I wonder if you might give us a sense to start with of your views on the impact of judicial review on major infrastructure and development projects. As I recall, there have been about 15 cases that the administrative court flagged as major infrastructure projects for 2012-13. There has been an issue as to whether the current arrangements on judicial review can cause delay costs on development and infrastructure. What is your experience on those matters?
Neil Sinden: The first thing that the CPRE would like to say is that we see JR as an essential safeguard against unlawful decision making and a vital check on abuses of public power. On the major infrastructure projects point, the figures that have just been quoted demonstrate that this is not perhaps as big a problem as is suggested by the way the Government have defined it or by some of the proposals brought forward, such as the Bill. The CPRE opposes any delay to good decision making, but we believe that JR provides an essential mechanism whereby the lawfulness and the processes and procedures followed in decision making are properly scrutinised. In the very rare cases—you quoted 15 cases, and there are many fewer cases where unnecessary delays have been caused––I do not see anything in the Bill that will necessarily change that situation. Some of the legal changes being proposed could backfire and lengthen procedures early on in the process, and I am thinking specifically of clause 50 in that regard.
It is surely legitimate to have regard not just to the cost to the public purse, but to the commercial damage done to investment in major projects by delay.
Neil Sinden: Absolutely. If I can come back to that point later, the other basic comment that we would make on the justification for the proposals in the Bill is that the evidence base on the economic benefits of reducing delays is barely credible. The regulatory impact assessment, which we have looked at closely, mentions a few figures, but it does not in any way interrogate those figures or present a robust case for why the proposed changes will deliver wider economic benefits, let alone for the benefits that they might bring in cost to the public purse.
Keith George: With regard to national infrastructure projects, my company has no direct experience. With regard to the delay in implementing major projects, we do have direct experience. Planning consents create a transient value and we can be judicially reviewed on outline consent, reserve matters, full application or conditions. If we have purchased a site on an outline consent and we are subsequently judicially reviewed on reserve matters we really need a timely determination of the application. If outline consent is for implementation within three years, you are judicially reviewed on submission of reserve matters, and then it takes two years, which is the evidence we have provided to earlier consultation papers on this subject. It takes 101 weeks to be able to get it determined through the courts, so we are out of time on the main outline consent. So we roll backwards. The issue for us, in addition to the need for timely consents and a full and fair process, is that you cannot deal with the delays which we have experienced. We know that the reforms in 2013 are designed to accelerate the determination of claims, but we have not any direct evidence to date that it is improving the situation, albeit we have no criticisms of the reforms made.
Keith George: We believe so, yes. Taylor Wimpey is a company that has only been running for seven years, having been formed by a merger. Our experience is only on 12 schemes. If you take a view on 350 planning applications per year and the size of our business, statistically it seems small. Inevitably when delays occur, they occur on major projects with high capital lock-up. The opportunity cost of capital becomes expensive. The secondary costs of defence are expensive. But a point I need to make in fairness is that in those instances we can either initiate a claim, which we have done in about 33% of our cases, or we are defending. But we are not the main defender, we are the first interested party because we have elected to defend. It is the decision maker, who could be the Secretary of State or the local authority, who leads the defence.
Angus Walker: Yes, that is right. I concern myself with nationally significant infrastructure projects above thresholds in the Planning Act 2008. There have been 16 decisions under that regime so far. Four of them have been judicially reviewed, so that is a quarter. I am not sure where the figure of 15 comes from. That must be some lower threshold that the Ministry of Justice has come up with.
Angus Walker: I think the points made by both gentlemen on my left are to do with delay rather than discouraging claims being made altogether. The Bill does not deal with delay and questions of timeliness. The number of planning judicial reviews is very small—planning generally, not just major projects. I had a look at the MOJ statistics and for 2012, 12,434 judicial review claims were lodged and only 188 are classified as town and country planning, so that is 1.5%. I found it surprising when this Bill was introduced and the response to the recent consultation said that planning cases were clogging up the courts. It seemed rather that they were the victims of clogging up by other types of cases, like immigration cases, rather than the cause of clogging. They are the cloggees rather than the cloggers.
Angus Walker: Yes, indeed. While there is a small number of planning cases relative to other judicial reviews, they have greater impacts on a larger number of people. A lot of judicial reviews are only concerned with one person, for example, whereas the Hinkley Point C nuclear power station could power 5 million homes. That has quite a significant impact. But it is the delay, rather than the fact of judicial review, that it is important. The Planning Act regime was introduced to make decisions quickly and it does that in a year and a quarter or so. But then the Hinkley Point judicial review by the Irish National Trust is delaying it by a further year so that is nearly doubling the time it has taken.
