Legal challenges to Planning Decisions

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We are often asked whether a decision to grant or refuse a planning permission or to adopt a particular planning policy can be challenged in the Courts and, if so, what are the risks and how much it would cost to bring a claim? The following is a basic introduction to legal challenges to planning decisions.

Grounds of challenge

It is worth starting by ‘putting to bed’ a common misconception. A legal challenge is not an opportunity for a Court to form and impose its own views on the merits of particular planning application or planning policy. Judges will not entertain cases that re-argue whether the impacts of a development were acceptable or whether a planning policy is sensible.

Instead, the Court’s role is to consider whether the relevant decision was reached in a lawful way. For planning decisions this usually boils down to questions about whether the decision maker has discharged any relevant statutory duties, whether they have taken into account all relevant material considerations, whether they have provided adequate reasons for their decision, and whether procedural requirements have been satisfied. More rarely, the Courts may also consider whether the decision makers were biased or had predetermined their decision, and whether they acted unreasonably.

Often where there is a strong sense that a decision was unfair in some way, a close examination of the decision can disclose some underlying legal mistake which may be open to a legal challenge.

Statutory duties

Planning decision makers are subject to a range of statutory duties when making their decisions. The following are the most common, although this list is not exhaustive.

  • The combination of s. 70 of the Town and Planning Act 1990 (the TCPA) and s. 38(6) of the Compulsory Purchase Act 2004 requires decision makers to determine planning applications in accordance with Local Plan policies unless material considerations indicate otherwise.
  • Sections 66 and 72 of the Town and Country (Listed Buildings and Conservation Areas) Act 1990 effectively create a rebuttable presumption against development that will harm a listed building, its setting, or a conservation area (see Barnwell Manor Wind Energy Limited v East Northamptonshire District Council [2014] EWCA Civ 137).
  • In respect of an application for development affecting an AONB, Section 85 of the Countryside and Rights of Way Act 2000 imposes a duty on decision makers to ‘have regard’ (i.e. take into account) to the purpose of conserving and enhancing the natural beauty of the area.
  • Section 149 of the Equality Act 2010 requires a decision maker in reaching a relevant decision “to have due regard to the need to (a) eliminate discrimination and advance equality of opportunity between people with protected characteristics and people without” (see Harris v Haringey LBC [2010] EWCA Civ 703)
  • The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 and the Conservation of Habitats and Species Regulations 2017 imposes a range of duties on planning decision makers where a proposed development is likely to have a significant environmental impact, in particular on certain ecologically protected sites.

A failure to discharge a statutory duty when determining a planning application will usually be a prima-facie ground for judicial review / a statutory challenge.

In addition, the Courts have held that the correct interpretation of planning policy is a question of law, not of the planning decision maker’s judgement (Tesco Stores Ltd v Dundee City Council [2012] UKSC 13). Hence, a failure to correctly interpret a planning policy (as opposed to how the policy is applied) can also lead to the quashing of a decision by the Courts.

Failure to have regard to a material consideration

It is not uncommon for a decision maker to overlook a relevant material consideration when reaching their decision. There is no statutory definition of what constitutes a material consideration, but the Courts have held that anything that relates to the use and development of land can be relevant (Stringer v Minister of Housing and Local Government [1971] 1 All. E. R. 65). With that in mind, Government planning policy as set out in the National Planning Policy Framework (the NPPF) and the National Planning Practice Guidance (the NPPG) are obviously material considerations of particular significance. However, depending on the nature of a proposed development, relevant material considerations may also include noise generation, traffic, fumes, visual impacts, ecological impacts, loss of light, and increases in overlooking, to name just a few.

If a planning decision maker fails to consider a relevant material consideration when deciding to grant planning permission, their decision may be open to a successful judicial review. For example, in the case of Kerswell v Lewisham [2019] EWHC 754 (Admin), the LPA’s dismissal of the neighbour’s noise concerns, in the erroneous belief that they would be dealt with under the Party Wall Act 1996, was grounds for a successful judicial review of the planning permission.

Environmental challenges

The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (the EIA Regulations) impose a requirement on certain developments to be supported by a detailed environmental impact assessment (an EIA). Developments such as oil refineries, power stations, and major roads must be accompanied by an EIA, other developments only need an EIA if they meet certain criteria, and in particular are likely to have significant environmental impacts. In deciding whether to grant permission for these developments, the planning decision maker must take the EIA into account and must set out their reasoned conclusions on the environmental impact of the development in their decision.

This regime is not an absolute bar to environmentally damaging development, but it does force the decision maker to be properly informed, and to ‘nail their colours to the mast’ in terms of the extent of any likely significant environmental impacts when they make their decision.

By contrast, regulation 70(3) of the Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations) in most cases prohibits the grant of planning permission for development which is likely to have a significant environmental impact on a ‘European Site’ (i.e. a designated special area of conservation, site hosting a priority natural habitat or specifies etc). European case law (which despite Brexit, should still be persuasive) has established that any mitigation measure designed to avoid that harm must guarantee no adverse effect beyond all reasonable doubt (Grace v An Bord Pleanala (C-164/17)).

