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This article is the first of our in-depth analyses of recurrent ideas for planning reform which in reality are going to be extremely challenging to deliver. See our Introductory article here for the impetus behind this series, summed up in the famous Prayer for Serenity:

"God grant me the serenity to accept the things I cannot change, the courage to change the things I can, and the wisdom to know the difference" Prayer for Serenity by Reinhold Niebuhr

It may seem perverse to start this series of articles with a critique of ideas to tackle the problem (from a developer's perspective) of judicial review, which comes at the very end of the planning process. However, it crops up so regularly in papers on planning reform that it seems as good a place to start as any.

It has also become particularly topical as the Government has tasked Lord Banner with providing them with a report setting out his ideas on this topic (see here).

I will be curious to see what Lord Banner recommends. He won't want to come back from his first big commission for the Government with the conclusion there's not much that can be done. But for reasons I explain, drawing on the "Key Principles" at the end of this article, truthfully there is little room to manoeuvre.

1. How bringing a judicial review works

First, a brief intro to how judicial review works (also referred to as "legal challenge"). Understanding the nuts and bolts of how cases get the right to be heard and appealed to higher courts is essential to any analysis of how to make the system more efficient.

Judicial review goes much wider than just planning cases

Any "public law decision" is capable of being challenged by way of judicial review. This is a fundamental principle of English "common law" (established by cases rather statutes) dating back centuries. What is a "public law decision"? Broadly it's any decision made by a public body exercising a public function. It would include things like a decision to deport an asylum seeker or a parole board's decision to keep a prisoner in prison. It includes planning decisions by local authorities or the Secretary of State.

Types of grounds for judicial review

There are broadly three types of ground on which a judicial review can be brought: (i) "ultra vires" – that the decision was outside the body's legal powers; (ii) procedural unfairness; or (iii) irrationality – that the decision was so unreasonable or perverse that no rational decision-maker could possibly have made it. What's important to note is that none of the three types of ground touches in any way on what lawyers call the "merits" of the original decision. So the grounds on which cases can be brought and won are fairly narrow.

"Permission" is required for cases to be heard

A claimant needs the court's "permission" to have their claim heard. That permission decision is initially made by a single High Court judge "on the papers" (ie without any hearing). The test he/she applies is whether there is an "arguable ground" with a "realistic prospect of success" (para. 9.1.3 of the Admin Court Guide, based on relevant case law). However, if refused, the claimant still has a right to request that the application for permission be reconsidered at an oral hearing. In practice, the court may decide to "roll-up" that oral hearing for permission with the hearing of the substantive case, so that they are heard together (for efficiency). This means therefore that planning judicial reviews are often heard in full, regardless of whether the High Court judge reading the paper application felt the case was too weak to merit being heard by the courts at all. This is what I'll call the "Cascade Effect".

Appeals to the Court of Appeal and Supreme Court

If the case is heard and "dismissed" (lost by the claimant) in the High Court then the claimant can seek permission to appeal to the Court of Appeal. If they are given permission to bring an appeal but then lose again in the Court of Appeal, they can seek permission to appeal to the Supreme Court. Permission will only be given in each case where the Court of Appeal  considers there is "a real prospect of success" or "some other compelling reason for the appeal to be heard" (Civil Procedure Rules 52.6) or the Supreme Court considers that there is an arguable point of law of general public importance. Not many cases go all the way up to the Supreme Court, but the legal challenge brought against the Sizewell C DCO looked like it might – until the Supreme Court refused permission to hear it recently (confirmed on 13 May). To give you an idea of how long that has taken to date, the Sizewell C DCO was made in July 2022. Full timeline below. Luckily a DCO is still valid unless and until the claimants win, but this has still left Sizewell C being built at risk of having its DCO invalidated until this month. And for a case which was refused permission to be heard at the outset on the basis it was considered on the papers to be 'unarguable'.

