This seminar looked at the judicial review principles, a case study and also provided an update on planning law.

1. Public sector planning club
October 2017, Nottingham

2. Summary
• Judicial review principles
• Case study
• Update on planning law

3. Avoiding Judicial Review of
Planning Decisions
Ben Standing and Will Thomas

4. Judicial Review: Procedure
Procedure: Part 54 CPR
• Remedy of last resort- alternative method of challenge?
• Application within 6 weeks of decision taken
Standing:
• s.31(3) of Senior Courts Act 1981: ‘sufficient interest’
– Court to use discretion for 3rd parties e.g. public interest
– Interested parties must be named
• Judicial review only third party right against decision

5. Judicial Review: Procedure
• Pre-action letter sent; LPA 14 days to respond
• LPA to request time extension if necessary
– Without prejudicing time limits
• Must obtain permission
• Judge then provides directions for substantive hearing
– Public hearing before single judge
• Successful challenge: decision often overturned &
returned to PINS (in s. 288 appeal) or LPA
– Can result in same decision being taken

6. Environmental Impact Assessment
• Town and Country Planning (Environmental Impact
Assessment) Regulations 2017
• LPA should determine whether project falls within
Sch 1 or Sch 2 of the Regulations
• Sch 2 projects satisfying certain criteria require the
LPA to consider whether there are to be ‘likely
significant effects on the environment’ and
whether a full EIA is required (i.e. carry out
‘screening’)

7. Environmental Impact Assessment
• Sch 2 projects include:
– Projects for the use of uncultivated land or semi-
natural area for intensive agricultural purposes
– Intensive livestock installations
– Urban development projects/infrastructure
• Sch 3 criteria:
– LPA must consider the characteristics of the
development, location of development and types
and characteristics of the potential impact

8. Potential grounds of Judicial Review
• Error of Law
• Wednesbury unreasonableness
• Procedural unfairness
– Duty to consult
– Duty to give reasons
• Error of fact
• Bias and/or predetermination
• Legitimate expectation

9. Error of Law
• Courts will intervene where there has been an
error of law
• For example:
– Whether a development falls within one or other of
the classes of projects that are subject of an EIA
– The interpretation of a development plan

10. Error of Law
• R (on the application of Goodman) v Lewisham LBC
(2003) EWCA Civ 140
Local residents appealed a local authority’s decision that a
self storage unit was not an infrastructure project within the
meaning of schedule 2 of the EIA Regs and this decision could
only be challenged on the grounds of Wednesbury
unreasonableness. Allowing the appeal, the judge stated that
the finding was not a finding a fact so unreasonableness did
not apply. The local authority was wrong in law; self storage
was infrastructure and the list at schedule 2 was illustrative
not exhaustive.

11. Error of Law
• Tesco Stores Ltd v Dundee City Council (2012) UKSC
13
Tesco disputed the granting of planning permission by
Dundee CC for another supermarket 800 metres away. As
part of the dispute Tesco argued that the meaning of the
words in the development plan had been ascribed a meaning
they could not bear and as such the council had made an
error in law. Only the court could determine what the words
could bear. Dismissing the appeal, the court found that there
was no error in law but in a dispute about the meaning of a
policy it was for the courts to decide if the public authority
has taken a view that is perverse or irrational.

12. Error of Law
• Applying to our scenario, has CDC made any error
of law?
• What might have CDC done better?

13. Wednesbury unreasonableness
• Wednesbury unreasonableness has often been
based on the proviso that an officer of a public
body has a discretionary area of judgment and, as
long as it stays within the bounds of that area, a
decision it makes will be lawful
• The court will often defer to the local knowledge
and expertise of the local authority

14. Wednesbury unreasonableness
• R(on the application of Jones) v Mansfield DC
The court reviewed a local authorities decision to grant outline
planning permission to build an industrial estate on a green field site
next to the applicant’s home without an EIA. Dismissing the appeal,
the court found that the local authority had before it sufficient
information, such as ecological reports and representations from various
consultees on particular wildlife, to have allowed it reasonably to decide
that the industrial estate would be unlikely to significantly affect the
environment. This type of decision involved an exercise of judgment or
opinion and it did not require that all uncertainties had to be resolved or
that a comprehensive assessment had to be carried out before a conclusion
was reached that an environmental impact assessment was not
necessary

15. Wednesbury unreasonableness
• R. (on the application of Akester) v Department for
the Environment, Food and Rural Affairs (2010)
EWHC 232 (Admin)
The applicant applied for the court to review the defendant’s decision to
introduce a new ferry in a SAC. The application was granted. In determining
whether an appropriate assessment had been carried out, the issue was
whether a reasonable harbour authority, in the proper discharge of its
public duty as a competent authority, could have concluded that no doubt
remained as to whether or not there would be significant adverse effects on
the integrity of the site by the introduction of the new ferries. The decision
made by W as competent authority that allowed it to introduce the new
ferries was fatally flawed and unlawful. In making the decision, the court
adopted a deferential approach to Natural England acting as an expert body

16. Wednesbury unreasonableness
• Was CDC Wednesbury unreasonable in making its
decision to grant planning permission?
• What might have CDC done better?

