Judicial review and planning decisions

Plan B:

How to challenge

bad developments

in court

A short guide to how and when

you can challenge planning

decisions in the courts

Introduction and key actions

This guide is principally aimed at members of the public and community groups who are

concerned about a proposal for development which has gained, or may gain, planning

permission, and outlines the scope for legal challenge of land use planning decisions.

This guide will help you decide whether you have a case and sets out how the procedure

currently works. The Government (in November 2012) has announced an intention to review

procedures for bringing such challenges. This guide will be updated when firm details are

made available and implemented.

If you’ve read the information in this guide and believe challenging a planning decision in the

courts is the right course of action, make sure that you:

Seek legal expertise. This guide does not constitute legal advice. You should seek legal

guidance as to whether you have a case. Remember that if you reach court, the party you

are challenging will be legally represented. Losing due to lack of expertise could incur great

costs.

Establish whether you have a case. Use the information contained in this guide to help

consider whether the decision in question was taken lawfully and whether you have sufficient

standing and a robust case to make a challenge.

Act promptly. If possible, anticipate a decision you are likely to dispute. Often you will be

able to identify unlawful behaviour and begin to collate evidence prior to a decision being

made. Make sure that you apply ‘promptly’ after the decision is taken.

Encourage other interested parties to get involved. This could include your local

authority, a local environmental group / amenity society or one of the statutory agencies e.g.

the Environment Agency, English Heritage or Natural England. Encourage them to support

or take up the case – they may have more funds available or legal expertise to hand.

Working with or as part of a campaign group can also help with meeting the costs of legal

action, for example through group members making financial pledges of support.

Carefully consider whether the risks involved, especially costs, are worth the

potential benefits. Remember that even if you are successful, normally a court challenge

can only quash the decision you are challenging. It may not necessarily prevent the same

decision being made again in future. If you do wish to proceed, it is advisable to carefully

plan as to how you will meet your costs, as well as those of other parties if you are

unsuccessful. Consider how risks can be minimised by, for example, identifying stages at

which you are able to pull out of the process if necessary.

Pursue other solutions in future. Consider whether focusing your campaign to call for a

change in policy, or using the Local Government Ombudsman service, will be a better use of

time and money than seeking to quash an individual decision.

Keep the pressure on. A court challenge may not prevent the same decision being made

again in future or address the issue at stake, so you will still need to encourage the authority

you are challenging to change its mind next time it considers the case. Use the local media

and public to gain support for your arguments about why it should reach a different decision

if it is forced to reconsider.

CONTENTS

1 How planning decisions are challenged in the courts

1.1 Judicial review

1.2 Statutory challenge

1.3 When action has to be taken

2 Can you bring a challenge?

3 What grounds do you need for a challenge?

3.1 When a decision is unlawful

3.2 When a decision is unfair

3.3 When a decision is unreasonable

3.4 When a decision violates human rights

3.5 When a decision does not comply with European law

4 Before you take any action

4.1 The risks

4.2 Alternatives to legal action

4.3 The pre-action protocol

5 Making a claim

5.1 The hearing and outcome

5.2 Costs

1. How planning decisions are challenged in the

courts

If you are a member of the public or a community group affected by a planning decision, you

are a ‘third party’ and do not have a formal right of appeal against the decision. You do have

some scope to challenge the decision in the courts. If you choose this route, there are a

number of constraints and potential risks which have to be born in mind, as set out in this

guide.

The two principal means of legal challenge are judicial review or statutory challenge. There

are a number of differences between the two procedures, explained in this guide. Otherwise

the information in this guide applies equally to both judicial reviews and statutory challenges.

The most realistic outcome is that a bad decision will be quashed and returned to the

relevant authority, which must then make a fresh decision. The same decision may be made

by the public body again, however, as long as it is then made lawfully.

1.1 Judicial review

Judicial review is exercised by High Court judges under the Part 54 of the Civil Procedure

Rules (CPR) and applies to:

 decisions by public authorities. This includes planning decisions by development

corporations, local planning authorities, statutory agencies such as the Environment

Agency, English Heritage and Natural England, and by the relevant Secretaries of

State;

 decisions by domestic tribunals and certain courts (e.g. the Magistrates’ Court);

 decisions by Parliament if incompatible with European Union law or the European

Convention on Human Rights (ECHR);

 decisions not to act in the exercise of a public function, which in the field of planning

could include a local planning authority not taking enforcement action against a

breach of planning control. An important issue here is whether the function relates to

a duty or a power to act (see Section 3.1 below); and

 the legality of subordinate regulations and rules, which includes statutory instruments

as well as policies, advice and guidance. This encompasses the National Planning

Policy Framework (NPPF) and the National Policy Statements (NPSs) that will be

produced by the Secretary of State for nationally significant infrastructure projects in

accordance with the Planning Act 2008.

