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Continuity Or Change?
Prospects for judicial review under the planning white paper
Date : 10/01/2023
Para. 1.6 of the Ministry of Housing, Communities and Local Government s Planning for the Future White Paper1 ( the White Paper ) states that vision has been buried under layers of legislation and case law. We need to rediscover it. This sentiment is reiterated at para. 1.16, which promises to replace the entire corpus of plan-making law in England . This stated government aim and the Independent Review on Administrative Law (IRAL) (the consultation period for which has now passed) present uncertainty for the role of judicial review within the planning system.
It is possible to dismiss the statements in the White Paper as hyperbole. For the purposes of this article, the statements are taken at face value. I also do not intend to take a stance on the acceptability of the proposals within the land use planning system. Nevertheless, I consider that the two statements can provide insight into how the proposed reforms impact those areas of planning law and plan-making law that are derived from the common law system of precedent and customs. As the consideration of consultation responses on the White Paper continues, the IRAL is currently also considering, in the words of the Ministry of Justice, whether judicial review strikes the right balance between enabling citizens to challenge the lawfulness of government action and allowing the executive and local authorities to carry on the business of government .2 Taken together, the statements from both consultative government documents represent an undermining of the function of judicial review in planning and plan-making law. I would suggest that if the government wishes to create a more efficient and effective planning system it should do so not by tear[ing] it down and starting again , as the White Paper states (on p.6) is necessary, but by building upon almost two centuries of planning legal precedent which provide insight and guidance into how the existing system can be improved. The White Paper Para. 1.6 of the White Paper states that the proposed reforms are an attempt to rediscover the original mission and purpose of those who sought to improve our homes and streets in late Victorian and early 20th century Britain . This era was, in fact, a period of rapid legislative growth and significant planning litigation. Between 1847 and 1947, no less than 16 pieces of legislation with a direct impact on planning were passed by Parliament. The litigation interpreting these pieces of legislation constitutes the tables of cases of numerous texts on planning law.3 This growth in litigation and legislation does not represent the obfuscation of an original vision rather it represents the development of a body of thought that in itself constitutes the state s developing approach to the improvement of our homes and streets. Taken in this context, it is clear that rather than replac[ing] the entire corpus of plan-making law (the White Paper, para. 1.16), reform could be better achieved through examining how plan-making law originally developed and then building upon that foundation. Plan-making law grew out of a combination of housing and public health law, along with an increasing enfranchisement of local authority in the early 20th century.4 This indicates that a preferable way to reform the law around plan-making is one that is more in keeping with the legal system in the UK, which is based on the common law system of precedent. For example, the 1947 Town and Country Planning Act consolidated the previously existing Town Planning Acts in order to shepherd in a new plan-making system which, crucially, built upon the old. The Minister for Town and Country Planning at the time, Lewis Silkin, recognised that this necessitated a long, technical and complex bill.5 FHowever, fortunately, the job of interpreting a complex system s operation in specific instances can ould be undertaken by the judiciary through judicial review. The importance of this judicial function in planning is demonstrated by the fact that a separate system of judicial review developed specifically for planning matters, which and is currently enshrined in Section 288 of the 1990 Town and Country Planning Act, in conjunction with the wider powers under the Civil Procedure Rules. The operation of the judicial interpretive function is undertaken on the basis of precedent and customs. If the entire corpus of plan-making law is replaced and the wider planning system is torn down, the judiciary will be unable to rely on the customs and precedents that make up planning law under the current system. As regards planning in particular, the common law system of judge-made law through judicial review has improved and refined planning as an activity in the UK. For example, the limits of how far a local authority can stretch the interpretation of the words in a Local Plan is now better understood as a result of the Tesco Stores Ltd v Dundee City Council case.6 Similarly, whether planning permission can extinguish private rights to quiet enjoyment of land was considered