Judicial review challenges
THESE NOTES ARE INTENDED TO BE INTRODUCTORY ONLY AND SPECIFIC LEGAL ADVICE SHOULD
ALWAYS BE TAKEN BEFORE PROCEEDINGS ARE ISSUED.
1. Challenging the grant of Planning Permission
If planning permission is granted by the local planning authority and the applicant
does not appeal (being satisfied with the permission) or planning permission is
granted on appeal by the Secretary of State then third parties may make a claim for
Judicial Review under Section 31 of the Senior Court Act 1981 and Part 54 of the
Civil Procedure Rules.
2. The Procedure
a) The procedure is in two stages – first an application for permission (which is
initially dealt with on paper and if refused the Claimant may require an oral
permission hearing) and secondly (if permission is granted) a full hearing.
The application for permission must be filed promptly and in any event within
6 weeks.
b) The applicant must have a sufficient interest in the matter to which the
application relates – local residents action group would have sufficient
standing.
c) There is a pre-action protocol for judicial review which requires a letter to be
sent by the claimant to the defendant setting out the main facts and issues before
the claim for permission to proceed with judicial review is formally lodged. The
protocol requires that the defendant should send a letter of response to the
claimant within 14 days.
3. Disclosure of Information
a) Application can be made under the Freedom of Information Act 2000 and the
Environmental Information Regulations 2004 for information either before
proceedings, at the same time or after commencement of the same. The
request can be refused if the cost of compliance exceeds the appropriate cost
limit. There is a 20 day period for a response but this can be extended in
complex cases under Section 10(3) of the Freedom of Information Act 2000 to
“such time as is reasonable in the circumstances” and to 40 days under
Regulation 7(1) of the Environmental Information Regulations 2004. If the
request is refused the current time taken by the Information Commissioner to
issue a formal notice is 19.7 months so it is of no use in the proceedings.
b) There is no general duty of inspection or disclosure in Judicial Review
Proceedings – unlike other civil litigation but the parties have a duty of
candour in the material placed before the Court – In R v Lancashire County
Council [1986] 2 All ER 941 it was said “it is a process to be conducted with
all the cards face up on the table.” The leading case is Tweed v Parades
Commission [2006] UKHL 53 – a Northern Ireland case which reached the
House of Lords and held that the Court should make specific disclosure
orders in accordance with the requirements of the particular case. The most
relevant material in planning cases is likely to be internal consultations or
reports which might for example have been summarised inaccurately in an
Officer’s Report or in a Secretary of State’s decision post Inquiry
communications.
4. Remedies
If successful the court has powers to order the following:
(a) a mandatory order;
(b) a prohibiting order;
(c) a quashing order;
(d) a declaration; and
(e) an injunction.
5. Costs
If the Claimant can come within the Aarhus Convention by establishing that the
claim is of genuine local concern and interest and a matter of public importance then
the Court will make a Protected Costs Order limiting the liability of the Claimant if
unsuccessful to either £5,000 for an individual or £10,000 for others.
6. Grounds of Challenge
(a) On the general test for challenges the following principles are relevant:
I.
First the basic principle is that a decision may only be challenged on
administrative law grounds: Seddon Properties Limited v Secretary of
State (1978) P&CR 26 at 26-28. Thus to avoid review a decision must
take into account relevant considerations, but ignore irrelevant
considerations. In an oft-cited passage Lord Hoffmann held that the
weight to be attached to material considerations and matters of planning
judgment are within the exclusive jurisdiction of the decision maker:
Tesco Stores Ltd v Secretary of State [1995] 1 WLR 759 at 780F-H. If an
error is identified in a decision, the error must materially affect the
decision.
ii. Secondly, there are the well accepted principles for interpreting an
Inspector’s decision letter (or Officer’s Report). It must be read in good
faith and references to policies must be taken in the context of the whole
document. The adequacy of the reasons must be assessed by reference
to whether the decision in question leaves room for genuine doubt as to
what the decision-maker has decided and the reasons for it.
iii. Thirdly in a compendious statement in South Bucks District Council v
Porter (No 2) [2004] UKHL 33 Lord Brown said: 36. The reasons for a
decision must be intelligible and they must be adequate. They must
enable the reader to understand why the matter was decided as it was
and what conclusions were reached on the principal important
controversial issues, disclosing how any issue of law or fact was
resolved. Reasons can be briefly stated, the degree of particularity
required depending entirely on the nature of the issues falling for
decision. The reasoning must not give rise to a substantial doubt as to
whether the decision-maker erred in law, for example by
misunderstanding some relevant policy or some other important matter or
by failing to reach a rational decision on relevant grounds. But such
adverse inference will not readily be drawn. The reasons need refer only
to the main issues in the dispute, not to every material consideration.
They should enable disappointed developers to assess their prospects of
obtaining some alternative development permission, or, as the case may
be, their unsuccessful opponents to understand how the policy or
approach underlying the grant of permission may impact upon future such
applications. Decision letters or Officers Reports must be read in a
straightforward manner, recognising that they are addressed to parties
well aware of the issues involved and the arguments advanced.
iv. Fourthly, a reasons challenge will only succeed if the party aggrieved can
satisfy the court that he has genuinely been substantially prejudiced by
the failure to provide an adequately reasoned decision.
v. Fifthly, there are the relevant principles governing the application of
development policies. Section 38(6) of the Planning and Compulsory
Purchase Act 2004 provides that, if regard is to be had to the
development plan for the purpose of any determination, the determination
must be made in accordance with the plan unless material considerations
indicate otherwise. Under section 70 of the 1990 Act regard must be had
to the provisions of the development plan, along with other material
considerations, when determining applications. The Courts have made
clear that it is for the decision maker to interpret planning policies. The
court will not interfere with an Inspector’s interpretation (or Council’s
interpretation) if it is one which a policy can properly bear: The Queen v
Derbyshire County Council, ex parte Woods [1997] JPL 958 at 967-968,
per Brooke LJ. However, the decision maker must have interpreted a
planning policy properly. If the decision maker fails properly to understand
the policy, the decision is in effect as if no regard had been paid to the
policy.”
David Anderton
Ansons LLP
November 2013