Judicial review cannot be used for decisions made by the Crown Court (in most

circumstances), the High Court, the Court of Appeal or the House of Lords, or for those

decisions which can only be questioned through statutory challenge (see below).

The court will only intervene as a matter of discretion to: (a) either quash, prevent, or require

a decision, or (b) clarify the law. The court cannot disagree with the merits of the decision,

but it can right a recognisable public wrong.

1.2 Statutory challenge

The procedure differs where the challenge is to a decision made by the Secretary of State

following a planning appeal

or ‘call in’ of an application that would normally be decided by a

local planning authority; or to the adoption of a development plan document.

Challenges to Secretary of State decisions are required to be brought through statutory

review proceedings under section 288 of the Town and Country Planning Act 1990 (TCPA)

or for development plans, Section 113 of the Planning & Compulsory Purchase Act 2004,

respectively. This guide refers to the procedure as ‘statutory challenge’.

1.3 When action has to be taken

Strict time limits apply to both judicial review and statutory challenges.

Judicial review: Rule 54.5 of the CPR requires proceedings to be brought ‘promptly’ and in

any event not later than three months after the grounds to make the claim first arose.

Although the decision to issue planning permission is often taken at a committee meeting, it

is an established principle that the decision does not take effect until a decision notice is

issued. Sometimes this can be on the same day as the committee meeting, but in others it

may be weeks, or even months, before permission is formally granted. In the case of

Burkett

the House of Lords ruled that the correct date for decisions was when the planning

permission was granted and not any other date, such as the date of a committee resolution

to grant outline planning permission.

There is no definitive guidance on what ‘promptly’ means, but it is advisable not to delay

bringing proceedings, and to notify the local planning authority and the affected developer of

your intention as soon as possible. Factors the court will take into account are likely to

include the length of time the claimant has known about the matter (the longer you have

known about it the less sympathetic the court will be to any delay in commencing

proceedings) and whether the developer has incurred any significant costs in the belief that

there was a valid planning permission.

The court does have discretion to extend the time limit for submitting judicial review

applications, but this should not be assumed.

Statutory challenge: Applications must be made within six weeks of

1. the date of the decision in relation to a planning application; or

2. the date of adoption in relation to a development plan document.

This time limit is strict and the court has no discretion to extend it.

In most planning appeals decisions are made by inspectors appointed by the Secretary of State.

R v Hammersmith & Fulham LBC, ex parte Robert Burkett and Sonia Burkett (2002) 3 All E.R. 97

2. Can you bring a challenge?

You can only bring a judicial review challenge if you are judged to have sufficient standing.

This means that you must be able to prove that you or your interests will some how be

harmed sufficiently if the decision stands. Organised local campaign or residents’ groups

have some scope to challenge planning decisions. In recent years the courts have tended to

take a liberal approach to standing of public interest and campaign groups in judicial review

cases, and such groups have been recognised as having standing

For statutory challenges, any ‘aggrieved’ person may apply to challenge planning

decisions by the Secretary of State or an inspector appointed by him. ‘Aggrieved’ should be

taken in the ordinary sense of the word as any person whose rights (whether legal,

procedural, monetary or personal) have been infringed

. There has been a liberal approach

to allowing ‘aggrieved’ parties to bring applications for statutory challenges since the 1970s

But it has also been recently ruled that the meaning of ‘aggrieved person’ for the purpose of

bringing statutory challenges is much more restrictive than that of ‘standing’ in judicial

reviews. A third party needs to prove a grievance by showing that it has taken a sufficiently

active role in the planning process, or has a relevant interest in the land

. This illustrates the

importance of participating fully in the process of development plan policy making and

responding to planning applications on issues that concern you. Advice on these points is

available on the CPRE Planning Help website.

If you are thinking of challenging a decision or failure to act you should be confident that it

will provide a meaningful remedy to the situation that has prompted the action. Make

yourself fully aware of the risks and uncertainties, and whether the outcome of a successful

case justifies taking these on. In particular, there is a possibility of incurring substantial

financial costs.

At the outset you should establish if:

 You have sufficient ‘standing’ (judicial review) or a provable grievance

(statutory challenge).

