Judicial Review in Planning Matters


The Town and Country Planning Act 1990 requires anyone proposing to carry out building work, or to change the class of use of land (e.g. from industrial to residential) to obtain planning permission from (usually) the local council.

Some planning applications are decided by council officers but anything large or controversial would normally be decided by elected councillors themselves. The council will have a Development Plan describing their general policies for different areas but, within that overall framework, councillors have some discretion to approve or refuse permission. Anybody can support or object to a planning application by writing to the council planning department.

Because a decision to grant or refuse planning permission is ultimately a matter for elected representatives, the extent to which their decisions (or decisions made by government inspectors on appeal) can be challenged in the courts is limited. It would be constitutionally improper for the courts to second-guess the merits of a planning decision since Parliament has legislated to place the decision making under democratic control. But it would also be constitutionally improper for councils and government to make decisions which go outside their lawful powers and it is the role of the courts, if an application is made for judicial review, to rule on the lawfulness of a decision. 

Judicial review is the modern name given to the ancient prerogative writs of Mandamus, Prohibition and Certiorari by which the courts, in the name of the King, have ensured that public officials keep within the law. Ensuring that public officials make decisions lawfully is not only a matter ensuring that they do not act beyond their statutory powers but includes ensuring that decisions are made with procedural fairness, and are rational in the sense of being logical and not taking into account factors it is impermissible to take into account (and, of course, taking into account everything which is relevant).

Judicial review, as a remedy of the common law, is available to challenge the lawfulness of virtually all types of decisions of public bodies. In some cases judicial review is actually built into legislation and is often known as "statutory review". The lawfulness of some planning decisions can be challenged by statutory review whereas for other types of decision resort has to be had to common-law judicial review. For example if a landowner applies to the council for planning permission and permission is refused, there is a statutory right to appeal to a government inspector. If the government inspector upholds the refusal then a statutory review claim can be made to test the lawfulness of the inspector's decision. If, however the council grants planning permission and a neighbour wishes to challenge this, there is no statutory right of appeal, or statutory procedure for review, so a common-law judicial review claim is brought against the council instead.  
   

Disclaimer

The above explanation of the law is only an overview and in order to be reasonably concise I have had to leave some details out - details which are likely to affect what the law would say about your own situation. So please do not rely on the above but Contact me for advice   

This page was lasted updated in March 2017  Disclaimer