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LEGAL CHALLENGES FORUM
Any legal challenge should not be contemplated without legal advise, and without either, sufficient funds to pay the other sides costs if you lose, or legal aid being granted.Other considerations are the strength of the case and the knock on effect for other campaigns, and the need not to create bad law
Legal AidIf a case has merit then a person on income support would automatically get legal aid. A person on a low income would be eligible for legal aid subject to a monthly contribution, usually spread over the period of the case, and set on a sliding scale. Income and savings being taken into account, but not house value, or personal living expenses, thus it is the value of the disposal income and savings that is important. Most contributions seem to range from £20 to £30 per month. But it is essential that the applicant is not acting on behalf of the campaign group, otherwise the Legal Services Commission could take the view that the campaign group should set up a fund to pay for any legal challenge. Whilst we never suggest that any group (or individual) would/or should deliberately mislead the solicitor acting on their behalf, or that they would mislead the Legal Aid Board. The fact is a solicitor in full knowledge of the existance of a campaign group would be duty bound to give that information to the Legal Services Commission, if that group was financially supporting, or raising funds to support an applicant for legal aid. As such legal aid would be less likely to be awarded. The Legal Services Commission is an executive non-departmental public body created under the Access to Justice Act 1999 to replace the Legal Aid Board. It is responsible for the development and administration of two schemes in England and Wales: They produce a very detailed booklet which sets out the whole process and any potential liability A Practical Guide to Community Legal Service funding by the Legal Services Commission The Community Legal Service, which from 1st April 2000 replaced the old civil scheme of legal aid, bringing together networks of funders (eg Local Authorities) and suppliers into partnerships to provide the widest possible access to information and advice. This of course is the scheme which most applications we are concerned with come unde, including judicial review. The Criminal Defence Service which from 2nd April 2001 replaced the old system of criminal legal aid and provides criminal services to people accused of crimes. Of course this scheme does not apply to the types of cases that we are concerned with, except in the very narrow field of prosecutions for breach of conditions, and breaches of laws relating to pollution and health, where there is a criminal offence committed. The 'Green Form Scheme' allows a solicitor to give any advise or assistance up to lodging a case at court on a wide range of topics, and is useful for initial consultations. The funding code sets out the criteria for awarding funding, as most third party challenges to planning decisions are by way of judicial review, particular attention should be given to section 7 of Part 1 to the Funding Code. Funding is now given on contract to it is important that you not only seek a solicitor with experience of planning law, but one that has a cirtificate for the type of case in question.
Books & Publications on Legal Aid
Judicial ReviewThe general public do not have a right of appeal from planning decisions (Although persons aggrieved can appeal to the High Court from Orders of the Secretary of State, see below). The only challenge then is through the process known as Judicial Review. JR is a process for challenging the administrative decisions of public authorities. Applications should be made promptly, but in any event within 3 months (watch though because some planning challenges have been ruled out of time due to the more stricter 6 week time limit of planning appeals). The longer it is left before submitting an application the greater is the risk of losing due to the length of time, without any consideration of the merits of the case. The 3 month limit though is not a brick wall, if circumstances demand an extention of time, then it is in the discretion of the Court to grant it. It must be kept in mind that an application for judicial review does not stop the development taking place, that is until leave is granted, which in most cases would include a stop order. The process is two part, the first is an application for leave. This is very important because the application for leave is ex-parte, in other words except in exceptional circumstances only the applicant is heard, or more normally now, the application is decided on papers submitted by the applicant, without any input from the opponents. There is only in very rare cases an award of costs against an applicant, normally where the application is manifestly wrong, and thereby costing all concerned time and money. Once leave is granted a formal application is made, and the other side are brought in for a full trial. If leave is refused, then an application can be made, if it was decided on the papers to a judge in court, or if before a judge then to the Court of Appeal. This two process through have very strict time limits of 7 days, from issue of notice, so action has to be taken asap. Often cases that are reasonably strong, but are refused legal aid are made, by the campaign paying the initial costs of their legal team, on an agreed ceiling of cost. This could be in the region of £2500, but the agreement would need to be made with the solicitor. If the case is then decided on the papers only (75% of cases are first decided this way), then the actual payment might be about the £1000 mark. Once leave is granted, providing the applicant qualifies for legal aid then it is