The Planning Court

Time flies. The Planning Court started life on 6 April 2014, as a specialist list within the Queen’s Bench Division of the High Court.

The Queen’s Bench Division includes the Administrative Court, which is responsible for public law claims, which are usually pursued by way of judicial review or by way of a quasi- judicial review statutory challenge or appeal, allowed for in a specific piece of legislation. As described in detail in a February 2014 piece by Richard Harwood QC, the Planning Court evolved from the Administrative Court’s fast track procedure which had been established to allocated important planning cases to be heard quickly before specialist judges.

As defined in Part 54 of the Civil Procedure Rules, a ‘Planning Court claim’ means:

“a judicial review or statutory challenge which —

(a) involves any of the following matters —

(i) planning permission, other development consents, the enforcement of planning control and the enforcement of other statutory schemes;

(ii) applications under the Transport and Works Act 1992;

(iii) wayleaves;

(iv) highways and other rights of way;

(v) compulsory purchase orders;

(vi) village greens;

(vii) European Union environmental legislation and domestic transpositions, including assessments for development consents, habitats, waste and pollution control;

(viii) national, regional or other planning policy documents, statutory or otherwise; or

(ix) any other matter the judge appointed under rule 54.22(2) considers appropriate; and

(b) has been issued or transferred to the Planning Court.”

Since February 2017, Holgate J has been the Planning Liaison Judge, overseeing the operation of the Planning Court and allocating cases to judges with appropriate expertise.

His “no nonsense” approach might be discerned from this blistering passage in R (Network Rail Infrastructure Limited v Secretary of State (Holgate J, 8 September 2017):

I regret the need to have to make some observations on the inappropriate manner in which the claim was put before the court. I do so in order to make it plain to litigants that the practices that were followed in this case, and regrettably sometimes in others, are not acceptable. Notwithstanding the clear statement by Sullivan J (as he then was) in R (Newsmith Stainless Ltd) v Secretary of State for Environment, Transport and the Regions[2001] EWHC (Admin) 74 at paragraphs 6-10, this claim was accompanied by six volumes comprising over 2,000 pages of largely irrelevant material. The Claimant’s skeleton argument was long, diffuse and often confused. It also lacked proper cross-referencing to those pages in the bundles which were being relied upon by the Claimant. The skeleton gave little help to the court.

Shortly before the hearing the court ordered the production of a core bundle for the hearing not exceeding 250 pages. During the hearing, it was necessary to refer to only 5 or 6 pages outside that core bundle. Ultimately, as will be seen below, the claim succeeds on one rather obvious point concerned with the effect of the Grampian condition in the 2016 permission. But this had merely been alluded to in paragraph 76 and the first two lines of paragraph 77 of the skeleton. Indeed, the point was buried within the discussion of Ground 3 of the claim, a part of the Claimant’s argument to which it does not belong. Nevertheless, Mr Tim Buley, who appeared on behalf of the Defendant, acknowledged that he had appreciated that this point could be raised. He was ready to respond to it.

Certainly, for applications for statutory review or judicial review of decisions by Planning Inspectors or by the Secretary of State, including many of those cases designated as “significant” under CPR PD 54E, a core bundle of up to about 250 pages is generally sufficient to enable the parties’ legal arguments to be made. In many cases the bundle might well be smaller. Even where the challenge relates to a decision by a local planning authority, the size of the bundle need not be substantially greater in most cases.

Prolix or diffuse “grounds” and skeletons, along with excessively long bundles, impede the efficient handling of business in the Planning Court and are therefore contrary to the rationale for its establishment. Where the fault lies at the door of a claimant, other parties may incur increased costs in having to deal with such a welter of material before they can respond to the Court in a hopefully more incisive manner. Whichever party is at fault, such practices are likely to result in more time needing to be spent by the judge in pre-reading material so as to penetrate or decode the arguments being presented, the hearing may take longer, and the time needed to prepare a judgment may become extended. Consequently, a disproportionate amount of the Court’s finite resources may have to be given to a case prepared in this way and diverted from other litigants waiting for their matters to be dealt with. Such practices do not comply with the overriding objective and the duties of the parties (CPR 1.1 to 1.3). They are unacceptable.

The Court has wide case management powers to deal with such problems (see for example CPR 3.1). For example, it may consider refusing to accept excessively long skeletons or bundles, or skeletons without proper cross-referencing. It may direct the production of a core bundle or limit the length of a skeleton, so that the arguments are set out incisively and without “forensic chaff”. It is the responsibility of the parties to help the Court to understand in an efficient manner those issues which truly need to be decided and the precise points upon which each such issue turns. The principles in the CPR for dealing with the costs of litigation provide further tools by which the Court may deal with the inappropriate conduct of litigation, so that a party who incurs costs in that manner has to bear them.”