in Coventry v Lawrence.7 Throughout the development of planning law, the judiciary has remained aware of the limits of their jurisdiction. For example, the principle that the court will not involve itself in planning judgement is now well established and can be seen in operation in cases such as Suffolk Coastal DC v Hopkins Homes Ltd.8 If this already properly limited jurisdiction is curtailed, it will have the exact opposite effect of simplifying planning practice and law. As Silkin recognised, reaching planning decisions is a necessarily complex and technical process. A practical alternative to achieving reform is unclear. It is not clear how, or who, would rediscover the vision that has been buried underneath layers of legislation and case law if the entire corpus of planning law is replaced. This leaves an invidious position for the role of the judiciary at a time when the function of judicial review in the field of planning is being called into question. The Independent Review of Administrative Law If the entire corpus of plan-making law is to be replaced, it will start to be replaced through legislation, and the terms of new legislation are likely to be brought into effect by local authorities, the Planning Inspectorate, and other bodies that may be empowered through the terms of the statute. Oversight of these processes will be provided by the judiciary through judicial review. However, the courts ability to ensure that planning decisions are undertaken in a manner that is legal and procedurally sound could be limited by the recommendations of the IRAL. Consultation closed for the IRAL on 26 October 2020, and it is currently not known what recommendations for the reform of judicial review the IRAL is likely to make. However, the fact that the review is being conducted at all indicates that the government wishes to call into question judicial function in areas of public law such as planning. Furthermore, that the government seeks to limit, rather than extend the powers of judges to review public decisions is evident from the Terms of Reference of the IRAL. These include proposals to codify the judicial review powers in statute, to limit the areas of public function that are justiciable, and to limit disclosure, time limits and the award of costs.9 However, as with proposals for reform in the White Paper, the IRAL should seek to maintain and recognise the importance of judicial review s current purview. This is because the judicial review process, although sometimes costly and lengthy, is vital in developing the wider planning community s understanding of both planning legislation and practice. The case of DLA Delivery v Baroness Cumberlege of Newick10 affirms that, as with judicial decisions, planning decisions should follow previous decisions or provide reasons for divergence. This affirmation of an unarguably sound principle demonstrates the influence that judicial review has had on planning practice, as it advocates using the common law system of precedent in the context of day-to-day planning decisions. Similarly, Dover District Council v CPRE11 drew together and clarified the statutory sources that require a local authority to give proper reasons for reaching its decision, which in itself represented a major shift in planning practice. A robust system of judicial review and legal challenge is therefore necessary to ensure that such decisions are taken properly and in order to clarify the interpretation of governing legislation. Conclusion Both the stated aims in the White Paper and the IRAL present uncertainty for the role of law in planning and plan-making. However, there will always be a need for the interpretive assistance that judicial oversight provides. That is not to say that the planning system and planning law cannot be made simpler. Instead, they should be simplified and improved through an explicit recognition of the positives of the existing system, to illuminate the aims of the new proposals. Similarly, the role of the judiciary in ushering in a new system should not be curtailed. Judges specialise in the interpretation of legislation and in clarifying complex areas of law such as planning. They therefore have an important role to play in interpreting the vision that the White Paper seeks to rediscover . Notes1 Planning for the Future. White Paper. Ministry of Housing, Communities and Local Government, Aug. 2020. www.gov.uk/government/consultations/planning-for-the-future2 Call for Evidence. Independent Review of Administrative Law. Ministry of Justice, Sept. 2020. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/915905/IRAL-call-for-evidence.pdf3 See, for example, M Grant: Urban Planning Law. Sweet Maxwell, 1982 and A Bowes: A Practical Approach to Planning Law. Oxford University Press, 20194 D Heap: An Outline of Planning Law. Sweet Maxwell, 1963, p.55 Hansard. HC Deb. 29 Jan. 1947, Vol.432, col. 949. https://api.parliament.uk/historic-hansard/commons/1947/jan/29/town-and-country-planning-bill6 Tesco Stores Ltd v Dundee City Council (Scotland) [2012] UKSC 137 Coventry Ors v Lawrence Anor [2014] UKSC 138 Suffolk Coastal District Council v Hopkins Homes Anor Anor [2017] UKSC 379 Terms of Reference Independent Review of Administrative Law. Ministry of Justice, Jul. 2020. p.1. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/915624/independent-review-admin-law-terms-of-reference.pdf10 DLA Delivery Ltd v Baroness Cumberlege of Newick [2018] EWCA Civ 130511 Dover District Council v CPRE [2017] UKSC 79
