PRACTICE DIRECTION 54D – PLANNING COURT CLAIMS AND APPEALS TO THE PLANNING COURT

This Practice Direction supplements Part 54

Contents of this Practice Direction

Title

Number

SECTION I – GENERAL

Para. 1.1

SECTION II – HOW TO START A PLANNING APPLICATION

Para. 2.1

SECTION III – CATEGORISATION OF PLANNING COURT CLAIMS

Para. 3.1

SECTION IV – PROCEDURE IN CLAIMS FOR PLANNING STATUTORY REVIEW

Para. 4.1

Claim form

Para. 4.2

Bundle of documents at permission

Para. 4.6

Service of the claim form

Para. 4.8

Acknowledgement of service

Para. 4.12

Failure to file the acknowledgement of service

Para. 4.19

Permission decision without any hearing

Para. 4.21

Permission hearing

Para. 4.29

Permission given

Para. 4.31

Service of order giving or refusing permission

Para. 4.33

Defendant etc may not apply to set aside

Para. 4.34

Response

Para. 4.35

Where claimant seeks to rely on additional grounds

Para. 4.38

Evidence

Para. 4.40

Skeleton arguments

Para. 4.43

Bundle of documents

Para. 4.46

Planning statutory review may be decided without a hearing

Para. 4.48

Agreed final order

Para. 4.49

SECTION V – APPLICATION TO QUASH CERTAIN ORDERS, SCHEMES, ETC

Para. 5.1

SECTION VI – APPEALS TO THE PLANNING COURT

Para. 6.1

SECTION I – GENERAL

1.1 This Practice Direction supplements Part 54. It applies to Planning Court claims and appeals to the Planning Court.

1.2 In this Practice Direction “planning statutory review” means a claim for statutory review under—

(a)section 287 of the Town and Country Planning Act 1990;

(b)section 288 of the Town and Country Planning Act 1990;

(c)section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990;

(d)section 22 of the Planning (Hazardous Substances) Act 1990; and

(e)section 113 of the Planning and Compulsory Purchase Act 2004.

1.3 In this Practice Direction “appeal to the Planning Court” means an appeal under section 289 of the Town and Country Planning Act 1990 or under section 65 of the Planning (Listed Buildings and Conservation Areas) Act 1990.

SECTION II – HOW TO START A PLANNING COURT CLAIM

2.1 Planning Court claims must be issued or lodged in the Administrative Court Office of the High Court in accordance with Practice Direction 54C.

2.2 The form must be marked the “Planning Court”.

SECTION III – CATEGORISATION OF PLANNING COURT CLAIMS

3.1 Planning Court claims may be categorised as “significant” by the Planning Liaison Judge.

3.2 Significant Planning Court claims include claims which—

(a)relate to commercial, residential, or other developments which have significant economic impact either at a local level or beyond their immediate locality;

(b)raise important points of law;

(c)generate significant public interest; or

(d)by virtue of the volume or nature of technical material, are best dealt with by judges with significant experience of handling such matters.

3.3 A party wishing to make representations in respect of the categorisation of a Planning Court claim must do so in writing, on issuing the claim or lodging an acknowledgment of service as appropriate.

3.4 The target timescales for the hearing of significant Planning Court claims, which the parties should prepare to meet, are as follows, subject to the overriding objective of the interests of justice—

(a)applications for permission to apply for judicial review or planning statutory review are to be determined within three weeks of the expiry of the time limit for filing of the acknowledgment of service;

(b)oral renewals of applications for permission to apply for judicial review or planning statutory review are to be heard within one month of receipt of request for renewal;

(c)applications for permission under section 289 of the Town and Country Planning Act 1990 are to be determined within one month of issue;

(d)planning statutory reviews are to be heard within six months of issue; and

(e)judicial reviews are to be heard within ten weeks of the expiry of the period for the submission of detailed grounds by the defendant or any other party as provided in Rule 54.14.

3.5 The Planning Court may make case management directions, including a direction to any party intending to contest the claim to file and serve a summary of his grounds for doing so.

3.6 Notwithstanding the categorisation under paragraph 3.1 of a Planning Court claim as significant or otherwise, the Planning Liaison Judge may direct the expedition of any Planning Court claim if he considers it necessary to deal with the case justly.

