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Environmental Justice

Planning Law Judicial Review Solicitors

Kate Harrison
Kate Harrison
Consultant
Alice Goodenough
Alice Goodenough
Partner
Susan Ring
Susan Ring
Partner
Magdalena Gray
Magdalena Gray
Solicitor

A common judicial review ("JR") challenge would be to the grant of planning permission by a local planning authority; by bringing the proceedings, the claimant is seeking to quash the grant of planning permission because there has been some unlawfulness in the procedure.

For example failure to consult; being misled by errors in an officer’s report; taking into account something one should not have done and vice versa; failure to provide reasons in cases of officers making delegated decisions. A JR does not look at the merits of whether the decision was a good one or not; it is whether the decision was lawfully taken.

If a planning permission is quashed, then the planning application will have to be reconsidered but this time lawfully, which could in turn affect the outcome of the decision so that a planning committee could decide to refuse planning permission next time round.

 

Time limits

All planning JRs must be started within 6 weeks from the date of the issue of the planning permission.

For non-planning cases the time limit is such that a claim must be brought promptly and in any event within 3 months.

The time limits are strictly applied, so if you are thinking of challenging a planning permission or other decision, you must not delay and should seek legal advice immediately.  It is very frustrating for lawyers to be presented with a good claim which cannot be brought because it is out of time!

 

If you were not consulted and only find out about a planning permission some time later, there is a prospect of bringing a challenge out of time but again you must seek legal advice as soon as you find out about the planning permission.

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Pre-action protocol letter

The first stage in the JR procedure is what is known as the pre-action protocol (PAP) letter to the proposed defendant setting out the draft grounds for judicial review and asking them to consent to judgment. This is known as a pre-action protocol (or PAP) letter.  The letter would normally be sent to the Council and the developer with a request that they respond substantively within 14 days.

It is also possible to request key documentation that may have for example been withheld by the defendant until that point. This correspondence is designed to allow both sides to understand the other’s position and to see if there is the potential to resolve the dispute without issuing proceedings. Before a claim is issued in court there is no risk of being liable for the costs of the Council even if you engage them in correspondence.

A well drafted pre-action protocol letter can lead to a defendant conceding defeat before proceedings have even been issued so it is very important.  Even if the defendant does not consent to judgment at that point, it is helpful to know what the defendant is saying its defence will be at this point and can also result in the useful production of documents.  It may even be that the defendant’s response produces a complete answer to the claim, so costs are avoided in bringing a bad case.

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Filing application for permission for judicial review with the High Court

If, following the pre-action stage, the defendant has not capitulated but your legal team considers that there are good prospects of success, the next stage is to issue the claim at Court and apply for permission to bring judicial review proceedings. The test for obtaining permission to proceed is that you have an arguable case. The Court will seek to weed out cases where it cannot see any arguable error of law.

The judicial review proceedings will comprise a claim form (including an application for a costs capping order), a statement of facts and the grounds for judicial review (generally drafted by a barrister who may have already drafted the grounds attached to the PAP letter and essentially re-running the arguments in that letter as amended in light of the Council’s pre-action response), a witness statement exhibiting relevant documents, a bundle of legal authorities and a list of essential reading for the judge. We will then serve this on the Council with a copy to the developer, as an interested party. This must be done promptly and in the case of a challenge to a planning permission at the latest within 6 weeks of the decision you wish to challenge.

The defendant will then have 21 days to file an acknowledgement of service setting out the summary grounds for contesting the claim. We will then respond to the summary grounds as soon as possible.

A single judge will then consider the application for permission papers without a hearing to decide whether the claimant has an arguable case.  If they considers that the claimant does, they will grant permission to bring judicial review proceedings; if not, they will refuse the application. The judge may also certify the application as ‘totally without merit’ at this stage if they consider that the claim is bound to fail no matter how they look at it.

If permission for JR is refused and the application is not certified ‘totally without merit’, the claimant has the right to have its application heard at an oral hearing. This involves preparing grounds for renewal and a skeleton argument setting out why the claimant believes that the judge who refused permission on the papers was wrong to do so. The application will then be heard before a single judge at a permission hearing of approximately 30 minutes at which the claimant will try to persuade the judge that its case is arguable. The other parties do not have to attend this hearing but often do. The judge will give judgment on the day as to whether they consider that permission should be granted or refused. If permission is refused the claimant has recourse to the Court of Appeal.

If the permission for JR is refused on the papers and the judge certifies the application as ‘totally without merit’, the claimant may not apply to have their application heard at an oral hearing. The claimant, if they wish to continue with the claim may only apply to the Court of Appeal to obtain permission for JR.

If permission for JR is granted, either on the papers or after a hearing (or by the Court of Appeal), the defendant council and the developer will then have 35 days to serve detailed grounds for contesting the claim together with written evidence.  We will then consider whether we need to respond to the grounds and evidence with our own evidence.

The Court will then proceed to list the matter for an oral hearing at the High Court in London or alternatively Cardiff, Bristol, Birmingham, Manchester or Leeds depending on the location of the dispute.

A few weeks before the date fixed for the hearing, barristers for both sides will submit “skeleton arguments” – summaries of the respective legal cases. The judge should pre-read these and essential parts of the papers. JRs in our experience are often completed within a day, with the judge not giving judgment straightaway but reserving this to a later date so they can mull over the issues.

It is now usual for the judge to dispense with attendance at the handing down of the judgment, with arguments about costs and appeal to be dealt with by the parties making submissions in writing to the judge, who will then make the appropriate order.

If you lose but want to appeal to the Court of Appeal, the High Court judge is likely to refuse permission to appeal, and you then have to apply directly to the Court of Appeal for permission.

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Costs and funding a judicial review

For information on funding the costs of a judicial review, please see the separate page on funding and costs.

