Liz Fisher: The Proposal for a New Specialist Planning Chamber and the Framing of Administrative Law

fishereOne of proposals in the Ministry of Justice’s paper on Judicial Review: Proposals for Further Reform is the creation of a new specialist planning chamber as part of the Upper Tribunal. While planning tends to be thought of as a niche area of public law (and a technically dense one at that) the way in which the paper frames discussion should give public lawyers pause for thought. This is particularly when planning judicial reviews have often been cited by government representatives as examples of why reform is needed to judicial review. The Further Reforms paper is no exception – the only two ‘case studies’ (albeit no case names) given in the paper are of judicial review of planning decisions (p 5 and 6).

The starting point in the proposal for the creation of a specialist planning chamber of the Upper Tribunal is the assumption that there is a general delay in cases being heard (p15). It is also noted that a factor leading to further delay is that judicial reviews in planning cases are not always heard by judges with expertise in the area thus lengthening the time cases take to be considered (p16). These are issues that have already been subject to some judicial development, the most recent in July 2013 when a Planning Fast Track was created which allows for the early identification of planning cases as well as the assigning of planning cases to judges who have expertise in the area (p16-7). That reform is still in its very early days, but the Ministry of Justice feels further reform is needed in the form of transferring both statutory challenges and judicial reviews to a specialist chamber of the Upper Tribunal which would have ‘specialist planning judges deployed to it’ (p 18) The Ministry argues that ‘the Government’s view is that this is likely to deliver greater benefit still’ (p18). The paper suggests that rather than creating a new Planning Chamber the Lands Chamber would be renamed the Lands and Planning Chamber (p 18).

I have no deep objection to the idea of a specialist planning tribunal or court. Specialist planning and environmental courts that carry out judicial and merits review are a successful feature of many common law jurisdictions. The NSW Land and Environment Court is the best example of such a judicial institution and it has developed a complex body of substantive and procedural doctrine in the planning context. There has also been a long debate in the UK about the merits of having a specialist environmental court here (see this virtual collection of essays on the topic). Much of the debate has focused on a judicial body to consider appeals under environmental legislation and in 2010 a First Tier (Environment) Tribunal was created. Macrory in a recent article has described the creation of that Tribunal as a product of ‘unexpected alignments’ and the development of a specialist planning chamber could be seen in the same light.

Indeed from one perspective the Ministry of Justice’s proposal could be understood as a catalyst for productive debate about a specialist planning chamber. This is particularly when the lack of substantive detail in the paper gives it a tentative feel and the second question for consultation on the specialist chamber proposal concerns ‘what procedural requirements might deliver the best approach’ in such a tribunal (p18). But as Jasanoff has put it so pithily ‘if a problem is framed too narrowly, too broadly, or wrongly the solution will suffer from the same defects’ (Sheila Jasanoff, Science and Public Reason (Earthscan 2012) 179).

And here the ‘problem’ is framed in a very narrow way. As noted above, the driving logic of this proposal is to do with reducing delay caused by judicial review actions, which is cited as hindering economic growth and adversely impacting upon both taxpayers and developers (p6-7). Even the role of expert judges is promoted in terms of reducing delay (p16 and p18). Overall, the Ministry of Justice states that these reforms will ‘reassure developers (both national and international) that any challenges are resolved quickly’ (p18). The consultation also asks whether respondents have ‘any examples/evidence of the impact that judicial review, or statutory challenges of government decisions, have on development, including infrastructure?’ (p18).

The problem with this focus is that planning law and judicial review are not just about making decisions as quickly as possible. Planning is a polycentric activity concerned with finding an acceptable use of land in circumstances where there is a range of different interests within interlocking communities. The technical nature of planning law, its heavy reliance on policy, the important democratic role for central and local government, and the significant role for dispute resolution all reflect that fact. Likewise, there is no discussion in the paper about the nature of judicial review as a check on power beyond a statement that the ‘Government will ensure that judicial review continues to retain its crucial role’ (p 5). That ‘crucial role’ is never discussed. The whole paper creates a dichotomy that is summed up in the Foreword: ‘We need dynamism and growth, not delay and expense’. It would seem that judicial review of planning decisions is being ascribed to the latter category and this impression is reinforced by the focus on the speed at which cases are processed rather than the substantive legal issues raised in planning challenges (p 17).

