Following the government's announcements at the beginning of the year, we can expect a slew of announcements on planning reforms in the coming weeks, as the provisions of the proposed Planning and infrastructure Bill are fleshed out.

First up was the Prime Minister with an announcement on judicial review of nationally significant infrastructure projects (NSIPs).  Judicial review is the process by which any decision made by a public body exercising its public law functions can be challenged in the courts. 

Judicial review is relatively easy to bring but it is not so easy to win one.  However, for many infrastructure projects simply the delay or uncertainty associated with a legal challenge is fatal, even when the project has secured an approval following the intense scrutiny of the application process.  Add into the mix the delays in the British court system plus legal costs safeguards for would be challengers under the Aarhus Convention and the system currently provides a simple and cost-effective way to stall infrastructure projects.  No wonder the process is firmly in the Chancellor’s growth-focused sights.

Currently, the first step in any judicial review is to apply for permission to bring the proceedings.  This means a single high court judge will assess the merits of the application, based purely on the paperwork.  This is intented to weed out cases that have no realistic prospect of success. The court’s decision can go one of three ways: 

• granted, so the case goes to a full hearing before a High Court judge;
• refused as having no reasonable prospects of success – but the claimant is entitled to a second bite of the cherry and can request that the question of whether permission should be granted to bring the proceedings is reconsidered before a judge at an oral hearing; or
• refused on the ground that the application is totally without merit, in which case there is no right to request an oral hearing. 

However, the “weeding out” isn’t necessarily finished here.  Where a claim that has been refused as being totally without merit or refused following an oral permission hearing there is still a right of appeal to the Court of Appeal.  It is this bureaucratic and cumbersome process that the proposals seek to improve.

The proposal is that the ‘paper’ permission stage will be scrapped entirely. All permission cases will go straight to an oral hearing before a High Court judge. Where that judge concludes that the case is totally without merit, there will no longer be a right to appeal.

There seems a large amount of common sense in upholding the views of a seasoned judge that a claim is totally without merit rather than allowing such decisions to be appealed to the Court of Appeal but these proposals do raise a few issues:

• Will the Planning Court have capacity to deal with all applications at an oral hearing?  Most of the current delays are due to the time taken in both the High Court and the Court of Appeal, and this will initially place a greater burden on the system.
• For decisions where an appeal is still allowed, there should be an automatic fast track to the Court of Appeal, to make sure any changes truly serve the growth agenda.   
• It's not only NSIPs that are delayed by the judicial review system but also many schemes that are granted planning permission under the more traditional route – be they residential, industrial or office development.  While the resource implications of extending these changes to all planning permissions would be much more significant, the current proposals will do nothing to boost the supply of housing.

These recent proposals are probably the tip of an iceberg when it comes to planning reforms.  Let’s hope they can be brought in swiftly as the current system badly needs a kick start.