Judicial Review Case Study

Judicial Review Case Study

Proposition

A Planning Permission was being sought for a redevelopment of a vintage urban site into a mixture of over 100 houses and flats.

Issues

The site was to be purchased on grant of the Planning Permission and prior to the elapse of the time period for the filing of an Application for Judicial Review in terms of the requirement in Part 54 of the Civil Procedure Rules that the claim form must be filed (a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose.

Several underlying risks were identified from a review of the Local Planning Authority's handling of the application:-

  1. The Environment Agency had initially objected to the redevelopment. Subsequently, the Environment Agency withdrew it's objection to the development, subject to the development incorporating a mitigation strategy to be imposed via Planning Conditions as well as a Planning Agreement;
  2. Various changes had been made to the Application for Planning Permission subsequent to the statutory public consultation process;
  3. The site had previously been allocated within an area set aside for residential development via a Local Plan policy. That Local Plan policy had been withdrawn by the Local Planning Authority pursuant to a Local Plan Inspector's recommendation, thus making the application site 'white land'.

The trigger for a claim would therefore be the emergence of a third party making an application for leave for judicial review based on one or more of the three grounds set out above. The main head of loss would be a substantial reduction in the value of the site in the event that the Planning Permission was quashed.

First Title Solution

It was considered that a challenge was unlikely in view of certain practical factors, including the following:-

  • The design and layout of the redevelopment in relation to surrounding properties;
  • The nature of development of the surrounding area;
  • Certain significant public benefits that would flow from the transaction;
  • No objections had been received in response to the public consultation process;
  • The Planning Permission had been granted 3 weeks prior to the decision to offer insurance cover;
  • No Letter Before Claim had been received in terms of the Judicial Review Pre-Action Protocol.

If a challenge had arisen then based on the identified risks then:-

  • An audit of the Planning Conditions and Planning Agreement had indicated that these had addressed the Environment Agencies requirements;
  • Having regard to the absence of objections to the planning application, it was considered that a JR challenge may prove difficult to sustain if it were based on insufficient weight being given to certain key material considerations in arriving at the decision to Grant Planning Permission, unless the decision to grant the Planning Permission was obviously perverse on an objective level;
  • In the event of a successful quashing, the loss could be mitigated by:-

(i)  Lodging a fresh application for planning permission; and/or

(ii)  Subject to the precise terms of the quashing order, consideration could be given to a second attempt to gain Planning Permission using the existing application for Planning Permission.