Planning Related Applications for Judicial Review


RN 2013/1, Jun 2013


This is one of a series of occasional IHBC Research Notes published by The Institute of Historic Building Conservation (IHBC).
IHBC Research Notes offer current and recent research into topics that we consider crucial to the promotion of good built and historic environment conservation policy and practice. The Notes necessarily reflect knowledge and practice at the time they were developed, while the IHBC always welcomes new case examples, feedback and comment to
research@ihbc.org.uk for future revisions and updates.


Executive Summary

1. This Research Note looks at the role and uptake of Judicial Review (JR) applications in relation planning and any potential trends.

2. The Prime Minister indicated at the CBI in late 2011 that applications for judicial review on planning or infrastructure proposals were a ‘growth industry’; an impediment to economic recovery and that many applications were ‘hopeless’ and that it should be more expensive and difficult to apply for one. Overall there were 11,200 JR cases of all categories in 2011.

3. Frank Dobson MP (Lab) subsequently obtained more detailed figures from the Ministry of Justice about judicial reviews related to planning or infrastructure proposals in each year since 1998; how many applications were allowed to proceed to a hearing and how many were granted in a written answer to a parliamentary question on 26 November. These figures appear not to have found a wide audience.

4. The figures since 1998 relating to the category of ‘other’ cases (i.e. other than immigration/asylum and criminal cases) relating to planning were:

1998

1999

2000

2001

2002

2003

2004

112

116

121

142

119

122

119

2005

2006

2007

2008

2009

2010

2011

140

142

151

184

165

148

191

5. The number of planning cases is trivial, representing only about 7% or 8% (9% at most, in some years). As a proportion of all JR applications, planning-related JR applications account for less than 2% of the overall total.

6. No clear conclusions can be drawn about any upward trend in the number of applications as these have fluctuated over 14 years, for example.

2002

(down 16% on 2001)

2004

(down 2% on 2003, & still down 2% on 2001)

2009

(down 10% on 2008)

2010

(down 10% on 2009, & down 20% on 2008)

7. Although the 191 planning-related JR applications in 2011 appear to represent a sharp increase over 2010, the figures for 2012 might again be lower. Nevertheless, overall the numbers are still very small.

8. In relation to an alleged increase rise in ‘hopeless’ JR applications, those which were allowed to proceed were:

1998

1999

2000

2001

2002

2003

2004

– 51

– 56

– 68

– 63

– 47

– 54

– 49

(= 46%)

(= 48%)

(= 56%)

(= 44%)

(= 39%)

(= 44%)

(= 41%)

2005

2006

2007

2008

2009

2010

2011

– 44

– 50

– 51

– 67

– 64

– 46

– 61

(= 31%)

(= 35%)

(= 34%)

(= 36%)

(= 39%)

(= 31%)

(= 32%)

(the figure in brackets is the percentage of total planning-related JR cases per year).

9. In most years, at least a third of planning-related JR applications were given permission to proceed, a much higher proportion than the average for other types. No trends about allegedly ‘hopeless’ cases frustrating development proposals are evident (and there is an already effective vetting process to reject unarguable cases).

10. The success rate of cases, ie where planning-related JR applications were granted, were as follows:

1998

1999

2000

2001

2002

2003

2004

– 10

– 19

– 29

– 17

– 12

– 11

– 10

(= 20%)

(= 34%)

(= 43%)

(= 27%)

(= 26%)

(= 20%)

(= 20%)

2005

2006

2007

2008

2009

2010

2011

– 11

– 7

– 17

– 14

– 15

– 17

– 6

(= 25%)

(= 14%)

(= 33%)

(= 21%)

(= 23%)

(= 37%)

(= 10%)

(the figure in brackets is the percentage success rate, compared with the number of cases given permission for a substantive hearing)

11. Again, no discernible trend is evident and each case must have been arguable or it would not have been given permission to proceed.

12. One final point is that the Prime Minister considers it should be made more expensive to apply for judicial review, however this could be in breach of Aarhus Convention [1] and it was precisely in order to ensure compliance with the Convention that the Ministry of Justice put forward proposals to limit the costs in environment-related judicial review cases.

Bob Kindred MBE, BA, MRTPI, IHBC


Endnote

1. The Aarhus Convention is a multilateral environmental agreement which came into force on 30 October 2001 through which the opportunities for citizens to access environmental information are increased and transparent and reliable regulation procedure is secured.


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