Do you have thoughts on the operation of the planning court so far and the idea of that separate planning?
Angus Walker: The planning court has not been established yet. It has just been proposed, but there is a planning fast track. Evidence from discussions with colleagues is that it is having an effect and speeding things up, which is why I find it strange that these further reforms are being proposed before the planning fast track has had a chance to be assessed on whether it is working. Also, in November, immigration and asylum cases were removed from the High Court altogether to go to the upper chamber, a separate tribunal, and the impact of that is yet to be felt.
Neil Sinden: Absolutely. Perhaps I could come in on that. According to figures I have seen from the administrative court, in October 2013 it took seven weeks to reach permission stage, compared with 21 weeks in October 2012, so that is hard evidence that the planning fast track is already making an impact. The question remains: to what extent, if at all, will the provisions in the Bill do anything to improve the problems there undoubtedly are with delay?
Given that we want to speed things up, perhaps it is legitimate to think, “Okay, we are making some progress, so let’s build on that and reinforce it in the provisions in the Bill.
Keith George: Speed is important and consistency of decision making is important, so I would focus on the specialist judges coming through. At the moment, they are drawn from administrative law. Some may have planning expertise and some may not. We would welcome the development of a body of expertise.
On a separate point, perhaps I might move away from judicial review—it has been interesting to have your thoughts on that—to clause 57 of the Bill, which specifically covers the planning and deals with leave and so on. The Planning and Environmental Bar Association has suggested that it would be appropriate to give the ability to seek leave from the Court of Appeal as well as from the High Court on the basis that quite often the High Court may refuse leave and when you go to the Court of Appeal leave is given and the case is successful. That will be a potential streamlining of the system. What are your thoughts on that, or would you like to think about it?
Angus Walker: I have not thought about that in advance. On clause 57, it seems a good idea to introduce the permission stage for those sorts of claims, but there are still other planning judicial reviews that do not have a permission stage. Surely it would be sensible to introduce it across the board because sometimes a case may involve more than one type of appeal.
Exactly right. That is what I was thinking of. I do not know whether you have seen it, but some amendments that have been tabled in my name after discussion with the Planning and Environmental Bar Association seek to standardise the permission regime and time frame. Does that seem an appropriate thing to be doing?
We are in a situation at the moment with different regimes for things like listed building proceedings, hazardous substances applications, section 287 applications, section 113 applications against development plans, and so on, and sometimes there are different times limits because the six weeks run from different points in the decision process.
Neil Sinden: Absolutely, and the clause we are considering here—clause 57—is one that CPRE would support as well as any amendments in the line that we have just been discussing. There is a need for greater consistency both in introducing the permission stage, as Angus has said, and also in making the time limits similar.
A point that was made by Mr Walker in the notes he sent us is that changes have already been made to try to speed up the process but have not yet bedded in, although they seem to be having an effect. There is also the issue of the planning court, which has not started yet, but the whole aim of it is to increase the speed and efficiency of the process. Mr George, I understand that your intent is that the process is not delayed unduly. If those changes are made, why do you think we need the changes in the Bill?
Keith George: The first point is that with the reforms, which we support in principle, we have not seen an improvement in the case management work load that we have. We believe it will improve. The point is that with regard to the need to determine, I use the phrase that planning consents have a limited life. I can give examples where a full reflection on the facts is important, but with regard to development there is always something in the marketplace that will change. Your contract may end; contracts do not run on in perpetuity.
With the planning framework, let us take a set of circumstances where your planning consent—granted by the Secretary of State—has been subject to claim and it has been dismissed. If it takes two and a half years before you can go back for redetermination, which we have evidence of, you find that the London plan has been adopted; the London plan has altered the space standards, building specification standards and affordable housing. You cannot then go back into redetermination, because it is not possible to win the case. So, while accepting that there is a need for a full process, the full process for development and consent cannot allow for a period of drift of, say, three years, because then you are out of contract, the planning framework has changed and you have basically been timed out. Our objection to the ability of claimants winning the case is that they know that they can time you out under certain circumstances.
That is an argument; I do not think you answered my question. That is an argument in favour of doing things expeditiously, but still fairly, and we have talked about the planning court as being a major course of action. I am asking you specifically about the provisions in this Bill––the changes that this Bill makes to the availability of judicial review as a remedy. Why do you need those?
