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High Court Appeals against planning inspectorate decisions

Challenging decisions in the High Court

  • A planning authority must act according to law when exercising its duties or powers. If it fails to do so, it can be challenged by way of Judicial Review. A decision to grant planning permission for., e.g.  any stage in the fracking process will be a challengeable decision. 
  • Disagreement with a decision is not enough to show that it is unlawful.

A claim for JR must satisfy one of the following general grounds: (i) illegality; (ii) procedural unfairness; (iii) unreasonableness or irrationality; and (iv) incompatibility.
  • A person or group bringing a claim for Judicial Review must have “standing” (a sufficient interest in the matter). A broad approach to standing is taken in environmental cases.
  • The claim must be filed with the Court promptly and, in any event, not later than six weeks after the grounds to make the claim first arose. The claim form and bundle of documents must also be served on the defendant and any interested parties. 
  • A judge will then decide whether the claim has permission to proceed. The test is whether the claim is arguable. This decision can be appealed orally if permission is refused on the papers.
  • If permission is granted, the claim will then be listed for a full or substantive hearing in the Planning Court to determine whether JR should be granted.  The Judge will either give judgment at the end of the hearing or later in a written document. 
  • The judge can order one of a number of remedies. The most common is a decision quashing the decision under challenge, or a declaration that it is unlawful. This requires the decision-maker to re-make the quashed or unlawful decision on a proper basis and having regard to the decision of the Court. This highlights one of the potential pitfalls of JR. Even if a decision is quashed, it may simply be made again with exactly the same outcome. However, a decision made on a proper basis may be different to the original decision, and forces a decision-maker to act lawfully, both in respect of a particular matter and more generally in the future.
  • The losing party normally has to pay the legal costs of the winning party (“costs follow the event”, see later). 
  • The losing party can apply for permission to appeal the judgment to the Court of Appeal. 

A grant of planning permission by the planning authority for any stage in the consent process for fracking is a decision that can be challenged in the High Court by Judicial Review. There are various means by which a challenge can be made, but they all boil down to saying that the MPA has somehow acted unlawfully. 

In essence, the planning authority must act according to law when exercising its duties (something that it must do in certain circumstances) or powers (something that it does in some circumstances). 

If the MPA fails to perform a duty, then it will be acting unlawfully. While the MPA has a choice whether to exercise a power, it must act lawfully when exercising that power, as it must do when 
performing a duty. 

Disagreement with a decision is not sufficient to show that it is unlawful. The Court will not substitute its decision for that of the planning authority if there is nothing unlawful about the manner in which a decision has been made or the outcome of the decision, even if the Court disagrees with a decision on its particular merits. 

To show that the planning authority has acted unlawfully, what will usually be required is that a claim for judicial review be made under one of the following general grounds:
  • Illegality – acting outside the scope of powers or for an improper purpose;
  • Procedural unfairness – making a decision unfairly by not consulting when required or by not giving a person an opportunity to be heard;
  • Unreasonableness or irrationality – following a flawed reasoning process and so coming to an unreasonable conclusion; and
  • Incompatibility – either with EU law or in breach of human rights law.

Special requirements also apply as to who can make a claim and the time limits for making a claim. 

When may a decision be unlawful?

The different grounds for judicial review often overlap with one another. Illegality will arise when a decision-maker acts beyond its powers. To act lawfully, the decision-maker must have the legal power to do what it intends to do. These powers are most often set down in legislation. If a decision maker acts beyond those powers or does things that it is not authorised to do, it will be acting illegally. This is also called acting ultra vires.

Even unlimited seeming powers, for example powers which simply state that an application may be granted or refused, are subject to legal limits. Such limits may be express or may be implied from the statutory scheme within which the power is provided. 

A decision-maker must also not fetter its discretion by adopting an overly rigid policy or guidance, or by refusing to consider that it may need to depart from a policy or guidance, albeit in special circumstances. 

Procedural unfairness will arise when there is a failure to comply with mandatory requirement to take some procedural step prescribed by legislation or policy, or where there is a legitimate expectation that such a procedural step will be taken. An example of a mandatory procedural requirements is the obligation to consult with prescribed persons about a proposed planning application. 

If there is an obligation to consult, it must be done properly. It will be unfair and a potential ground of judicial review if it is not. Other procedural requirements that may give rise to a ground of judicial review are a failure, when otherwise required, to publish a decision in draft, to make due inquiry, or to consider objections before making a decision. 

