Scheme promoters and judicial review – top tips when 'riding shotgun'

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Summary: We explore the important matters for developers in considering their role, and the local authority’s, where there is a risk that objectors could apply for judicial review of the planning permission for their project.

We explore the important matters for developers in considering their role, and the local authority’s, where there is a risk that objectors could apply for judicial review of the planning permission for their project.

Judicial review and planning decisions

After a local planning authority (LPA) has granted planning permission for a particular development, objectors have no right of appeal to a higher planning decision-maker. So judicial review claims in the Courts have long been used as a forum for trying to quash decisions and frustrate developers’ schemes. Government has introduced measures to speed up the process with a fast-track Planning Court. It has also sought to reduce unmeritorious claims with reforms to legal aid and further empowered the Courts not to quash decisions where the subject of the claim would have made no real difference. And yet schemes that have attracted opposition are still probably no less likely to be challenged than before.

The developer, a 'third wheel'

Many a developer with a scheme challenged for the first time has been surprised to learn that, so far as the Courts are concerned, they are in many ways regarded as a "third wheel" in the judicial review process. Despite all of the developer’s time, effort and money expended in promoting the scheme, and the consequences of losing permission for it, the judicial review is ultimately a public law claim against the LPA’s decision to grant planning permission. The LPA is therefore the principal defendant; the developer is merely given the status of an “interested party”.

Engagement with the 'second wheel', the LPA

In the first instance, this means that the developer will want to make sure that if a challenge is lodged, that the LPA is willing to defend its decision rather than simply "submit to judgment", due to a lack of political will or even just of funding. Challenges rarely come out of the blue. This is not least because an objector that has not made representations during determination of an application will find it harder to demonstrate standing before the Court in applying for permission to pursue a judicial review.

So, where there is a prospect of challenge, a prudent developer will at the very least want to liaise with the LPA before a decision is made on the approach in the event of a claim being lodged.

Developer’s participation – important but yet another irrecoverable overhead

With the most to lose if the permission is quashed, developers are usually best advised to take an active part in the proceedings with their own legal team. This is to support the LPA’s defence, for the LPA will be the primary defendant and the first party to whom the Judge turns for a response to the claimant. The developer’s legal team will try and work side by side with the LPA’s to ensure that the two cases are consistent. Developers will, however, have to reckon with probably recovering none of their costs, even if the challenge is dismissed. The default assumption is that the developer is duplicating the defendant LPA’s efforts, unless particular value is added to the defence’s arguments.

"All by myself…"

In the current economic and political climate, LPA planning and legal departments are increasingly feeling starved of resources. A developer might be left to defend the decision alone in Court. This is procedurally possible. Nevertheless, it does not assist the perception of a defence’s strength if it looks like the LPA as decision-maker does not think its decision is worth defending. There are also practical problems with the LPA washing its hands of its decision.

An LPA’s duty of candour and co-operation

In the third of the Co-op's judicial challenges against a rival out-of-town retail scheme in Cinderford, Gloucestershire [1], decided in May 2015, the LPA wrote to the Court saying that it supported the developer’s defence. However, it explained that for financial reasons it would be playing no role itself.

The Court appreciated the reality of the LPA's position but reminded it of certain duties. The LPA cannot simply not participate in proceedings in the same way as a party to ordinary civil litigation. The LPA’s decision-making process is an act carried out in the public interest. So case law has established a duty of candour and co-operation owed by a public authority in assisting the Court with understanding it. An LPA must conduct public law litigation "with its cards face upwards".

Where an LPA cannot file basic Court papers like a skeleton argument or make oral submissions at a substantive hearing, it should at least consider whether it has met its duties to the Court in the following ways:

  • By disclosing all relevant documents;
  • By filing a witness statement about those aspects of its decision-making process, which it alone is able to speak to;
  • By filing at least outline summary grounds of resistance;
  • By having a representative, not necessarily a lawyer, present in Court at any hearing to assist the Judge and to ensure that the LPA is aware of what is being said about it.

Political will

This should assist developers in trying to persuade LPAs to provide at least some basic assistance. Ultimately, a developer is dependent on the LPA’s political will to support a scheme not just up to the committee stage but along the potentially long and winding road of any judicial review. This may not be an issue for major schemes with significant LPA policy and political support.

Prevention is better than cure

A prudent developer will instruct its consultant team from the outset to do it all it can to ensure that the LPA is enabled to make a robust decision. The LPA should be provided with a high quality application. So long as its impartiality and objectivity is maintained, an LPA can receive suggestions as to how it can robustly address law and policy when arriving at a decision. Many grounds of legal challenge which arise in how the application is presented to the LPA’s decision-makers are entirely avoidable.

[1] The Queen on the application of Midcounties Co-Operative Ltd v Forest of Dean District Council v Trilogy Developments Ltd

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