Judicial review under the Planning Act 2008

Journal of Planning and Environment Law

Volumn , Issue 4, 2009, Pages 446-451

  Maurici, James ^a  

^a Landmark Chambers ^*  (United Kingdom)

Author keywords

Judicial review; Major infrastructure projects; Planning permission; Planning policy statements

Indexed keywords

DECISION MAKING; ENVIRONMENTAL PLANNING; INFRASTRUCTURE PLANNING; LEGISLATION; POLICY DEVELOPMENT; PROJECT MANAGEMENT;

EID: 63649159157     PISSN: 03074870     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (32)

1. Nationally significant infrastructure projects are defined as consisting of: (a) the construction or extension of a generating station; (b) the installation of an electric line above ground; (c) development relating to underground gas storage facilities; (d) the construction or alteration of an LNG facility; (e) the construction or alteration of a gas reception facility; (f) the construction of pipe-lines; (g) highway-related development; (h) airport related development; (i) the construction or alteration of harbour facilities; (j) the construction or alteration of a railway; (k) the construction or alteration of a rail freight interchange; (1) the construction or alteration of a dam or reservoir; (m) development relating to the transfer of water resources; (n) the construction or alteration of a waste water treatment plant; and (o) the construction or alteration of a hazardous waste facility: see s.14 of the Planning Act. The Secretary of State may also make an order which amends the categories of nationally important infrastructure projects (see s.14(5)) subject to s.14(6) which provides that new types of project may only be added if they are in the fields of energy, transport, water, waste water or waste.
2. Planning Act 2008 s.6 requires that NPSs be kept under review by the Government.
3. The explanatory notes at para.4 provide: "A major role in the new system is to be played by a new independent body to be called the Infrastructure Planning Commission (the Commission). The Commission will be responsible for examining applications for development consent for nationally significant infrastructure projects. The Commission will also be responsible for deciding any such application when there is in force a relevant national policy statement...."
4. Planning Act 2008 s. 104 provides: "(3) The Panel or Council must decide the application in accordance with any relevant national policy statement, except to the extent that one or more of subsections (4) to (8) applies. (7) This subsection applies if the Panel or Council is satisfied that the adverse impact of the proposed development would outweigh its benefits".;
5. Planning Act 2008 ss.31 and 32 require that "development consent" be obtained for any development to the extent that it is or forms part of a nationally significant infrastructure project. Development consent is to be obtained via the procedure outlined in the Planning Act. The requirement for development consent under the new provisions obviates the need to obtain planning permission, listed building consent and a range of other consents listed in s.33. The IPC will give its development consent in the form of an order which may also confer other rights on developers such as the compulsory acquisition of land.
6. Planning Act Sch.1 and Pt 6.
7. And indeed s.113 of the Planning and Compulsory Purchase Act 2004 Act.
8. R. (on the application of Burkett) v Hammersmith and Fulham LBC (No. 1) [2002] UKHL 23; [2002] 1 W.L.R. 1593; [2002] 3 All E.R. 97.
9. Of course, the six-week "rule" has had something of a revival more generally: see Finn-Kelcey v Milton Keynes BC [2008] EWCA Civ 1067; [2008] 41 E.G. 157 (CS.); [2008] N.P.C. 108.
10. Bovale Ltd v Secretary of State for the Communities ana Local Government [2008] EWHC 2143 (Admin).
11. An application before it is made requires compliance with various procedural requirements including consultation by the applicant of affected persons.
12. It is assumed a decision to accept an application is to be challenged by awaiting the grant of development consent and then challenging that under s.118-but see below.
13. R. (on the application of Edwards) v Environment Agency (No. 1) [2004] EWHC 736 (Admin); [2004] 3 All E.R. 21; [2004] Env. L.R. 43. In Edwards judicial review was sought of a decision to grant a permit to allow the continued operation for a cement plant. The claim was brought in the name of a Mr Edwards who had taken no part in the extensive public campaign against the granting ofthat permit. Indeed he had not objected at all to the proposal or shown any interest in it. The "leading light" of that campaign was a Mrs Pallikaropolous. She was reported (in the press) as saying after the decision to grant the permit: "I'm too rich [to get legal aid], because I own my own house, so someone in Rugby has to come forward who feels strongly enough to take the case forward under the legal aid scheme." Another report noted that Mn Pallikaropoulos had asked anyone who may be able to help to contact her on a telephone number which was then given. Keith J. said that in these circumstances it was "difficult to resist the inference that Mr Edwards has been put up as a claimant in order to secure public funding of the claim by the Legal Services Commission ... when those who are the moving force behind the claim believe that public funding for the claim would not otherwise have been available".
