Other considerations are the strength of the case and the knock on effect for other campaigns, and the need not to create bad law.
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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.
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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. The proposal on the table of a 14 day period for reply, which would in 99% of cases result in a stark reply that the decision maker cannot review the decision. We shall update this briefing when more information is known, however for those wanting to read the consultation document go to http://www.open.gov.uk/lcd/consult/judrev/judrevprot.htm.
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.
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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, the local community with no resources, and the on other side 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. We still await the decision on that over 2 years since the inquiry started. Had we not put up a fight the 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 I will deal with them in this briefing separately to other inquiries.
The public as such have few rights in a public inquiry other than to be heard, at the discretion of the Inspector, albeit that discretion cannot unreasonably be with held. There is though a way of turning the limit right into a greater right by making an application to become what is termed a 'Rule 6 Party'. Under Rule 6(6) of the Regulation any person who serves notice on the Secretary of State that he intends or wishes to appear at the inquiry, the Secretary of State can then requ
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