 For cases involving judicial review (but not statutory challenges), you have a

case that the court will consider is ‘arguable’, in effect worthy of a full hearing.

Judicial review applications are filtered through an initial ‘permission’ stage.

 You are likely to be able to succeed on some or all of your points, taking

account of the possibility (known as ‘litigation risk’) that new evidence or lines

or argument may arise during the proceedings.

 You are likely to be able to persuade the court to exercise its discretion to

grant a remedy, through showing for example that there was no alternative

remedy you could have been expected to use instead of a legal challenge.

R v HM Inspectorate of Pollution ex parte Greenpeace Ltd no.2 (1994), 4 All ER 329, & R v SoS for

Employment ex parte Equal Opportunities Commission (1994), UKHL 2 1995.

Times Investment Ltd v Secretary of State for the Environment (1991) JPL 67.

Encyclopaedia of Planning Law & Practice, Section P288.07 (Release 148, April 2005).

See the case law summaries at (2010) JPL 5-7 and ( 2010) JPL 295-296.

3. What grounds do you need for a challenge?

To decide whether or not you have grounds for a challenge it is necessary to consider

whether the decision could be either:

 Unlawful or illegal;

 Unfair (otherwise known as involving ‘procedural impropriety’);

 unreasonable (or ‘irrational’);

 incompatible with human rights as contained in the ECHR; or

 not in conformity with European Union law.

In any case, you will have to prove your claim and produce evidence. A challenge cannot be

mounted on the basis of (i) whether a better decision could have been reached, or (ii) the

quality of the evidence used to reach it.

3.1 When a decision is unlawful

Public bodies have duties, which they are required to comply with, and powers which they

have discretion to use. These powers and duties are set out in legislation and vary

depending on the subject matter.

Unlawfulness can arise when a public authority does not exercise its duties or use its powers

when it should do so. It is also unlawful for a public authority to use its powers or duties for a

purpose other than that intended, or going beyond what it is entitled to do by law (a condition

referred to as ‘ultra vires’).

3.1.1 When a public body is required to act

In the field of planning, possibly the most commonly encountered duty is the requirement to

decide planning applications in accordance with the development plan unless relevant

factors (known as ‘material considerations’) dictate otherwise. This is briefly discussed

below.

Other examples of duties relating to both planning and the environment include the duty of

public authorities to ‘have regard’ to the statutory purposes of National Parks and Areas of

Outstanding Natural Beauty, and the duty for development plans to contribute to the

achievement of sustainable development.

(i) Material considerations in town and country planning decisions

In decisions on planning applications a public authority can be open to challenge on grounds

of unlawfulness, if it fails to take ‘material considerations’

into account.

The primary material consideration in planning law is the development plan. The

development plan comprises policies in those parts of the Local Plan or Neighbourhood Plan

called Development Plan Documents (DPDs). Where policies from county Structure Plans

Planning and Compulsory Purchase Act 2004, Section 38 (6).

and older Local Plans have been ‘saved’ under the 2004 Act, these policies also form part of

the development plan.

There are many types of material consideration, and they can vary with the details of an

individual case. The key ones include the Government’s National Policy Statements, the

NPPF or associated guidance notes, statements setting out the purposes that justify

designated areas, environmental statements and representations from statutory consultees

and the wider public.

(ii) Nationally significant infrastructure projects under the Planning Act 2008

Under the Planning Act 2008, the largest or ‘nationally significant’ infrastructure projects in

the areas of energy, transport, waste and water will be processed through the planning

system in the form of National Policy Statements (NPSs) produced by the Secretary of State;

followed by an application for a ‘development consent order’. Relevant considerations in

relation to decisions to grant or refuse development consent orders are, in theory, much

narrower than for other planning cases. The primary consideration is whether the proposal is

in accordance with an NPS, although the Secretary of State can also refer to anything else

that he considers to be important or relevant to the application.

The decision-maker can only deviate from the NPS where it is satisfied that the local impacts

of the scheme outweigh the benefits. This includes a requirement to have regard to any local

impact report prepared by a local planning authority in or adjoining to the area where the

scheme is proposed.

Legal challenges to NPSs and development consent orders can only be brought by means

of judicial review and are permitted only in specified circumstances

3.1.2 When a body has discretion to act

Examples include the powers of local planning authorities to work with other local planning

authorities in creating joint development plan documents, as well as the various reserve

powers of the Secretary of State to intervene in the production of a development plan

document or to call in a planning application for his own determination. Government policy

and guidance, as well as development plan policies to varying degrees, often play a crucial

role in determining how powers should be used, however.

