Not in your back yard…? Only if you are within new time limits

Planning Article JH

One of the major concerns of developers who have obtained planning permission for large commercial or residential schemes is whether the local planning authority’s decision might be challenged by an objector, seeing permission from the High Court for judicial review. John Hughes, Head of Planning, draws attention to an important recent change in the rules relating to time limits for judicial review.

“Sale contracts or option agreements frequently provide for a delay in completion to allow for the possibility of a legal challenge. The rules of court have for many years provided that an application for permission to bring an application for judicial review must be brought promptly and in any event within 3 months, subject to the Court’s power to extend the period.” notes John. “The three month period sits uneasily with the statutory period of six weeks for appeal against a decision of the Secretary of State, and has been criticised as creating an unduly long period of uncertainty. In some cases Judges have refused permission for judicial review even though the application was brought within 3 months on the ground that the objector did not act ‘promptly’ but this has only added to the uncertainty. Equally, objectors should be entitled to know where they stand as well as developers.”

This uncertainty has now been resolved by a recent amendment to the Civil Procedure Rules which will be welcomed by landowners and developers. Where a challenge is made to a planning decision, three months no longer applies; as from 1 July 2013 the deadline is 6 weeks. It should be noted however, that the old rules will still apply where the grounds for the decision arose before that date.

Judicial review is an inherent power of the Court to review administrative decisions of Government and public bodies. It is often used by objectors seeking to overturn planning permission, and indeed is generally the only possible avenue left as an objector has no statutory right of appeal against the grant of permission, unlike a developer who can appeal against the refusal of his application. Objectors wishing to apply for judicial review should, however, bear in mind that only a legal challenge can be made at this stage; the planning merits – e.g. whether the proposed development might be harmful to the environment, or to local people’s amenities etc – do not come into it. An applicant for judicial review has to show that the local planning authority’s decision is unlawful, either because the authority has exceeded its powers; or has prejudiced the objector by failing to follow proper procedures; or has acted irrationally in the way it reached its decision. This last one – often referred to as ‘Wednesbury unreasonableness’ after a leading case involving the former Wednesbury Corporation – is the ground most often used.

It is a two stage process; the objector must first of all obtain permission from a Judge in the High Court for the claim to proceed. He has to be convinced that there is a prima facie case. If permission is granted, the local planning authority will have the opportunity to defend its position at the hearing that will then take place. “Even if the Court is persuaded that the authority was in error in the way it arrived at its decision, that does not necessarily mean that the decision will be quashed. The Judge has a discretion whether to quash and refer the matter back to the authority for redetermination.” notes John.

John has considerable experience in advising on judicial review cases, both in his former life as a local authority lawyer and in private practice. He is happy to give an opinion to both developers and objectors on the legitimacy of a particular decision and the prospects of a successful challenge.

For more information please contact John Hughes on 0121 710 5946