Judicial Review - Challenging a planning decision

If a planning application is refused, the applicant has a right of appeal. If approved, anyone who objects to the application does not have a right of appeal. However, if there is a flaw in how the decision was made, it may be possible to challenge in the courts using a process called Judicial Review.

Judicial review process

Judicial review (JR) is the process of challenging the lawfulness of decisions of public authorities, usually local or central government. Courts have a "supervisory" role - making sure the decision maker acts lawfully. It is important to understand that a JR is not a re-run on the merits of the decision but a challenge to the lawfulness of the decision that was made.

For planning decisions, the crucial practical point to remember in those cases is that you have a fixed six week time limit in which to issue court proceedings after a decision is issued.

If a JR claim is successful the usual result is that the decision is "quashed" or nullified. In turn this usually means that the decision has to be taken again. In planning cases, this means that the application will be reconsidered having rectified any defects found in the original decision. This can result in exactly the same decision being taken - so victories in JR can be pyrrhic.

If the court considers it highly likely the outcome would not have been significantly different had the decision been made without the errors being made, then it has a discretion not to grant relief.

If that were always the case, there would be no point in the procedure. In practice, however, the effect of a decision being quashed and a new decision being taken, often following a proper procedure means that at least a better, and often a substantively different, decision results. In other words you achieve something.

Often where there is a legal problem with a decision, there is often a substantive one as well. It may well mean that in practice the decision cannot lawfully be taken again with the same results. The instinct of residents who feel they have been treated unfairly is often right. Overall, the adage "no smoke without fire" applies in the field of JR/Public Law.

Pre-action protocol

The first step in the JR procedure is to write a formal letter to the proposed defendant setting out your proposed claim and what you are seeking. This is known as a pre-action protocol (or PAP) letter. Normally a response is expected within 14 days. However, in cases challenging a grant of planning permission, the 6 week time limit to issue a claim does not leave much time for pre-action correspondence, although you must try to complete it if possible.

Permission

If the response to the Pre-action Protocol is unsatisfactory you may lodge a JR claim in Court. The first stage is to apply for "permission" to apply for JR. The test for obtaining permission to proceed is that you have an arguable case. The Court will weed out cases where it cannot see any arguable error of law. Another test at the permission stage that can be important, but is usually not a problem, is that you have "standing" - in effect, a genuine interest in bringing the case, rather than being a mere busybody.

Costs

Although going to court is certainly expensive, the relative speediness of the judicial review process means that costs are not the "telephone numbers" one reads about in the papers for libel cases and so forth where the case goes on for a long time, usually due to the need for witnesses appearing in person. In JR, evidence is almost always given on paper.

Rules about costs are complicated. However, they are becoming more favourable for claimants in environmental cases, they are generally less of a practical and procedural obstacle. However, the general rule remains that the loser pays the winner's costs. The "Aarhaus Convention" that the UK is a signatory to, requires that all signatory states must ensure access to environmental justice. The Convention requires that legal proceedings which fall within its scope must not be prohibitively expensive. See articles by Nortorn Rose Fulbright and Landmark Chambers

This article is based on an extract of a document from Richard Buxton about Judicial Review.