How high the permission hurdle? or When is an argument not arguable?

01 Apr 2019

Planning and Environment, Public Law and Judicial Review

By Harriet Townsend and John Fitzsimons

A person wishing to challenge a planning decision in the High Court requires the court’s permission, whether the challenge be to a decision of the local planning authority (by application for judicial review) or to a decision of the Government (by planning statutory review).

While it wasn’t always the case, the permission “stage” of such a claim is now governed by court rules which provide that it is decided on the papers initially, and may be renewed orally in court (unless the Judge has stated when refusing permission that the case is so hopeless it is totally without merit).

Recent changes to the rules align the two procedures (judicial review and planning statutory review) more closely than previously – and the test at permission stage is the same in each case.

The court’s job at permission stage is, so the tradition goes, simply to ascertain whether or not the case is arguable. The cynic cries that anything is arguable, and is right of course. Hence the importance of judicial dicta – and the text within the White Book – which assist counsel and others giving advice as to the test which will in fact be posed by the permission Judge.

Having just been refused permission for a statutory review by an experienced Judge (Sir Wyn Williams) who heard argument over half a day and felt it necessary to reserve judgment for three weeks I am anything but an impartial observer (I represented the Claimant leading John Fitzsimons in Campaign for the Protection of Rural Wales (Brecon and Radnor Branch) v Welsh Ministers, Powys County Council and Hendy Windfarm Ltd [2019] EWHC 621 (Admin)).

Nevertheless, it is an important part of counsel’s job to advise on the prospects of a case being given permission and I offer the following reflections on the question of arguabilty, as it is being applied by the High Court.

  • First, and this should be reassuring, the Judge is asked to undertake an objective intellectual exercise – there are, for example, no judicial “targets” of which I am aware for the proportion of claims turned down at permission stage.
  • Second, the Civil Procedure Rules on costs, and their application by Judges, support the proposition that the permission stage should be a relatively low-cost, light touch, affair. They do this by, for example, not awarding costs to a Defendant who attends the permission hearing even when they are successful (contrary to the usual rule that costs are recoverable by the successful party).
  • Third, the White Book’s 2018 commentary states at 54.4.2:

“Permission will be given where the court is satisfied that the papers disclose that there is an arguable case that a ground for seeking judicial review exists which merits full investigation at a full oral hearing with all the parties and all the relevant evidence“.

You might be forgiven for thinking this takes things little further, but its commentary continues – encouragingly for Claimants:

The purpose of the requirement for permission is to eliminate at an early stage claims which are hopeless, frivolous or vexatious and to ensure that a claim only proceeds to a substantive hearing if the court is satisfied that there is a case fit for further consideration. The requirement that permission is required is designed to:

“Prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending although misconceived” R v Inland Revenue Commissioners Ex p. National Federation of Self-employed and Small Businesses Ltd [1982] A.C. 617 (at p.642 per Lord Diplock).”

Lord Diplock’s dictum was provided at a time when the Administrative Court was asked to consider only a small fraction of the number of cases it receives these days. My experience suggests it puts the threshold for permission lower than it is set by the court these days, but – if so – this has not been acknowledged by the rules or the commentary to them.

It is, however, noted in Cornerstone on the Planning Court (para 6.23 and footnote 52) that in some circumstances a higher threshold than mere arguability is imposed, citing amongst other cases R v Cotswold DC ex parte Barrington PC (1998] 75 P&CR 515 at 530-531. There, Mr Justice Keene said, commenting on the view that after full argument a Claimant would need to show a strong case that was likely to succeed:

It is, as I see it, merely an aspect of the exercise of the court’s discretion on the grant or refusal of leave. That exercise is bound to be influenced by the extent of material put before the court and the depth of the argument at the leave stage. For my part, I would prefer to put it on the basis that where the court seems to have all the relevant material and have heard full argument at the leave stage on an inter partes hearing, the court is in a better position to judge the merits than is usual on a leave application. It may then require an applicant to show a reasonably good chance of success if he is to be given leave.”

But what of the case which does not benefit from full argument and evidence? Here, experience is key since the reasons given for paper decisions are brief and not routinely published, and oral hearings are often dealt with ex tempore – no transcript is provided. My impression is that the approach to applications for permission varies considerably and the limited guidance available makes it very difficult for all concerned to achieve consistency.

In CPRW Brecon and Radnor Branch v Welsh Ministers and others (18-3-19 ) Wyn Williams prepared a written judgment handed down three weeks after the hearing in which he made it clear he was examining the argument with some rigour.

The case is believed to raise important questions about policies requiring exceptional circumstances and the standard of reasons in such cases; and the Judge did not claim to apply the principle referred to by Keene J in the Barrington case, nor did he deal with all the arguments relied on by the Claimant. He reached the conclusion that the claim was not arguable in the sense that it has no realistic prospect of success and does not merit consideration at a substantive hearing.

If you have read this far you may be interested in the background to the Supreme Court case of Dover District Council v CPRE Kent [2017] UKSC 79. I am told that the Claimant (CPRE Kent) was refused permission for a judicial review on the papers and again after an oral hearing. It was ultimately given permission by the Court of Appeal, following which the substantive claim was heard by the High Court – and dismissed.

Once again the Claimant’s appeal was allowed by the Court of Appeal, and that decision was upheld in the Supreme Court, resulting in an important case on reasons for planning decisions.

Whenever the High Court refuses permission in a planning case which deserves not only permission but also success at the substantive stage, litigation is made both more expensive and more unpleasant than it should have to be. This suggests there may be a need for more coherent guidance on the height of the hurdle at permission stage, and the application of the test.

Even more significantly, whenever such a case is refused permission (perhaps in a peremptory summary judgment) there’s a significant risk that the case proceeds no further; and that as a direct consequence of a threshold test of arguability designed to keep out the busybody, justice is not done.