A Quick Guide to Judicial Review Planning Claims

This guide provides a general overview of what a judicial review claim is, how and why you might want to bring one, and what remedies the court can order.

What is judicial review?

Judicial review is defined in Part 54 of the Civil Procedure Rules as the process by which the court will review the lawfulness of an enactment, decision, action or failure to act in relation to the exercise of a public function.

This often relates to planning decisions and actions by local planning authorities (LPAs) and the Secretary of State, which can be challenged in the courts by way of judicial review if the decision made was unlawful.

The focus of the judicial review is to consider the legality of how a decision was made or action was taken by a public body in the exercise of a public function. Judicial review cannot be used to review the merits of a decision.

The process for bringing a judicial review claim is very time-sensitive. In most cases, a claim for judicial review must be filed with the court no later than six weeks after the grounds to make the claim first arose. Therefore if you have a matter which you think is subject to judicial review, it is important you seek legal advice as soon as possible to maximise the timeframe to prepare your case.

Who and what can be challenged?

In principle, judicial review can be used to challenge any act or omission by a public body, whereby the decision made is in the “public interest”. Most commonly in judicial review planning claims, this will involve bringing a claim against your local council.

To bring a claim for judicial review, you must have sufficient ‘standing’ which means that you have sufficient interest in the matter. This is considered as part of the factual and legal context of the claim and how your interest in the matter ties in with this.

What are the grounds for bringing a judicial review claim?

A judicial review claim will seek to demonstrate that the public body’s action falls within one or several of the below heads of claim:

• Illegality – where the decision-maker has failed to understand correctly the law that regulates its decision-making power and/or has failed to give effect to it.
• Irrationality – where a decision is so outrageous in its defiance of logic or of accepted moral standards that no sensible person giving due consideration to the matter in question could have arrived at such a result.
• Procedural Impropriety – (also referred to as a breach of natural justice), where, in making a decision, basic rules of natural justice were ignored, or where there was a failure to act with procedural fairness towards a person or to observe procedural rules that are expressly laid down by legislative instrument.

Common grounds for judicial review planning claims

• Misinterpretation or misapplication of policy – A failure to correctly interpret and/or apply planning policy. This is usually formulated as an irrationality or illegality challenge. A decision-maker will open themselves up to challenge if they have failed to regard a policy in the development plan which is relevant to the application or have failed to properly interpret it.
• Material considerations – Failure by a decision-maker to have regard to a material planning consideration or the taking into account of a consideration which is not a material planning consideration. Such a ground is usually formulated as an illegality challenge, on the basis that it constitutes an error of law. A variant of this is the allegation that a decision-maker was misled by the planning officer about material considerations, often due to an unclear report or advice to the council which fails to understand the important issues that bear on the decision.
• Failure to give reasons/inadequate reasons – A failure to give reasons for a planning decision where required by statute or by the common law, and/or the inadequacy of reasons given for a decision. This is usually formulated as a procedural impropriety or illegality challenge.
• Failure to comply with EIA Regulations, SEA Regulations and/or Habitats Regulations – Where a decision has an environmental impact, it may be that the decision-maker failed to comply with a particular aspect of the legislative regime requiring environmental impact assessment, strategic environmental assessment and/or habitats regulations assessment. A challenge of this nature usually falls under the irrationality standard.

What remedies can you seek when bringing a claim for judicial review?

In judicial review claims, remedies are at the discretion of the court, and it can order or grant any of the below remedies as it sees fit:

• Mandatory Order – Requires the defendant to take a certain action or decision.
• Prohibiting Order – Preventing the defendant from taking a certain action or decision.
• Quashing Order – Nullifying or setting aside a decision made by the defendant so that it has no legal force or effect. In cases where the grant of planning permission or approval of reserved matters or details under condition is quashed, the original application to the LPA is revived and is back with the LPA for determination.
• Declaration – A statement by the court as to what the law on a particular point is or is not.
• Injunction – An order to act in a particular way or to refrain from acting in a particular way.
• Damages – Money awarded by the court to compensate the party that has suffered loss or damage. However, it is worth noting that there is no right in judicial review to claim damages for losses caused by unlawful administrative actions. It is only possible to receive damages in judicial review claims if there is another established cause of action, separate to the ground for judicial reviews, such as breach of statutory duty, misfeasance in public office or private action in tort.

Further Information

To see a real-world example of a recent case, please click the following link:

Challenging the big boys when it comes to planning

How we can help

If you require advice about your potential judicial review claim, please completing our online enquiry form or by calling 0330 191 4857.