Case Explorer.

This is a tool which we have designed to provide anyone interested in the planning process with free-to-access data in relation to all cases which have been handed down in the Planning Court following a full hearing, since the creation of the Court in 2014 up to 31 August 2023. The Case Explorer also includes data on cases subsequently heard in the Court of Appeal and Supreme Court.

Please explore – and save it on your browser!

You’ll see that the Case Explorer now covers 766 cases (Planning Court: 591, Court of Appeal: 160; Supreme Court: 15). You can click through to the transcript for each of them, and to a summary, by Town Legal lawyers as part of their free weekly Town Library service, of all judgments since 2017. Cases have been categorised by Landmark’s Rebecca Sage, Harley Ronan and Barney McCay.

You will currently see glitches (do tell me about them) and we do not vouch for its absolute accuracy or that nothing has slipped the net. But we hope that is a useful jumping off point for initial research.

Some basic examples of routes you might take through the information:

Know your subject area… If your research task is, for instance, statutory challenges to local plans you will find 222 of them. You want to see which these are? They are all there.

Know your judge… You can search the cases by judge. (By the way, Lang J has handed down more Planning Court judgments than any other judge: 106. Holgate J stands at 54, Dove J at 38).

Who are the most active litigants? In terms of the private sector and NGOs, whether as claimant or interested party, way out in front is Gladman, at 16 (including three appeals); second is Redrow at 8; joint third are Friends of the Earth and the Open Spaces Society, both at 6. In terms of the public sector, we have four authorities which are all at 9: Canterbury, Lambeth, Maidstone and Westminster.

Again, in every instance you can click through to the actual judgment transcripts – and, usually, Town Legal case summaries.

Predicting likely timescales is so often critical… The average duration of a case, from the date of the decision that is challenged to the date of handing down of the Planning Court’s judgment following a full hearing is 333 days, if you consider all of the 591 judgments handed down since 2014. If you just consider the 12 judgments handed down in Q3 2023 up to 31 August, the period rises to 393. (Bear in mind that these statistics do not include cases that do not reach a full hearing, having been sieved out at permission stage or withdrawn – it would be extremely useful to have this further information).

Town Legal and Landmark Chambers will be doing some more in-depth analysis over the coming weeks. If you would be interested in any of the output, do let me know, or indeed Mike Gooch at Landmark Chambers (without whom, et cetera).

Simon Ricketts, 13 October 2023

Personal views, et cetera

The Removal Of Rights Bill

A codified list of British values might very well start with those within the European Convention on Human Rights, summarised as follows:

the right to life (Article 2)

freedom from torture (Article 3)

freedom from slavery (Article 4)

the right to liberty (Article 5)

the right to a fair trial (Article 6)

the right not to be punished for something that wasn’t against the law at the time (Article 7)

the right to respect for family and private life (Article 8)

freedom of thought, conscience and religion (Article 9)

freedom of expression (Article 10)

freedom of assembly (Article 11)

the right to marry and start a family (Article 12)

the right not to be discriminated against in respect of these rights (Article 14)

the right to protection of property (Protocol 1, Article 1)

the right to education (Protocol 1, Article 2)

the right to participate in free elections (Protocol 1, Article 3)

the abolition of the death penalty (Protocol 13)

This would be no coincidence. The UK was one of the founding members of the Council of Europe, which comprises 46 member states since the expulsion of Russia in March 2022. Whilst it includes all 27 EU member states it is of course entirely separate from the EU.

“The Council of Europe was founded after the Second World War to protect human rights and the rule of law, and to promote democracy. The Member States’ first task was to draw up a treaty to secure basic rights for anyone within their borders, including their own citizens and people of other nationalities.

Originally proposed by Winston Churchill and drafted mainly by British lawyers, the Convention was based on the United Nations’ Universal Declaration of Human Rights. It was signed in Rome in 1950 and came into force in 1953.”

(Equality and Human Rights Commission website)

Sad fact of human society: states and public bodies, on occasion, whether carelessly or on purpose, breach these fundamental rights. Of course when this happens there needs to be redress available, without disproportionate cost and delay. And let’s not kid ourselves via some weird form of British exceptionalism that UK institutions have ever been, are or will ever be flawless paragons of virtue.

