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Judicial review

The procedure for Judicial Review and Statutory Review is contained in CPR, Part 54 and its Practice Directions.

The standard time limit for an application for judicial review is three months but "where the application for judicial review relates to a decision made by the Secretary of State or local planning authority under the planning acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose" (CPR 54.5(5)). This is a set time limit. There is no overriding requirement in planning cases to act "promptly".

This page contains some cases where an application for judicial review has been brought where it is alleged that there has been some error in procedure.


Aggrieved person

Morbaine Limited v First Secretary of State
[2004] EWHC 1708 (Admin)

Facts

L applied for planning permission for a large mixed-use development. The Secretary of State called in the application. Following a public local inquiry, the inspector recommended the grant of planning permission. That recommendation was accepted by the Secretary of State. Both M and R applied to the court under section 288 of the Town and Country Planning Act 1990 to quash the Secretary of States decision. This means of challenge is available to any person who is aggrieved by such a decision.

M was a commercial developer interested in acquiring a potential development site some three miles away from the application site. It had lodged no objection to Ls application, nor taken part in the inquiry. Furthermore, it had no proprietary interest in any land affected by Ls proposed development. R was a local resident who lived close to the application site. Her involvement had been limited to lodging a written objection to the application. M had entered into an agreement with R that in return for a payment of 1,000 and a full indemnity in respect of costs she would join in the challenge, in case M should be found to lack standing.

L applied to have the application summarily dismissed, contending that neither M nor R was a person aggrieved, the agreement between them amounted to an abuse of process, the application had been served outside the six week time limit and the grounds of challenge had no reasonable prospect of success.

Decision

Blackburne J dismissed the application by M and R, holding that M had no sufficient standing for the purposes of section 288. He did not rule on the standing of R because he also found that their grounds of challenge had no reasonable prospect of success, and that their application was served out of time. For a similar reason he did not rule on the abuse of process argument.

Comment

Clearly a person aggrieved can include the applicant for planning permission and the local planning authority, but it can be difficult to predict, on the basis of decided authorities, exactly how far this will extend to cover third parties in any given case. This decision confirms that the third party must not be a mere busybody, but someone with a real or genuine interest in obtaining the relief sought. It probably also establishes the need for the third party in question to have prosecuted his objections throughout and to have some proprietary interest in land affected by the decision under challenge.


Apparent bias

R (on the application of Georgiou) v Enfield London Borough Council
[2004] EWHC 779 (Admin)

Facts

The council had granted listed building consent for a change of use of a Grade II listed building, currently on English Heritages register of buildings at risk, to use as offices and a consulting room, and for the erection of a mental health nursing home for 60 patients within the curtilage of that building. There was also a resolution to grant planning permission for the erection of the nursing home, subject to the completion of a section 106 agreement. The proposals had been considered by the members of the councils conservation advisory group (the CAG) which was made up of elected members of the authority and representatives of the local community.

The claimant contended that these decisions were vitiated by an appearance of bias arising out of the fact that four members of the councils planning committee were also members of the CAG and that three of them (who all voted in favour of granting the consents) participated in meetings of the CAG at which support was expressed for the proposals.

Decision

Richards J quashed the councils decisions. He said that in dealing with the apparent bias, it was necessary to look beyond pecuniary or personal interests and consider in addition whether, from the point of view of a fair-minded and informed observer, there was a real possibility that the planning committee, or their members, had been biased in approaching the decision, and that they had done so with a closed mind and without considering impartially all relevant planning issues.

He went on to hold that a fair-minded and informed observer would probably have concluded in the circumstances of the present case that there had been a real possibility of bias, as a result of the support expressed by the CAG for the proposals in the context of the planning committees decisions. Accordingly, the decisions were vitiated by the appearance of bias.

Comment

This case emphasises the care that any local planning authority needs to take to ensure that in determining planning applications, proper procedures are followed.


Discretion

R (on the application of Jones v Swansea City & County Council
[2007] EWHC 213 (Admin)

Summary

The challenge was brought on the grounds that the local authority had failed to assess whether the proposal contravened its planning guidelines. The judge found that this ground was made out. However, he withheld relief on the grounds that the local authority would simply grant planning permission again. The basis for this finding was that the Court had been given evidence which demonstrated that the local authority had reconsidered the application having all the relevant information before it and decided that it would grant planning permission.

More detail

The Court considered that it had embarked on its reconsideration with an open mind and what was crucial was that the members of the committee decided to view the building for themselves and that re-appraisal was a compelling reason why relief should not be granted in the context of the instant case.

Comment

This is an interesting case, in that the reappraisal took place in the face of a judicial review challenge to its earlier decision. Although the judge noted the need to be cautious in such circumstances, he accepted that the reappraisal had been properly carried out. In refusing to quash he said:
    "As I have indicated in exceptional circumstances and in the exercise of my discretion I am entitled to withhold relief notwithstanding my view as to the validity of the decision made on the 9th May 2006. In my judgement the reappraisal undertaken by the Defendant does constitute a compelling reason why relief should not be granted in the context of this case. A quashing order would simply mean that the application for planning permission would have to be considered yet again by the Defendant. In the light of its consideration of this application between the 9th and 18th January 2007 it is virtually inconceivable that the Defendant would do other than grant planning permission. In those circumstances nothing whatsoever would be achieved by a quashing order"

Report of advisory body

Failure to take into account

R. (on the application of Watson) v Richmond upon Thames LBC
[2013] EWCA Civ 513

Summary

It was not a failure to have regard to a material consideration where a local authority planning committee had failed to take account of a report submitted by its advisory body.

Facts

Planning permission was granted for the redevelopment of a railway station. This included the construction of a building that exceeded the height limit required by the local development plan. In these circumstances such a proposal was to be subjected to an appraisal and report. The local authority set up an advisory panel (AP), which produced a report. The report of the planning officers was in favour of the planning proposal, and went on to point out that the report by AP was not a material consideration as it had not be formally submitted. A local resident (R) objected to the planning application. The application was granted without consideration of the AP report.

R’s sought a judicial review. The grounds included that in granting planning permission, the planning committee had failed to have regard to a material consideration, the AP report. This was rejected at first instance. R then appealed to the Court of Appeal.

Decision

The Court of Appeal dismissed the appeal. The Court felt that the failure of the planning committee to take the report into account did not amount to a breach of their statutory duty to have regard to material considerations. The report did not contain anything which was capable of affecting the committee’s conclusion that the development was in accordance with the development plan and accordingly there was no real possibility that the planning committee would have reached a different conclusion if the report had been taken into account.

However, Richards LJ said that he was “very surprised” that the Council officers advised that the AP report should be left out of consideration. He went on to say:
    “Its report was, moreover, expected by Council officers and was actually considered by officers once it had been received. The obvious course would have been to summarise it for members of the planning committee as part of the “Public and Other Representations”, as was evidently contemplated at the time of preparation of the officers' main report … I have referred already to the absence of any satisfactory explanation of why this was not done.”

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