Timeline of the Sizewell C judicial review

  • 20 July 2022 – Sizewell CDCO granted by the Secretary of State
High Court (circa 10 months)
  • 30 August 2022 – claim filed by TASC challenging the DCO on 8 grounds
  • 18 October 2022 – Order of Kerr J refusing TASC permission to bring judicial review 'on the papers'
  • 22/23 March 2023 – rolled up hearing held before Holgate J (in relation to permission and the substantive issues of the claim)
  • 22 June 2023 – judgment of Holgate J is issued (dismissing the case)
Court of Appeal (circa 6 months)
  • 29 June 2023 – TASC apply to the Court of Appeal directly for permission to appeal
  • 8 September 2023 – Order of Coulson LJ grants permission to appeal on two of the original seven grounds (eight including one dropped prior to the initial hearing)
  • 1/2 November 2023 – Court of Appeal hears the case
  • 20 December 2023 – Court of Appeal judgment is issued, upholding Holgate J's judgment and dismissing TASC's appeal
Supreme Court (circa 4 months)
  • 17 January 2024 – TASC files an application for permission to appeal to the Supreme Court
  • 13 May 2024 – Supreme Court refuses permission to appeal


2. Ideas to reduce the number of challenges heard or speed things up

Would it help to have more planning specialist judges at the gateway (permission) stage?

In principle, a planning specialist judge might be more bullish in refusing permission to hear a hopeless planning case (being better able to see the lack of merit "on the papers"). But in practice, this is unlikely to stop the Cascade Effect (described earlier). This is because (i) the claimant has a right to be heard orally on the question of permission even if refused on the papers; and (ii) it is often deemed efficient (from the court and developer's perspective) to then "roll up" that permission hearing with the substantive hearing of the full case. The alternative would be to wait months potentially between the oral hearing on permission and the hearing of the case itself (assuming permission was given), when the preparation for both is similar in any case.

Could we get rid of the right to an oral hearing on the question of permission?

Could we make a refusal on the papers by a single High Court judge the end of the matter? I'm afraid not. The right to be heard orally is generally regarded as a fundamental principle of English common law and the principles of access to justice embodied in the European Convention on Human Rights. It is therefore in reality almost impossible to make such a fundamental change to our legal system (particularly since it would be very difficult to justify this for planning judicial reviews alone)[1].

Would making the "permission" test tougher help?

Of the 17 judicial reviews brought against the grant of DCOs, 13 have been unsuccessful (77%) and four have been successful (23%). There have been four challenges to refusals, brought by unhappy applicants, of which two were successful. Many thanks to Angus Walker and Mustafa Latif-Aramesh at BDB Pitmans for these stats.

Some might say, particularly in respect of challenges to granted DCO, that a mere 23% success rate for claimants shows that the courts are being too generous in the way they interpret the test for permission and the test to appeal to the Court of Appeal: "arguable case", "realistic prospect of success"; and "other compelling reasons to be heard."[2]

But how much higher could the threshold be? Try finding words that set the bar higher than this while still sounding remotely equitable in terms of access to justice in a civilised society under-pinned by the rule of law. Should the only cases allowed to be heard by the courts be those deemed "Almost certain to win"?! Surely not.

So is there instead a problem with the lenient way that judges are interpreting "arguable grounds", "real prospect of success" and "other compelling reasons"? The latter in particular tends to be invoked where there is considered to be high public interest, which catches high-profile projects like Sizewell C.

In principle, an attempt could be made via changes to the relevant judicial guidance to encourage judges to take a harder line on the cases they consider meet the relevant tests for permission and appeals. But there are a few issues with this:

  1. How exactly would the guidance frame the entreaty to judges to take a harder line? See my comments above: "dead cert to win?", more than "90% chance of winning?" and how can they really judge this in many nuanced cases without hearing evidence in court. This links to my next point…;
  2. A philosophical point: what percentage of challengers would we want to see winning to feel that the "right" number of cases were being let through to be heard in court? 50%? The corollary of this, however, would be accepting as a society that there would be a number of cases never heard which had they been heard would in fact have won. That is ipso facto "less justice" overall, as the price for greater efficiency. Good for developers of infrastructure no doubt, but is that enough reason to justify it? It's rather like the philosophical/political question of how many murder cases should be reviewed annually. It might take hundreds of court reviews to unearth one innocent prisoner wrongly convicted. So how many such cases is it worthwhile (or just) to review?; and
  3. Judges will always have great autonomy, no matter what the rule book/guidelines say. They will always err on the side of access to justice it seems to me, and there is no stick to beat them with for applying their discretion as they see fit.

Could the test be made tougher just for nationally significant planning cases?

Lord Banner's brief may be limited to how to de-fang judicial review for infrastructure planning, but it is impossible to look at this question except in the round – by reference to judicial reviews of all types. It might be argued that there can be no justifiable toughening up of the system for cases of one particular type only[3]. Yet that makes any toughening of the rules an even bigger call. The idea of making it harder for ordinary people to bring challenges to the decisions of public bodies of all types is likely to be incendiary.