pretty much guaranteed that the Legal Aid Board will grant legal Aid. However there is always a risk, even though very small that costs could be made against the applicant at the leave stage, but advise of barrister would deal with that risk prior to the application being submitted. There is no reason why a reasonably competent person cannot make an application for judicial review in person, that is without legal assistance. Although a word of causion must be made on the potential for exorbiant costs being awarded against the litigant who loses, litigants in person, usually have their minds clouded by what they perceive to be the moral rights of their case. All the forms are online (see link below), as is most of the legislation, and cases that form the basis for arguing past precedents. Therefore with the material at hand, first research your case, then step back and take an adjective look without rose coloured classes what your chances are, can you really afford to lose financially, is there another venue that will achieve the same result. If you are still sure of your case, go for it. CfPS can help in this respect by reviewing your case. Procedure is governed by the Civil Procedure Rules and the practice directions issued by the Lord Chancellors Department. Past precedents can usually be traced through one or another of the links in our legal section. Links to Primary legislation as well as Statutory Instruments can be found in our legislation forum, however there is not much of the subordinate legislation on line, although we do have some links, and you can purchase those that do not have links on line through our Book Forum, or direct from the Stationary Office. The Lord Chancellors Department are conducting a Consultation of a Draft Review of Judicial Review Procedures. The main point of which is to include a protocol that will require greater consultation between the parties prior to submitting the application for leave. CfPS have lodged an objection to this, not because further consultation is not a good thing, but because of the strict time limits already in place, and which will not be altered. This in effects means that a proportion of the 3 month period will be eaten into, as most JR applications relating to planning are undertaken by local community groups, who before they even start down the road of an application for JR lose several weeks whilst they get organised. The other point is that there are few if any points that could effectively lead to a resolved decision. Planning decisions are effectively final as far as local communities are concerned, there being few opportunities for third parties to appeal, except through the judicial review process. For decisions that have been made after public inquiries the courts have ruled that the tighter 6 week time limit should apply, as that is the time limits imposed by legislation, on those with the right to appeal. A good briefing on judicial review can be found on St Brendan's Sixth Form College WEB site http://www.stbrn.ac.uk/other/depts/law/teaching/notes-w6.htm, whilst this does not deal specifically with planning, it is sufficiently comprehensive for us not to restate procedure indepth here, the briefing is in two parts, the first deals with procedure, the second with the 3 grounds and there application. It has many examples of cases included, which is a very useful way of seeing how the procedure works in practice, as well as being better able to understand the likely outcome of any given criteria. As time progresses we will be looking to upgrade this section to take into account individual planning decisions, which have changed planning law, in the mean time we simply list some cases, with links that are important.
Judicial Review Links
Court Forms
Relevant CasesBooks & Publications on Judicial ReviewPlease note that CfPS offer no recommendation on the books and publications listed here
Public InquiriesPublic Inquiries offer the best chance that a local community have to effect the development proposals in their area, whether that's a planning appeal or an inquiry into local plans, village greens or compulsory purchase of land for development. However it can also be time consuming and complex. Not quite a court of law, but run on very similar lines, which can be daunting for the local resident who just wants to speak their mind. However a well prepared case, presented in a professional way can have a real effect on the decision maker, quite often making the difference between a good or a bad result. Especially if as the author of this briefing once found that the local community was the only effective opposition in a 12 week public inquiry, with on one side myself as the only effective representative of the local community with no resources, with the other side having 3 specialist barristers, one for the council, one for the developer and another for the public transport authority. Without our opposition, our cross examining of the witnesses, then the development would have been passed on the nod. the result was that we did not simply win, we won on every major point - ecology - transport - planning policy - economics and the effect on the local community. Had we not put up a fight then the £250 million development would now be built. There are 4 main types of public inquiry that concern us, there are some differences to the procedures used, but generally, apart from village greens the inquiries themselves are for the most part, the same. Village/Town Greens do not actually have a set down decision making process, other than the local registration authority must make the decision (County or Unitary/Metropolitan). Most local authorities do though have differing degrees of tribunal/inquiry, as such inquiries and procedures for determining for Village Greens are found in the Village Green Forum. The