Challenging Planning Permissions

To mount a claim for a Judicial Review, opponents must satisfy two basic tests.  They must have a sufficient interest or legal standing to bring the claim and they must do so promptly.

Court rules prescribe that an application must be made promptly "and in any event not later than 3 months from the date when the grounds of the application first arose."

Lessons for both sides of an argument over such challenges can be drawn from the recent experience in the courts of Lancashire County Council.  The Council resolved to grant itself planning permission for a large waste facility to reduce reliance on landfill on 1 November 2006.  The actual planning permission was issued on 22 November 2006.

Objectors formed a limited company, on 14 February 2007, having previously represented themselves just as a group of individuals.

On 31 January 2007 the objectors lodged a formal letter indicating their intention to issue court proceedings to challenge the planning permission and on 20 February 2007, their newly formed company issued those proceedings just two days short of the 3 month period after the grant of planning permission.

The County Council and its building contractor together incurred costs of £2,800,000 between 22 November 2006 and 31 January 2007 (the date of the objectors' letter).  This was regarded as not a surprising amount to spend given the nature and size of the project itself.

Not surprisingly the County Council argued that the objectors had no standing to bring the claim for Judicial Review and that they were late.

They made the point that the company had been newly formed to limit exposure to legal costs.  It had not been formed until just before the court proceedings were issued and therefore could not have been "an interested party" at the time of and during the application for planning permission.

On the question of promptness, the Council argued that the time should run from the date of the resolution to grant planning permission, that is, 1 November 2006.  They also suggested that the letter notifying the objectors' intention to pursue the court application could have been made before planning permission was granted (and allegedly, when the County Council might have been able to alter its resolution to grant the permission).

The High Court rejected both these submissions.

The newly formed company had the sufficient legal standing.  The court drew a parallel with objectors forming a residents' company to challenge planning permissions.

As for costs the County Council had been prepared to accept earlier an offer from the objectors' company fro security of the Court costs (had the objectors not succeeded) and thereby affectively had recognised the existence and purpose of the company.

On promptness, the Court found (on the evidence) that the County had anticipated the Court proceedings and had also followed an established timetable that paid no heed to the objectors' letter threatening court proceedings.

Further the Council had not stopped work when the court proceedings were issued and there was no evidence to indicate that they would have done so, even if the Court proceedings have been issued 3 or 4 weeks sooner.