SECTION IV – PROCEDURE IN CLAIMS FOR PLANNING STATUTORY REVIEW

4.1 The Part 8 procedure must be used in a claim for planning statutory review.  Part 8 applies with the modifications set out in this Section.

Claim form

4.2 A Part 8 claim form must be used and must be filed at the Administrative Court within the time limited by the statutory provisions set out in paragraph 1.2.

4.3 In addition to the matters set out in rule 8.2 (contents of the claim form) the claimant must also state–

(a)the name and address of any person that the claimant considers must be served in accordance with paragraph 4.1;

(b)that the claimant is requesting permission to proceed with a claim for planning statutory review;

(Permission is required to apply for planning statutory review under the provisions listed in paragraph 1.2(a) to (e) of this Practice Direction.)

(c)a detailed statement of the claimant’s grounds for bringing the claim for planning statutory review;

(d)  a statement of the facts relied on;

(e)any application for directions; and

(f)the remedy being claimed (including any interim remedy).

(Part 25 sets out how to apply for an interim remedy.)

4.4 The claim form must be accompanied by the following documents–

(a)any written evidence in support of the claim;

(b)  a copy of any decision, order, relevant document or action that the claimant seeks to have quashed;

(c)copies of any documents on which the claimant proposes to rely;

(d)copies of any relevant statutory material; and

(e)a list of essential documents for advance reading by the court (with page references to the passages relied on).

4.5 Where it is not possible to file all the above documents, the claimant must indicate which documents have not been filed and the reasons why they are not currently available.

Bundle of documents at permission stage

4.6 The claimant must file one paginated and indexed bundle containing all the documents referred to in paragraphs 4.3 to 4.5.

4.7 Attention is drawn to rules 8.5(1) and 8.5(7).

Service of the claim form

4.8 The claim form must be served on the appropriate Minister or government department and, where different, on the person indicated in the following table:

  1. If the application is brought under—

    1. section 287 of the Town and Country Planning Act 1990; or

    2. section 113 of the Planning and Compulsory Purchase Act 2004.

    The authority who prepared the relevant document.

    If the application relates to any decision or order, or any action on the part of a Minister of the Crown to which—

    1. section 288 of the Town and Country Planning Act 1990 applies; or

    2. section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990 applies.

    a. The authority directly concerned with the decision, order or action; or

    b. if that authority is the claimant, on every person who would, if he were aggrieved by the decision, order, relevant document or action, be entitled to apply to the High Court under section 288 of the Town and Country Planning Act 1990 or section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990 as the case may be.

    If the application relates to any decision on the part of a Minister of the Crown to which section 22 of the Planning (Hazardous Substances) Act 1990 applies.

    a. The hazardous substance authority who made the decision on the application to which the proceedings relate; or

    b. if that authority is the claimant, on every person who would, if he were aggrieved by the decision, be entitled to apply to the High Court under section 22 of the Planning (Hazardous Substances) Act 1990.

4.9 In paragraph 4.8 “the appropriate Minister or government department” means the Minister of the Crown of the government department—

(a)by whom the decision or order was or may be made;

(b)on whose part the action in question was or may be taken.

4.10 Except for the court’s order granting or refusing permission and the reasons for making its order, the Administrative Court will not serve documents and service must be effected by the parties.

4.11 The claim form must be served within the time limited by the relevant enactment for making a claim for planning statutory review set out in paragraph 1.2.

Acknowledgment of service

4.12 Rules 8.3(1) and 8.3(2) do not apply to a claim for planning statutory review.

4.13 Any person served with the claim form who wishes to take part in the planning statutory review must file an acknowledgment of service using the relevant form.

4.14 Any acknowledgment of service must be—

(a)filed not more than 21 days after service of the claim form; and

(b)served on—

(i)the claimant; and

(ii)any other person named in the claim form, as soon as practicable and, in any event, not later than 7 days after it is filed.

4.15 The time limits under paragraph 4.14 may not be extended by agreement between the parties.

4.16 The acknowledgment of service—

(a)must—

(i)where the person filing it intends to contest the claim, set out a summary of his grounds for doing so;

(ii)state the name and address of any person the person filing it considers should be served in accordance with paragraph 4.8; and

(iii)comply with rule 10.5; and

(b)may include or be accompanied by an application for directions.