Let me help you. The main provisions here are for changing the test whereby permission is granted, for discouraging intervention by giving cost penalties and for removing protection of claimants in relation to costs. Now, it seems to me that none of those, of themselves, are going to speed matters up, which seems to be your principal objection. So what is your view on this Bill, which we are discussing today?
With respect, it is not, is it? It is trying to restrict the availability of judicial review as a remedy, in tandem with the proposals on legal aid, particularly to those who may not be of means in bringing an action for judicial review, meritorious or not.
Keith George: With regard to the schemes that my company participates in—I would say I am representing the house building industry—all our cases are environmental-led cases, by definition, and the Aarhus convention provides protection. It is noted that the Government are protecting their position with regard to subsequent European decisions to come back and revisit this point, but at the moment the protective costs order regime still applies to environmental cases. So I think that our position would be that there is no change.
That is helpful. I will ask Mr Walker about this in a moment, but in relation to the sort of cases that you, as a developer, would be involved in, you believe that they will still be covered by the Aarhus restrictions?
Neil Sinden: On that clause, I think we would agree that it is neutral in its impact on different claimants. We would argue that it is potentially unconstitutional in the terms that you have heard already this afternoon. It is shifting the barrier between the judiciary and the Executive by putting judges into the shoes of decision makers and requiring them to make what can sometimes be quite difficult judgments, when balancing different considerations around a particular case in order to apply the “highly likely” test. That is not the case at the moment, with the provision of inevitability meaning that a claim cannot proceed. We think there is a constitutional issue to look at in relation to clause 50. It is not so much about the extent to which it would advantage one type of claimant over another; it is about the correct division between Parliament and judges in terms of making decisions on key cases.
Can I ask you this, Mr Sinden? Mr George seemed to say that the system is unfair on developers at the moment, that they are the victims in this. In your written paper you pointed out, as we all know, that there is no third-party right of appeal here. Judicial review is often the only recourse that someone unhappy with a planning consent made may have in order to challenge that. Do you think the situation at the moment is too easy for prospective applicants who want to bring a judicial review on planning matters?
Neil Sinden: Not at all, absolutely not. There is a tenor around this debate that campaign groups, potentially even campaign groups associated with CPRE, are seeking to use JR as a way of delaying decisions or stopping decisions on essential infrastructure. That is far from the truth and completely unsubstantiated by the evidence that the Government have brought forward supposedly to support the provisions in the Bill.
I consulted our branches up and down the country to see what their experience is of this. We undertake it very rarely; I am aware of fewer than half a dozen cases in the past 10 years. They are cases entered into not at all lightly by our local groups, and with a great sense of foreboding about the complexity and the costs within the current arrangements that they are likely to be exposed to. It is certainly not an easy route. It is, as you are suggesting, the only route where there is a legitimate grievance or concern about the lawfulness of a planning decision for third parties.
You may not be aware, but CPRE and many other organisations have been very supportive of the principle of a limited carefully defined community right of appeal to match the right of appeal that developers have against the refusal of planning consent. That would be a way to balance the system and make available to third parties some kind of recourse where decisions should be legitimately questioned in terms of the procedures and processes that have been gone through, to have that decision-making process scrutinised to ensure that their interests and the public interest are properly safeguarded in the planning process. We think it would be a far more sensible approach for the Government to adopt to look seriously at the case for a carefully defined community right of appeal as a way to reduce the recourse—limited though it is—by third parties to JR.
Do you then think that the provisions in part 4 are just about expediting and speeding things up, or do you think they will make it more difficult for your members or those who consult you to bring actions?
Neil Sinden: I do not see them in any way as measures that are designed or likely to deliver more timely decisions. I do not think that is what they are about. They are about potentially frustrating the limited ability of third parties to bring legitimate claims against what is perceived to be unlawful decision making, which is a potentially worrying direction to take.
How far do you agree with what Mr George said about being saved from the diminution of relying on PCOs in most planning cases by clause 56 and Aarhus? Are you concerned about that or do you think that, in reality, there will still be cost protection for planning and environmental cases?
Neil Sinden: We strongly support Aarhus and would be concerned about any changes that might reduce the availability of capping in environmental cases. It is important to note that not all planning cases can be considered as environmental cases. Certain change-of-use planning decisions may not fall within the Aarhus convention, but we are concerned about the capping clauses in the Bill, in that they might well reduce the potential cover that third parties have for excessive costs awards.