Could objectors be priced out of bringing judicial reviews?

Another frustration of developers is how cheap it is for objectors to bring judicial reviews against planning decisions. There is little to lose financially in having a pop at a developer. This is because the Aarhus Convention applies to any claims relating to environmental issues (thus catching planning decisions, due to the relevance of environmental impact assessments and habitats law). The implication of this is that even if the judicial review is lost by the party who brought the challenge, they only pay the defendant (local planning authority's or Secretary of State's) costs up to £5,000 (if the claimant was an individual) or £10,000 otherwise.

Some people have suggested that these caps need to be increased, to make people think twice about challenging planning decisions[4]. But the cap could not be radically increased without breaching the spirit of the Aarhus Convention – which embodies the ideal that people should not be put off protecting the environment for fear of unaffordable costs if they lose.

Even if the caps were to be doubled, it is easy in these days of crowd-funding for objector groups to raise much more than this.

Expediting cases

The High Court (specifically the specialist Planning Court within it) has the ability to "expedite" (speed up) the processing of a planning judicial review where a case is categorised as "significant" or where expedition is necessary to deal with the case justly (Practice Direction 54D, section III). In practice, many of the planning judicial reviews I have advised on during my career have been expedited. The target timings for such cases are set out in the Practice Direction. Parties can apply for an appeal to be expedited under para. 26 of CPR Practice Direction 52C

The judicial review of the Sizewell C DCO was categorised by the Planning Liaison Judge as "significant" and has been dealt with by the courts on a relatively quick timetable therefore. See the table earlier in this article, setting out the timeline for the case. Sizewell C did not make a specific application for expedition in the Court of Appeal, but even if expedition had been granted, it would not have been unusual for the case to take the almost 2 years it did.

To my mind, the problem is not so much that planning cases are not being expedited, but that even where they are expedited they still take a long time to grind through the system. If the courts were better resourced this would help (the Supreme Court is notoriously slow in particular, but then few cases make it that far). But to properly prepare for and deal with any legal case will always take time. Given it is a fundamental part of our legal system that cases can be appealed, and therefore heard up to three times, that time is necessarily multiplied, making this a difficult nut to crack.

Lord Banner might therefore consider suggesting that all "nationally significant infrastructure projects" are dealt with as "significant" cases and expedited, but this will not prevent a long slog through the courts similar to that of Sizewell C.

Precedent – section 289 challenges – enforcement

In a Town and Country Planning Act ("TCPA") context, where an enforcement notice (for breach of a planning condition etc) has been appealed to the Secretary of State, the Secretary of State's decision can then be appealed on to the High Court – but only with leave of the High Court. Case law has established that a refusal by the High Court of leave to appeal cannot be appealed further to the Court of Appeal. That is the end of the road and the Secretary of State's appeal decision stands.

Lord Banner might consider replicating this principle in respect of legal challenges to "nationally significant infrastructure projects", such that the High Court refusing permission to bring judicial review of a DCO decision could not be appealed further. However, it is not clear that the logic underpinning the constraints on the second appeal of an enforcement appeal decision is equally applicable to judicial review of a DCO decision. In the former there is a policy incentive not to allow a party in breach of planning law and on whom an enforcement notice has been served to bring repeated appeals and delay the final determination of the enforcement question while allowing him/her longer to persist with the conduct subject to the enforcement. In the latter, the incentive is about minimising delay and uncertainty for a consented project.

3. Other ideas sometimes mooted

Is trying to make everyone happy the answer?

Occasionally it is suggested that if the planning system were better at listening to local people, local councils and other key statutory bodies, better at consulting them, better at reassuring them, and better at taking account of their views and designing a scheme they like, then there would be less judicial reviews. It's also sometimes claimed that devising a regime whereby "local consent" must be obtained, or where local people are paid if they live near new infrastructure, would lead to less judicial reviews being brought. The basic idea of all of this is that if you could only please everyone no one (or few) would be motivated to try to thwart projects.