The court will generally defer to the authority’s exercise of discretion. One consequence of

this is that it is rarely feasible to mount a challenge purely on the basis of an authority not

having exercised a discretionary power, such as the Secretary of State deciding not to call in

a planning application for his own determination.

A challenge may be possible, however, where it can be demonstrated that the public body

has not taken into account relevant factors, taken into account irrelevant factors, or simply

acted perversely. Although the development plan or NPS is the primary consideration in

deciding planning applications, an authority cannot bind itself (otherwise known as ‘to fetter

discretion’) to stick rigidly to policies if an individual case requires the authority to make an

exception to them.

The circumstances are set out in sections 13 and 118 of the Planning Act 2008.

3.2 When a decision is unfair (‘procedural impropriety’)

Procedural requirements of public authorities arise in a number of ways, and a failure to

meet these requirements can give rise to a claim on grounds of unfairness. Specific

procedures are often legal requirements (see Section 3.1 above), such as consultation on

development plans and publicity for planning applications.

The Public Law Project gives a number of possible examples of unfairness, which include

failing to allow the individual to put their case forward; refusing to hear evidence which might

have led to a different decision; failing to consult those who had a ‘legitimate expectation’

that they would be consulted before the decision was made; and denying access to relevant

documents

Issues of procedural fairness are often raised in planning cases and are considered below

under the following three broad headings:

1. The rules of natural justice.

2. Legitimate expectations.

3. Access to information.

3.2.1 Natural justice: avoiding bias and consulting properly

The rules of natural justice mean that a decision-maker must not be biased (or appear to be

biased) and must provide a ‘fair’ hearing or allow for proper consultation.

Issues of bias can often be raised by third parties in planning cases. For example, local

planning authorities often make decisions on their own proposals for development. Also,

local councillors who vote on planning applications may have a clearly stated interest or

position prior to making their formal decision.

Procedures for hearing and consultation on both development plans and planning

applications are well established in the planning system.

In the well-known Coughlan

case, it was ruled that to be proper consultation it must

 be undertaken at a time when proposals are still at a formative stage;

 include sufficient reasons for particular proposals, and give adequate time, to allow

those consulted to give intelligent consideration and an intelligent response; and

 result in the product of consultation being conscientiously taken into account when the

ultimate decision is taken.

3.2.2 Public authorities can be subject to legitimate expectations

A legitimate expectation can occur when an authority’s policy supports a particular approach

or an authority has made statements to the effect that it would act in a certain way or it has

acted in a certain way in the past.

Public Law Project, A brief guide to the grounds for judicial review, 2006, p.3.

R v North and East Devon Authority, ex p Coughlan [2001]QB 213.

A differentiation is sometimes made between:

 Procedural legitimate expectations, such as an opportunity for interested parties to

be consulted or heard before a change in policy is announced. This can include

parties which are well known to have an interest in the policy or who were consulted

in the past. This was central to Greenpeace’s successful challenge to Government

policy on nuclear power in 2007.

 Substantive legitimate expectations, or a legitimate expectation of a substantive

benefit. Coughlan is a particularly well known example of this. The case arose from a

health authority promise to residents of a care home that they would have a ‘home

for life’ in the facility, before subsequently deciding to close the home

Failure to meet such an expectation may be judged unlawful. The public interest relied upon

by the authority for departing from any representation or statement it previously made will be

weighed against possible factors such as:

 whether the statement or representation giving rise to the expectation was clear and

unequivocal;

 whether the person who promised a benefit in association with the expectation had

the legal power to grant it, or was acting beyond his/her powers;

 whether departure from a representation giving rise to an expectation is so unfair to

the person or persons to whom it was made as to amount to an abuse of power; or

 whether the recipient of the promise took action in reliance upon it to their

detriment

3.2.3 Fair access to information

The issue of access to planning information has become more prominent in court cases

since the UK’s ratification of the Aarhus Convention on Access to Environmental Information

(see Case study 1 below). Article 9 (4) of the Convention requires that procedures for judicial

access concerned with environmental justice must ‘provide adequate and effective

remedies, including injunctive relief as appropriate and be fair, equitable, timely, and not

prohibitively expensive.’

Environmental NGOs have argued that the government failure to provide access to judicial

review at little to no cost is a breach of the Convention and have called for one way cost

shifting to remedy the situation.