“In its manifesto for the 1997 general election, the Labour Party pledged to incorporate the European Convention into domestic law. When the election resulted in a landslide Labour victory, the party, under the leadership of Tony Blair, fulfilled the pledge by the Parliament passing the Human Rights Act the following year.

The 1997 White Paper “Rights Brought Home” stated: “It takes on average five years to get an action into the European Court of Human Rights once all domestic remedies have been exhausted; and it costs an average of £30,000. Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts – without this inordinate delay and cost.” [Wikipedia]

Back to that Equality and Human Rights Commission website:

“The Act has three main effects:

1. You can seek justice in a British court

It incorporates the rights set out in the European Convention on Human Rights (ECHR) into domestic British law. This means that if your human rights have been breached, you can take your case to a British court rather than having to seek justice from the European Court of Human Rights in Strasbourg, France.

2. Public bodies must respect your rights

It requires all public bodies (like courts, police, local authorities, hospitals and publicly funded schools) and other bodies carrying out public functions to respect and protect your human rights.

3. New laws are compatible with Convention rights

In practice it means that Parliament will nearly always make sure that new laws are compatible with the rights set out in the European Convention on Human Rights (although ultimately Parliament is sovereign and can pass laws which are incompatible). The courts will also, where possible, interpret laws in a way which is compatible with Convention rights.”

As at December 2019, “there have been 547 judgments concerning the UK up to the end of 2018. Of these, over half (315) found at least one violation of the European Convention on Human Rights, and about a quarter (141) found no violation.” (House of Commons Library publication UK cases at the European Court of Human Rights since 1975, 19 December 2019). Have a browse – the cases do not concern trivial matters, as is sometimes made out.

In our planning world, the rights that are most frequently relevant are:

The right to a fair trial (article 6), most particularly article 6.1 which is not limited to criminal trials but any determination by a state body as to an individual’s or organisation’s rights and obligations:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

I have emboldened the key elements of interest.

The right to respect for family and private life (Article 8)

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The right to protection of property (Protocol 1, Article 1), particularly relevant in the field of compulsory purchase:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Other rights of course are relevant in particular cases, for example the right not to be discriminated against (article 14) frequently arises in issues concerning gypsies and travellers.

Soon after the 1998 Act came into law, the House of Lords tested various aspects of our planning and compulsory purchase system as against Convention rights, in the Alconbury cases (9 May 2001), and the system was found to be compliant – as it was then at least (we must not be complacent as regards any changes).

The English courts have subsequently considered the relevance of the rights to particular planning situations in many cases but this has certainly not opened the floodgates.

Two examples:

R (RLT Built Environment Limited) v Cornwall Council and St Ives Town Council (Hickinbottom J, 10 November 2016) concerned a challenge to the policies in the St Ives neighbourhood plan designed to limit second home ownership by imposing residency requirements. The developer claimant sought unsuccessfully to argue that the policies contravened article 8.

The judge rejected the claim:

“Where article 8 rights are in play in a planning control context, they are a material consideration. Any interference in such rights caused by the planning control decision has to be balanced with and against all other material considerations, the issue of justification for interference with article 8 rights effectively being dealt with by way of such a fair balance analysis.

That balancing exercise is one of planning judgment. Consequently, it may be amenable to more than one, perfectly lawful, result; and this court will only interfere if the decision is outside the legitimate range. Indeed, in any challenge, the court will give deference to the decision of the primary decision-maker, because he has been assigned the decision-making task by Parliament, and he will usually have particular expertise and experience in the relevant area. Such a decision-maker will be accorded a substantial margin of discretion. The deference and margin of discretion will be the greater if he has particular expertise and experience in the relevant area, and/or if he is acting in a quasi-judicial capacity (such as an inspector).

If the decision-maker has clearly engaged with the article 8 rights in play, and considered them with care, it is unlikely that the court will interfere with his conclusion. Article 8 rights are, of course, important: but it is not to be assumed that, in an area of social policy such as planning, they will often outweigh the importance of having coherent control over town and country planning, important not only in the public interest but also to protect the rights and freedoms of other individuals. In practice, cases in which this court will interfere are likely to be few.”

