Judicial review of a planning permission: the six week rule

Judicial review of a planning permission is a challenge to the lawfulness of the decision, not to its merits. The court does not ask whether permission should have been granted. It asks whether the council reached the decision lawfully: whether it took account of what it had to, interpreted policy correctly, followed the procedure, and reached a conclusion a reasonable authority could reach.

The time limit is six weeks. That is the fact to act on before anything else, because almost every other question can be answered after a claim is filed and none of them can be answered after the deadline has passed.

What judicial review tests

Three broad grounds cover most planning claims.

Illegality, meaning the authority misdirected itself in law. Misinterpreting a development plan policy, failing to have regard to a material consideration, taking account of something immaterial, failing to apply a statutory duty such as the duties under the Conservation of Habitats and Species Regulations 2017 or the public sector equality duty, or granting permission for something it had no power to grant.

Procedural unfairness, meaning the process went wrong. A required consultation not carried out, a consultation so inadequate it was no consultation, a failure to give reasons where reasons were required, or apparent bias and predetermination on the part of the decision maker.

Irrationality, meaning the decision was one no reasonable authority could have reached. This ground is available and it very rarely succeeds. Courts are reluctant to interfere with planning judgement, and most claims dressed as irrationality are merits arguments in a different coat.

What does not work: disliking the development, disagreeing with the officer's weighing of harm against benefit, or arguing that a different decision would have been better.

The six week time limit and how strict it is

For a challenge to a planning permission granted by a local authority, the claim form must be filed within six weeks of the grounds arising, which in practice means six weeks from the date the decision notice was issued.

For a decision of the Secretary of State or a planning inspector on appeal, the route is different: a statutory application under section 288 of the Town and Country Planning Act 1990, also within six weeks, and requiring permission from the court since the changes made by the Criminal Justice and Courts Act 2015.

The six weeks is hard. Courts have no general discretion to extend it in planning cases the way they do in some other contexts, and the deadline runs whether or not you knew about the decision, whether or not you were waiting for documents, and whether or not your solicitor was instructed in time.

So the sequence is: find out the decision date, count six weeks, and work backwards. Get advice in week one, not week five.

Standing and who may bring a claim

The test is a sufficient interest in the matter to which the claim relates, under section 31(3) of the Senior Courts Act 1981.

Standing is rarely the obstacle people expect. Neighbours, local residents' associations, parish councils and established amenity groups generally have sufficient interest in a development affecting their area. National environmental organisations have been accepted as claimants in cases raising issues within their remit.

Claimant choice matters for a different reason: costs. An unincorporated residents' group leaves individual members exposed, while an incorporated body with no assets may be asked for security for costs. Take advice on the vehicle before filing, not after.

The pre-action protocol letter

Before filing, a claimant should send a letter before claim under the pre-action protocol for judicial review, setting out the decision challenged, the grounds, the outcome sought and the documents requested. The usual response period is 14 days.

Two things make the letter worth writing properly. It occasionally works, because an authority that recognises a procedural error may agree to reconsider rather than defend it. And the court takes account of pre-action conduct when dealing with costs.

Send it early, because the protocol does not extend the six week deadline. Where the deadline is close, file the claim and continue the correspondence afterwards.

Ask for the officer report, the committee minutes, the consultee responses and any post-committee correspondence at the same time. Most are on the planning register, and the ones that are not are often the ones that matter.

Grounds that succeed and grounds that do not

Claims that succeed tend to share a feature: a specific legal requirement that was not met, capable of being pointed at in a document.

The officer report materially misled members about the development plan. A statutory consultee was not consulted. An environmental impact assessment screening decision was taken on the wrong basis. The authority failed to consider the habitats duty before granting. Reasons required by statute were not given. A condition was imposed that was not within the power to impose.

Claims that fail tend to be arguments about weight. The council should have given more weight to the heritage harm. The traffic evidence was optimistic. The design is poor. All of those are planning judgement, and planning judgement is for the decision maker.

Even a good ground faces one more hurdle. The court must refuse relief where it appears highly likely that the outcome for the claimant would not have been substantially different had the conduct complained of not occurred. A technical breach that made no difference to the decision will not quash the permission.

Costs and the protection available in environmental cases

Costs are the reason most viable claims are never brought, and the reason the Aarhus Convention regime exists.

Where a claim is an Aarhus Convention claim, meaning it concerns an environmental matter within the scope of the Convention, costs recoverable from an individual claimant are capped, with the standard figure at £5,000 for an individual and £10,000 for other claimants, and a reciprocal cap on what the claimant can recover from the defendant, ordinarily £35,000. The court can vary the caps on application, and a claimant relying on them has to say so in the claim form and provide a schedule of financial resources.

Most planning challenges about development affecting the environment fall within the regime. Not all do, and the classification is worth advice rather than assumption.

Beyond the caps, budget for your own legal costs, the court fees and the possibility of an oral renewal hearing if permission is refused on the papers.

Alternatives before litigating

Judicial review is the last route, not the first, and three alternatives are worth exhausting.

Before a decision is made, ask a ward member to refer the application to committee, and make the case in writing with material planning reasons. A well-evidenced objection on the file is also what makes a later challenge possible, because a point not raised is harder to run. Understanding what the applicant had to submit helps here, and the planning report types index sets out the documents a scheme of a given kind usually needs, while a Statement of Community Involvement shows what consultation the applicant carried out.

After a decision, a complaint to the Local Government and Social Care Ombudsman can address maladministration, though it cannot overturn a permission.

And where the concern is that the development is not being built as approved, that is an enforcement matter rather than a challenge to the permission, and it has no six week deadline attached.

This is general guidance, not legal advice. Judicial review is a specialist area with a hard deadline, so take advice from a solicitor experienced in planning litigation as soon as a decision is issued. Enter a postcode on PlanScope to see which reports a development of that kind usually requires.

PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.