See note 10 above (reference to the Coughlan case).

Government Legal Service, The Judge Over Your Shoulder (edition 4, January 2006), paragraphs 2.55 – 2.56.

Case study 1: The Aarhus Convention on Access to Environmental Information

The Objective of the Aarhus Convention is set out in article 1 and states that it aims

to contribute to the protection of the right of every person of present and future

generations to live in an environment adequate to his or health and well-being’.

The relevant provisions concerned with the rights of access to information and public

participation in decision -making have been implemented in EU Directives 2003/4/EC

on public access to environmental information; 2003/35/EC providing public

participation in the drawing up or certain plans and programmes; Regulation (EC)

1367/2006/EC on the application of the Aarhus Convention to information, public

participation and access to justice to Community Institutions and bodies.

Lord Justice Sullivan referred to the Aarhus Convention in his judgment in the 2007

Greenpeace case. Recently, environmental organisations have argued that the Convention

requires the ‘fullest’ consultation in environmental concerns in line with the procedure set out

in article 6 and 7. In particular, Article 6 requires that the public are informed ‘early in the

decision making process’, in an ‘adequate and timely and effective manner, with sufficient

time-frames enabling sufficient time for the public to prepare and participate effectively and

with due account taken of the outcome of the public participation’.

3.3 When a decision is unreasonable

A decision can be unlawful when it is so unreasonable that no sensible person could have

lawfully arrived at it. Such decisions are called irrational, perverse or ‘Wednesbury

unreasonable’

because they have no rational justification in the context of the legislation in

question. By way of illustration of an irrational decision, planning permission could be

granted because the public body always grants permission for applications that are heard on

a Tuesday, or a decision is made which accepts contradicting arguments. There is some

connection between this and the requirement in planning law to make decisions in

accordance with ‘material considerations’ (see Section 3.1.3 above).

Since 2004 it has been a legal requirement to give reasons for granting as well as refusing

planning permission. Reasons need to be proper, adequate, intelligible and let the person(s)

affected know why they have succeeded or not

. It should be noted however that a claim for

legal challenge is unlikely to succeed purely on grounds of inadequate reasoning alone,

particularly as a judge could merely direct a public body to list relevant reasons in a decision

notice

. Similarly, it is unusual for unreasonableness to form the sole grounds for a legal

challenge, as the threshold of unreasonableness is difficult to meet

After the leading court case Associated Provincial Picture Houses v Wednesbury Corporation (1948).

R v Brent LBC ex p. Barowa, 29 HLR 915.

R (on the application of Helford Village Development Company Ltd) v Kerrier District Council, 2009 EWHC

400 (Admin), at paragraphs 61-63.

Public Law Project Information Leaflet no.3, A brief guide to the grounds for judicial review, accessed from

www.publiclawproject.org.uk/downloads/GuideGroundsJR.pdf November 2009.

3.4 When a decision violates human rights

Under the Human Rights Act 1998, all UK legislation must now be read so as to be

compatible, where possible, with the European Convention on Human Rights (ECHR).

Where the rights outlined in the ECHR are infringed by the decision of a public authority it

would be possible to pursue a challenge in the courts, in theory all the way to the European

Court of Human Rights.

Under the Act it is possible to challenge the decision of any ‘public authority’ as long as you

are a ‘victim’

. Here the definition of a public authority stretches wider than that which is

traditionally covered by judicial review to include any court or tribunal, including the highest

English courts, and any person whose functions are of a public nature (unless the nature of

the act was private). The requirement to be a ‘victim’ is more restrictive than the requirement

for standing or a grievance in English law. In order to establish ‘victim’ status, the

complainant must show that he/she is directly affected by the act or omission in issue.

Potential, future or indirect effects may suffice for this purpose. A victim can be a person

(including a legal person, like a company), non-governmental organisation or group of

individuals. Core public authorities, including local authorities, cannot be victims.

The rights conferred by Articles 6, 8, 14 and Article 1 of the First Protocol of the ECHR are

likely to be of most relevance in planning and environmental law. These are the rights to a

fair hearing, family and private life, the prohibition against discrimination and the peaceful

enjoyment of possessions respectively. It should be noted that not all rights are absolute: the

ECHR allows many to be overridden if there is a sufficiently compelling public interest. This

can be particularly important in planning.