In R (Moore & Coates) v Secretary of State (Gilbart J, 21 January 2015) a claim based on article 6 succeeded. This was the challenge to the then Secretary of State’s policy to recover or call-in gypsy and traveller cases, causing huge delays in decision making.

“To anyone with experience of development control and planning inquiries, it is remarkable that cases involving a modest amount of evidence, and typically taking two days at most, could then require consideration for in excess of 6 months, let alone the 10 months that has elapsed in Mrs Coates’ case. I recognise that Mrs Moore’s case has involved some complexities, but there is no evidence at all that it was anything but atypical. But as Mr Watson’s evidence showed with clarity, it is the effect of the recovering of all cases which was expected to, and has, caused significant delays in determination. It was not the issues raised by any of the cases which caused the delays but the Ministerial decision to recover them all for determination. No evidence has been put forward by the SSCLG to show that the delays were necessary in travellers’ cases, and it must again be observed that although WMS 1 sought to stress the same substantive policy message for cases in the Green Belt relating both to travellers’ housing and “conventional” housing, yet appeals of the latter kind have not been delayed whereas appeals of the former kind have been delayed, and considerably so. The pitches concerned (and certainly so in the Claimants’ cases) contain their homes where they live, or wish to live, with their children. The SSCLG has failed to show that the delays caused to the determination of the appeals was a proportionate response to the issue of giving the policy “steer.” It follows that the appeals have not been determined within a reasonable time.”

Here, the ability to use article 6 was certainly a useful hook and the reference in article 6 to decisions needing to be made in a “reasonable time” is pretty much all we have to hang on when complaining about the inevitable delays that are one of the root causes of dissatisfaction in the planning system!

Although quite dated, the House of Commons Library research briefing Human Rights and Planning (21 June 2010) is a further useful resource.

My reflection would be that in our field the Human Rights Act has operated as was envisaged. Instead of the prolonged uncertainty to everyone caused by aggrieved parties deciding to continue their battles in Strasbourg, human rights issues have been dealt with by the Planning Court, and on appeal, as part and parcel of the challenge process. Even drawing upon the ECHR jurisprudence that is regarded by our Government with such suspicion, winning on a human rights point is not exactly easy.

But when it comes to public policy, the planning system is always a sideshow. Driven by political sensitivities in relation to areas such as extradition policy and prisons, the Government has of course been intent on reducing the influence of the Convention and the risk of judgments against it by the ECHR. Hence, its consultation document Human Rights Act Reform: A Modern Bill of Rights (14 December 2021):

“We make far-reaching proposals for reform, with a particular focus on those quintessentially UK rights, such as freedom of speech and the right to trial by jury. We examine problematic areas, including the challenges in deporting foreign national offenders. We consider in detail the procedural framework of the Human Rights Act. And we look at the relationship between the UK courts and Parliament and the European Court of Human Rights in Strasbourg.

We intend to revise and reform the flaws we have identified, and replace the Human Rights Act with a modern Bill of Rights, one which reinforces our freedoms under the rule of law, but also provides a clearer demarcation of the separation of powers between the courts and Parliament.

Our proposals recognise the diverse legal traditions across the UK, alongside our common heritage. We will be seeking the views of each of the devolved administrations, and across all four nations of the UK, to ensure we safeguard our human rights protections in accordance with a common framework, whilst reflecting our diversity and devolved competences.

We will carefully consider all the responses we receive, as the government takes forward the proposals in this consultation. The task of nurturing the UK’s tradition of liberty and rights is never finished. This consultation turns the first page of the next chapter in our long history of human rights – and begins the work to refine our law, curtail abuses of the system, restore public confidence, reinforce the independence of the judiciary, and shore up the sovereignty of elected law-makers in Parliament.”

The Government’s consultation response is fascinating. “Carefully consider”, my foot! The majority of respondents to each question raised favoured no change but such is the nature of consultation the Government has sailed on. (For instance 90% of respondents disagreed that a claimants should have to show a “significant disadvantage” to be able to bring a claim but the government has not backed down – in these circumstances what really is the point of consultation, or, more to the point, responding to consultation?).

The Bill of Rights Bill was laid before Parliament on 22 June 2022, accompanied by the publication of an explanatory memorandum , impact assessment and press statement.