A decision will also be unfair if the decision-maker is biased (or if there is a perception of bias), or if the decision-maker pre-determines a decision and effectively closes his or her mind to other options before considering objections. There is also a requirement to give adequate reasons for decisions, though what is adequate will depend on the circumstances. 

Unreasonableness or irrationality will arise if a decision-maker makes a decision based on irrelevant factors or when making a decision fails to take into account relevant factors. Planning decisions almost always involve the balancing of a number of competing factors. Sometimes there is legislation setting out certain factors that must be considered. In almost all cases, the correct factors to take into account will depend on the individual circumstances of the decision being made.  

If the correct factors are not taken into account in this balancing exercise, and those factors are important (or material), then a decision may be challenged. A decision may also be challenged even if all of the correct factors are taken into account. This is a much more difficult basis of challenge. It involves showing that the decision reached is one that is beyond the range of reasonable responses open to the decision-maker, or that the decision is so unreasonable that no reasonable person directing him or herself properly could have taken it. 

The hurdle to challenge a decision on this basis is high. It is not enough to disagree, or even strongly disagree, with a particular decision. The Courts recognise that the same set of facts may lead to two entirely different but both reasonable decisions. That is why the more common form of challenge on this ground is that the wrong factors have been considered. Incompatibility with a European law requirement or making a decision contrary to the requirements of the Human Rights Act 1998 can also be a basis of challenge. In the area of environmental law, there are many European laws that must be complied with. These typically are “transposed” into domestic law, but if there has been a failure to properly transpose, then an unlawful decision may arise. 

It is also unlawful for a public authority to act in a way that results in a breach of a person’s human rights. Typically, human rights considerations will involve balancing private rights against public interest factors. If there is a failure to even consider human rights when they are relevant, or an improper balancing exercise undertaken when considering human rights matters, then a decision may be unlawful.

What decisions can be challenged?

Challengeable decisions typically relate to a particular matter affecting a particular individual or group. Judicial review may also be used, however, to challenge other matters, such as policies, reports, advice and guidance, as well as subordinate legislation (regulations and the like).  In some instances, statutes can also be challenged as being incompatible with European law or human rights law. 

Who can bring the challenge? 

To bring a judicial review claim, the person bringing the claim must have “standing”. This means that the person (including a group or company) has a sufficient interest in the matter. A group will have sufficient interest if it represents the interests of individuals who are directly affected by a decision.

A broad approach to standing is taken in environmental cases, meaning that there is a wide group of people who will potentially be able to challenge a decision relating to a fracking related decision. 

When must a claim be made?

The requirement in planning cases about when a claim must be made is two-fold. The claim must be filed with the Court:
  • promptly; and
  • in any event not later than six weeks after the grounds to make the claim first arose.
Because of the way that the time limit is expressed, the Court has the power to refuse to allow a claim to proceed if it is not made promptly, even if the claim is still made within the six week period. It is therefore important to act quickly if concerns exist about a decision. 

There will often be advance notice of a decision being made, which will enable steps to be taken to prepare for a decision once it is issued. In all cases, steps should be taken to seek legal advice and bring a claim as quickly as possible.

What are the steps in bringing a judicial review claim?

Prior to commencing a claim, the usual practice is to issue what is called a pre-action protocol letter or letter before claim. The purpose of this letter is to alert the decision-maker to the possibility of a judicial review challenge, and to enable them to take steps to rectify any unlawfulness (if possible by changing a decision), without the need to commence proceedings in Court. 

The pre-action letter will typically set out the grounds of challenge that would be relied upon if a claim were to be made in Court. A well-drafted pre-action letter, which refers to the relevant legal authorities and sets out the flaws in a decision, can be a highly effective way of avoiding litigation altogether. If a claim must be brought, the pre-action letter will set the framework for that claim. 

Potential claimants should also note that the new Criminal Justice and Courts Act 2015 contains a power (which is not yet in force) for the Lord Chancellor to issue regulations which define what is and isn’t an Aarhus claim. This may reduce the number of challenges which fall within the costs rules.

These principles are due to be formalised by sections 88 and 89 of the Criminal Justice and Courts Act 2015. Section 88 (if brought into force) provides a further power to create rules which will require potential claimants to provide financial information.”