17. Procedural Unfairness
• Encompasses:
– Duty to consult; and
– Duty to give reasons
• Common ground of challenge

18. Procedural Unfairness: Duty to
consult
• Although the position still remains that strictly
speaking there is no general duty to consult,
practically the duty is so common as to render this
irrelevant
• Where a public body does consult, it must do so
fairly

19. Procedural Unfairness: Duty to
consult
• R (on the application of Moseley) v Haringey LBC
(2014)
Supreme Court reaffirmed the Sedley principles of fair
and adequate consultation:
– Consultation at formative stage of proposals
– Proposer to give sufficient reasons for proposals
– Adequate time for consideration and response
– Product of consultation to be taken into account

20. Procedural Unfairness: Duty to
give reasons
• Although there has been an increasing trend in
common law for decision-makers to give reasons,
the present legal position is there is no general
common law duty on public bodies to give reasons
R (Hasan) v Secretary of State for Trade and
Industry (2008)
• However, not giving reasons means that a decision-
maker may be much more susceptible to a
successful challenge on another ground for review

21. Procedural Unfairness: Duty to
give reasons
• South Bucks DC v Porter (No. 2) (2004) 1 WLR 1953
The applicant appealed against a decision to quash an
inspector’s decision to grant planning permission for the
retention of a residential mobile home on a site. Issues
arose as to the adequacy of the inspector’s reasons.
Allowing the appeal, the court determined the
inspector’s reasoning was both clear and ample. Being
briefly stated was not enough to sustain a challenge

22. Error of fact
• For there to be a JR challengeable error of fact that can
be challenged, the following criteria must apply:
– There must have been a mistake of an existing fact
– The fact must be uncontentious and/or objectively
verifiable
– The claimant must not have been responsible the
mistake
– The mistake must have been material in the decision
making

23. Error of fact
• Has CDC made an error of fact in reaching its decision?
• What might CDC have done better?

24. Bias and/or predetermination
• Porter v Magill (2001) gives the modern law
The question is whether the fair-minded observer,
having considered the facts, would conclude that
there was a real possibility that the ‘tribunal’ was
biased

25. Bias and/or predetermination
• A decision-maker should declare their interest in and withdraw
participation from a decision:
– Which will affect a friend or relation
– In which they have a financial interest relating to the outcome
– Where they are a director of an organisation affected by the
outcome of the decision
– Where they are a member of a group campaigning for one
outcome or another
– In which their spouse or civil partner has an interest in the
outcome

26. Bias and/or predetermination
• R (on the application of Lewis) v Persimmon Homes
Teesside Ltd (2008) is the leading case on bias and pre-
determination
– Mere predisposition will not be enough
– Appearances of predetermination created by a
councillor voting for a planning project he has long
supported are not predetermination
– Importance of appearances limited in local
government context

27. Bias and/or predetermination
• S.25 of Localism Act 2011 provides that a decision
maker must not be taken to have had a closed mind
when approaching a decision just because they have
previously indicated a view on the relevant matter
• S.25 taken with Persimmon, bias and predetermination
will rarely be fatal in local government decisions

28. What to do if threatened with JR
• PAP letter. Will need to respond in short period of
time. Do not ignore
• Best to try and stop claims early on
• No costs awarded at pre-action stage
• Could be from pressure groups/residents
• Only 6 weeks for planning matters
• Potential to correct defects

29. Case study

30. Planning update
Stephen Coult

31. Introduction
• Developer contributions
• Special measures designation
• Housing delivery test
• Revised NPPF

32. Developer Contributions
• The future of the CIL is due to be determined in
the Autumn Statement (22 November 2017)
• Local infrastructure tariff proposed
• The Autumn statement will reveal government’s
intention on the implementation of section 158 of
the Housing and Planning Act 2016 (resolution of
disputes about planning obligations)

33. Planning conditions
• Ministers now have powers under the
Neighbourhood Planning Act 2017 to set out
planning conditions and require agreement to their
imposition
• No secondary legislation detailing what types of
condition will be acceptable has been passed

34. Application and appeal fees
• Ability for LPA to set significantly higher planning
application fees mooted in February 2016
(including fees for prior approval under new PD
rights)
• Necessary regulations promised in July, but draft
regulations only published on 25 October 2017
• No consultation for fees of up to £2000 for
submission of planning appeals. Would it reduce
appeals?

