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A number of changes that are relevant to the real estate world come into force today, 1st July 2013. The 63rd update to the court’s Civil Procedure Rules amends parts 52 and 54 of the rules that relate to the Judicial Review of planning decisions.
Most significantly, Part 54 has been amended so that all applications for judicial review of decisions made under the Planning Acts must now be commenced within 6 weeks of the decision that is being challenged.
Historically the rule has been that judicial review challenges should be made “promptly” and in any event within 3 months of the relevant decision. This has caused much uncertainty as to what exactly “promptly” means. In addition, the intervention of the European courts has meant that the specific 3 month period has been preferred for some time in cases with a European element as European courts consider “promptly” to fail for uncertainty. This has led to a two tier system with different time limits. The introduction of a specific timescale is therefore welcome. It has the added advantage of bringing the time for judicial review of planning decisions in line with the time for statutory challenges of planning decisions by the Secretary of State or the Planning Inspectorate and of Development Consent Orders.
Part 52 has been amended so that where the Court refuses permission to proceed to a full judicial review, having concluded that the application is “totally without merit”, the challenging party may not request an oral reconsideration of the decision as is currently the case. Instead, an appeal to the Court of Appeal will only be available on paper and not by way of oral submission.
The fees for applying for an oral renewal of claims previously refused on papers have been increased to £215 from £60. Although percentage-wise this is a significant increase, in total terms this is likely to do nothing to deter challenges.
Consequential amendments have also been made to the Pre-Action Protocol on Judicial Review providing that there will be no costs penalties if there is insufficient time to comply with the Pre-Action Protocol because of this new shorter time limit.
The reforms are welcome in that they shorten the period for challenge and add certainty. For developers waiting out the judicial review period it will certainly be welcomed; however there is a risk that the number of judicial reviews will increase by virtue of the requirement to act within a shorter period combined with the limited application of the Pre-Action Protocol which will lessen the risk of costs penalties for non-compliance. This, when added to the cost capping introduced by the costs reforms of 1 April 2013, may well encourage challenges. Under the costs reforms, the costs recoverable from a losing challenger are capped at £5,000 as an individual and £10,000 in all other circumstances where the claim has environmental elements.
The changes only apply to decisions made after 1 July 2013.
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