When local groups that we are aware of consider the possibility of entering into judicial review proceedings, they are very mindful of the risk of costs. They are not necessarily always seeking to take out protective cost orders in order to protect them from excessive costs awards. They are more often motivated by legitimate concerns over the lawfulness of decision making, rather than frustrations about the outcome. They want to see good decisions being taken and poor decisions being challenged.
Mr Walker, you specifically raised this point in your submission, in which you mentioned an ECJ case. If you do not want to go into the detail of that now, it might be helpful if you sent us the details. I share your concern that clause 56 may not cover everything that it purports to in terms of environmental cases. Can you say a little more about that?
Angus Walker: Well, just so Members are aware, the Aarhus—however you pronounce it—convention is all about public access to environmental decision making. One of its provisions is that participation in decision making cannot be prohibitively expensive and that a party launching judicial review proceedings cannot be exposed to a huge amount of the other side’s costs, which could put them off making the judicial review in the first place. As hinted at by clause 56, it seems that many of the Bill’s provisions—in fact, clauses 51 to 55—may not have any effect in relation to environmental cases, because they are all about financially disincentivising bringing claims and the whole essence of the convention is that you cannot do that. Whether or not the Bill is enacted, it may turn out later—planning cases are usually environmental ones, although not always, and some environmental cases are not planning cases—through decisions of the courts and of the ECJ that the provisions do not apply to planning cases.
On clause 50, which is the one about “highly likely”, it was mentioned in the previous session that to decide whether something is “highly likely” will in many cases involve a virtual hearing of the whole case. All it will do is bring that into an earlier part of proceedings. I am not sure whether saving any time would be the consequence of its introduction. You may not be aware that it is not just about lowering the threshold; it has removed the court’s discretion, because if it is “highly likely”, it must refuse to grant relief. There is no discretion anymore. That is an additional provision, and you might want to consider whether it should stay in there.
I have slightly changed my view on the two financial resources clauses—51 and 52—from that in my submission. Imagine that permission has just been granted for a wind farm next to a small town in the country, and the residents’ association wants to bring judicial review proceedings. It has a whip round to cover the cost of the proceedings because the residents think the decision is disgraceful. Would they raise as much money if someone pointed out that, due to these provisions, all the people handing in their money might be liable for thousands of pounds of the other side’s additional costs? I suspect that that might discourage them. Undoubtedly, that is the purpose of the clause, but perhaps its drafters were not thinking of those sorts of situations.
You are not the first witness who has tried to find some merit in part 4 but been unsuccessful. Thank you for dealing with that.
The point you made about the ECJ, which I did not quite pick up on at first, is significant. You are saying that you would perhaps anticipate satellite litigation if part 4 is enacted as currently drafted—that the caveat in clause 56 will not be sufficient to satisfy Aarhus.
Angus Walker: I think it may be insufficient on two grounds. First, it applies only to clauses 54 and 55, whereas clauses 51, 52 and 53 are also about financial disincentives. The extent of clause 56 is only to disapply those clauses, not to introduce any alternative that protects claimants from costs awards.
Mr George, would you accept, partly in relation to what you heard there, that part 4 will be a financial disincentive to prospective applicants in these cases? You might think that that is a good idea, but part 4 is not really about speeding up the process; it is about disfranchising applicants from bringing claims against developers.
Keith George: We do not wish to see people being disfranchised. The point we would develop is that, in some of the cases in which we are involved, we see a discredited argument that has been run in earlier cases being recycled. Because judges rotate, the same argument can be presented. We feel that the financial system should not support a weak case that has been dealt with previously and see the argument re-presented. We have no objection to the basic principle of the Aarhus convention—that there should be access to environmental law for all. We fully understand that, but it has to be part of a balanced system. We do not wish to see discredited arguments bouncing around, recycled, and lengthening the process.
If I understand the scenario you are painting, a challenge has been made and you have won the case, but you have to go back and get a decision again because something has moved on—perhaps in terms of planning policy. If a further challenge is made, you would have the right to attend at the permission stage and say that the matter had already been adjudicated on.
Keith George: That is correct, but to return to the point I made, unless we are leading the claim as the claimant—in 70% of the schemes we participate in, we are the first or second interested party, or even the third, sitting behind the decision maker—we have to rely on the decision maker to deal with matters. With regard to costs and other points, because we are first interested party, we are legally entitled to seek relief, but where there is a protective costs order, the local authority will inevitably have first claim if the case is determined on their basis. So it makes no difference to us financially, and we are not looking for that.
