Judicial review as a last resort for objectors

Judicial review of a planning decision tests whether the council acted lawfully. It does not ask whether the decision was right. An objector who brings a claim because the development is unwelcome, out of character or too large will lose, because those are matters of planning judgement that the law leaves to the decision maker. A claim succeeds where the authority misread its own policy, ignored something it was obliged to consider, followed an unfair procedure or breached a statutory duty, and it has to be filed within six weeks.

What judicial review tests

The court is reviewing the process and the legality of the decision. If it finds an error, the usual remedy is a quashing order, which sends the application back to the council to decide again, properly this time.

That is worth understanding before anyone spends money. A successful claim does not refuse the permission. The council redetermines the application, often reaches the same conclusion with better reasoning, and the development proceeds. Sometimes the delay itself changes the commercial position, and sometimes it changes nothing.

There is also a filter written into statute. The court must refuse relief where it appears highly likely that the outcome would not have been substantially different had the error not occurred. A technical breach that made no difference will not get a decision quashed.

The six week limit and why it is unforgiving

Claims challenging a planning decision must be filed within six weeks of the date the grounds first arose, which for a grant of permission means the date of the decision notice. Six weeks is short, and the courts treat it strictly because third parties act on permissions.

Two consequences follow. The first is that you cannot wait to see whether the developer starts work. The second is that the pre-action correspondence, the search for a solicitor, the assembly of evidence and the funding all have to happen inside those six weeks, which in practice means starting within days of the decision.

Challenges to an appeal decision by an inspector run down a different route, a statutory review under section 288 of the Town and Country Planning Act 1990, also with a six week limit. The grounds available are broadly similar.

Who can bring a claim

The test is sufficient interest in the matter, and the courts have applied it generously in planning. A neighbour whose property is affected will plainly qualify. So, generally, will a local resident who objected to the application, a parish or town council, and a constituted local group formed to oppose the scheme.

Forming a company limited by guarantee is a common tactic, and it changes the costs position rather than the standing position. A company with no assets limits individual exposure, and the court can order individual members to give security or can lift the protection where the arrangement looks artificial.

Having objected at the application stage is not a legal requirement, though it helps. It demonstrates interest, it puts your argument on the record, and it makes the claim harder to characterise as an afterthought. That is one of several reasons to make objections that engage with policy rather than with feeling, as the note on loss of privacy objections and the evidence that works sets out.

Grounds that get permission, and grounds that do not

Permission to bring a claim is itself a hurdle, decided on the papers by a judge in the Planning Court. Claims that identify a specific legal error get through. Claims that dress up disagreement as illegality do not.

The pattern is consistent. Where the complaint is that the council reached the wrong answer, the claim fails. Where the complaint is that it asked itself the wrong question, the claim has a chance.

Reasons deserve a separate mention. A local planning authority granting permission is not generally under the same duty to give reasons as one refusing it, so an argument built purely on thin reasoning in a delegated report faces difficulty. Where a committee departs from the officer's recommendation, the position is different, because the reasons for departing have to be intelligible.

Costs exposure and the environmental cost cap

The general rule is that the losing party pays the winner's costs, and in a planning claim there are usually two other parties: the council and the developer as an interested party. Both may seek their costs.

Environmental claims attract a cost protection regime derived from the Aarhus Convention and written into the Civil Procedure Rules. Where a claim qualifies, the claimant's liability for the other side's costs is capped, at £5,000 for an individual and £10,000 for an organisation, with a corresponding cap of £35,000 on what the claimant can recover. These figures are set in the rules and can be varied by the court on application, and the qualifying criteria are specific, so take advice on whether the claim is an Aarhus claim before relying on the cap.

Crowdfunding is common and carries its own risk, because a funder can in principle be exposed to a costs order. Legal aid is rarely available for this kind of claim.

Budget for the permission stage separately. Many claims end there, and the costs of getting to a refusal of permission are far lower than the costs of a full hearing.

The pre-action letter

The pre-action protocol expects a letter before claim setting out the decision challenged, the legal grounds, the remedy sought and a deadline for response, normally fourteen days. Send it early, because the six week clock does not pause while you wait.

Write it as a lawyer would read it. Identify the specific policy or duty, quote the passage of the officer's report or the minute that shows the error, and say what you want the council to do. A letter that lists grievances about the development produces a dismissive reply and wastes a fortnight.

Councils occasionally concede at this stage, usually where the error is procedural and obvious. Ask for the full decision file under the environmental information rules at the same time, because the officer's report, the consultation responses and the internal correspondence are what the claim will rest on.

What to try before litigation

Litigation is the last of several routes, and it is the one most likely to cost money and produce nothing. Before it, there are options worth exhausting.

Ask the council to correct the decision itself where an error is obvious. Ask a ward councillor whether the application can be called in to committee before a delegated decision is issued. Where the scheme raises issues of more than local importance, a request to the Secretary of State to call the application in under section 77 is available, though it is granted sparingly and only before the council decides.

Complain about procedural handling through the council's complaints process and, afterwards, to the Local Government and Social Care Ombudsman, which can find maladministration and recommend a remedy even though it cannot overturn the permission.

And engage earlier next time. A well evidenced consultee response, a community group registered as a consultee and a building listed as an asset of community value all change what the decision maker has to consider. The pieces on what a parish council consultee response should contain and listing a building as an asset of community value cover two of those routes, and the developer's own statement of community involvement shows what consultation they claim to have carried out, which is worth reading closely.

This is general guidance, not legal advice. Judicial review is a specialist field with a hard six week deadline, so take advice from a solicitor experienced in planning challenges as soon as a decision is issued.