Judicial Review: Planning for a Challenge
Thu 26 Feb 2015
We explain the timescale for making and serving an application for judicial review and the searches and enquiries that we carry out prior to completion to investigate whether a challenge has been made.
Click here to see our flowchart showing the searches and enquires that we carry out once a planing decision has been made.
On 1 July 2013, the Civil Procedure Rules relating to the judicial review of planning decisions were amended. One of the most significant changes was to reduce the time period for bringing an application for judicial review of decisions made under the Planning Acts from three months to six weeks. This has been a welcome amendment for developers waiting out the judicial review period, giving certainty sooner than was previously the case.
Although we cannot eliminate the risk that a successful challenge will be brought after the deadline, the enquiries that we carry out over the six week period and immediately after the deadline enable us to keep developers informed as to whether a challenge has been made which in turn enables risk to be better managed up to completion.
The flow chart [attached] sets out the searches and enquiries that we carry out once a planning decision has been made. The six week period runs from this date and not the date of the resolution, as is often thought to be the case. Our Planning team worked for the developer (St George) in the case that decided this point in 2002 (Burkett).
As a first step, we make contact with the legal team for the potential defendant, which will be the relevant local planning authority, and ask it to notify us immediately upon receiving either a Pre-Action Protocol letter or an application. It is thought that Pre-Action letters will become more infrequent now that the time period for making a challenge has been reduced and it is believed that the risk of costs penalties being imposed for non-compliance with the Pre-Action Protocol has been reduced. The absence of a Pre-Action letter is therefore not definitive as to whether or not a challenge has been or will be made.
Although developers having the benefit of a planning permission would constitute an ‘interested party’ and should therefore be served with an application for judicial review, this may be overlooked by the claimant, particularly if it is an unrepresented individual, and accordingly it is sensible to alert the local authority’s legal team to the risk of a potential challenge and to ask it to look out for and in turn forward on any application that is made.
Over the course of the six week period, and a few days following the expiry of the deadline, we can attend Court in person to ask it to carry out a search against the local authority and the planning decision reference number. This search, which is carried out from the date of the planning decision, will identify whether a challenge has been made and also whether an application for an extension of time for making a challenge or for service of the claim has been made.
Due to confidentiality, we are not allowed to view the Court’s online records ourselves. However, the Planning Court is usually prepared to counter-sign a letter confirming the search that has been undertaken, that no applications have been made as at the date of the letter and that there is no backlog of applications.
Assuming that no application to extend time for service of the claim has been made, the local authority and any interested party must be served with the claim within seven days of the date of issue, unless the Court orders otherwise. Allowing a period of at least seven days to pass from expiry of the six week period to completion is therefore recommended.
By taking the steps above, we are able to identify more quickly whether a challenge has been made. Further, although it may be assumed that it will be safe to proceed once a reasonable period of time has passed following the expiry of the deadline, this approach overlooks the fact that an application within the required time period can be made to extend time for bringing the challenge. The only way to eliminate this risk is by making enquiries of the Court. As to whether or not that application will end up being successful, this will depend on whether the Court considers there to be a good reason to do so.
It is not possible to mitigate against the risk of a application being made after the six week period has expired. However, with the increasing scrutiny of applications for judicial review in planning cases by the new specialist Planning Court, this will remain a difficult test for applicants. They will need to demonstrate a good reason for not having made the application promptly and in any event within six weeks.