That is a fair point. But you are talking about a scenario in which on the one hand you have counsel representing, quite possibly, an impecunious applicant—whether they are legally aided or have scraped together the money from the local community—and on the other hand, you have three or four silks representing you, other parts of the development, the local authority and possibly the Department for Communities and Local Government as well. Is that not sufficient inequality of arms for you without loading the dice against the applicants?
This is a sledgehammer to crack a nut, in that case. You have the right and the means to bring before the court the idea that this is an unmeritorious claim because it has already been decided in substance or because there is not sufficient merit. The applicant has to jump through hurdles, perhaps in obtaining funding and permission and getting a lawyer to act, and you can come in at any stage and object to that. Are you really saying that the way to cure that evil is to completely change the way that judicial review works, which is what part 4 of the Bill does?
Yes. I am saying that if we assume that that is a problem and there are some opportunist or malicious applicants out there, you can deal with that in a number of ways. They have to jump through a number of hurdles. Judicial review is not an easy remedy for an applicant to bring. Why do you need the provisions in part 4 of the Bill to deal with that?
Keith George: I think our experience has been that there have been sincere claims and there have been claims that have simply bounced along for tactical reasons. We basically favour an approach that tries to take out the legally weak claim but not deny people access. There is a focal point on sifting it out and dealing with it as it goes forward.
The other point is that, because you go in with skeleton arguments and various remedies are made available with regard to strike-out applications and the like, you find that a case, when finally pleaded, bears very little relationship to the opening case. They migrate as you go through and that seems to lengthen the process. It is never, “Here is my case,” and that is the case that is determined. It will change quite radically, in our experience. I am not an expert on the financial provisions—I would have to take advice from our solicitors.
Is that not what judges are for? Is that not exactly the point that your counsel would put to the judge: that the case has migrated and those are not the arguments that were put forward at permission stage or on skeleton or what have you? It seems to me that you are saying “That might cost us money and that might cost us some time,” and it would be much better to have sufficient financial disincentives or administrative barriers to prevent those cases—whether they are good or bad cases—getting to court in the first place.
Neil Sinden: Can I come in on clause 51? We take the view that this measure is designed to intimidate groups who we think would have a legitimate case to pursue in relation to judicial review of a decision-making process. Arguably, a result of that prejudicial impact could be more unlawful and irrational decisions being taken and allowed.
We would support striking out the clause altogether on the basis that it is unfair in those terms, but it is also of concern to us—one of our local groups has raised this particular point—that it opens the door to further intimidation by developers of a community that may be considering this course of action. There is a live case at the moment where developers have been exceedingly intimidating of a local community with a legitimate case to be heard. We fear that, with clause 51, that kind of activity would be even more common and local communities would feel even more intimidated as a result of that provision.
If the deletion of clause 51 is not achievable, there is a detailed matter to look into in terms of the scope of the financial disclosure provisions, which include, currently in clause 51, those likely or able to contribute financially to a campaign. We have questions about the workability of applying that definition legally. How on earth can you identify groups or individuals who are likely or able to contribute to a campaign, but who have not yet done so? If the clause remains, I think it needs to be amended in relation to reducing the scope of that provision, so that only those people who actually have donated need to be made public. But as I say, we would prefer the clause not to be there at all.
In relation to the effect of clause 56—I guess this question is for Mr Walker, really—our explanatory notes to the Bill state:
“This clause does not require all cases which may be argued to relate to the environment to be excluded.”
I have yet to work out what that means, other than perhaps we need to wait for regulations. If you are unable to deal with that now, I would value your thoughts on it in writing. It seems the clause is designed to deal with all matters under Aarhus, rather than with all environmental cases, and therefore the note is somewhat worrying. It is at the bottom of page 64 of the explanatory notes.
Angus Walker: Perhaps this is a sort of dress rehearsal question about bringing arguments earlier in the proceedings. Is something environmental or is it not? To decide that, you have to investigate quite a lot about the case. It may be that simply claiming a case is environmental does not mean it will be covered by clause 56, until proceedings have gone a bit further and established whether it is or not. That is all I can suggest off the top of my head.
As there are no further questions, I thank the witnesses for their evidence. We have now come to the end of today’s proceedings. We will meet again on Tuesday to begin line by line consideration of the Bill.
Adjourned till Tuesday 18 March at five minutes to Nine o’clock.
Written evidence reported to the House
CJC 10 Rehman Chishti MP
CJC 11 Public and Commercial Services Union
CJC 12 Professor Clare McGlynn and Professor Erika Rackley
CJC 13 Sex and Censorship campaign
CJC 14 The Law Society
CJC 15 Rape and Sexual Abuse Support Centre
CJC 16 Asda