Section 4
Legal Action

What action can your council take if you disagree with the decision? It should be said at the outset that there is no means of revisiting the substance of the decision in the way that the LPA’s planning committee or an Inspector does at a public inquiry. The only ways open to you involve reviews of the way in which the decision was taken in procedural terms. As you will appreciate, this may or may not alter the decision in the long run: all the boxes may be ticked correctly the second time but the decision could remain the same.

THE OMBUDSMAN

The major deterrent in going to court is the issue of costs: if you lose the case you could be in for paying the other side’s which could be substantial. Therefore people look to the Local Government Ombudsman as a free way of keeping LPAs in check. As the lowest tier of local government, local councils cannot use the Ombudsman. Nonetheless there is usually a member of the public, who is particularly aggrieved by the decision and is more than happy to front the case.  However they should be warned that the LPA’s complaints procedure has to be exhausted before the case can be referred. All the details on how to refer a case and what to expect can be found on www.lgo.org.uk. 

THE OMBUDSMAN: A PAPER TIGER?

It should be said that many people find the whole process time consuming and are disappointed by the outcome because the real role of the Ombudsman is to improve the administrative process of LPAs, not to act as a consumer watchdog. 

LEGAL PROCEEDINGS

There are two main routes to challenge the legality of a decision in the High Court:

• By an application for Judicial Review of a LPA’s decision, An application for Judicial Review of an LPA decision, commonly known as JR, is the most common route of challenge by local councils. The rules governing Judicial Review are contained in Part 54 of the Civil Procedure Rules (CPR). There is also some very helpful information entitled: Administrative Court Guidance. Notes for guidance on applying for Judicial Review (October 2009) at www.hmcourts-service.gov.uk/cms/1220.htm
  
•  By statutory review of an inquiry decision. Confusingly this is known as High Court action, whereas, in fact, they both are. Local councils do challenge decisions by the Secretary of State. More likely, however, they can be affected by legal action taken by others e.g. a developer getting a decision quashed in the High Court: suddenly your council’s victory at an inquiry is null and void, and you are faced with a second inquiry. 

“Sufficient interest”

Can anyone mount a challenge in the courts?

1.       In Judicial Review the legislation requires that any applicant has ‘sufficient interest’ in the matter to be able to bring proceedings.
2.       With regard to High Court action post inquiry, a claim can only be brought by ‘any person aggrieved’.

Whether or not you are considered to have ‘sufficient interest’ or is a ‘person aggrieved’ depends upon a number of things: the legislation under which the action took place; the nature of the beast; and the merits of the case.

At one time the test for ‘any person aggrieved’ by an inquiry decision was stricter than the ‘sufficient interest’ test under Judicial Review which applied to a wide range of applicants. Since the 1960s there has been a gradual liberalisation of the system. An important landmark was the 1969 Inquiries Procedure Rules which allowed the ordinary citizen to appear at an inquiry at the inspector’s discretion; if they participated in the inquiry, why should they not be able to challenge that very procedure? Subsequent judgments have extended this right to anyone or any local authority which has a legitimate grievance as a result of the decision.

While it may be correct that proceedings cannot be brought by a person who has no association or connection with a decision, it should be borne in mind that most if not all planning decisions and any subsequent challenge should comply with the Aarhus Convention 1998, which the British Government signed at the turn of the century: the ‘public concerned’ have the right to challenge acts and omissions which contravene law relating to the environment. In summary, although it may at times, be difficult to predict whether or not a given applicant will be deemed to have sufficient interest, the Courts will not stand for any nonsense by public authorities who try to escape their responsibilities by using ‘insufficient interest’ to cloak their nefarious activities.

Avoiding delay in issue proceedings

If action if to be taken it has to be taken promptly:

1.       Part 54 of the CPR provides that Judicial Review proceedings must be issued within three months and be prompt in any event. The Court applies the time limits strictly and so, even if your application for Judicial Review is filed at Court two months and three weeks after the date of the planning decision you may find that your application is refused for delay if the circumstances relating to your case are such that you have not been prompt in making the application.
2.       After an inquiry decision has been made there is an even shorter time limit of six weeks. When it arrives it is accompanied by a sheet informing you of the right to challenge the decision within six weeks. The time limit applies to all appeal decisions. It is a short enough time to make such a potentially costly decision, and made shorter by the fact that it dates from the issuing of the decision rather than its receipt by interested parties. In reality those with the financial means and/or those for whom the decision is crucial, prepare for a High Court challenge in advance of a decision. They have a barrister lined up waiting to pounce.
 

A HARD LESSON

Mells Parish Council in Somerset won an inquiry which prevented a major minerals company from demolishing a road, which was the direct link between Mells and Chantry because it wanted to excavate the rock underneath the road and link two quarries together. The minerals company challenge the decision in the High Court on the grounds that an irrelevant factor had been taken into account by the Inspector: he had commented that the company did not need the rock to meet its quota. The “Minister had misdirected himself”, as they say in inquiry-speak There was a second inquiry under another Inspector who “allowed the appeal” i.e. the minerals company were given permission to demolish the road.

