A judicial review claim involves commencing formal legal proceeding in the High Court, which is much more complicated and risky than an appeal to the Secretary of State. To be successful, the claimant needs to show that the public body’s decision was made on the basis of:
- Irrationality: where a decision is so unreasonable, or when there is an abuse of power
- Procedural impropriety: where there is unfairness in the decision-making process, such as inadequate reasoning or failure to disclose relevant documents
- Unlawfulness: where there is an error in law, due to the decision-maker’s failing to correctly interpret the law, failing to consider relevant matters, or considering irrelevant matters
- Incompatibility with the Human Rights Act 1998
Private individuals or a community group can apply for permission to commence judicial review proceedings in the Planning Court, which is a specialist division of the High Court. Development consent orders and neighbourhood plans can also be challenged.
Judicial review process
To bring a judicial review you first need to get the permission of the Court. The deadline to submit an application for permission is only six weeks from the date planning permission is granted, so you should seek advice as soon as possible once the permission is granted. These deadlines are very strictly enforced.
Before issuing proceedings, a letter before action should be sent to the local authority. The letter should highlight the grounds for claiming that an error was made, request additional information, and outline the steps that should be taken by the local authority to correct their position. Legal advice will be needed on the possible potential grounds. If possible, this letter should be sent at least 14 days before the deadline for applying to the Court. However, a quicker response deadline can be given in the event you are approaching the filing deadline.
The application for permission entails the preparation of the claim form, a statement of facts and grounds, a witness statement, a bundle containing all the evidence we consider necessary for the Court to consider and a list of essential reading. This all needs to be filed at Court within the six-week period and served on the Council, and any interested parties, within seven days after issue. When challenging a grant of planning permission, the interested parties would include the landowner and/or the developer/applicant.
How long does judicial review take?
In a typical case, you can expect a decision on application for permission within six to eight weeks of commencing the claim, and the final hearing to take place within about six months of the initial application being made.
Applications for permission should be determined within three weeks of the expiry of the time limit for the defendant Local Planning Authority to file their initial response (called an acknowledgement of service). If the application is refused, you can renew the application at an oral hearing which will be heard within one month of the renewal request. If permission is granted, then the defendant, and any interested party served with the claim form who wishes to contest the claim, have 35 days after service of the order granting permission to file and serve their detailed grounds of resistance and any written evidence they wish to rely on.
The final hearing should be heard within 10 weeks of the expiry of the period for submission of detailed grounds of resistance by the defendant or interested party.
Outcome of judicial review
There are a variety of remedies available to the Court, including:
- Mandatory orders: compel the local authority to act in a particular way
- Prohibiting orders: prohibit or restrain the authority from doing something
- Quashing orders: set aside the decision on the basis that it is invalid
- Declarations: are made by the Court about how the law applies but cannot be enforced
In cases where a planning permission is being challenged, the remedy being sought is a quashing order. However, it’s important to note that, even if a planning permission is quashed, the effect of this is to require the Council to make the decision again. This means that planning permission can still be granted by the Council, provided that they rectify the errors made in the initial decision.
Costs
At the permission stage, you (as the claimant) are likely to be liable for the authority’s costs in preparing a response if the application is refused. If permission is granted, then the case will go forward to a full hearing. In those circumstances the general rule is that the eventual losing party is to be responsible for the winning party’s costs.
Where judicial review proceedings are brought in respect of a decision of a public authority which affects environmental matters, you may be able to apply for a cap on the costs payable by the losing party under what is known as the “Aarhus Convention”. In such cases, the following caps apply, to limit your costs liability exposure:
- If you are not successful, your costs are capped at £5,000 as a private individual, or £10,000 in all other cases
- If you are successful, the maximum amount the defendant will be required to contribute towards your costs is £35,000
Conclusion
Judicial review can be the only effective way for objectors to challenge a grant of planning permission, but this is a complex area of law and the legal costs for such cases can be significant. The outcome and prospects of success should be very carefully considered before starting judicial review proceedings and you should only go ahead with the benefit of specialist legal advice. If you need help with planning permission or you want to appeal a planning decision, get in touch with our expert planning team by email or call +44(0)3333 231580.