If a claim is made, the first step is to prepare a claim form and set out the “grounds of claim”, which describe what has gone wrong with the decision under challenge. The claim form will need to be accompanied by a bundle of documents which is the evidence supporting the grounds of claim. It can sometimes take a long time to gather the necessary documents, which is another reason why it is important to act quickly once a decision has been made.

Once a claim is filed at the Court by the person bringing the claim (the claimant), it also needs tobe served on the decision-maker (the defendant) and any interested party (typically the person who has been given some form of planning permission). The defendant and interested party then have 21 days to provide summary grounds of defence to the claim. 

The papers, that is the claim form, the supporting grounds and evidence, and any defence, are then referred to a Judge who will make what is called a permission decision. Judicial review proceedings can only take place if a Judge first grants permission. 

The purpose of this requirement for permission is to stop claims proceeding which are hopeless, frivolous or vexatious. The test for granting permission is accordingly not overly high. It involves the Judge deciding only that the claim is arguable. If it is not arguable, or if the claim has for example been commenced too late, permission will be refused.

If permission is refused “on the papers”, it is possible to apply for an oral hearing at which a decision about whether to grant permission can be made by a Judge who hears oral submissions. It is not uncommon for permission to be refused on the papers but then granted at an oral hearing. If permission is again refused, permission to appeal can be sought from the Court of Appeal. 

If the claim is determined to be arguable and permission is granted, the claim will then be listed for a full or substantive hearing to determine whether judicial review should be granted. Prior to the substantive hearing, the defendant and interested party have the opportunity to put in further detailed grounds of defence and any other evidence upon which they wish to rely. 

The procedure at the substantive hearing is simple. The hearing will typically be before a single Judge. Challenges to planning decisions are heard in the Planning Court, which is a part of the High Court. The Judge will have read the papers beforehand and will be familiar with the factual and legal issues. 

The claimant’s Counsel will introduce the case to the Judge and seek to explain why the decision challenged is unlawful. Counsel for the defendant and the interested party have the right to respond to the submissions made by the claimant. 

It is very rare that any witnesses will be called to give evidence. Instead, the hearing will principally consist of legal argument based on the evidence as set out in the documents before the Court. 

An environmental judicial review claim will typically take anywhere from a half day to two full days of Court time. The Judge will either give his or her judgment at the end of hearing oral submissions, or judgment will be provided later in a written document. 

What orders can the Judge make?

If the claim is successful, the Judge will have to consider what remedy is to be ordered. The possible remedies include:
  • A quashing order, which means that the decision under challenge is set aside entirely and so required to be taken again (if at all);
  • A declaration, describing what the law means or how a correct decision ought to be made;
  • A prohibiting order, which prevents the decision-maker from performing an act found to be unlawful;
  • A mandatory order, which requires the decision-maker to perform some act or duty;
  • Damages, albeit that damages are very rare in the judicial review context. 

It is entirely a matter of the judge’ discretion whether or not to grant a remedy. In some cases, even though a claim is successful, a Judge might decline to order any remedy, because for example the error is not material or will not result in any different outcome even if the error  was corrected. 

If a claim is unsuccessful, it will simply be dismissed. 

The losing party will normally be ordered to pay the legal costs of the party that has won. This is often described as “costs following the event”. Costs are discussed later. The losing party is also able to apply for permission to appeal to the Court of Appeal. The application for permission will normally be first made to the Judge that refused the claim in the first place. The Judge will sometimes grant permission, but much more often, permission to appeal will have to be granted by the Court of Appeal itself. 

What next if a claim succeeds?

The range of orders that a Judge will make very rarely include the Judge effectively re-making the decision and so substituting his or her decision for that of the decision-maker. This is because Parliament has vested the power to make a decision in a particular decision-maker, and not the Court in judicial review proceedings. 

The most common outcome of successful judicial review proceedings will therefore be a decision quashing the decision under challenge, or a declaration that a decision or policy is unlawful. That means that the decision-maker must go away and re-make the quashed or unlawful decision, but this time on a proper basis and having regard to the decision of the Court. 

This highlights one of the potential pitfalls of judicial review. Even if a decision is quashed, it may simply be made again with exactly the same outcome. However, a decision made on a proper basis may well be different to the original decision, and will at least force a decision-maker to act lawfully, both in respect of a particular matter and more generally in the future.

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