The point of having such short time limits is to avoid impeding the development rights of those affected: otherwise buildings may have been demolished and the foundations laid for the new building. Clearly your Council has to contemplate possible litigation before the decision is out, so as to swing into action should the decision go against you.

There are five main factors to consider when proceeding with a legal challenge of any kind in the High Court:

• What are the grounds of review?
  
• Do you have sufficient interest?
  
• Avoiding delay in issue proceedings.
  
• What remedy is available?
  
• Costs.
  

What are the grounds of review? 

At first glance the statutory review of inquiry decisions appear a more restrictive scope of challenge being defined by statute i.e. that the Inspector’s decision was not within the powers of the Act. In practice, it encompasses the same grounds as available under Judicial Review of a LPA’s decision. The overriding ground of review by a Court is to ensure that a public body does not act outside its powers (ultra vires). However this can be divided into any number of sub-categories. The following sub-categories cover the range of unlawfulness and these may often overlap in practice.

(a) A relevant factor has not been taken into account.

Clearly the definition of what is relevant varies with the case, but you are on safe ground if something is specified in the legislation. Even so there are vague terms in legislation, which keep the lawyers busy in Court, defining and redefining their meaning e.g. ‘material consideration’. It should be noted that so long as the matter is given a mention in the decision, it is deemed to have been taken into account: the fact that this item was not accorded the weight which other people would have given it, is not a ground for challenge in the High Court. 

(b) An irrelevant factor has been taken into account.

Here again it is a matter of judgement as to what is deemed to be irrelevant, and planning grounds are many and various. The fact that there may have been political motive lurking behind a bon fide planning factor does not make it actionable. 

(c) The decision is totally unreasonable.

This does not mean that the Court, or indeed, any other group of people, faced with the same set of facts, could not have reached a different conclusion. It just means that the decision is arbitrary, illogical or perverse: the fashionable term is irrational. In practice this is the most difficult ground on which to challenge.

d) A decision is contrary to natural justice.

If you look at the various inquiry Rules, they are embodiments of natural justice in terms of giving all parties a right to put their case. The rule against bias is designed to ensure that the decision maker is impartial, be it local councillors, the inspector or the Secretary of State. Thus anyone having a financial or personal interest in a scheme is debarred from partaking in the decision. This also manifests itself in the conduct of inspectors at inquiries: they are never seen to have private conversations with any one of the participants, let alone doing anything as dangerous as getting a lift with one of the parties. Most important of all they should never give the impression that they have already made up their mind on the issue. The only body to which a Minister or Inspector is answerable is the High Court: not to have any decisions overturned is a definite feather in the cap of any Inspector.

(e) The decision must represent an effective exercise of any discretion given by the state.

Whilst the Courts acknowledge the major role played by policy in development control decisions, there is such a thing as being too inflexible; the adjudicator should also be seen to have exercised some discretion, by at least having heard the case to the contrary. The Court’s task is to pinpoint when freedom of choice has been surrendered.

(f) Mistaken facts.

Unfortunately mistaken facts are not unknown: in Scotland, the Reporter (a tartan Inspector) used to issue his or her “findings of fact” to participants to check for error, but this practice has always been deemed to expensive south of the Border, and has been discontinued north of it because it delays the decision, and therefore development. However, it is not enough for there to be a mistake. It is a matter of proving that it was germane to the decision: that had the adjudicator realised the true situation, the decision would have been different. If this is the case, it will vitiate the decision.

(g) Error of law

The procedures and requirements of legislation contained in and relating to the 1990 TCP Act, and subsidiary regulations, must be observed. If there is a procedural oversight, it must also have adverse effects of a practical nature in order to cause the decision to be set aside. If, however, there has been an error of what the legislation or law states, the Court has little discretion but to quash the decision. Decisions must also be fair and be seen to be fair and e.g. backed up by clear reasoning: this applies to all decisions from refusing a planning application to determining whether or not a planning application should be subject to environmental assessment under the EIA Directive 85/337/EC. The Courts have insisted that reasons must be clear and intelligible, as well as dealing with the major points raised in the course of the arguments.

What remedy is available?

If the Court finds that the planning decision has been taken unlawfully it has a number of options. It can ‘quash’ the decision which means that the planning permission has, in effect, never been granted in the first place, it can require or prohibit the decision maker to carry out particular functions. It can make a declaration as to the relevant law. It can also decline to grant a remedy if, for example, it considers that the unlawfulness has caused little harm to the parties and the decision would have been the same in any event. By the common remedy by far is the quashing order.

The Court also has the power to grant an injunction preventing certain activities being carried out, including in the interim period before a full trial takes places. This would be, for instance, an injunction preventing any demolition or building works to be carried on if doing so would defeat the purpose of any legal challenge.

Costs

Legal proceedings can be expensive and it is one of the most common reasons legal challenges are not pursued. They can have a chilling effect on preventing what may otherwise be a perfectly reasonable claim against to an unlawful decision. The cost of a straightforward one-day Judicial Review hearing in the High Court can easily cost in the region of £15,000 to £20,000. There is also the risk of paying your opponent’s costs if you lose, and occasionally the developer’s costs (although in practice this is rare).

