The future of planning disputes

COMMENT Judicial review challengers are unlikely to be thwarted by reform proposals Signposted in the March 2020 Budget, the government released its Planning for the Future white paper in August, consulting on proposed reforms to the English planning system. The government’s aim is to streamline and modernise the planning process, focusing on design and sustainability, improvements to developer contributions for the provision of infrastructure, and the provision of adequate supply of land for development. As befits a consultation, the white paper is short on details, which makes it harder for responses or representations to be effective. So, while the consultation may bring about some changes to the proposals, the direction of travel is clear: radical reform to the planning system. Negative responses are inevitable; the pending judicial review – brought by campaign group Rights : Community : Action and set to be heard in October – of the recent changes allowing upward expansions of existing homes and the demolition and rebuild of vacant homes and offices is the latest in a long history of challenges to successive governments’ attempts to reform the planning system. However, the doctrine of parliamentary sovereignty generally prevails and its laws usually survive. The end of judicial review? Judicial review challenges to planning decisions are embedded into the current planning system. Statutory judicial reviews are prescribed as the only mechanism for challenging some types of decision. Where the challenge is not statutorily prescribed, applications can be made under section 31 of the Senior Courts Act 1981. Developers’ familiarity with judicial reviews, combined with their relative infrequency and the relatively recent streamlining of the process, means they are no more than a manageable inconvenience for most parties. Not so for the government, it seems. The white paper considers judicial reviews to be part of the problem. Its proposed solution is to remove the risk of judicial review by removing imprecise and unclearly worded policies or law and by creating simple and clear processes and local plans. There is merit in the white paper’s premise that requirements for clear plan-making and decision-taking based on industry-wide standards will substantially remove the scope for ambiguity. But to go on to conclude that this will reduce judicial review challenges is fundamentally ignoring why most challenges are brought in the first instance. Community challenges Some challenges are brought by developers and landowners deeply invested in a particular scheme and concerned about the consequences of a refusal. These may be reduced following the narrowing of scope for decision-making. However, most judicial review challenges of planning decisions are brought by individuals or local groups who are affected by the development and feel the planning system has ignored their concerns. Under the new proposals, the imposition of housing targets, the streamlining of plan-making, the rationalisation of allocations into zones, and the standardisation of development management policies in the National Planning Policy Framework mean this group of challengers is likely to feel even more disenfranchised from the planning process. If they miss the boat to engage in shaping the emerging local plan – and realistically most do and still will – they will wake up to find that outline planning permission or permission in principle has been granted for developments with which they fundamentally disagree. If the perceived harm is sufficiently provoking and they have the financial resources, they will still bring challenges. Establishing grounds for a challenge might become more difficult, but it is not unusual to find some level of defect in a decision. The existing judicial review process does have a gateway permission stage. This allows the courts to reject challenges that are totally without merit, allowing those that have arguable grounds and a realistic prospect of success. This filters out unmeritorious challenges, but it does not prevent the challenge from being brought in the first instance and the damage to a development can be done before this permission stage is reached. Other challenges In contrast, bringing challenges to plan-making has been a developer’s activity. Whether the statutory judicial review challenge under section 287 of the Town and Country Planning Act 1990 will survive the radical reform in one form or another remains to be seen. If it does not, then there is always the 1981 Act, so developers will have the opportunity to challenge the adoption of local plans. Challenges to development management policies are not common. Their standardisation will be welcomed by national housebuilders and is unlikely to cause undue concern at a local level. As for the standardisation of housing numbers, the white paper allows for these to be varied at a local level to accommodate constraints. Interpreting the consequences of these constraints will be where future challenges lie. The abolition of the duty to cooperate will remove one ground of challenge that has featured heavily in recent years, but that was usually just a stalking horse to effect a change in housing numbers and, through that, change site allocations. Keeping up with the fast-track plan preparation will test developers, planning authorities and stakeholders, including statutory consultees. A plan’s failure to address material issues due to slippages in representation will create uncertainty as to the appropriate response, and this may only be capable of rectification through a judicial review. Challenges based on the to-be-amended NPPF or a new statute can lead to a temporary hiatus in the interpretation of a policy or statutory requirement, but the Planning Court knows its business and usually gives the required clarity. These challenges are therefore generally helpful. From an operational perspective, challenges to planning decisions are normally managed through waiting out the judicial review period and insurance. There is nothing in the white paper to indicate that this will change. Fergus Charlton is a legal director at TLT