legislationPrimary legislation is The Town & Country Planning Act 1990. Within this there is provision for developers that are not happy with a decision to appeal to the Secretary of State (Environment, Transport and the Regions), appeal when the local authority fail to reach a decision in the time limit, and to allow the Secretary of State to call the application in for his consideration. In addition to this there are appeals and inquiry procedures, for mineral extraction and waste disposal, compulsory purchase, new roads and other transport infrastructure. A listing to all the various sections of primary legislation is found below. Secondary Legislation - Most have their own secondary legislation that governs the procedure, time limits and types of appeal. We will deal with each aspect in turn, except where a full briefing is required for that type of inquiry, in which case the briefing will be found in that topic forum. The processes are that of an inquiry on the papers, an informal inquiry, and a full public inquiry. In all cases the decision on an appeal against refusal of planning permission, an appeal agaimst non determination or an appeal against enforcement is taken by an Inspector, the only difference being that of the process used. With a call-in inquiry, where the Secretary of State reserves the decision to hemself then the Inspector hold the inquiry makes a recommendation, but the final decision rests with the Secretary of State (in reality the Regional Government Office). I set out below a brief overview of the 3 processes. Public Inquiry on the PapersThe procedure for written representation is set down in the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2000 SI 1628. This process is very similar to that of the process undertaken by the local planning authority, an insspector will look at all representations made both by the LPA the developer and other statutory bodies, as well as the public. Notices are placed in the local paper, and those making representations to the LPA would also be informed of the appeal. Letters of objection are submitted, the inspector will then make a site visit, usually accompanied by the parties. He will then make his decision and publish it in the normal way. In theory there is no advantage, or disadvantage to this process, it is arguably faster, and for Joe Bloogs much easier to make representations as that is done in writing. Although Planning Saniuty would always prefer the full process as this gives a better chance of taking to task the developer, but in any event the developer will see your representation before he submits his final submission which is arguably unfair. Informal Public InquiryThe Informal inquiry procedure is governed by the Town and Country Planning (Hearings Procedure) (England) Rules 2000 SI 1626. This process is a cross between the writen and the full inquiry, whilst it offers less opportunity for challenging the developer. It is a very informal affair, conducted more like a round table debate, than the formal inquiry, so is more suited to the member of the public that is nervous and acting on their own. It allows some ability to put questions to the developers and to test evidence but not to the degree of a full inquiry. Full Public InquiryThe pocess for full public inquiries determined by inspectors is governed by the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 SI 1625. And for those determined by the Secretary of State by the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 SI 1624. The public Inquiry ProcessThe public inquiry is a semi jucial inquiry, it is chaired by an inspector appointed by the Secretary of State, who is attached to the Planning Inspectorate. The decision of the inquiry depends on whether it is an appeal from the decision of the local planning authority, or whether the application is one in which the decision is reserved to the Secretary of State. The first of these categories the decision is for the inspector, where as where the Secretary of State reserves the decision to himselve then the inspector reports to the Secretary of State with recommendations, it is then for the Secretary of State to accept the recomendations in full or in part, or to reject them in full or in part, or substitute his own decision and reasons for that of the inspector. Most inquiries are appeals against decisions of the LPA or appals against failing to make a dtermination. The applicant has a rioght within 6 months to appeal to the Secretary of State and to appear before and be heard by a person appointed for that purpose. There are though more and more inquiries now being decided on the papers alone, without a formal hearing. The public have very few rights to get public inquiries into planning proposals. The best that can be achieved is stout lobbying of the Secretary of State (Regional Government Ofice). The local authority on the lodging of the appeal, or notification by the Secretary of State that he is to hold an inquiry, places a notice at the at the site, and places a notice in a local paper circulating in the area, for two consecutive weeks. This notice informs the public where they can send objections, the latest date for objections, and basic details of the proposal, and where more info can be viewed. There is a time table set out that should be aimed at, it can be as flexible as the inspector allows. First the LPA will produce a statement of case, this is then followed by a statement of case by the appellant. The public do not have to produce statements of case, but the Secretary of State can request that a person who informs him of their intention of appearing at the inquiry produces a statement of case. A statement of case is broadly an overview of that persons case, the issues they are likely to be raising, attached to it should be copies of any reports that are going