3.5 When a decision does not comply with European law

European Union (EU) law is distinct from the ECHR, but in both respects it is possible in

theory to challenge decisions of the highest English courts abroad. The provisions and

requirements of numerous EU Directives are of particular relevance in the field of

environmental law. EU legislation is transposed into English law by the UK government

passing legislation. For example, the Pollution Prevention and Control Act 1999

implemented the EU Directive on Integrated Pollution Prevention Control. Where the

interpretation of a relevant EU Directive in a planning decision is incorrect or incomplete a

challenge to the decision may be possible (see Case study 2 below).

Case study 2: The importance of European law to planning in England

The EU Directive on Strategic Environmental Assessment is applied to all plans with

a significant effect on the environment. Successful challenges were made by CPRE

groups and local authorities to the adoption of draft Regional Spatial Strategy policies

in the East of England and the South East, on the grounds that the requirement of

the Directive to identify, discuss and evaluate alternatives to environmentally

damaging development had not been fulfilled

Human Rights Act 1998, section 7 (1).

See, in particular, City and District Council of St Albans v Secretary of State for Communities and Local

Government, [2009] EWHC 1280 [Admin]).

4. Before you take any action

4.1 Get advice on the risks and how to minimise them

It is important that you seek professional legal advice to determine whether you have a case

before you take any action. You can contact ELF for help in finding environmental legal

expertise. The ELF Advice and Referral Service includes a free initial consultation with an

ELF member lawyer. Details are provided at the end of this guide.

The process carries high risks, particularly in terms of costs (see Section 5.6 below) and

may not rectify the situation that prompted legal action. Making clear to a public authority

that you are prepared to challenge a planning decision in court, however, can often lead to a

damaging proposal being abandoned or at least modified, sometimes without even needing

to go to a full hearing (see Case study 3 below). It is important to be aware that there are a

number of opportunities, particularly in judicial review procedures, to achieve a resolution to

the dispute and bring a halt to proceedings without going through the full process, thereby

minimising the risk of substantial costs.

Case study 3: When the threat of judicial review is enough

Objectors successfully challenged two planning permissions for an agricultural building and

associated stockman’s cottage. The objectors based their arguments around issues such

as inconsistency with national and local planning policies, and alleged flaws in the decision-

making process.

The court granted permission for a judicial review hearing. The local planning authority

removed its objections before the hearing took place, causing the decisions to be quashed.

This demonstrates that when a strong case can be made for quashing a decision, a court

hearing is not always necessary.

4.2 There are limited alternatives to legal action in planning

cases

Legal action is usually considered a remedy of last resort. In judicial review cases, the Civil

Procedure Rules make clear that the parties should consider whether there is some form of

alternative dispute resolution that would be more suitable than litigation. Both the claimant

and the defendant may be required to produce evidence that alternative means of resolving

their dispute were considered.

If the land that you are concerned about has been used by a significant number of

inhabitants for lawful sports and pastimes, for at least 20 years, as of right, then it may be

possible to register the land as a Town or Village Green (TVG) under Section 15 of the

Commons Act 2006. The registering authority (usually the county or unitary council) will

consider all the evidence presented and then decide whether the land should be registered

as a village green. Presently, a successful registration can override any existing policy

designation or planning permission for new development; the law is expected to change,

however, with the passage of the Growth & Infrastructure Bill. In future applications for TVGs

are likely to be prevented in cases where, for example, planning permission has been

granted.

Applying for village green status is not an alternative to challenging a decision in court.

Sometimes, however, you may be more likely to succeed in protecting an important open

space through getting a site designated as a village green, rather than purely challenging a

planning permission. Furthermore, a village green decision that goes against you may also

be challenged by way of judicial review (see Case study 4 below). More information about

putting land forward for village green status can be obtained from the Open Spaces Society

(www.oss.org.uk).

Case study 4: Using the law on village greens to protect valued spaces

A development of more than 300 houses was proposed on land which local residents had

long regarded as a village green

. The Supreme Court, following a judicial review

challenge by the residents, ordered that the land should be registered as a village green.

As long as local residents showed that they had used the land for sports and pastimes,

for the past 20 years, as of right, the space could be registered as a village green, even

though the residents had in the past also allowed a private golf club to use the land.

Other possible alternatives in relation to planning decisions could include mediation at

various stages including the formulation of policy or before an application is submitted, a

local authority internal complaints procedure or the Local Government Ombudsman

These are narrowly confined in what they can achieve and may not be relevant to the issue

at stake. Mediation has often been used successfully in small scale planning cases involving

householders, but research has shown it to be less useful in resolving issues of policy, legal

principle or wide public interest

. The Ombudsman can often provide significant assistance

in addressing the impact of a bad planning decision, however. Members of the public and

community groups can also use the ‘call in’ procedure to request that the Secretary of

State intervenes to make a decision in a major or controversial planning case where a local

planning authority is expected to grant planning permission. Call ins are only possible before

a notice granting planning permission is issued. More guidance on using both the

Ombudsman and call-in procedures is available from the CPRE Planning Help website.