There are a number of funding alternatives available to your council and members of the community. Your council may apply to the Court for a Protective Costs Order limiting liability to the other side’s costs. Legal representatives may be prepared to be instructed on a conditional fee agreement (which is often called a ‘no-win, no-fee’ agreement). Legal aid is available for judicial and statutory review, although this is only available to individuals, not to local councils. Finally, some local community groups incorporate into a limited company to pursue legal proceedings. In short, it is vital that expert advice on costs and any challenge is taken before embarking on any challenge.

A HIGH COURT CHALLENGE: AN IMPERFECT WEAPON

The only way to challenge a planning decision is to question the legality and the manner it was made. However, it is quite possible that the most you will achieve is the quashing of the decision, which has the effect of setting the procedure back to the stage when it went off-beam, and so the decision that to be taken again, using the correct mechanism. That said, if the unlawfulness was due to the failure to take into account relevant environmental matters, it may well be that once they are taken into account, the planning decision is quite different than before. This perhaps emphasises one of the underlying purposes of Judicial Review which is to ensure that better planning decisions are taken. If you look at the tomes on planning law, it is 99% procedure, and the function of the courts is to make sure that everyone, from the Secretary of State downwards, abides by what is laid down in legislation. Thus, what is on offer is a review of a procedure rather than an appeal which would allow the court to substitute its own decision.

If you are contemplating action through the courts, clearly you need expert legal advice on the pitfalls and your likelihood of success. A useful book is A Practical Approach to Environmental Law (OUP, 2009) by Paul Stookes who is a solicitor. To find a lawyer in your locality who could help you, apply to the Environmental Law Foundation, in London: www.elflaw.org. 

REDRESS FOR THE 21ST CENTURY?

Since the turn of this century real public participation in planning has moved from the difficult to the virtually impossible. Interestingly the main reasons lie in changes to laws governing central and local government, not just planning law.

The 1999 Local Government Act introduced the concept of “best value”. One of the most important implications for LPAs is that if they lose more than a given percentage of appeals they will be penalised in terms of their grant from central government. Planning committees are commonly blackmailed by officers who say that if this application is refused then the developer will go to appeal and the LPA will lose and be had up for costs. Usually this is a long way from the truth but members do not know enough about planning law and policy to challenge officers: see section on Development Control.

The 2000 Local Government Act introduced cabinets to local government. This means that real power lies with a small caucus of members who form the Executive plus the Chief Executive of the LPA. Unlike in the old committee system, “backbench” members have little or no input to the important decisions taken by the LPA. The LGA 2000 also empowered LPAs to take measures to improve the economic, social and environmental wellbeing of their area. Clearly it did not occur to anyone that there could be a conflict between these objectives. The result is that LPAs can now act in partnership with local and national business interests. Relationships have now been built up over the last decade. The idea that this could call in question the impartiality of LPAs, when deciding on a given application, is now considered “old fashioned”. However the danger is real, especially in these times of financial austerity.

When the Standards Boards were introduced into local government, the intention was that they should control the conduct of both officers and members. In the event only the latter came under any potential scrutiny. Now all forms of control over members are to be abolished by the Coalition under the Localism Bill so there is nowhere for people to turn but the criminal courts if they doubt the probity of councillors or officers.

With regard to planning law, perhaps the most significant change in procedure is the introduction of the Public Examination into development plans and significant infrastructure projects. Old inquiries were into objections but both the right to participate and the agenda depends on the adjudicators. So much for public participations!

The Labour Government gave developers the upper hand with getting their projects into development plans by means of Local Enterprise Partnerships, comprise of LPA officers and business and the production of their Local Investment Plans which magically don’t have to be subject to the EU’s Strategic Environmental Assessment. Now the Coalition has introduced the Localism Bill which appears to be giving power to the people but you will note that any neighbourhood plans have to conform to the development plan. Two thirds of the LPA’s in England have no such plan, because they were waiting to hear what the incoming Government’s intentions would be. Now they are told that, in the absence of an up to date plan, the answer to any application is “Yes”. Draw your own conclusions!

Hence, although Judicial Review and High Court action post inquiry are not inexpensive examinations of the substance of the case, they are the only way to keep central and local government in check. If you succeed then your council will win an important political victory which will work to its advantage in years to come.

In 1998 United Nations Economic Commission for Europe introduced the Aarhus Convention. It reiterates the importance of environmental wellbeing as human right so it is the likely parent of the 2000 LGA s.2. As a means to promoting this, people are to be given the right to environmental information, public participation and access to justice. The British Government signed up at the turn of the century. As you can see from the above, progress in truly ratifying the Convention has some way to go but there is a continual stream of complaints from its citizens to the Aarhus Compliance Committee in Geneva. The author is amongst a large number of people who will continue to harry the British Government to fulfil its obligations to make public participation and access to justice meaningful and inexpensive.

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Wendy Le Las Associates 2011