As there is no statutory right of appeal against a decision by a local planning authority to grant planning permission, the only recourse for a person affected by a proposed development is to make an application to judicially review the decision.
It is important to note that the procedure cannot be used to challenge the merits of a planning decision and can only be used when all alternative (and appropriate) remedies have been exhausted, including any rights of appeal available. The grounds for bringing an action are normally summarised as:
- illegality – where the decision maker had no power to make or went beyond the power available to them in making a decision
- procedural impropriety or unfairness – a failure in the procedure if the process followed is considered unfair or unjust
- irrationality – where a decision is so unreasonable that no sensible person could have reached that decision
The Civil Procedure Rules and associated judicial review protocol details the procedure to be followed in commencing a judicial review application. The process can be divided into three stages – the pre-action protocol letter stage, the permission stage and the substantive hearing stage.
Applications for judicial review need to be made promptly and in any event within 6 weeks of the decision notice – not the date of any committee resolution if earlier or the date you found out about the decision if later.
There is some scope for cases to be allowed to proceed after the cut-off date but why risk it? You would need a very good reason to explain why the time limit should be varied – being ‘too busy’ simply will not do. It is hard enough to persuade a court that an authority has made an error, so why add a timing problem?
It is therefore vital that you seek legal advice promptly. In the case of decisions taken at a planning committee you do not have to wait for the decision notice to be issued, you can instruct us once the committee report is published or after the committee make their decision.
In terms of relief, if the Court does allow the claim, it is able to order one or more of the following:
- A mandatory order – where the Defendant must take a certain step;
- A prohibiting order – where the Defendant must not take a certain step;
- A quashing order – where the decision is quashed and must be taken again
- An injunction – to restrain a person from taking a certain step
- A declaration – to set out the Court’s view of the lawfulness of a situation.
If a decision is quashed the Court can remit the matter back to the decision maker to reconsider the matter and then reach a decision in accordance with the Judgment of the Court. However, where the Court considers that there is no purpose to be served in remitting the matter back it may, subject to any other statutory provision, take the decision itself.
We are able to advise on the likelihood of a challenge being successful and deal with any application to the High Court. We also advise clients on the steps that might be taken to minimise the risk of challenge to the grant of planning permission.
Please call us on 01252 617119 to find out how we can assist you.
This checklist is intended as a guide to assist you compile all of the information we will need upon instruction. Ensuring we have all of this information will make the most effective use of the small 6-week window of opportunity.