It is possible to dismiss the statements in the White Paper as hyperbole. For the purposes of this article, the statements are taken at face value. I also do not intend to take a stance on the acceptability of the proposals within the land use planning system. Nevertheless, I consider that the two statements can provide insight into how the proposed reforms impact those areas of planning law and plan-making law that are derived from the common law system of precedent and customs. As the consideration of consultation responses on the White Paper continues, the IRAL is currently also considering, in the words of the Ministry of Justice, whether judicial review strikes the right balance between enabling citizens to challenge the lawfulness of government action and allowing the executive and local authorities to carry on the business of government .2 Taken together, the statements from both consultative government documents represent an undermining of the function of judicial review in planning and plan-making law. I would suggest that if the government wishes to create a more efficient and effective planning system it should do so not by tear[ing] it down and starting again , as the White Paper states (on p.6) is necessary, but by building upon almost two centuries of planning legal precedent which provide insight and guidance into how the existing system can be improved. The White Paper Para. 1.6 of the White Paper states that the proposed reforms are an attempt to rediscover the original mission and purpose of those who sought to improve our homes and streets in late Victorian and early 20th century Britain . This era was, in fact, a period of rapid legislative growth and significant planning litigation. Between 1847 and 1947, no less than 16 pieces of legislation with a direct impact on planning were passed by Parliament. The litigation interpreting these pieces of legislation constitutes the tables of cases of numerous texts on planning law.3 This growth in litigation and legislation does not represent the obfuscation of an original vision rather it represents the development of a body of thought that in itself constitutes the state s developing approach to the improvement of our homes and streets. Taken in this context, it is clear that rather than replac[ing] the entire corpus of plan-making law (the White Paper, para. 1.16), reform could be better achieved through examining how plan-making law originally developed and then building upon that foundation. Plan-making law grew out of a combination of housing and public health law, along with an increasing enfranchisement of local authority in the early 20th century.4 This indicates that a preferable way to reform the law around plan-making is one that is more in keeping with the legal system in the UK, which is based on the common law system of precedent. For example, the 1947 Town and Country Planning Act consolidated the previously existing Town Planning Acts in order to shepherd in a new plan-making system which, crucially, built upon the old. The Minister for Town and Country Planning at the time, Lewis Silkin, recognised that this necessitated a long, technical and complex bill.5 FHowever, fortunately, the job of interpreting a complex system s operation in specific instances can ould be undertaken by the judiciary through judicial review. The importance of this judicial function in planning is demonstrated by the fact that a separate system of judicial review developed specifically for planning matters, which and is currently enshrined in Section 288 of the 1990 Town and Country Planning Act, in conjunction with the wider powers under the Civil Procedure Rules. The operation of the judicial interpretive function is undertaken on the basis of precedent and customs. If the entire corpus of plan-making law is replaced and the wider planning system is torn down, the judiciary will be unable to rely on the customs and precedents that make up planning law under the current system. As regards planning in particular, the common law system of judge-made law through judicial review has improved and refined planning as an activity in the UK. For example, the limits of how far a local authority can stretch the interpretation of the words in a Local Plan is now better understood as a result of the Tesco Stores Ltd v Dundee City Council case.6 Similarly, whether planning permission can extinguish private rights to quiet enjoyment of land was considered in Coventry v Lawrence.7 Throughout the development of planning law, the judiciary has remained aware of the limits of their jurisdiction. For example, the principle that the court will not involve itself in planning judgement is now well established and can be seen in operation in cases such as Suffolk Coastal DC v Hopkins Homes Ltd.8 If this already properly limited jurisdiction is