4.3 You should follow the pre-action protocol when making

a judicial review claim

The Civil Procedure Rules state that it is good practice for every applicant for permission for

judicial review to complete a Pre-Action Protocol

and to send this to the public authority

whose decision is challenged.

The protocol states that before making the claim the claimant should send a ‘Letter Before

Claim’ to the defendant identifying the issues in dispute and establishing whether a

settlement can be reached and litigation avoided. This only applies in judicial review

cases. It is not necessary or appropriate to send a Letter Before Claim before bringing a

statutory challenge.

A standard format for the letter is provided and should be followed. The letter must also

contain the date and details of the decision, act or omission being challenged, a clear

summary of the facts and details of any relevant information that the claimant seeks from the

R v Redcar and Cleveland Borough Council, [2010] UKSC 11.

More details of how you can use the Local Government Ombudsman service in relation to planning decisions

are available from www.cpre.org.uk/planninghelp.

See, for example, Planning Inspectorate and National Planning Forum, Mediation in Planning, June 2010,

p.42; and Scottish Government, A Guide to the Use of Mediation in the Planning System in Scotland, March

2009, pages 10 and 11.

The Pre-Action Protocol for Judicial Review is available from

www.justice.gov.uk/civil/procrules_fin/contents/protocols/prot_jrv.htm.

defendant. The Protocol also seeks disclosure of relevant documents from each party at this

stage, rather than being produced for the first time in court.

A claimant is not required to follow the Protocol where the case is urgent or where the

defendant does not have the legal power to change the decision being challenged. This

may be the case with decisions taken by LPAs, particularly where they grant planning

permission.

Sanctions exist, however, for not complying with the Protocol. For example, costs may be

awarded against parties for producing case documents at the hearing which could have

been produced at the pre-action stage and thereby minimised the need for consideration in

court.

The defendant should respond to the Letter Before Claim. This may provide a good

opportunity to reconsider whether judicial review proceedings are still appropriate before you

become liable for costs. An offer of settlement may sometimes be made. If so, then your

professional adviser will need to determine whether the offer is fair.

Although it will often be necessary or advisable to write a Letter Before Claim, this is not the

same as actually applying to the court for judicial review, and does not alter the need to meet

the time limits for making your application to the court.

5. Making a claim

To commence an application for judicial review or statutory challenge you must submit a

claim form setting out your case in a logical manner. Copies of all relevant legislation and

background documents should be submitted with your claim form. The forms and official

guidelines on procedures can be found on the HM Courts Service website.

You can ask on your claim form for the court to hear your case more quickly or to serve an

injunction if damaging effects of the decision are pending. An application for an injunction

may be particularly effective where a polluting activity is about to commence pending the

granting of a planning decision and prior to the outcome of any challenge. However, the

current approach of the courts is to seek an undertaking for costs from the claimant

protecting the defendant against any interim losses.

Once the court confirms that you have complied with the formalities of making a claim you

must serve the relevant documents on the public authority whose decision you are

challenging, the beneficiary of that decision and anyone else directly involved.

Permission to proceed with judicial review will be granted or refused based on the contents

of your written submission, and will generally depend upon whether the judge considers the

case is arguable. If permission is refused you are entitled to renew your application by way

of an oral hearing in front of a judge who will decide whether your case can proceed to full

judicial review. There is no permission stage in the procedure for statutory challenges.

5.1 The hearing and outcome

Once permission for judicial review has been granted you will be required to make a full

written submission together with supporting documentary evidence setting out the detail of

the case you will present at the judicial review hearing. In cases involving statutory challenge

a witness statement must be filed with the court within fourteen days of service of the claim

form, if not already filed with it.

At the hearing, the points of law of the case are argued in front of a High Court judge usually

in the Royal Courts of Justice, although increasingly cases are heard in regional centres.

Quashing a decision is usually by far the most realistic outcome to aim for in judicial reviews

of planning decisions, and the only available remedy in statutory challenges.

