Our team of specialist planning solicitors advise developers, promoters, and third party objectors in situations where planning permissions and other planning decisions are challenged in the High Court.
How can planning permission be challenged in the High Court?
The grant of a planning permission by a local authority may be challenged in the High Court. Other decisions, such as the grant of a certificate of lawfulness, or the grant (or refusal) of applications on appeal, can also be challenged.
It is important to bear in mind that the Court will only interfere with a planning permission if there was a legal or procedural error in the decision-making process e.g. the decision maker failed to have regard to a relevant matter, or misunderstood a relevant policy.
A challenge does not work in the same way as a planning appeal, and the Court will not interfere where the decision maker has exercised their judgment, unless the decision is so unreasonable or irrational that no reasonable person acting reasonably could have made it, which is a very high threshold.
What is the procedure for challenging a planning permission?
Firstly, the claim must be brought very quickly. In most cases there is a strict six week time period. The Court expects the claimant to have written to the proposed defendant (i.e. the decision maker) to set out their case prior to the claim being lodged.
If you are thinking of challenging a decision, it is therefore essential that advice is sought as soon as possible once the decision has been made. Once the claim is lodged, the Court will decide (usually on paper) whether the case is arguable; if it is, a full court hearing will take place.
What happens if my planning permission is judicially reviewed?
If a challenge is brought in respect of a planning permission that you have obtained, the case is against the decision maker e.g. the Council, rather than you, albeit that you will be joined as a party to the proceedings.
You have the option of taking an active role in the proceedings and defending the decision alongside the decision maker (assuming that they defend it which is not always the case), or you can leave the defence to them.
Often, people prefer to err on the side of caution and defend the decision in addition to the decision maker.
How long does the judicial review process take?
Timeframes depend on which Court deals with the case and how busy they are. Generally, a decision will be made as to whether the case is arguable within a few months of the claim being lodged, and, if the claim then proceeds to a full hearing, a decision should be forthcoming a few months after that. In total, it can often take 9-12 months for a claim to be determined.
What happens if the judicial review is successful?
Usually, the Court will quash the decision, and send the matter back to the decision maker to determine again, this time on the correct basis.
So it is entirely possible that if a planning permission is quashed by the Court because of some legal error, permission may be granted again once the correct proceed has been followed. Often, however, the error is fundamental and the permission is not issued at the second time of asking.
Who pays the costs of a judicial review?
Generally, the losing party pays their own, and the winner's, costs. These can be many tens of thousands of pounds, particularly where experienced Barristers, or King’s (formerly Queen’s) Counsel, are involved. However, the winner should not expect to recoup 100% of their costs – generally that figure is around 80-90%.
Speak to a planning lawyer
Our planning solicitors provide the help needed to deliver realistic projects, for businesses, developers and organisations. We work with you from the beginning of the process through to its completion and draw on the our team's shared expertise in the linked disciplines of environment, energy and regulation.
