Judicial review for planners: what’s the point?

Well, if there’s one thing the Government dislikes more than the current planning system (“outdated”, “ineffective’”, “no longer fit for human habitation”, “beginning to crumble” - and that’s just the PM’s foreword) it’s the process for challenging the outputs of that planning system.

Judicial review challenges. Against… all kinds of things. Grants of planning permission, decisions to adopt plans, making development consent orders. Plus High Court challenges to planning inspector’s appeal decisions (which aren’t technically judicial review, but add up to something very similar). Confirming compulsory purchase orders. The list goes on. More activist lawyers. Getting in the way.

And after some… ahem… unfortunate incidents in the Supreme Court last year, the Government’s had it about up to here with JR holding everything up. So they’re consulting. Reforms may be on the way. Scaling back JR. Who’s in charge of the review? Lord Faulks. Who recently wrote that the Supreme Court’s judgment against the Government in the prorogation case “constitutes a significant, unjustified constitutional shift”. So just the man for the job.

Simon Ricketts has already drawn our attention to this consultation on his stellar blog. The call for evidence itself is here. Do have a look.

But hang on, you may be thinking, what’s in it for you? Why should you care? Judicial review is hardly a popular topic in planning. Some of you may think curtailing judicial review sounds like a jolly good idea, if it means [depending on your POV] fewer obstructive objectors holding up your schemes, or fewer fat-cat developers going for an unjustified second bite of the cherry when they’ve already lost their appeal. Isn’t it mostly about circumventing or obstructing the planning system anyway, rather than helping it to work better?

Well… alright… sometimes. JR is not perfect. It can be long and costly. It can (albeit much less frequently than its detractors think) be abused in efforts to hold up perfectly good schemes, or to catch decisions out on some technicality.

But there’s another side to the story (the planning barrister would say this, wouldn’t he). And here it is:

Proper judicial review is a mission-critical safeguard to ensure that whatever planning system we end up with in the future runs in a way which is fair (to every side), predictable, transparent, and based both on genuine planning issues and on the right understanding of what policies actually mean.

You don’t always need JR to ensure those things happen. Heck, you very rarely need it. JR claims are brought in a tiny minority of cases, and a small minority of the few claims which are actually brought get past the “permission” screening stage to a final hearing. And most of those select few challenges fail.

But when you do need JR, you really need it. And it shapes our planning system in ways that couldn’t be more important. Examples? Ok - here are just 5 recent examples of how the courts are moulding our planning system for the better:

• The Supreme Court made clear in 2012 that planning policies cannot just mean whatever planning officers want them to mean: Tesco v Dundee. Objective, careful and impartial interpretation of planning policy should be at the heart of any plan-led system worth its salt. Say, if you want an authoritative, properly reasoned view on what, say, Green Belt "openness" means, or what exceptional circumstances mean, or what “policies for the supply of housing” are, or what “out of date” means, or what a “valued landscape” is and on, and on (and on…)…. well, that’s a massively important service JR provides. Public, transparent, objective and binding interpretations of what planning policy actually means.

• In 2014, the Court of Appeal explained what a fair planning appeal procedure looks like. You have to be told the other side’s case and have a fair chance to meet it. Inspectors have to consider important issues raised by 3rd parties to an appeal, even if they’re not raised by the main parties. Sounds obvious? It wasn’t: Hopkins Developments. But those are crucial principles for any system of planning appeals which has a chance of reaching a fair decision.

• Planning permission can’t be bought or sold. That’s what the Supreme Court explained in Wright v Forest of Dean last summer (more on which here). Again, critical stuff for all us working in this area - developers, authorities, interested groups of all stripes. If something’s going to weigh in the planning balance, it has to serve a planning purpose + it has to fairly and reasonably relate to the development permitted. Again, sounds obvious? It wasn’t. The Supreme Court needed to spell it out, and a planning permission granted on the back of an unlawful consideration had to be quashed.

• The Supreme Court’s also made clear that planning decisions have to be supported by proper reasons: Dover v CPRE. Sounds obvious? Yet again, it wasn’t. In fact it was a seismic shift in the law which started when South Cambridgeshire Distrct Council unanimously granted planning permission against officers’ very clear advice for a football stadium in the Green Belt to the south of Cambridge for no reasons at all: Oakley v South Cambs.

• Last but not least: consistency. Again, you’d have thought it went without saying that planning decision-makers should - at least most of the time, anyway - follow previous decisions, or give reasons for reaching a different view. Sounds important, doesn’t it, if the public are going to have at least a bit of confidence in the operation of our development control system. Well, that certainly does not go without saying, and the Court of Appeal gave us a very thorough walk through that topic in 2018: DLA Delivery.

So that’s 5 examples. I could give you 50 more [please don’t - Ed.].

In the end, dear reader: be careful what you wish for. If the demise or substantial scaling back of judicial review sounds tempting, take care. Because it’s been an invaluable tool to of make ours a more fair, transparent and consistent planning system. That role is important for all of us - not just objectors, not just authorities, not just developers. All of us.

And like most aspects of the rule of law, we degrade it at our peril.

So there we have it. Yet another consultation for you to respond to, #planoraks. As if you didn’t have enough to do already! Stay well, and keep on planning.