Challenging times

Last week, the UK Government announced plans to cut the ‘soaring’ number of Judicial Review applications being made in England and Wales’.  These include proposals to halve the time limit for applying for a review of a planning decision.

We joined forces with WWF-UK, Friends of the Earth and Greenpeace to express our concerns. Why?

First, because this is another example of the triumph of anecdote over evidence.  The 2012 consultation bemoaned JRs as “stifling innovation and frustrating much needed reforms, including those aimed at stimulating growth and promoting economic recovery” yet the proportion of JRs for cases other than asylum or immigration (such as planning) is tiny has not changed since 2005.

Second, we are concerned because JR is a key tool for civil society to challenge the State when it gets things wrong.  This is particularly important at a time of increased development pressure and when there is a political desire to get the economy moving.

The RSPB comments on hundreds of planning applications a year.  We speak up for nature when special places of important populations are threatened by inappropriate development and when necessary make our views heard at public inquiries.  We win some (such as Dibden Bay or 2011 battles to save heathland wildlife at Crowthorne, Talbot Heath and Hurstleigh) and we lose some (such as the recent decision to expand Lydd airport in Kent).  But if we feel that the law has not been respected then we will take steps to challenge the decision. 

We did this, most famously, over Lappel Bank.  Here, Medway Ports Authority were granted permission for the reclamation of Lappel Bank for a car and cargo park.  In 1993, the Secretary of State for the Environment designated the Medway Estuary and Marshes as a SPA, but decided to exclude Lappel Bank on the grounds that the economic need for port expansion outweighed the site’s nature conservation value. The RSPB took the bold decision to challenge this on the grounds that the Birds Directive did not allow economic considerations to be taken into account in the designation of an SPA. The RSPB brought a judicial review against the Secretary of State, which was eventually referred by the House of Lords to the European Court of Justice.  The European Court ruled in our favour and although the development had already gone ahead and the site was lost, this case established the principle of compensatory habitat for damage to an internationally important site.  This led to new habitat being created on Wallasea Island, now the site of a much greater habitat recreation scheme of which we are rather proud.

The process of judicial review is a part of good governance enabling civil society to challenge when they believe the law has not been upheld.  Government's new proposals will make it harder for citizens and NGOs to have their voices heard.  My fear is that will lead to bad decision-making and projects which cause needless harm to the natural environment.

And that is not a great legacy for any government to leave.