Both the EIA and Habitats Regulations are complex and have given rise to extensive litigation over the years. Where the regulations apply, a failure to comply with their detailed requirements when a planning permission is granted will often lead to the decision to grant a planning permission being quashed.

Failure to provide adequate reasons

Although planning decision makers are required to give reasons where they refuse a planning application (Town and Country Planning (Development Management Procedure) (England) Order 2015, article 35(1)(b)), there is no equivalent statutory requirement to give reasons where permission is granted.

Where a planning committee grants permission following an officer’s report recommending approval (or on an appeal, the Secretary of State grants permission in accordance with the planning inspector’s report), there is an assumption that they adopted the advice in the relevant report (Palmer v Herefordshire Council [2016] EWCA Civ 1061) and no further reasons are necessary. However, where a decision is made against an officer recommendation, and particularly, where the proposal represents a substantial departure from national or local plan policy, the Courts commonly require the decision to be supported by adequate reasons (Dover District Council v CPRE Kent [2017] UKSC 79). A failure to provide reasons in these circumstances can lead to the decision being quashed.

The consequences of a successful challenge

As mentioned above, a Court will not substitute its own judgement on the merits of a planning application or proposed planning policy for those of the decision maker. However, where it identifies a mistake in the way that the decision was made, the Court should quash the decision, unless it considers that the impugned decision is highly likely to have been the same, even if there had been no such mistake (Senior Courts Act 1981, s. 31(2A).

The Judicial Review and Courts Bill, which is currently making its way through parliament, will allow a Court to make a wider range of quashing orders, including orders which have a prospective-only effect and orders which are subject to conditions. However, it is too early to say whether the changes proposed in the Bill will have a significant impact on planning judicial reviews.

In any event, once a decision is quashed by a Court, it is returned to the original decision maker for redetermination. The concern of the challenging objector is that the decision maker will simply make the same decision for a second time. However, the Court will often provide guidance as to how the decision should be properly remade, and if that guidance is followed it will often be more difficult to reach the same decision. For example, where a planning committee has ‘gone off the rails’ and overruled its officers’ recommendations without any sensible reasons, if on a redetermination they cannot find any sensible reasons for disagreeing with the original recommendation, they are much more likely to follow that recommendation.

Risks and costs

The biggest risk for anyone bringing a challenge in the English Courts, is the risk of losing and an adverse costs award. Always bear in mind the general rule that the unsuccessful party will have to pay the legal costs of the successful party (as a rule of thumb, the successful party will usually be awarded between 70%-80% of the costs they incur in fighting the case). The purpose of this rule is to discourage unrealistic claims.

However, that adverse costs rule is modified in the case of most planning judicial reviews. Planning challenges tend to be in relation to decisions which affect the environment and therefore fall within the scope of the Aarhus Convention. To cut a long story short, this means that for a claimant of average means, their liability to pay the defendant’s cost will be capped at £5,000 (that cap can be increased up to a ceiling of £35,000 if the claimant is of above average means).

As a quid-pro-quo, if the claim is successful, the claimant will only be able to recover up to £35,000 (inclusive of VAT) of its own costs in bringing the claim.

Part of the solicitor’s and barrister’s role is to advise a client on the strength of any claim, and the likely prospects of success at the very start of the process.

Costs

Each case will have its own complications and hence it is difficult to make any general assumptions about costs. However, our experience of challenging planning decisions suggests that in many cases, the claimant’s costs to the end of the trial will be somewhere in the region of the £35,000 Aarhus cost recovery cap.

Obviously, a prudent prospective claimant should always budget both for their own costs, and any adverse costs (taking into account the likelihood of securing an Aarhus costs cap).

The final point to note is that a judicial review is a staged process. The first two stages are to write a pre-action letter, and then if the reply is not satisfactory, apply for the Court’s permission to proceed to a substantive trial.

Many cases do not get past these first two stages, either because the defendant’s response to the pre-action letter answers all the complaints, or because permission to proceed to a substantive trial is refused, or if permission is granted, because the defendant concedes. In those situations, the costs of the claim will obviously be notably less than if the claim proceeds to a full trial.

In summary, planning decisions can be challenged in the Courts by way of a judicial or a statutory review. Always remember that the Courts will not allow a claimant to re-run the arguments for or against the development. Instead, the Court will focus on whether there were any legal mistakes in the way that the decision was made.

Also, bear in mind that a judicial or statutory review is not a cheap process. The unsuccessful party will normally have to pay not only its own costs, but also, the other side’s as well. Equally, the successful party rarely recovers all of its costs incurred in the claim. Nonetheless, a legal challenge can be a necessary step in protecting a party’s legitimate interests.

Buckles is experienced in advising on the merits of and running judicial / statutory reviews. Please contact us if you wish to discuss any of the issues raised in this article.