The judge will inform all parties of the decision. If you are successful in proving that a public

authority’s decision is unlawful, the judge may quash the decision and return it to the public

authority to make a fresh decision. However, the judge has discretion whether or not to

quash a decision even if he finds in your favour. He may allow it to stand if it is decided that

there is no material impact on the final decision even though a part of the process was

unlawful.

5.2 Costs

The issue of costs is one of the most significant potential risks involved in a court challenge

(see Section 4.1 above and Case study 5 below). It is important to consider two potential

dimensions to costs: (i) those relating to your own representation; and (ii) should your claim

be unsuccessful, those of the defendant and others.

At the permission stage in judicial review cases, if the application is refused by the judge on

consideration of the papers, the claimant is likely to be liable for the defendant’s costs in

preparing a response to the claim, and possibly also those of the developer. If the

application for permission is renewed at an oral hearing the claimant is not generally liable

for the defendants’ costs of the hearing, save in exceptional circumstances.

Following a full hearing, the general rule is that the unsuccessful party in the case bears the

costs of the successful party (CPR Part 44). The losing claimant may be liable not only for

the costs of the defendant but also, exceptionally, those incurred by other interested parties

(e.g. the developer). These may amount to many thousands of pounds.

Case study 5: Avoidable costs?

A recent High Court decision

is a salutary lesson in how to minimise the risk of

mounting costs. Despite succeeding in a judicial review claim against the local planning

authority, a village society was only awarded half of its costs due to pursuing a number of

arguments at the hearing that had been identified as weak by the judge granting

permission for the hearing.

More recently the courts have allowed applications by community groups at the start of

proceedings for a Protective Costs Order (PCO). This is a court order which limits the

amount of costs payable to the successful party should the applicant lose the case. The

Court may specify what costs and up to what limit each party will have to pay.

Before applying for a PCO, a claimant must satisfy the guidelines set out in the Corner

House case

. This includes satisfying the court that the case raises issues of general public

importance, not simply of local significance. If you wish to pursue a claim it may be possible

to obtain costs protection or costs cover by various means, including:

(a) a PCO where the criteria in Corner House can be satisfied.

(b) a Conditional Fee Agreement (CFA) with your legal advisers.

(d) Public funding (previously known as Legal Aid).

Some of these, particularly CFAs and insurance, are often used together. The use of CFAs

is, however, relatively rare in court challenges to planning decisions. This is because the

outcome of planning-related court cases can be difficult to predict, in comparison with other

types of claims such as personal injury. Insurance can be expensive and its availability can

also be highly restricted. Eligibility for public funding is means-tested.

Some campaign groups have addressed the issue of costs by building in the seeking of

pledges for assistance in meeting insurance costs and in conjunction with a CFA. Pledges

can be sought from supporters of an overall campaign of which the court action forms an

element. Increasingly, residents’ groups are also forming limited companies to act as a

claimant, funded by individuals with an interest in the case, which allows the company rather

than the individuals to be made liable for costs. The courts have accepted that such

companies can have standing or be considered ‘persons aggrieved’ as applicable, even if

they are incorporated only a couple of days before the claim is lodged

. More information

about (i) organising a campaign is available in the CPRE guide Getting Organised and

Getting Results, and (ii) sources of funding is available from www.legalservices.gov.uk and

www.publiclawproject.org.uk.

R (on the application of Helford Village Development Company Ltd) v Kerrier District Council, [2009].

R (Corner House Research) v Secretary of State for Trade and Industry [2005].

For example, Residents Against Waste Site Ltd v Lancashire County Council and Global Renewables [2007].

CPRE exists to promote the beauty, tranquillity and diversity of rural England by encouraging

the sustainable use of land and other natural resources in town and country. We promote

positive solutions for the long-term future of the countryside and to ensure change values its

natural and built environment. Our Patron is Her Majesty the Queen. We have around

60,000 supporters, a branch in every county, eight regional groups, over 200 local groups

and a national office in Westminster. CPRE is a powerful combination of effective local

action and strong national campaigning. Our President is Bill Bryson.

With thanks to John Hobson QC, Paul Miner (CPRE), Phil Shiner (Public Interest Lawyers),

Ralph Smyth (CPRE), Debbie Tripley (former Chief Executive, Environmental Law

Foundation), and David Wolfe (Matrix) for their contributions to this guide. This guide was

originally published jointly by CPRE and the Environmental Law Foundation.

The content of this guide does not constitute legal advice.

ISBN: 1 902786 45 9

June 2010, with minor revisions December 2012

Campaign to Protect Rural England (CPRE)

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Tel: 020 7981 2800

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