Judicial Review

I am entering into a contract conditional on a satisfactory planning consent being granted. My solicitor tells me that it is important to allow for a “judicial review” period. Is this essential?

Most developers are aware of the fact that following the grant of planning there is a “Judicial Review Period” where, in most conditional contracts, there ought to be reference to either a six week or three-month period judicial review period to protect a developer from having to complete on a site and then face the risk that the planning consent is susceptible to challenge from a third party.

From experience, we all appreciate that obtaining planning consent is fraught with difficulties not least the overcoming of local objections. The grant of the consent however is not always the end of those objections if Judicial Review of the decision is sought.

There have been many cases to try and determine who is entitled to bring a Judicial Review claim and it has been established law that is must be somebody who

either:

• Is not a mere busybody interfering in things that do not concern them;

• Has lodged an objection to the proposed planning permission and appeared at an enquiry and fully avail themselves of the means of challenge;

• Has a real or genuine interest in obtaining the relief sought.

Or:

• Has a proprietary interest in any land affected by the proposed development.

In a recent case a commercial property development company which became involved in an application for planning on an adjoining site sought to apply for Judicial Review. The Court held that as the company had not lodged any objection, nor did it take part in any subsequent local inquiry, and that as it had no proprietary interest and was objecting for pure commercial reasons, that it did not fall within the definition of an aggrieved person. Additionally the complaining company also funded an application by a resident who had objected clearly with a view to getting the matter in front of the Courts themselves but using the neighbour’s name to ensure that the Court was required to hear the issue. The Court did not decide whether or not this was an abuse of the process of the Court or not as they dismissed the claim on other grounds and this issue therefore remains uncertain.

However it is clear from recent cases that pressure groups or individuals with no private interest who raise an issue of public importance that would not otherwise be raised are also considered to have sufficient standing.

When can a challenge be made? The answer depends on the decision being challenged. If the decision has been taken by the local planning authority then ordinarily application for judicial review has to be taken promptly within three months. The House of Lords considered this a few years ago and they were clear that the aggrieved party can be given up to three months although the courts urge parties to act more promptly. Though there is always the possibility of a court extending that period in exceptional circumstances that for now is considered unlikely. For statutory appeals against a decision by the Planning Inspectorate the time limit is six weeks. That time limit is strict and no application can be made after the expiry of the relevant period.

What remedies are available to the successful objector under judicial review? The review process does not act as an appeal. If successful then the court has decided that the decision was not taken in a correct manner and the usual order is to quash the decision and make a mandatory order requiring the public body to take the decision again and in accordance with the courts judgement – so for example requiring an Environmental Impact Statement to be available to the local planning authority before reconsidering the case.

Whilst the matter goes back to the original decision maker the effect of a successful application is to make it considerably harder to obtain a positive decision.

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