Following on from that, what experiences in other jurisdictions and the UK debate have highlighted is any specialist planning court or tribunal is a legally complex judicial institution that requires careful crafting and gives rise to a range of legal issues. In a recent paper, the highly respected Chief Justice Brian Preston of the New South Wales Land and Environment Court listed what he saw as  the ‘characteristic features’ of a successful specialist environmental and planning court. These include: the necessary status and authority; independence and impartiality; a comprehensive and centralised jurisdiction; knowledgeable and competent judges; a multi-door courthouse; access to scientific and technical expertise; that it facilitates access to justice; that it is responsive to environmental problems; that it develops its own jurisprudence; that it has an underlying ethos; that it is flexible and innovative; and that it achieves just, quick and cheap resolution of disputes.

Now I recognise that the Ministry of Justice’s proposal for a specialist planning chamber is not the same thing as a specialist environmental court but Preston’s list makes clear that the success of any adjudicative body in this area of operation is dependent on the consideration of a multitude of factors. Speed of resolution is relevant but it is not the only issue. It is also the case that any of the issues in Preston’s list require careful consideration. For example, the experience in other jurisdictions show that issues to do with the nature of expert judges is by no means straightforward – raising as they do questions about how to foster both legal expertise and expertise in the types of problems that planning relates to.

Moreover there is no discussion by the Ministry of Justice of the legal implications of such a proposal. Again, the experience in other jurisdictions is that the development of a specialist adjudicative body must be closely interrelated with the development of substantive law in that specialist area as well as the overall judicial structure. The feel of this proposal is that such a chamber is simply a further development of the fast track procedure (p 17).  For example, there is no mention of how this jurisdiction fits in with the wider logic of the Tribunal structure and the Planning Inspectorate structure. This is particularly significant when the type of cases that are being proposed to be transferred to it include a range of cases from a range of legal sources. Thus it includes statutory challenges under different legislative schemes, challenges from an appeal structure outside the existing Tribunal structure (the Planning Inspectorate), and common law judicial review actions that are often being brought by third party objectors as this is their only legal means of challenging a decision. As footnote 24 makes clear this will require a mixture of legislative and procedural reform. The tribunal structure as created by the Tribunals, Courts and Enforcement Act 2007 is a flexible one and the ‘judicial review’ jurisdiction has broad scope but it is still a jurisdiction in which a statute has a role to play. Furthermore, as the judgments in the Divisional Court ([2009] EWHC 3052), Court of Appeal ([2010] EWCA Civ 859) and Supreme Court in Cart v Upper Tribunal made clear in a different legal context the Upper Tribunal is a complex, and at times ambiguous institution. This is not a criticism of the Upper Tribunal. As Sedley LJ noted in the Court of Appeal in Cart the ‘edifice’ of which the Upper Tribunal is part of is a ‘landmark in the development of the United Kingdom’s organic constitution’.

Overall the proposal for a specialist planning chamber is promising but it needs further careful and wide-ranging debate that involves public law practitioners and scholars. The proposal is not just a planning law proposal but also a public law one that raises questions about the rule of law. This was a point recently well made by Preston CJ in discussing Australian law reform in this area (Brian Preston, ‘The Enduring Importance of the Rule of Law in Times of Change’ (2012) 86 Australian Law Journal 175). By only focusing on the speed that cases are decided there is a danger that these other issues may be side-lined.

The narrowness of the frame for debate in the Further Proposals paper does not only relate to the focus on delay in judicial review however. The proposal is also pervaded by a sense of urgency and the Ministry state that they ‘seek to deliver the new Chamber as swiftly as possible’ (p 18) although footnote this with a comment that speed will be limited by the fact that ‘changes to procedural rules would take 6 months to develop’ (fn 24). And it is here where public lawyers should be particularly concerned. The emphasis on the need for ‘swift’ reform makes any call for further discussion seem an act in time wasting. But it isn’t – reform grounded in a proper understanding of the legal issues is likely to yield a far more successful outcome that reform designed with only one aspect of a complex problem in mind.

Liz Fisher is  Reader in Environmental Law at Oxford University.

Suggested citation: L. Fisher, ‘The Proposal for a New Specialist Planning Chamber and the Framing of Administrative Law’ U.K. Const. L. Blog (1st November 2013) (available at http://ukconstitutionallaw.org).

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Filed under Judicial review, UK government

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