Out-Law Analysis | 28 May 2021 | 9:17 am | 5 min. read
Proposed changes to judicial review in England and Wales will have repercussions for those seeking to challenge planning policy and planning decisions.
While the recent review by Lord Faulks QC suggested that judicial review should remain largely unchanged, the government went on to consult on a number of recommendations for reform. A Judicial Review Bill was announced during the Queen’s Speech earlier this month. These documents make interesting reading for those involved in the planning process and provide an indication of the general direction of travel, regardless of how many of the government’s proposals ultimately make their way into law.
A party seeking to bring a judicial review against the decision of a planning authority or other public body must have sufficient interest, or ‘standing’, in the matter to which the challenge relates.
Although the courts have avoided defining exactly what amounts to a sufficient interest, the general trend in recent years has been towards a liberalisation of this requirement.
Lord Faulks acknowledged this trend in his review. While he makes no specific recommendation to change the standing rules, he noted the importance of distinguishing between “an issue which ‘directly affects the section of the public that [a claimant] seeks to represent’ and a policy choice by government that may adversely affect a section of society”.
He said: “An organisation representing that section of society may disagree with the policy, but judicial review of the policy has the potential to become ‘politics by another means’. Disapproval of a policy does not entitle a body to cite their judgment of public interest as providing sufficient interest to give them standing to challenge the policy”.
The role of the planning court is not to decide on the individual merits of an application. It is to hold the decision-making processes of the government or public body to account and to ensure that the decision was made in line with policy and within legal constraints
The review went on to say that public bodies could do more to challenge the standing of those seeking to bring judicial review claims, and that the courts should be encouraged to expressly address standing in proceedings regardless of whether the issue is raised by the parties. Courts should “be astute to distinguish between ‘public spirited’ groups that enable challenges to the legality of an act or decision to take place and those applications which seek to involve the courts in a general policy review of decisions that an elected government is entitled to make”.
Standing is of particular concern to central and local government bodies and developers in challenges to planning policy and planning decisions. If anybody representing a “section of society” which disagrees with a particular government policy is granted standing, without due consideration, to pursue a challenge to a decision by a local planning policy, more reviews may be sought.
Compounding this issue is the fact that third party challenges can be lodged at relatively little cost to the third party, but at a potentially enormous cost to the developer and the defending planning authority. Many of those involved in planning will have come across examples of the judicial review process being used to try to stall developments.
We may see the courts take note of Faulks’ comments, and become more stringent in determining whether a party has sufficient standing in order to avoid frivolous reviews.
Climate change is firmly in the public eye. A recent trend among high profile third party judicial reviews is to cite a lack of regard to climate considerations as a ground for review: this came up in the review of the designation of the airports National Policy Statement (NPS), which supports the extension of Heathrow Airport; the decision by Surrey County Council to retain and extend oil wells; and South Oxfordshire District Council’s local plan provisions to build 24,000 new homes by 2035.
Conversely, many challenges have also been made to green infrastructure projects, such as solar parks and wind farms, on the basis of amenity or visual impacts.
Greater scrutiny is often placed on the courts’ decisions in these matters, and it can be difficult for judges to avoid accusations of judicial “activism” or “overreach”, or “creating politics by another means”. In cases where the court has agreed to consider climate change impacts on the basis that it is in the public interest to do so, judges must tread carefully to ensure that their deliberations are confined to a consideration of whether the public body in question has exceeded its powers.
The role of the planning court in these matters is not to decide on the individual merits of an application. It is to hold the decision-making processes of the government or public body to account and to ensure that the decision was made in line with policy and within legal constraints. Judges should not be drawn into a discussion on the ethical or political merits of decisions; and we have noticed a recent trend of planning court judges specifically stating in judgments that they will not encroach on the function of the government to make political, social and economic choices.
This general criticism of judicial overreach was addressed in the Faulks review, which noted that “judicial restraint” was needed in controversial cases. This “restraint” would involve the courts “reaffirming the fundamental constitutional fact that it is not for them to pronounce on the wisdom of the exercise of public power, instead, they are to perform the quite different function of determining whether the legal limits on the exercise of public power have been exceeded”.
The report asked the courts to “respect institutional boundaries” when exercising powers to review the legality of government actions. In turn, politicians should “afford the judiciary the respect which is undoubtedly due when it exercises these powers”.
Climate litigation will only continue to make headlines, and it will be interesting to see how the courts continue to manage these sensitive cases.
The review recommended the introduction of suspended quashing orders (SQOs) as a new, discretionary remedy available to the court. The public body would be given the opportunity to remedy any defects identified by the court, with the SQO automatically taking effect after a certain period of time if the specified conditions were not met.
The government consulted on the introduction of SQOs in its response to the Faulks review, and intends to take this forward as part of the Judicial Review Bill.
In the planning law context, a successful judicial review challenge often leads to the quashing of planning permission even where the reason for the court’s decision was due to a procedural mistake which could have been rectified by the authority at an earlier stage. In these cases, there is sometimes a long delay between the grant of the original planning permission and the matter being heard in the courts, which can have a significant impact on the development in question. An SQO could potentially provide a legislation-backed method of correcting errors and preventing the wholesale quashing of planning permissions which may have taken many months to obtain through the planning process.
An example of when an SQO may have been a useful remedy occurred in the 2018 Thornton Hall Hotel case. A mistake by the local planning authority, Wirral Metropolitan Borough Council, meant that the planning permission was issued without any conditions attached to it. The application for judicial review was heard by the courts five and half years after the original grant of permission, and the court decided it had to quash the permission. In this case, instead of quashing the planning permission entirely, an SQO would have allowed the local planning authority to amend the original permission to attach the correct conditions.
Additional research by Austin Smith of Pinsent Masons.
06 Apr 2021
19 Mar 2021