Judicial Review
Judicial Review - what is the process for challenging the decision to grant planning permission?
Which court will hear the challenge?
The clue is in the name. The Planning Court is the specialist court that will hear the case. It is part of the Administrative Court and it sits within the Queen’s Bench Division of the High Court of Justice.
Although it deals with a variety of cases, one of the most frequent types of cases that come before the Planning Court is the Judicial Review. For objectors to an application who are aggrieved by a decision, there is no other body that has the power to make a local planning authority reverse its decision to grant planning permission so, realistically, this is the only route available to objectors to challenge it. The stakes here are high because if the objectors are successful, the Planning Court has the power to quash the grant of planning permission.
Who Will Take Part?
In any given case, there are three categories of party: the claimant, who begins the case and files papers with the Court; the defendant who defends its decision, and the Interested Parties, who are any other individual or body that may have an interest of some sort.
The Claimant
Only eligible claimants can bring a claim. This is known as “standing.” For the vast majority of planning cases, a person who lives near the site in question, or who has objected to the development or participated in another way in the consultation, will have standing. There is not normally a dispute between the parties about the standing of the claimant. A claimant can be one or more individuals or a group. A group may then appoint a person to represent them, eg. as the Chair of the group. A limited company or an unincorporated group of people, such as a residents’ group, can also be a claimant.
The Defendant
In a challenge against the grant of planning permission, the defendant is the local planning authority, ie. the Council who made the decision. It is not individual councillors or officers.
The Interested parties
This term is defined in the Civil Procedure Rules as “any person (other than the claimant and defendant) who is directly affected by the claim.” The person most likely to be considered an interested party is the owner of the site. Sometimes an affected organisation, for example, a body that was a statutory consultee involved in the application process, will ask to be considered an interested party.
The relevance is that the claim form and accompanying documents must be served on anyone considered to be an Interested Party. This does not mean that they are under an obligation to participate, but they must be given the option.
What is the process for a Planning Court Judicial Review?
The Court has issued rules that govern the procedure.
- The claim must be filed within a six-week period, starting once the decision is issued.
- Unless there is no time to do so before the six-week period runs out, the prospective claimant will write a pre-action protocol letter to the prospective defendant, ie. the Council, copied to the IPs. The letter takes a set format, and its aim is to set out the prospective grounds of challenge. Where the claimant wants further information from the defendant which he believes are relevant to the challenge, he will ask for these documents to be provided, generally together with the response to the letter.
- As above, unless there is insufficient time, the Council will have 2 weeks to respond. Interested parties will probably not respond. Having read the Council’s letter, the claimant can re-evaluate and refine its grounds of challenge, where appropriate.
- Within the six-week deadline, the case is filed with the High Court. In accordance with the court rules, it is marked as a Planning Court claim. At this stage, the case is an application for permission to bring the judicial review, and a Judge will decide if the application succeeds and the case can go on to a full hearing.
- Because the first stage is an application process, the Judge will need to see all the documents in support of the application in order to make the right decision. In this regard, the Judicial review process is front-loaded and everything should be before the Judge.
- The Judge will grant or refuse permission. It will do this by determining whether there is an arguable case, stopping short of considering the strengths and weaknesses of the grounds of challenge. The threshold is relatively low to take the case forward to the substantive hearing.
- Except where the court has stated that the claim is “totally without merit,” if permission is refused on some / all grounds at this stage, there is the opportunity to have a short hearing in front of another judge, a so-called renewal hearing. Some cases that are initially refused and only granted permission at the renewal hearing stage go on to be successful at the full hearing. If some grounds are refused but others are granted permission, the renewal hearing for the unsuccessful grounds of challenge may take place as the full hearing.
- If permission is granted, the Court will give its directions on the timing of submission of the detailed grounds of the claim and will give the defendant and IPs time to respond to each other’s submissions. A court date for the full, or substantive, hearing is set.
- Shortly before the court date, the parties will agree on a bundle of documents for the Court. As the date of the case approaches, the claimant, the defendant and sometimes also the IPs will each submit skeleton arguments to outline the grounds that will be presented.
- At the full hearing, the claimant will present the grounds of the claim, and the defendant will outline their defence. Any interested parties will address any other issues that they are concerned with. The claimant will then make final submissions.
- Where the full hearing is relatively short, it is possible that the Judge will give a decision on the same day. Otherwise, they may give a decision at a later date. At the same time, they will make a decision on any order for costs.
How long does the judicial review process take?
Once the case has been filed with the court, and other statutory time limits and court directions are complied with, the timing of the case is out of the parties’ hands. The court system is known to be underfunded and short-staffed. Much depends on the availability of judges. Except where a case is categorised as a “significant” planning case, where time limits are set in the Civil Procedure Rules, it is not possible to predict when a case will be completed.
What does judicial review cost – the $64,000 question?
There is a perception that it is very expensive to challenge the grant of planning permission by judicial review. That may be true, but it is also true that the claimant can control some elements of the cost in order to reduce the overall cost.
Also, if the case is successful, whilst costs don’t “follow” the decision, the Judge has the discretion to award the claimant all or some of their costs. On the other hand, the reverse is true, and if the claimant loses he may be ordered to pay the other side’s costs. There is a short time limit to pay the costs, so where possible there should be a reserve of funds that can be accessed quickly, in the worst-case scenario.
The costs that the claimant has some control over are the professional fees paid to their own legal team. This can often be negotiated in order that a fair price is paid, and to ensure that there are no unpleasant surprises. There may also be additional costs associated with preparing the case. If the claimant is able to help with some of the administrative tasks, such as organising documents, or preparing transcripts of meetings, for example, this can reduce costs, and cut down on the time that the legal team need to spend.
Costs that cannot be avoided are the court fees, currently at £154 to file a case and £770 if the case proceeds to the full hearing.
Finally, there are the costs of the other parties, mainly the Council. Obviously, the claimant cannot influence how much these may amount to.
It is important to consider from the outset whether a costs cap could apply. For many planning cases, this will be the cap described in the court’s rules relating to the Aarhus Convention, which aims to ensure that claims associated with environmental issues, which can include some planning cases, do not become prohibitively expensive for the claimant. The costs cap reduces the exposure to costs of both parties. In accordance with the rules, a costs award against an individual claimant is capped at £5,000, and against a group, it is £10,000.
If the defendant is unsuccessful, the costs they have to pay the claimant will not exceed £35,000.
Interested parties will usually be acting at their own risk, but if the claimant is unsuccessful, the Court has the discretion to direct that the Claimant may have to pay all or some of the IP’s costs, subject to an overall costs cap.
Both the costs cap and the willingness to take on the burden of some of the administrative work can therefore reduce the expense to the claimant. Best of all, though, is a successful outcome.
Good luck!
For more information on Judicial Review, contact FGLP now on 0203 983 0595 or email at .