The Planning Court during the Coronavirus pandemic

Planning Law solicitor, Michael Harman, discusses operational changes made by the Planning Court in order to allow it to continue conducting its business, as well as the implications of these changes.

Like many public-facing organisations the Planning Court in the High Court has undertaken operational measures to promote social distancing by taking all precautions to avoid unnecessary contact.

That said, the Lord Chief Justice has clearly stated that the work of the Courts is a vital public service and must continue; but it will not be business as usual.

The Court and Tribunals Judiciary and HMCTS are providing regular online updates as to operational measures during these unprecedented times; here I focus on what has been happening in/to the Planning Court.

The Planning Court is still open but changes have been made. The Administrative Court Office (who issue the claims) and the Fees Offices (which take payment of the application fee, without which a claim will not be issued) are closed to the public. So, it is no longer possible to issue a claim in person (which would ordinarily be the case owing to “keen” limitation dates in planning appeals/statutory challenges – more of this below).

Claims are now filed electronically with electronic bundles and the issue/application fee also paid electronically. It does remain possible to pay by cheque but payment must be within 7 days.

The date of the email will be the issue date, even if the application/claim is issued after that date. Issuing remotely does mean that an application/claim does need to be in “apple pie” order; the risk being if it is not, then a subsequent re-application could be out of time.

These operational changes do not come with a relaxation of applicable limitation periods. Time still runs!

As a reminder this deadline is generally 6 weeks from the (planning) decision under challenge save for, when challenging an Inspectors Decision regarding an appeal against enforcement notice (s289 TCPA), the deadline is 28 days.

The Court has no power or discretion to extend those deadlines in respect of challenges to PINS/Secretary of State decisions made under s288 TCPA, local plan challenges (s113, PCPA 2004) and challenges to development consent orders (s118, PA 2008); whilst it does have such power in the case of application for Judicial Review or under s289 TCPA it uses them sparingly/with great hesitation.

Once issued, a claim/application is underway and subject to Court rules and deadlines. The Civil Procedure Rules (CPR) and its accompanying Practice Direction (‘PD’) already contained provisions that enabled the Court, and the parties but to a lesser extent, to vary directions or otherwise extend the timetable (per CPR 3.1(2) and 2.11 respectively), but also the use of video conferencing (PD23A and PD32).

In consequence of the operational changes PD51Y has been introduced under the snappily titled “video or audio hearings during coronavirus pandemic”. The assumption is that hearings will, where possible, take place remotely but where such is not possible, a hearing must take place in private where it is necessary to do so to secure the proper administration of justice.

Those private hearings are then to be recorded and may, with the Court’s permission, be accessed in a Court building. Where the media or press can be joined to the video/phone hearing this will happen to allow for public proceedings. Accompanying guidance can be found in the “Protocol Regarding Remote Hearings”.

PD51Y ceases to have effect the same day that the Coronavirus Act 2020 ceases to have effect.

So, hearings in the Planning Court are still going ahead; albeit by video and telephone conference.

In summary, the limitation dates still apply, and claims/applications need to be made in time. Electronic submission is compulsory and will necessitate changes to how claims/applications are prepared. The Court will promote use of video conferencing to determine those applications. The question remains as to how quickly those claims/applications will be progressed.

In setting out contingency plans, the Court has been clear that non-urgent business will continue to be dealt with “as far as possible” – the reasonable inference being that, if the Court is under pressures (e.g. through absence of staff etc) planning cases may be some of the first to give way/be pushed down the list. Time will tell whether that inference is, or was, correct.