Developers and local authorities will be only too aware that third parties can challenge a grant of planning permission through the courts by way of a judicial review. An application for such a challenge is costly, and must be made quickly. Further, it can only be brought on limited grounds. Whilst this may offer a developer or local authority some comfort, it is worth being aware of some of the more common grounds of challenge so that steps can be taken to minimise the risk of these arising.
Some of the issues are the subject of ongoing or recent caselaw. Some can be covered off quite quickly by being aware of the issue and making the authority's position clear in a committee report, for example.
In the first of our 2 part blog, we investigate five of ten common risk areas which applicants and authorities should be alive to during the application process.
1. Failing to give reasons
This is a complex issue and the relevant case law can appear inconsistent. The Supreme Court is expected to tackle this issue soon but, in the meantime at least, local authorities should consider giving full reasons for granting consent if they are deciding against a planning officer's advice, there is a consistency issue or the application site is in the green belt or an AONB (or similar designated area). This is an area of law to keep an eye on.
2. Misapplying a central or local planning policy
The law requires decisions to be made in accordance with development plan policies unless material considerations indicate otherwise. One of those considerations is the NPPF (National Planning Policy Framework). The way in which the policies in the NPPF sit alongside inconsistent policies in a local plan is the subject of a significant number of third party challenges.
3. Failing to consult with a statutory consultee
Local authorities are required to consult certain statutory bodies when they receive planning applications, and if those bodies make relevant representations then those points must be taken into account. A planning officer should be clear in his or her report to committee that this consultation requirement has been met, and should clearly and accurately set out relevant representations so that they can be factored into the decision making process.
4. Bias or predetermination in a committee meeting
This is a common concern, and a far-reaching one. Local authorities must act fairly, and be seen to have done so, although the law is now clear that members can campaign or take a view on an issue whilst considering an application. Most local authorities have standard rules which exclude members from voting on matters which they have certain interests in, and of course they must properly listen to and consider all relevant information before making their decision.
5. Failing to correctly publicise a planning application
Planning authorities are under strict regulatory obligations as to who they have to notify of a planning application, and when. Those rules do not always require letters to be sent to neighbours – sometimes a site notice will do. The law also deals with the situation in which a site notice is removed or de-faced. Whilst the law allows for a minimum period of 21 days for communities to make representations, as the authority is required to balance all relevant material considerations, they should consider any relevant points made right up to when they make their decision.