The planning system seeks to ensure that the right development happens in the right place at the right time, benefitting communities and the economy. But decision-makers don’t always get it right.
A claim in the Planning Court can enable a judge to examine whether decision-making was procedurally fair, and that decision-makers had the legal authority and acted rationally, taking account of relevant considerations including the outcome of any mandatory assessments.
If you disagree with a planning permission, there are ways that you can challenge that permission. Ask yourself the questions below and seek legal advice early to put yourself in the best position to make a successful claim.
Has the planning permission been issued?
The date that ‘the grounds to make the claim first arose’ is usually the date that the planning permission was issued. That date is important because it is when time limits start to run.
The local planning authority will usually make a decision on major planning applications at a committee meeting (decisions on less impactful applications are generally delegated to officers). You may have even spoken at that meeting in objection to the proposal. However, the meeting is not necessarily when ‘the grounds to make the claim first arose’.
In most cases, the date that the grounds to make the claim first arose, for the purposes of time limits, is when the planning permission document is actually issued. That can sometimes occur days or even weeks after the meeting. However, it is always sensible to take legal advice as soon as you can for a number of reasons. First, decision-making may be largely based on a process, such as assessing impact from an equalities perspective, that the court might treat as concluded at an earlier point in time. In some circumstances, that process may be the appropriate target for a claim. Secondly, the time limit is tight. Within the time limit, legal advice will need to be sought and that may well involve examining many documents. A defendant authority will also need to be given the opportunity to change its mind through ‘pre-action correspondence’ or possibly even an Alternative Dispute Resolution (ADR) process like mediation.
Once grounds have arisen, you have six weeks to issue your claim for judicial review in the Planning Court – the fact there is ongoing correspondence or an ADR process does not change that. It is possible for the court to extend the time limit, but you would need to provide an extremely good explanation for the delay and you would also generally need to have a strong case. Delay can easily be fatal, even then.
If the decision to give planning permission was made by the Secretary of State, you may have a different pathway to challenge the decision (i.e. the special Town and County Planning Act 1990 process discussed below). However, the six-week time limit still applies and, if anything, this is even more strict. The circumstances in which this can be extended are extremely narrow.
Who made the decision?
Your options for challenging a planning permission will depend in part on who made the decision and what power they relied on to make it.
For example, if you are seeking to challenge the decision of a local planning authority to grant permission, you will need to make an application for judicial review.
However, if the planning application was ‘called in’ by the Secretary of State using their powers under s77 of the Town and County Planning Act 1990, the Secretary’s decision may be challenged using a process under that Act. That is a different process to judicial review and you will need to satisfy slightly different criteria and legal tests to be successful.
Both types of claims are made to the Planning Court, which is part of the High Court, and require the permission of the court to go ahead.
The rest of this blog will focus just on the judicial review option as permissions granted by local planning authorities are more common. We can help you work out which option is right for the planning permission you want to challenge.
Do you have sufficient interest in the planning permission to bring a challenge?
The first thing to work out is who will be bringing the challenge. Judicial review claims can be made by individuals or limited companies. They can also be brought by organisations set up through an agreement between a group of people who come together for a common purpose (other than to make a profit). It is not uncommon for campaigning groups concerned about local development to be formed in this way. These organisations are ‘unincorporated associations’. However, there are risks involved as individual members are personally responsible for the debts of the association, including legal costs.
To bring a claim for judicial review, you, your company or organisation must have ‘sufficient interest’ in the approved planning proposal.
What counts as ‘sufficient interest’ depends on the facts and context of each matter. Generally, if you were actively involved as an objector to the planning application, you are likely to have a sufficient interest. Organisations with particular expertise and/or demonstrated engagement with the issues that are being considered may also have a sufficient interest.
If you do not pass the ‘sufficient interest’ test, the court is very likely to refuse to hear the claim, so it is important to get advice on this if you are unsure.
What do you want to achieve?
Judicial review will consider whether the planning permission was granted by a body with the power to grant it using the correct processes and powers and whether the decision was made fairly (in a procedural sense). The court will not consider whether the local planning authority made the ‘right’ decision and is very unlikely to prohibit a proposed development.
If you are successful in judicial review, the most common outcome is that the local planning authority’s grant of permission is set aside or ‘quashed’, and the authority is required to remake its decision without the errors identified by the court. This should give you another opportunity to make submissions on why you think the permission should not be granted.
You might also be able to achieve positive outcomes by negotiating with the local planning authority, either before or after making a formal application for judicial review. A well-written letter from a lawyer can be an effective way to set up productive discussions.
It is also important to remember that there are set, specific and limited bases or ‘grounds’ for making a judicial review claim. You should get legal advice on whether any of these apply before you can consider making an application.
How will you fund the legal representation you will need?
Planning cases are legally complex and decision-makers and developers will always be represented by skilled lawyers. Without a legal team of your own, you will be at a massive disadvantage.
So, you should start thinking at the outset about how you will fund your legal representation. Will you ask for donations from other people who care about this issue? Could you be eligible for legal aid? We can help you understand what your options are for meeting the price of a judicial review application.
Remember too that you could be required to pay the costs of the other parties if you are unsuccessful. It may be possible to limit this risk if your claim is being made on environmental grounds or by applying for a ‘costs capping order’. We can advise on this possibility.
People who are unhappy with the grant of planning permission have no ‘appeal’ in the UK, but, if they act quickly and have a strong enough case on a development that impacts them, they can ask the Planning Court to rule on whether permission was granted lawfully or not. In the right type of case, this safeguard can be highly effective in ensuring local concerns are properly grappled with.
Our team of Environment and Planning Law specialists offer expert advice in relation to the topics covered in this article. To find out more, visit our web page here.