Judicial review (JR) is a way for individuals or organisations to challenge decisions made by public bodies. For the purposes of environmental and planning law, those bodies would include local planning authorities (LPAs), government and regulatory bodies. The usual process is for proceedings to be issued by way of an application to the administrative court for permission for judicial review. If the court grants permission, then the case will be decided at a substantive hearing.
Since last year, a number of changes have been made to judicial reviews in planning cases – including the shortening of the deadline for a challenge to be made from the date of the planning decision from 3 months to 6 weeks and, for environmental judicial reviews, an automatic costs cap under CPR 45.43 on both the claimant and defendant’s costs for “Aarhus Claims” which are effectively those raising environmental issues. A new fee has also been introduced for those wishing to seek a hearing in person after being refused permission to proceed and the removal of that right where a case is “totally without merit.”
Criminal Justice and Courts Bill
As a result of the government’s continuing view that judicial review is a “brake on growth”, and that, in the words of the Lord Chancellor – Chris Grayling - “too often cases are pursued as a campaigning top, or simply to delay legitimate proposals”, the government published the Criminal Justice and Courts Bill on 5th February 2014, and it is planned to come onto the statute books by the end of 2014. Although the original plans for change which were consulted on included plans for the government to transfer planning judicial review cases to a specialist planning chamber of the upper tribunal, this idea has been dropped. But there will be a new Planning Court which will operate as part of the High Court under specialist judges.
The Proposed Changes
Part 4 deals with important further reforms to judicial review which will have a significant effect on the ability of concerned individuals to challenge decisions of LPAs and government.
The changes to judicial review include the following:
• Amendments to s 31 of the Senior Courts Act 1981:
• Refusal to grant permission for technical errors in decision making which, had they not been made, would have made no difference to the outcome for the claimant.
• A requirement for claimants to indicate how their case is to be funded – including in the case of companies with limited resources, information about its members where the company is unable to demonstrate that it is likely to have financial resources available to meet such liabilities
• The court will be required to consider making costs orders against those are not parties to the proceedings but who may be funding judicial review cases
• A presumption that “interveners” – i.e. those people or organisations who wish to be involved with cases – will be liable for the costs of other parties arising from their intervention
• Restrictions on orders for cost capping. An order will only be made if leave to apply for judicial review has been granted; where the case is in the “public interest” and that in the absence of the costs cap, the claimant would withdraw and it would be “reasonable” to do so.
• The Bill also includes a new “permission” stage for statutory appeals under s 288 of the Town and Country Planning Act
The government’s intention is obviously to reduce the number of judicial reviews (including planning cases).
The financial implications to the parties from such changes are serious and are sure to act as a deterrent if the Bill remains unamended. Businesses or individuals wishing to challenge decisions by way of judicial review may be left exposed to the other side’s costs and the protections afforded by costs caps will be less certain than before.
Furthermore, the restrictions on costs capping seem to contradict the certainty which is give in “Aarhus” cases coming under CPR 45.43 where an individual claimant’s exposure to the defendant’s costs would be capped at £5, 000 and £10, for an organisation – with the cap set at £35, 000 for the defendant if he loses.
However, at clause 58, the Bill provides that the Lord Chancellor may publish regulations to disapply the relevant sections on capping if cases “have as their subject an issue relating entirely or partly to the environment”. There are sure to be further arguments over what constitutes an environmental claim in order to benefit from the provisions under CPR 45.43 and escape consequences the proposed amendments to the Senior Courts Act 1981.
The Bill is now at an advanced stage in its progress through parliament. If it does reach the statute books intact, these measures will inevitably deter potential claimants from taking cases by increasing the risk that they would pay substantial costs if a case were lost.
Article 9(4) of the Convention requires that procedures for rights of access to environmental justice must “provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive” [emphasis added].
The UK has already come under pressure from the Court of Justice of the European Union through infraction proceedings brought by the Commission for the failure of the UK to put into effect these Aarhus principles (see judgment inn case C-530/11 – Commission v UK). The European Court was
set out guidance on “prohibitive expense” for litigants in UK in its ruling in the case of Edwards which recently returned to the Supreme Court, where the guidance was applied in the final decision ( R (on the application of Edwards and another (Appellant)) v Environment Agency and others (Respondents) (No 2)  - reported in the January 2014 edition of ELM, page 1).
If the bill does therefore come into force unamended, the UK could be facing further visits to the European Court especially if the government intends to introduce a narrow interpretation of what constitutes an environmental case. Non-environmental planning cases will be subject to the full financial implications of an amended Supreme Court Act.
This article was written by Justin Neal, one of our environmental law experts. It was originally published in Environmental Law Monthly and is reproduced here with their permission.