4.17 Rule 10.3(2) does not apply.

4.18 The provisions of Part 15 (defence and reply) do not apply.

Failure to file the acknowledgment of service

4.19 Where a person served with the claim form has failed to file an acknowledgment of service in accordance with paragraphs 4.12 to 4.18, rule 8.4 does not apply and that person—

(a)may not take part in a hearing to decide whether permission should be given unless the court allows him to do so; but

(b)provided that person complies with paragraphs 4.35 to 4.37 or any other direction of the court regarding the filing and service of—

(i)detailed grounds for contesting the claim or supporting it on additional grounds; and

(ii)any written evidence, may take part in the hearing of the planning statutory review.

4.20 Where that person takes part in the hearing of the planning statutory review, the court may take the failure to file an acknowledgment of service into account when deciding what order to make about costs.

Permission decision without a hearing

4.21 The court will generally consider the question of permission without a hearing.

4.22 Paragraphs 4.23 to 4.28 apply where the court, without a hearing—

(a)refuses permission to proceed; or

(b)gives permission to proceed—

(i)subject to conditions; or

(ii)on certain grounds only.

4.23 The court will serve its reasons for making the decision when it serves the order giving or refusing permission in accordance with paragraph 4.33.

4.24 Subject to paragraph 4.28, the claimant may not appeal but may request the decision to be reconsidered at a hearing.

4.25A request under paragraph 4.24 must be filed within 7 days after service of the reasons under paragraph 4.23.

4.26 The claimant, defendant and any other person who has filed an acknowledgment of service will be given at least 2 days’ notice of the hearing date.

4.27 The court may give directions requiring the proceedings to be heard by a Divisional Court.

4.28 Where the court refuses permission to proceed and records the fact that the application is totally without merit in accordance with rule 23.12, the claimant may not request that decision to be reconsidered at a hearing.

Permission hearing

4.29 Neither the defendant nor any other person need attend a hearing on the question of permission unless the court directs otherwise.

4.30 Where the defendant or any party does attend a hearing, the court will not generally make an order for costs against the claimant.

Permission given

4.31 Where permission to proceed is given the court may also give directions.

4.32 Directions under paragraph 4.31 may include—

(a)a stay of proceedings to which the claim relates;

(b)directions requiring the proceedings to be heard by a Divisional Court; or

(c)directions about serving the claim form and any evidence on other persons.

Service of order giving or refusing permission

4.33 The court will serve—

(a)the order giving or refusing permission; and

(b)any directions,

on—

(i)the claimant;

(ii)the defendant; and

(iii)  any other person who filed an acknowledgment of service.

Defendant etc may not apply to set aside

4.34 Neither the defendant nor any other person served with the claim form may apply to set aside an order giving permission to proceed.

Response

4.35 A defendant and any other person served with the claim form who wishes to contest the claim or support it on additional grounds must file and serve—

(a)detailed grounds for contesting the claim or supporting it on additional grounds; and

(b)any written evidence, within 35 days after service of the order giving permission.

4.36 Where the party filing the detailed grounds intends to rely on documents not already filed, that party must file a paginated bundle of those documents when filing the detailed grounds.

4.37 The following rules do not apply—

(a)rule 8.5(3) and 8.5(4) (defendant to file and serve written evidence at the same time as acknowledgment of service); and

(b)rule 8.5(5) and 8.5(6) (claimant to file and serve any reply within 14 days).

Where claimant seeks to rely on additional grounds

4.38 Where the claimant intends to apply to rely on additional grounds at the hearing of the planning statutory review, the claimant must give notice to the court and to any other person served with the claim form no later than 7 clear days before the hearing.

4.39 The court’s permission is required if a claimant seeks to rely on grounds other than those for which the claimant has been given permission to proceed.

Evidence

4.40 Rule 8.6(1) does not apply.

4.41 No written evidence may be relied on unless—

(a)it has been served in accordance with—

(i)this Practice Direction; or

(ii)direction of the court; or

(b)the court gives permission.

4.42 Disclosure is not required unless the court orders otherwise.

Skeleton arguments

4.43 The claimant must file and serve a skeleton argument not less than 21 working days before the date of the hearing of the statutory review.

4.44 The defendant and any other party wishing to make representations at the hearing of the planning statutory review must file and serve a skeleton argument not less than 14 working days before the date of the hearing.