14. However, Keith J. held that, despite there being case law outside the planning context (R. (on the application of WB) v Leeds School Organisation Committee [2002] EWHC 1927 (Admin); [2003] E.L.R. 67;
15. A.C.D. 5 and R. v Richmond LBC Appeal Committee Ex p. JC (A Child) [2001] E.L.R. 21 at 31 CA (Civ Div) to suggest that such an arrangement was as an abuse of process, it was for the Legal Services Commission (the LSC), not the court, to exercise control by considering whether on the facts it was appropriate for funding to be granted. The approach of the LSC to such cases appears not to be to refuse funding altogether but to seek a contribution from others who may benefit from the outcome of the litigation. This is rarely a problem. Objectors are often very happy to contribute so long as they are not exposed to the risks of the costs of the other side [2003].
16. R. (on the application of Compton) v Wiltshire Primary Care Tryst [2008] EWCA Civ 749; [2008] C.P. Rep. 36; [2008] A.C.D. 68.
17. R. (on the application of Buglife: Vie Invertebrate Conservation Trust) v Thurrock Thames Gateway Development Corp [2008] EWCA Civ 1209; [2008] 45 E.G. 101 (CS.); (2008) 152(43) S.J.L.B. 29.
18. R. (on the application of Midway Council) v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 2516 (Admin); [2003] J.P.L. 583; [2002] 49 E.G. 123 (C.S.).
19. R. (on the application of Wandsworth LBC) v Secretary of State for Transport [2005] EWHC 20 (Admin); [2006] 1 E.G.L.R. 91; [2005] 8 E.G. 191 (CS.).
20. R. (on the application of Greenpeace Ltd v Secretary ofStatefor Trade and Industry [2007] EWHC 311 (Admin); [2007] Env. L.R. 29; [2007] J.P.L. 1314.
21. Seaport Investments Lid's Application for Judicial Review, Re [2007] NIQB 62; [2008] Env. L.R. 23.
22. Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (C-6/04) [2005] E.C.R. 1-9017; [2006] Env. L.R. 29.
23. R. (on the application of Holding & Barnes Pic) v Secretary of State for the Environment, Transport and the Regions (Alconbury) [2001] UKHL 23; [2003] 2 A.C. 295; [2001] 2 W.L.R. 1389.
24. See R. (on the application of Vetteriein) v Hampshire CC [2001] EWHC Admin 560; [2002] Env. L.R. 8; [2002] 1 P. & C.R. 31,
25. R. (on the application of Adlard) v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 735; [2002] 1 W.L.R. 2515; [2002] H.R.L.R. 37
26. and Zumtobel v Austria (A/268-A) (1994) 17 E.H.R.R. 116 ECtHR.
27. Alconbury [2003] 2 A.C. 295 at [69]-[73] per Lord Hoffmann.
28. Alconbury [2003] 2 A.C. 295 at [60] per Lord Nolan.
29. Burkett [2002] UKHL 23.
30. A similar problem has arisen in the context of ad hoc public inquiries such as the Saville Inquiry. This was disrupted by three separate judicial review decisions of procedural decisions by the inquiry panel at great cost and delay. The response in the Inquiries Act 2005 is contained in s.38 which provides that judicial review challenges to decisions of ministers or inquiry panel members "must be brought within 14 days after the day on which the applicant became aware of the decision, unless that time limit is extended by the court".
31. The Secretary of State may intervene if she is satisfied that the condition set out in s,109(2) of the Planning Act is met. There must have been a significant change in the circumstances on the basis of which the policy in a relevant NPS was decided. This change must not have been anticipated at that time and if it had been anticipated it would have meant that the policy would have been materially different, which would be likely to have had a material effect on the IPC's decision on the application. There must be an urgent need in the national interest for the application to be decided before the national policy statement can be reviewed. When deciding whether that condition is met, the Secretary of State must have regard to the views of the IPC. The Secretary of State may also intervene if she is satisfied that the requirements of s.110 are met. She must be satisfied that intervention would be in the interests of defence or national security. Section 111 allows the Secretary of State by order to provide for intervention in other circumstances.
32. Dyason v Secretory ofStatefor Ike Environment, Transport and the Regions (No. 1) (1998) 75 P. Se CR. 506 CA (Civ Div).