Judicial review of planning decisions will probably not be at the forefront of most developers' minds at the moment as permissions themselves are at historically low levels and so there is simply less scope for aggrieved residents or others to make applications for review of decisions.
When development picks up again as it surely will developers can be heartened by the recent decision in the case of Macrae v Herefordshire District Council which if it remains un-appealed will bring some certainty to what has been a very confused topic.
Planners and developers will be aware that after the struggle to obtain planning permission there is one more potential hurdle to be overcome before a developer can exercise an option or declare a contract unconditional and go ahead and buy a site which they have bought subject to planning. That hurdle is [a] potential review by the Courts of the planning authority's decision.
This is known as "judicial review". A review can be brought by a person or company which considers that proper procedures were not followed by the planning authority leading up to the grant of permission.
Proceedings for judicial review have to be brought "promptly and in any event three months" from the date of the decision which is to be reviewed.
This seems clear enough and in previous decided cases where a person sought to bring proceedings just before the end of the three month period they were sometimes refused permission to do so because they had not brought them "promptly".
It had been thought however that the uncertainty which was raised by having what are effectively two conflicting time limits (one of which is a matter for the Judge rather than a fixed limit) conflicted with European law which requires time limits to be certain.
Lawyers being cautious therefore took the view that the full three months needed to be allowed for an application by a party for judicial review to be refused on the basis that it was not brought in time.
We are now back where we started following the Macrae case. The case was decided by David Elvin QC in the Queen's Bench Division and is therefore a first instance case and could be appealed and overturned but until it is his decision is it is only in cases that raise an issue of European Union law that time limits have to be certain.
Most land cases in Britain do not raise such issues and therefore we are back to the position that proceedings need to be commenced promptly as well as within the three month time limit so aggrieved applicants who wait until the last minute may well find themselves refused permission to bring the proceedings altogether.
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