UK: Judicial Review: Who Pays The Price?

Summary and implications

It is usually the applicant developer who is most interested in defending a judicial review challenge, so that the permission does not get quashed. However, the defendant in a judicial review challenge against the grant of planning permission is the decision-maker, being the relevant local planning authority (LPA). In light of the recent cuts to local authority budgets, we expect that more LPAs will leave the detailed work involved in defending a challenge to the developer, who may join proceedings as an interested party. However, in a recent case, the court specified the minimum required of a defendant LPA in these circumstances. Interested parties will need to work with the LPA to ensure that the court's requirements are met.

The facts

Midcounties Co-Operative Ltd (Midcounties) challenged the grant of planning permission for a 4,645 square metre food store by the Forest of Dean District Council (the Council). This was the third claim for judicial review made by Midcounties at the site. Clearly Midcounties thought they were on a roll having successfully challenged the other two permissions which were then quashed by the court.

The Secretary of State called in the first application made by Trilogy Development (Trilogy) in 1999 and refused permission on the basis that Cinderford was a weak town centre with "an extraordinarily high level of leakage" and it was considered that the proposed Tesco development would have a direct adverse impact on the town centre of between 25 and 37 per cent.

The second application was approved by the Council in March 2012 but quashed by the court in July 2012. In January 2014 the Council reconsidered the application and granted permission but again the decision was challenged and quashed in September 2014. Finally in July 2014, the Council granted the planning permission which was the subject of this challenge.

Permission quashed

Midcounties brought the challenge on five, but the court quashed the planning permission on the basis of the first two. These were as follows:

  • The Council failed to consider or assess the true extent of harm to the town centre and the importance of consistency in planning law.
  • The Council took an inconsistent and irrational approach to the section 106 obligations and breached CIL Regulation 122 (which sets out the legal requirements for section 106s).

The court agreed with the claimant on the following basis:

  • There was a fundamental defect in the officers' report. The full impact of the development on the town centre had not been clearly set out in the report. It did not make it clear that the development would remove half of the Co-op's turnover and put it at risk of closure. This was emphasised by the judge in the previous judicial review case. The committee's balancing judgement was therefore flawed.
  • Even if the Co-op did not close, there would be a knock-on effect from the reduced number of linked trips to the town centre as a result of the out-of-town development.
  • The court agreed that the Council's approach was inconsistent and irrational. The planning officer had stated in one section of his report to the committee that the section 106 obligations were necessary to make the development acceptable in planning terms, but did not explain why. In another section of the same report he said that even if the section 106 obligations were ignored, the development was acceptable despite the conflicts with planning policy.

The role and responsibilities of a defendant LPA

One of the main points of interest in this case are the postscript comments regarding the court's expectations where the defendant LPA chooses not to take an active part in proceedings. In this case, the defendant LPA had informed the court by letter that it did not concede the claim but, since it could not afford to take an active part in the proceedings, it supported Trilogy in its resistance to the challenge. The court commented that if a defendant public authority should find itself in such a position, it should consider whether it has complied with the public authority's duty of candour and co-operation in judicial review proceedings to assist the court in understanding its decision-making process and dealing with the issues fairly. In particular, it should consider whether:

  • it has disclosed all relevant documents;
  • it should file a witness statement to assist the court;
  • it should file an acknowledgement of service with summary grounds of resistance, if only in outline form; and
  • a representative of the authority (not necessarily a lawyer) should be present in court at any hearing so that it is in a position to know what is going on.

We expect that these comments from the court will be useful for defendant LPAs as they provide a checklist for consideration. We hope that despite the acceptance of a reduced role for defendant LPAs in judicial review proceedings in certain circumstances, LPAs will strive to ensure that their decisions and decision-making processes are lawful. After all, if a challenge is thrown out at the permission stage of proceedings, there will be a costs saving for all involved.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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