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How quickly will your judicial review be heard?

In the past there have been very long delays of over a year for a case to be listed for a hearing but relatively recently a new Planning Court was created which hears cases much more quickly. The Planning Court endeavours to hear all cases within six months of the claim being issued.

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Statutory review

You would typically bring a statutory review (“SR”) to challenge the decision to grant planning permission by the Secretary of State for Communities and Local Government or his or inspector.  So if the local planning authority has refused planning permission, but the developer has successfully appealed this refusal to the Secretary of State, then you would need to challenge this by way of a SR.

Again, the claimant would be seeking to quash the grant of planning permission because there has been some unlawfulness in the procedure, for example failure to provide reasons where they are required; factual or legal errors; taking into account something one should not have done and vice versa.  A SR does not look at the merits of whether the decision was a good one or not; it is whether the decision was lawfully taken.

If the planning permission is quashed, then the planning appeal will have to be re-determined but this time lawfully, which could in turn affect the outcome of the decision so that another planning inspector could decide to refuse planning permission next time round.

It used to be the case that there was no permission stage for SRs but this has recently changed.

A SR needs to be issued and served within 6 weeks of the decision date with no extension of time permitted for issue of the proceedings.

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Statutory review procedure

The first stage is to issue the claim at Court and apply for permission to bring statutory review proceedings. This will comprise a claim form together with details of claim (generally to be drafted by a barrister); witness statements setting out any relevant facts, exhibiting relevant documents and supporting any application for a costs capping order, a bundle of authorities, and a list of essential reading.

The defendants will be the Secretary of State for Communities and Local Government, the local planning authority (although they will likely not take an active part in proceedings as they refused planning permission in the first place) and the developer. The claim must be issued and served on the defendants within six weeks of the date of the decision so there is even less time in practice than in JRs.

The defendants will have 21 days from service upon them of the claim to acknowledge service indicating whether they wish to contest the claim and, if so, setting out their summary grounds for doing so. We will then, if necessary, respond to these summary grounds as soon as possible (although there is no express provision for doing so).

A single judge will then consider the application for permission on the papers without a hearing to decide whether the claimant has an arguable case. The judge may also certify the application as ‘totally without merit’ at this stage if they consider that the claim is bound to fail no matter how they look at it.

If permission for statutory review is refused and the application is not certified ‘totally without merit’, the claimant has the right to have its application heard at an oral hearing. This involves preparing grounds for renewal and a skeleton argument setting out why the claimant believes that the judge who refused permission on the papers was wrong to do so. The application will then be heard before a single judge at a permission hearing of approximately 30 minutes at which the claimant will try to persuade the judge that its case is arguable. The defendants do not have to attend this hearing but often do. The judge will give judgment on the day as to whether they consider that permission should be granted or refused. If permission is refused the claimant has recourse to the Court of Appeal.

If the permission for statutory review is refused on the papers and the judge certifies the application as ‘totally without merit’, the claimant may not apply to have their application heard at an oral hearing. The claimant, if they wish to continue with the claim may only apply to the Court of Appeal to obtain permission for statutory review.

If permission for a statutory review is granted, either on the papers or after a hearing (or by the Court of Appeal), the defendants will then have 35 days from the date on which permission was given to serve detailed grounds for contesting the claim together with written evidence.  We will then have 21 days to consider with the instructed barrister whether we need to respond to the grounds and whether we need to file and additional evidence in response.

The Court will then proceed to list the matter for an oral hearing at the High Court in London or alternatively Cardiff, Bristol, Birmingham, Manchester or Leeds depending on the location of the dispute.  A hearing of a statutory review normally lasts between 1-2 days.

A few weeks before the date fixed for the hearing, barristers for both sides will submit “skeleton arguments” – summaries of the respective legal cases. The judge should pre-read these and essential parts of the papers.  JRs in our experience are often completed within a day, with the judge not giving judgment straightaway but reserving this to a later date so they can mull over the issues.

It is now usual for the judge to dispense with attendance at the handing down of the judgment, with arguments about costs and appeal to be dealt with by the parties making submissions in writing to the judge, who will then make the appropriate order.

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How quickly will your statutory review be heard?

In the past there have been very long delays of over a year for a case to be listed for a hearing but relatively recently a new Planning Court was created which hears cases much more quickly. The Planning Court endeavours to hear all cases within six months of the claim being issued.

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or request a call back.
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Judicial review solicitors for local authorities

We have acted for a number of local authorities in bringing Judicial Reviews. These may be high profile issues that impact on their residents like airport expansion, a change in Government policy, a high speed rail link or justifying a decision taken by the body against challenge.

We are well known for our advice to local authorities in relation to high profile infrastructure projects such as the expansion of Heathrow Airport or HS2 Part 2A. We are use to working with in-house legal teams and understand the political environment. Often large projects impact on a number of local authorities at parish, district, county and/or unitary level and we have particular expertise in coordinating groups and managing multiple parties.

"HIGHLY REGARDED AND TREMENDOUSLY RESPECTED IN THE PROFESSION" - CHAMBERS & PARTNERS

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Case studies

  • We acted for the claimants in the landmark case of R (Hillingdon and others) v Secretary of State for Transport [2010] EWHC 626. Harrison Grant successfully represented a coalition of local authorities, residents’ groups and environmental groups in a judicial review of the Government’s decision to green light a third runway and sixth terminal at Heathrow Airport. This was the first case to be decided under the Climate Change Act 2008 and Planning Act 2008.
  • Harrison Grant acted a number of local authorities in Buckinghamshire County Council and others v Secretary of State for Transport [2014] UKSC 3 which was a landmark challenge to the high speed rail link HS2 by the local authorities along the proposed line.
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