Judicial Review - challenging planning decisions

As a result of a consultation exercise, Parts 52 and 54 of the Civil Procedure Rules 1998 are amended as of 1 July 2013. Please see The Civil Procedure (Amendment No.4) Rules 2013 (the Rules) for the precise details.

Currently, a challenge to a planning decision must be made "promptly and in any event within three months" of the decision. That length of time can have a serious impact on a developer's build programme: the developer must wait for three months to be sure that the planning decision cannot be challenged.

Under the new rules, planning decisions made on or after 1 July 2013 may be challenged within a period of six weeks only. Please note, however:

  • Where decisions are made up to (and including) 30 June 2013, the current time limit of three months continues to apply.
  • The time limit runs from the date of the written decision notice, and not the date of the resolution of the relevant committee of the local planning authority.

The current rules require a claimant to obtain permission before bringing challenge proceedings. Where permission is refused, the claimant has the opportunity to "renew" the request for permission. This allows claimants - even if they have little or no case - to cause additional delay to a developer's build programme. For challenges made on or after 1 July 2013, the new Rules dispense with this opportunity to "renew" a claim for permission.

Unnecessary planning condition

The guidance on the use of conditions, imposed on planning permissions, contains a set of criteria against which conditions are to be tested. Where a condition meets the criteria, it is a valid condition.

In Champion v North Norfolk District Council [2013] EWHC 1065 (Admin),a local action group challenged a decision of the local planning authority to grant permission for two grain silos, a surface water balancing pond and lots of ancillary works, such as a lorry park and access roads. The development was going to be carried out close to a river which was a site of special scientific interest (SSSI) and a special area of conservation (SAC). The claimant feared that pollution from the development would contaminate the river.

The authority - on advice from Natural England - concluded that there was no need for an environmental assessment, nor for an appropriate assessment under the Habitats Directive. And the planning officer had recommended approval, subject to conditions.

At committee, one of the members proposed additional conditions requiring water quality monitoring, a suggestion which was taken up. The planning permission therefore placed obligations on the developer to "take reasonable steps" if the water quality diminished as a result of the development.

The claimant action group alleged that the decision was internally inconsistent. If the authority concluded that the assessments were not required, it must have concluded that there was no risk of pollution. The conditions, as imposed, however, could only mean that the authority thought there was a risk of pollution. That was irrational.

The High Court agreed. The planning decision was quashed, and the authority was told it needed to review the application in order to decide whether there was a risk of pollution or not.

As an aside, there is also the question as to whether the condition - which simply required "all reasonable steps" - is sufficiently certain to constitute a valid condition.