However, the lack of recent statistics as to the performance of the Planning Court is frustrating.

Anecdotally, I would suspect that there is a small reduction in the overall number of claims, no doubt partly due to the toughened approach to costs protection for claimants since 28 February 2017 . For those claims that are brought, the permission stage appears to be an increasingly difficult hurdle and (particularly with that stage having been introduced since 26 October 2015 into statutory challenges) fewer claims are getting to a full hearing. On the other hand, increasingly, controversial or complex cases are being actively case managed so that they proceed directly to a “rolled up” hearing. Despite the increasingly small pool of specialist judges, we are not seeing particular delays in case listings. However, this is an individual reaction not rooted in data and your experience may be different?

Last month the Ministry of Justice published its quarterly justice statistics (to March 2018) but they do not separate out the performance of the Planning Court.

There is a table showing the success rate of “planning and related” statutory challenges (ie not judicial reviews but applications under specific statutory provisions such as to quash inspectors’ and the Secretary of State’s decision letters, local plans and so on) that went to a full hearing. Most, but not necessarily all, of these will be been heard by the Planning Court. The statistics do indeed show a decreasing number of statutory challenges that go to a full hearing.

What is more problematic is that the data on judicial review does not separately identify Planning Court cases, simply breaking down judicial review cases into “civil – immigration and asylum”, “civil – other” (which includes planning), criminal and “unknown”.

It would be good to have for example reliable statistics as to overall numbers of judicial review claims in the Planning Court, the proportion that fall at the permission hurdle, overall success rates and timescales.

After all, one of the objectives behind the establishment of the court in 2014 was to provide for a speedier process. For “significant” claims there are specific target timescales.

Significant cases are defined as those which:

“(a) relate to commercial, residential, or other developments which have significant economic impact either at a local level or beyond their immediate locality;

(b) raise important points of law;

(c) generate significant public interest; or

(d) by virtue of the volume or nature of technical material, are best dealt with by judges with significant experience of handling such matters.”

Practice Direction 54E, which governs claims in the Planning Court states:

3.4 The target timescales for the hearing of significant (as defined by paragraph 3.2) Planning Court claims, which the parties should prepare to meet, are as follows, subject to the overriding objective of the interests of justice—

(a) applications for permission to apply for judicial review or planning statutory review are to be determined within three weeks of the expiry of the time limit for filing of the acknowledgment of service;

(b) oral renewals of applications for permission to apply for judicial review or planning statutory review are to be heard within one month of receipt of request for renewal;

(c) applications for permission under section 289 of the Town and Country Planning Act 1990 are to be determined within one month of issue;

(d) planning statutory reviews are to be heard within six months of issue; and

(e) judicial reviews are to be heard within ten weeks of the expiry of the period for the submission of detailed grounds by the defendant or any other party as provided in rule 54.14.”

Anecdotally, yes claims are indeed largely dealt with pretty quickly compared with elsewhere in the High Court but are these specific targets being met? And is the proportion increasing of claims that are failing at the permission stage (and, if so, what does that tell us)?

So, what do the general JR statistics show?

This is an extract from a table showing success rates:

In 2017 there were 4,196 claims lodged. 15% (615) were granted permission on the papers and 59% (2,484) were refused. Of those 2,484 claims, 146 obtained permission at oral renewal stage. Of those 761 claims, only 181 went to a full hearing and of those only 88 were found in favour of the claimant. Of course at each stage, proceedings are often settled, perhaps some were still waiting to be heard and a few may subsequently succeed on appeal, but that is quite some sieving, with only 2% of the total number of claims lodged resulting in a finding for the claimant.

Another table starts to break down those 4,196 claims, showing that well over half of JR claims still relate to immigration and asylum claims. Only 1,722 of them related to other civil claims (ie including Planning Court JR claims).

Who are the defendants? The commentary says this:

Local Authorities had 713 applications lodged against them (third largest recipient), down 6% on the previous year. Of these cases, 216 were granted permission to proceed to final hearing (30% of applications), and of these, 33 were found in favour of the claimant.

Finally, what about timescales? There is just this table:

The cases that went to a full hearing in 2017 took on average 194 days (working days I assume) from being lodged to a final hearing decision, although the figures may end up slightly worse than that if some cases have not yet concluded.

Am I missing a whole level of detail or is this really the best that we have in terms of the High Court’s performance in relation to planning law matters? And are up to date statistics for the Planning Court really not publicly available?

Simon Ricketts, 6 July 2018

Personal views, et cetera