to be relied upon. However it should not be too indepth, that is the role of the next set of documents, the proofs of evidence. Each witness will produce a proof of evidence, and where they extend to more than 1800 words (two to 3 pages) a supplementary proof of evidence. These are indepth presentation of a case, tailored to the specifics of the line of evidence of the individual witness, especially where that witness is a professional in a given field of expertise. The supplementary proofs of evidence are actually read out at the public inquiry, expanding upon points as needed, and refering to the main proof, which is taken as read. There are 3 other documents that relate to evidence. Rebutal proofs of evidence, which as the name inplies relates to the answring of the evidence in opposing proofs. The appealant has the right to give an opening speech, and each of the parties give a closing submission, normally not presented in written form until the time of giving the speech, often having been hand writen in the lunch break before the end of the inquiry. The rebuttal is a good opportunity to redress issues raised by the other parties in writing, as the inspector will have these before him for reference when making his final decision. The opening spech sets out the case as the appellant sees it. And the closing is the final opportunity to stress issues that you want the inspector to take on board, to point to the failing of your opponents evidence, and generally sum up your case, it cannot be used to raise new issues. Unfortunately the level of participation of members of the public is at the discresion of the inspector. Although the public should not be denied the opportunity to speak, few inspectors will allow cross examination of opponents. However there is a process known as 'Rule 6 Status', whereby members of the public can be granted similar status to other parties. This process comes out of Rule 6.6 of the Inquiry Procedure Rules and is granted to a person who notifies the Secretary of State that they intend to appear at the inquiry. Note this is the Secretary of State, not the Planning Inspectorate. You should write to the Secretary of State at the relevant regional government office, stating you intend appearing at the inquiry, if appropriate point out that you are the representative of so and so local group. Rule 6 status is also useful because you have a more formal role in the inquiry, you should also be given copies of all documents, and be allowed to crosas examine witnesses for those supportinmg the development, but not those of fellow opponents. And you will be allowed to give a closing speech, but not to make comments (except at the discresion of the inspector) on the proposed conditions, or section 106 agreements. You should make your application at the earliest opportunity after the announcement of the inquiry. Larger inquiries will have what is termed a pre-inquiry meeting, this is basically an agenda setting meeting, and an opportunity for the inspector to inform the parties of the issues he wants specifically to hear about. In smaller inquiries this is normally done at the opening of the inquiry. Larger inquiries will also have a clerk whos job is to keep a library of all the documents, and to take care of procederal issues, such as the agenda. At smaller inquiries these jobs will be split between the inspector and one of the council team. The process in the inquiry is that the inspector open the inquiry, followed by the appellant giving an opening speech, followed by calling each of his witnesses, who will read their supplementary proofs expanding upon issues, normally the legal representative (where represented) of the party will take the witness through his case, asking questions as appropriate. The opposing parties then cross examine the witness, followed by re-examination by the appellant, finally the inspector will ask questions of the witness. Each of the parties go through this process, starting with any other supporters, then the local authority (if they are opponents, if they are supporters they go before other supporters), then the other opponents, and lastly members of the public. The process being the same for each witness. The inspector will normally have carried out an unaccompanied site visit before the inquiry begins, and then will hold a formal site visit normally after the evidence has been given, this entails all the parties visiting the site, whilst evidence cannot be put at the site meting it is permissable to point out salient features. This site visit may also at the discretion of the inspector include alternative sites, and other relevant areas, such as road junctions. After the site vist the parties will give their closing speeches, followed by presetations by the local authority and the appellant of issuies relating to conditions. The Inspector then closes the inquiry, depending on who is the final decision maker the decision will be made in a formal reasoned statement/report some time later. Where the inspector is making the decision on his own then he will issue a decision letter, normally within 3 to 4 weeks. If the Secretary of State is making the decision, then the Inspector prepares a report, which is then submitted to the Secretary of State, who then makes his decision, this can take a considerable time, from 6 weeks to over a year. The inspectors report and Secretary of State's decision letter being published together. However in reality, except in the most controversial major developments, the decision is made not by the Secretary of State or one of his Ministers, but by the regional government office. Statutory AppealsOther ChallengesThis section to be added soon © Planning Sanity - August 2008 (can be freely used by local communities within their campaigns.
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