This is naïve in the extreme. It only takes one person to bring a judicial review. It makes no difference if hundreds of people are backing a particular judicial review claim or just that one person. The effect is the same: uncertainty for the developer until the courts come to a final judgement. The reality is that there will always be a hard core of people who will not be persuaded to like a scheme no matter what form it takes, no matter how much developers engage with them, and regardless of any payments offered to them. Payments in fact are often counter-productive (seen as bribes) and the idea of "local consent" is utterly hopeless. I have written several pieces on this, including here.

Are there standard grounds on which judicial reviews are being brought that we can guard against?

I was asked by a client recently, who has a string of projects coming forward, whether I was seeing any themes in terms of grounds of challenge. Obviously their aim was to de-risk their applications by avoiding any recurrent grounds of challenge. My answer was, no, not really. The usual tactic of those wishing to challenge a planning decision is to throw as many potential grounds of challenge into a claim for judicial review as they can. These will be very case-specific. The reason for this is clear. What objectors want to do is to thwart a project on whatever technicality they can. They therefore instruct a law firm or barrister to review the planning decision as soon as it is issued by the Secretary of State, and try to pick holes in it of whatever sort can be found.

The hope of objectors is that at least one or two might get some traction, or at least lead the court to think there is enough in them to be worth hearing. If the application has been well prepared and good legal advice sought and followed, then the chance of any of the grounds sticking and the DCO being quashed should be low (unless the examination process or Secretary of State decision is somehow legally flawed). It is therefore important that developers, the Planning Inspectorate (who hears the case) and the Secretary of State are on their guard against grounds of challenge at every stage – but these will be different in every case.

It is sometimes said that the outdatedness of the National Policy Statements gave rise to a high risk of legal challenge. There is in fact little evidence that this has been a problem generally, and certainly not the significant problem some suggest, but that may be the subject of another article.

4. Conclusion

So what can be done to reduce the delays and uncertainty being caused by judicial reviews? Honestly, it's very difficult to suggest anything that will move the dial within the fundamental principles of English law. Courts can be encouraged to expedite nationally significant infrastructure cases (which they usually do already) and given money to find additional resources to do so. But convincing many more barristers to swap their lucrative private practices for life as a judge is likely to be difficult.

Regrettably, judicial review falls into the category of something developers must work around.

It is small consolation, but to put our problem in context, compare the French system. A partner in our Paris office told me we're lucky in the UK. Most major developments, she says, are legally challenged in France, with final resolution of court proceedings taking four or five years. They, like us, are in practice hide-bound by bigger principles of public law and the way the wider legal system works. It is deeply frustrating, but it is a reality.

You cannot stop objectors bringing a judicial review, but you can stop them winning one. That is where our focus as lawyers, developers and decision-makers needs to be. Making sure there are no holes for objectors to exploit. This will necessarily be a case-by-case battle.

Reference notes

For reference, some of the key principles which underlie the above analysis and lead to my conclusions are as follows (see also the "Facts and axioms under-pinning our critiques" in the Introduction to this series):

  • All public law decisions must be capable of being legally challenged (L1)
  • It is not possible/credible/defensible to make it harder to legally challenge a planning decision than any other public decision, or to expedite planning cases above other important non-planning cases (L2)
  • Making it harder for people to challenge the decisions of public bodies across the board would have big political implications
  • It is generally regarded as a fundamental right that claimants must be able to have their request for judicial review heard orally, rather than just refused "on the papers" (except in rare cases where all grounds are ruled wholly without merit on the papers) (L3)
  • The Aarhus conventions applies to all environmental decision-making (including planning decisions) and embodies the principle that the cost of challenging such decisions must not be set at an unaffordable level which inhibits claims (L4)
  • Persuading more barristers (including, ideally, planning barristers) to trade well paid private practices for life as a less well-paid judge is going to be difficult (C4)

[1] Note though that an application for permission that is certified by the judge as "totally without merit" on the papers loses the right to an oral rehearing (though it can be appealed to the Court of Appeal).

[2] The Supreme Court generally takes a slightly tougher line and grants permission to appeal less often – which makes sense, the case having been heard by two courts already by that stage

[3] The only counter to this being that planning decisions are already subject to different procedural rules (such as a shorter limitation period) to reflect the policy driver that such decisions require certainty earlier than perhaps other public law decisions.

[4] The Court rules do provide for these caps to be varied if the finances justify it (CPR 46.27), but in practice the cap is very difficult to vary in most cases.


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Catherine Howard

Partner, London

Catherine Howard

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Catherine Howard photo

Catherine Howard

Partner, London

Catherine Howard
Catherine Howard