curtailed, it will have the exact opposite effect of simplifying planning practice and law. As Silkin recognised, reaching planning decisions is a necessarily complex and technical process. A practical alternative to achieving reform is unclear. It is not clear how, or who, would rediscover the vision that has been buried underneath layers of legislation and case law if the entire corpus of planning law is replaced. This leaves an invidious position for the role of the judiciary at a time when the function of judicial review in the field of planning is being called into question. The Independent Review of Administrative Law If the entire corpus of plan-making law is to be replaced, it will start to be replaced through legislation, and the terms of new legislation are likely to be brought into effect by local authorities, the Planning Inspectorate, and other bodies that may be empowered through the terms of the statute. Oversight of these processes will be provided by the judiciary through judicial review. However, the courts ability to ensure that planning decisions are undertaken in a manner that is legal and procedurally sound could be limited by the recommendations of the IRAL. Consultation closed for the IRAL on 26 October 2020, and it is currently not known what recommendations for the reform of judicial review the IRAL is likely to make. However, the fact that the review is being conducted at all indicates that the government wishes to call into question judicial function in areas of public law such as planning. Furthermore, that the government seeks to limit, rather than extend the powers of judges to review public decisions is evident from the Terms of Reference of the IRAL. These include proposals to codify the judicial review powers in statute, to limit the areas of public function that are justiciable, and to limit disclosure, time limits and the award of costs.9 However, as with proposals for reform in the White Paper, the IRAL should seek to maintain and recognise the importance of judicial review s current purview. This is because the judicial review process, although sometimes costly and lengthy, is vital in developing the wider planning community s understanding of both planning legislation and practice. The case of DLA Delivery v Baroness Cumberlege of Newick10 affirms that, as with judicial decisions, planning decisions should follow previous decisions or provide reasons for divergence. This affirmation of an unarguably sound principle demonstrates the influence that judicial review has had on planning practice, as it advocates using the common law system of precedent in the context of day-to-day planning decisions. Similarly, Dover District Council v CPRE11 drew together and clarified the statutory sources that require a local authority to give proper reasons for reaching its decision, which in itself represented a major shift in planning practice. A robust system of judicial review and legal challenge is therefore necessary to ensure that such decisions are taken properly and in order to clarify the interpretation of governing legislation. Conclusion Both the stated aims in the White Paper and the IRAL present uncertainty for the role of law in planning and plan-making. However, there will always be a need for the interpretive assistance that judicial oversight provides. That is not to say that the planning system and planning law cannot be made simpler. Instead, they should be simplified and improved through an explicit recognition of the positives of the existing system, to illuminate the aims of the new proposals. Similarly, the role of the judiciary in ushering in a new system should not be curtailed. Judges specialise in the interpretation of legislation and in clarifying complex areas of law such as planning. They therefore have an important role to play in interpreting the vision that the White Paper seeks to rediscover . Notes1 Planning for the Future. White Paper. Ministry of Housing, Communities and Local Government, Aug. 2020. www.gov.uk/government/consultations/planning-for-the-future2 Call for Evidence. Independent Review of Administrative Law. Ministry of Justice, Sept. 2020. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/915905/IRAL-call-for-evidence.pdf3 See, for example, M Grant: Urban Planning Law. Sweet Maxwell, 1982 and A Bowes: A Practical Approach to Planning Law. Oxford University Press, 20194 D Heap: An Outline of Planning Law. Sweet Maxwell, 1963, p.55 Hansard. HC Deb. 29 Jan. 1947, Vol.432, col. 949. https://api.parliament.uk/historic-hansard/commons/1947/jan/29/town-and-country-planning-bill6 Tesco Stores Ltd v Dundee City Council (Scotland) [2012] UKSC 137 Coventry Ors v Lawrence Anor [2014] UKSC 138 Suffolk Coastal District Council v Hopkins Homes Anor Anor [2017] UKSC 379 Terms of Reference Independent Review of Administrative Law. Ministry of Justice, Jul. 2020. p.1. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/915624/independent-review-admin-law-terms-of-reference.pdf10 DLA Delivery Ltd v Baroness Cumberlege of Newick [2018] EWCA Civ 130511 Dover District Council v CPRE [2017] UKSC 79
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