From the press statement:

“This country has a long and proud tradition of freedom which our Bill enhances, for example, in respect of free speech and recognition of the role of jury trial. Equally, over the years mission creep has resulted in human rights law being used for more and more purposes, with elastic interpretations that go way beyond anything that the architects of the Convention had in mind. Following careful consideration of the responses to the government’s consultation on the Bill of Rights, these reforms reinforce our tradition of liberty whilst curtailing the abuses of human rights, restoring some common sense to our justice system, and ensuring that our human rights framework meets the needs of the society it serves. As we make these reforms, we are clear that we are committed to remaining party to the European Convention on Human Rights (ECHR).“

For a summary of the Bill’s contents and actual implications, I urge you now at least to skim through Mark Elliott’s blog post The UK’s (new) Bill of Rights (22 June 2022). Here is an expert on the subject – Professor of Public Law and Chair of the Faculty of Law at the University of Cambridge and former Legal Adviser to the House of Lords Constitution Committee.

In summary he argues “that the Government’s strategy appears to involve making it more difficult for human rights to be enforced in UK law both by marginalising the domestic influence of the ECtHR and by limiting the capacity of domestic courts to uphold Convention rights. [He concludes] that these policy objectives form part of a wider picture according to which the present UK Government exhibits authoritarian tendencies that are in tension with British constitutional tradition.”

His conclusion is that this is “a Bill that seeks to diminish the domestic legal impact of the transnational human rights system of which the UK has chosen — and agreed in international law — to be a part, and which seeks at the same time to make significant inroads into the powers of domestic courts to uphold fundamental rights. All of this is infused with the notion of ‘taking back control’ from those — ‘foreign’ judges in particular, but also courts and lawyers more generally — who are viewed as an inconvenience at best, an illegitimate interference at worst. The Government claims to be doing this in the name of — and the Bill explicitly references — ‘parliamentary democracy’. But it is becoming abundantly clear that the true objective underpinning this Bill (and the Government’s wider project) concerns not the so-called restoration of parliamentary sovereignty or the strengthening of democracy, but the entrenchment of a form of executive hegemony — one that smacks of authoritarian resistance to scrutiny and is antithetical to the best traditions of the British constitution.”

The Bill starts with a curious “introduction” clause:

Of particular relevance to our subject area I would identify:

• Various attempts to constrain the role of the courts versus that of the Government or Parliament (starting with various passages in that clause 1, but see eg clause 7)

• Various attempts to warn the courts away from applying or expanding Strasbourg jurisprudence (eg see clause 2)

• Preventing UK courts from interpreting Convention rights so as to require a public authority to comply with a positive obligation (clause 5)

• Placing very high thresholds in the way of claimants seeking remedies in UK courts (a “victim” plus “significant disadvantage” test for standing – clauses 13 and 15 – that is tighter than the standing test in relation to judicial review)

What is this likely to mean in practice for our planning and compulsory purchase system?

• Human rights compliance cases are likely to be even more difficult to run in the UK courts, leading some litigants to resort to commencing claims in the European Court of Human Rights in Strasbourg (probably having first had to try – and fail – in the UK courts).

• In practice, weaker discipline over the behaviour of the Government and public bodies – this will be to the detriment of good governance.

• Generally, more uncertainty as to the appropriate tests for the UK courts to apply in human rights cases, as case law develops around the new tests, in some parts of the Bill expressed in curiously subjective or general language.

What this Bill most certainly does not do is give any individual or company more rights than at present; quite the contrary. If the 1998 Act brought the rights home, to use the language of the 1997 white paper, such that they could be relied upon in the UK courts, this Bill does the opposite – their utility in the UK courts is to be constrained, meaning that once again the ultimate backstop is a claim to the European Court of Human Rights in Strasbourg.

Whether constraining the role of the UK courts in relation to the protection of our human rights is a good thing or a bad thing might depend upon whether which side of the fence you are on – but remember: there isn’t one of us who may not need to rely on our rights as against the state at some point, whether in our personal or work lives.

And if we are going to have a Bill of Rights Act, shouldn’t we have a think about what further rights should now be included?

Topically, the application of the Convention (particularly article 1 of the first protocol – the right to protection of property) very much came into our clubhouse discussion on 15 June, Land value capture via CPO. You can listen again here.

Simon Ricketts, 25 June 2022

Personal views, et cetera

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