4.45 Skeleton arguments must contain—

(a)a time estimate for the complete hearing, including delivery of judgment;

(b)a list of issues;

(c)a list of the legal points to be taken (together with any relevant authorities with page references to the passages relied on);

(d)a chronology of events (with page references to the bundle of documents -  see paragraphs 4.46 to 4.47 below);

(e)a list of essential documents for the advance reading of the court (with page references to the passages relied on) (if different from that filed with the claim form) and a time estimate for that reading); and

(f)a list of persons referred to.

Bundle of documents at hearing stage

4.46 The claimant must file a paginated and indexed bundle of all relevant documents required for the hearing of the planning statutory review when filing the claimant’s skeleton argument.

4.47 The bundle must also include those documents required by the defendant and any other party who is to make representations at the hearing.

Planning statutory review may be decided without a hearing

4.48 The court may decide the claim for planning statutory review without a hearing where all the parties agree.

Agreed final order

4.49 If the parties agree about the final order to be made in a claim for planning statutory review, the claimant must file at the court a document (with 2 copies) signed by all the parties setting out the terms of the proposed agreed order together with a short statement of the matters relied on as justifying the proposed agreed order and copies of any authorities or statutory provisions relied on.

4.50 The court will consider the documents referred to in paragraph 4.49 and will make the order if satisfied that the order should be made.

4.51 If the court is not satisfied that the order should be made, a hearing date will be set.

4.52 Where the agreement relates to an order for costs only, the parties need only file a document signed by all the parties setting out the terms of the proposed order.

SECTION V – APPLICATIONS TO QUASH CERTAIN ORDERS, SCHEMES, ETC

5.1

(1) This section applies where the High Court has jurisdiction under any enactment, on the application of any person to quash or prohibit any—

(a)order, scheme, certificate or plan of;

(b)amendment or approval of a plan of;

(c)decision of;

(d)action on the part of, a Minister or government department.

(2) The jurisdiction shall be exercisable by a single judge of the Queen’s Bench Division.

5.2 The claim form must be filed at the Administrative Court and served within the time limited by the relevant enactment for making the application.

5.3 Subject to paragraph 5.5, the claim form must be served on the appropriate Minister or government department and on the person indicated in the following table.

If the application relates to—

  1. a compulsory purchase order made by an authority   other than the appropriate Minister or government department; or
  2. a clearance order under the Housing Act 1985

The authority who made that order.

If the application relates to a scheme or order—

  1. to which Section 2 of the Highways Act 1980   applies; and
  2. which was made by an authority other than the Secretary   of State

The authority that made the scheme or order.

If the application relates to a structure plan, local plan or other development plan within the meaning of the Town and Country Planning Act 1990

The local planning authority who prepared the plan.

If the application relates to any decision or order, or any action on the part of a Minister of the Crown to which section 21 of the Land Compensation Act 1961 applies—

  1. The authority directly concerned with such decision,   order or action; or
  2. if that authority is the applicant, on every   person who would, if he were aggrieved by the decision, order or action, be   entitled to apply to the High Court under section 21 of the Land Compensation   Act.

If the application relates to a scheme to which Schedule 32 of the Local Government, Planning and Land Act 1980 applies

The body which adopted the scheme.

    5.4 In paragraph 5.3, “the appropriate Minister or government department” means the Minister of the Crown or government department—

    (a)by whom the order, scheme, certificate, plan, amendment, approval or decision in question was or may be made, authorised, confirmed, approved or given;

    (b)on whose part the action in question was or may be taken.

    5.5 Where the application relates to an order made under the Road Traffic Regulation Act 1984, the claim form must be served—

    (a)if the order was made by a Minister of the Crown, on that Minister;

    (b)if the order was made by a local authority with the consent, or following a direction, of a Minister of the Crown, on that authority and also on that Minister;

    (c)in any other case, on the local authority by whom the order was made.

    5.6 Evidence at the hearing of an application under this paragraph is by witness statement.

    5.7 The applicant must—

    (a)file a witness statement in support of the application in the Administrative Court within 14 days after service of the claim form; and

    (b)serve a copy of the witness statement and of any exhibit on the respondent at the time of filing.

    5.8 The respondent must—

    (a)file any witness statement in opposition to the application in the Administrative Court within 21 days after service on him of the applicant’s witness statement; and

    (b)serve a copy of his witness statement and of any exhibit on the applicant at the time of filing.

