Government response to judicial review reforms

The Government has published its proposals for reform of judicial review following a controversial consultation launched in December 2012. Whilst the reforms are aimed at reducing the number of immigration and asylum claims, which make up the majority of all judicial review claims, the reforms will have an impact on all claims including those brought in respect of a planning decision which is the focus of this Law-Now. The reforms aim to reduce the uncertainty that can arise once a planning decision has been issued by addressing the length of time it takes to reach a decision on an application for judicial review.

The proposed reforms

• The time limit for bringing a claim in relation to a planning decision is to be shortened from 3 months to 6 weeks. In procurement cases the time limit is reduced to 30 days. The reduction in time limits will require a revision to the pre-action protocol which has not yet been approved. This brings planning decisions into line with challenges to appeal decisions and the grant of development consent orders, which are already subject to a 6-week time limit.

• Where a judge considers the application on paper and considers that it is totally without merit, there will be no right to a reconsideration of the claim at an oral hearing (also referred to as an oral renewal).

• A fee of £215 is to be introduced for an oral renewal. This fee is set at the same level as the fee for a substantive hearing for judicial review. The oral renewal fee will be waived if permission is granted to proceed at the oral renewal so that the applicant does not pay two hearing fees. The level of the fees may be changed when the Government publishes its response to the consultation exercise carried out in November 2011 on raising fees for judicial review cases.

What the reforms do not do

• The Government has not clarified when the time limit starts to run where the grounds giving rise to the claim are the result of an ongoing breach; relate to a delay in making a decision or taking action; or relate to a case where there have been multiple points at which decisions have been made. The Government has given no indication whether it proposes to address this issue at some point in the future.

• As a result of the consultation responses received, the Government has decided to retain the right to an oral renewal where permission is refused on paper and substantially the same matter has been considered at a prior judicial hearing. The Government has acknowledged in the response to the consultation that there are difficulties defining what is meant by "substantially the same matter" and a "prior judicial hearing".

The proposed reforms may focus the mind of some parties considering a claim for judicial review in the arena of planning decisions. They are intended either to discourage or filter out entirely a number of the weaker cases currently working their way through the Administrative Court. This is to be welcomed if the proposals lead to a noticeable reduction in the time it takes to issue a decision on whether or a not a claim will be allowed to proceed. However, whether this is the effect of the reforms in practice remains to be seen.