Lord Carnwath calls for upper tribunal to hear planning challenges

Lord Carnwath has suggested judicial reviews into major infrastructure projects should be moved from the Administrative Court to a specialist ‘land and environment chamber’ of the Upper Tribunal.

He said one of the “possible worries” about the Planning Act 2008 procedure for infrastructure projects such as airports, roads or power stations was “the scope for judicial review at so many points in the process”. Lord Carnwath was the senior president of tribunals until he became a Supreme Court judge in May this year.

Speaking to the National Infrastructure Planning Association (NIPA) inaugural dinner last week, Lord Carnwath said judicial review applications multiplied over the course of a major project could cause “serious disruption” to any timetable.

“The answer is not of course to exclude such challenges, but to ensure that the system for dealing with them is as expert, responsive, and speedy as is possible, consistent with the objects of justice.”

Lord Carnwath said he made no criticism of the work done by judges of the Administrative Court in individual cases.

“But what that court cannot do is to develop a specialised jurisdiction, to develop consistent practices over time to deal with the substantive and procedural issues which arise in this type of case, or to manage challenges to a particular project on a continuing basis.”

The former president of tribunals suggested that NIPA could add its “political clout” to the development of a land and environment Chamber in the Upper Tribunal.

He said New South Wales had a Land and Environment Court for two decades, and is now a “world leader”.

The Tribunals Act 2007 allowed for the transfer of judicial review powers from the Administrative Court to the Upper Tribunal, Lord Carnwath said.

“That is already happening in other fields, notably immigration. There seems no obvious reason why the same should not happen for judicial reviews arising out of the Planning Act and perhaps other planning or environmental cases.”

One of the strengths of the Act, Lord Carnwath went on, was that it enabled a body of specialist judges to be built up, including where necessary senior judges from the courts, and enabled non-lawyers, such as planning inspectors, to be brought in as assessors.