    5.9 Unless the court otherwise orders, the application will not be heard earlier than 14 days after the time for filing a witness statement by the respondent has expired.

    5.10 Where an application is made under section 66 of the Anti-Social Behaviour, Crime and Policing Act 2014 to question the validity of a public spaces protection order or of a variation of such an order—

    (a)the claim form must be served on the local authority by which the order or variation was made or varied; and

    (b)paragraphs 5.1(2), 5.2 and 5.6 to 5.9 apply.

    SECTION VI – APPEALS TO THE PLANNING COURT

    6.1 An application for permission to appeal to the High Court under section 289 of the Town and Country Planning Act 1990 (“the TCP Act”) or section 65 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the PLBCA Act”) must be made within 28 days after notice of the decision is given to the applicant.

    6.2 The application—

    (a)must be in writing and must set out the reasons why permission should be granted; and

    (b)if the time for applying has expired, must include an application to extend the time for applying, and must set out the reasons why the application was not made within that time.

    6.3 The applicant must, before filing the application, serve a copy of it on the persons referred to in paragraph 6.11 with the draft appellant’s notice and a copy of the witness statement or affidavit to be filed with the application.

    6.4 The applicant must file the application in the Administrative Court Office with—

    (a)a copy of the decision being appealed;

    (b)draft appellant’s notice;

    (c)a witness statement or affidavit verifying any facts relied on; and

    (d)a witness statement or affidavit giving the name and address of, and the place and date of service on, each person who has been served with the application. If any person who ought to be served has not been served, the witness statement or affidavit must state that fact and the reason why the person was not served.

    6.5 An application will be heard—

    (a)by a single judge; and

    (b)unless the court otherwise orders, not less than 21 days after it was filed at the Administrative Court Office.

    6.6 Any person served with the application is entitled to appear and be heard.

    6.7 Any respondent who intends to use a witness statement or affidavit at the hearing—

    (a)must file it in the Administrative Court Office; and

    (b)must serve a copy on the applicant as soon as is practicable and in any event, unless the court otherwise allows, at least 2 days before the hearing.

    6.8 The court may allow the applicant to use a further witness statement or affidavit.

    6.9 Where on the hearing of an application the court is of the opinion that a person who ought to have been served has not been served, the court may adjourn the hearing, on such terms as it directs, in order that the application may be served on that person.

    6.10 Where the court grants permission—

    (a)it may impose terms as to costs and as to giving security;

    (b)it may give directions; and

    (c)the relevant appellant’s notice must be served and filed within 7 days of the grant.

    6.11 The persons to be served with the appellant’s notice are—

    (a)the Secretary of State;

    (b)the local planning authority who served the notice or gave the decision, as the case may be, or, where the appeal is brought by that authority, the appellant or applicant in the proceedings in which the decision appealed against was given;

    (c)in the case of an appeal brought by virtue of section 289(1) of the TCP Act or section 65(1) of the PLBCA Act, any other person having an interest in the land to which the notice relates; and

    (d)in the case of an appeal brought by virtue of section 289(2) of the TCP Act, any other person on whom the notice to which those proceedings related was served.

    6.12 The appeal will be heard and determined by a single judge unless the court directs that the matter be heard and determined by a Divisional Court.

    6.13 The court may remit the matter to the Secretary of State to the extent necessary to enable the Secretary of State to provide the court with such further information in connection with the matter as the court may direct.

    6.14 Where the court is of the opinion that the decision appealed against was erroneous in point of law, it will not set aside or vary that decision but will remit the matter to the Secretary of State for re-hearing and determination in accordance with the opinion of the court.

    6.15 The court may give directions as to the exercise, until an appeal brought by virtue of section 289(1) of the TCP Act is finally concluded and any re-hearing and determination by the Secretary of State has taken place, of the power to serve, and institute proceedings (including criminal proceedings) concerning—

    (a)a stop notice under section 183 of that Act; and

    (b)a breach of condition notice under section 187A of that Act.

    6.16 An appeal brought by virtue of sections 289(1) or (2) of the TCP Act or section 65(1) of the PLBCA Act will be treated as if it is a revie w under statute for the purposes of rules 45.41 to 45.44 and may therefore be an Aarhus Convention claim for the purposes of those rules.

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