35. Alternative providers
• Sections 161 – 164 of the Housing and Planning Act
2016
• Government reflecting on whether to bring in
regulations to test the practicality and desirability
of competition in the processing of planning
applications
• No timescales on implementation

36. Special measures designation
• No authorities will be designated under ‘special
measures’ this year
• Authorities designated as such can be bypassed by
applicants, who can apply directly to the Planning
Inspectorate
• However this may be introduced in spring

37. Compulsory purchase reform
• Clarifications regarding the no scheme rule
contained in the Neighbourhood Planning Act 2017,
which dictates that any increase or decrease in
value arising from the scheme underlying a CPO is
to be disregarded in assessing compensation
liability, came into force on 22 September 2017.

38. Housing delivery test
• ‘Housing delivery test’ for English LPA delayed. The
test would have assessed LPA’s performance on
homes built over a specific period
– Sanctions include:
 Requirement to produce action plan explaining how
they will get back on track
 An additional 20 per cent buffer against underdelivery
 A presumption in favour of sustainable development

39. Planning freedoms & permission
in principle
• Government is also looking at implementing the planning freedoms
scheme which would allow national planning rules to be relaxed
temporarily to support increased housebuilding – section 154 of the
Housing and Planning Act 2016
• Since April, regulations have been in force that allow councils to
grant planning permission in principle for housing and compatible
non-residential developments on suitable sites on brownfield
registers
• Regulations on criteria for inclusion on such registers also came
into force in April and all authorities are required to produce them
by the end of 2017

40. Local plans
• Early 2017 deadline for up-to-date plans has passed
• Only Birmingham and Bradford City Councils only councils subject
to ministerial holding decisions, both now lifted
• There is no timetable yet for the implementation of intervention
powers
• The proposed criteria for intervention are, where:
– The least progress in plan-making had been made
– Policies in plans had not been kept up to date
– There was higher housing pressure
– The intervention would have the greatest impact in
accelerating local plan introduction

41. Neighbourhood plans
• Post-examination neighbourhood plans to be treated as
material considerations in determining planning applications
• Further provisions are expected including a more
proportionate process for modifying neighbourhood plans and
neighbourhood development orders and measures to improve
council support for neighbourhood planning groups
• The national planning policy update will allow
neighbourhood plans to set green belt boundaries when a
green belt review is called
• £22.8 million to help develop neighbourhood plans

42. Revised NPPF
• The government will be working on a revised NPPF towards
the end of the year
• More clarity is hoped for on the goal of ‘high quality, high
density housing’
• The revised NPPF is expected to confirm the reasonable
options which councils will need to show before considering
green belt releases
• The NPPF is also expected to implement measures for
proactive planning in the rental sector

43. Revised NPPF
• The government is consulting on proposals to ensure that the right
homes are built in the right places. Consultation ends on 9
November
• The proposals in the consultation include:
– A standard method for calculating local authorities’ housing
need
– How neighbourhood planning groups can have greater certainty
on the level of housing need to plan for
– A statement of common ground to improve how local
authorities work together to meet housing and other needs
across boundaries

44. s.106 Dispute resolution
• Intended to "speed up section 106 negotiations and
help housing starts to proceed more quickly",
according to planning minister Brandon Lewis
• Local authorities would have to bear in mind the
costs which may be incurred if they go for dispute
resolution
• Concerns it could protract the process

45. What’s new in planning
• DCLG announced £2.5 million to speed up building
of 155,000 new homes in proposed garden towns
• DCLG has reported to Parliament on its
performance in complying with timetables for
planning decisions since April 2014
• Green belt land shrunk by 790 hectares last year as
8 local planning authorities adopted local plans.
The decrease was smaller than the preceding year

46. Dmitrije Sirovica – 0115 976 6238
dmitrije.sirovica@brownejacobson.com
Ben Standing – 0115 976 6200
ben.standing@brownejacobson.com
Stephen Coult – 0115 976 6152
stephen.coult@brownejacobson.com
Will Thomas – 0115 934 2007
Will.thomas@brownejacobson.com

47. All information correct at time of production.
The information and opinions expressed within this document are
no substitute for full legal advice. It is for guidance only and
illustrates the law as at the published date. If in doubt, please
telephone us on 0370 270 6000.
© Browne Jacobson LLP 2017 – The information contained within
this document is and shall remain the property of Browne
Jacobson. This document may not be reproduced without the prior
consent of Browne Jacobson.