If you are considering a judicial review of planning permission in England or Wales, or another challenge such as a statutory challenge of a planning appeal decision under section 288 of the Town and Country Planning Act 1990, it is important you understand when and why a decision may be reviewed.
Below we outline what judicial review and other High Court challenges mean in practice, what the process looks like, the grounds, time limits, and the likely cost.
Planning judicial reviews and other challenges to planning decisions are subject to very short deadlines which means seeking early advice is critical. If you believe a decision to grant or refuse planning permission is legally flawed or if your planning permission is being challenged, our Planning solicitors can advise on options, risks and what your next steps should be.
Aaron & Partners advise developers, landowners, local authorities and third-party objectors on judicial review and other High Court claims across England and Wales, from urgent pre-action strategy through to issuing, defending and resolving proceedings.
What is judicial review in a planning case?
Judicial review is a High Court process used to assess whether a public authority has acted lawfully in making a decision.
The process examines whether a planning decision was made lawfully. In practice, it is used to challenge the way the decision was reached, for example, whether relevant planning policy was applied properly, whether mandatory steps were followed, and whether the decision-maker took account of the right considerations.
When determining a claim, the Court will not exercise planning judgment or determine whether consent should be granted. The question is whether the decision was made lawfully.
What types of planning decisions can be challenged by judicial review?
Judicial review can apply to certain planning-related decisions made by public bodies in England and Wales, including local planning authorities e.g. the grant of a planning permission. Other decisions, such as those involving planning appeal inspectors, can also be challenged.
If you are unsure whether your situation is a judicial review or a different type of planning challenge (such as a statutory challenge under section 288 of the Town and Country Planning Act 1990), taking advice immediately is vital. Choosing the wrong route can have serious consequences, especially with short deadlines.
What is the difference between a planning appeal and judicial review?
A planning appeal deals with the planning merits of a planning proposal. A judicial review of planning decisions focuses on legality and process. A challenge can fail if it relates to planning judgment rather than an identifiable legal error.
Where the issue relates to planning merits rather than legality, a planning appeal or application strategy may be more appropriate.
Who can bring a judicial review?
To bring a judicial review claim, you must have a sufficient interest in the matter. That may include a developer or landowner, but it can also include affected residents, local businesses, community groups or other parties impacted by the decision.
Standing is assessed case-by-case.
What does the court look at when deciding if a planning decision is unlawful?
Although every case turns on its facts, judicial review in planning commonly focusses on whether the decision make:
- Misunderstood or misapplied the law
- Acted outside of their powers
- Followed an unfair process or ignored required steps
- Reached a decision that no reasonable decision-maker could reach on the evidence
What are common grounds for judicial review in a planning case?
Planning judicial reviews often arise where something has gone wrong in the legal approach, reasoning, or the process.
As highlighted in our insight on planning challenges in farm diversification, even well-planned developments can face legal and policy obstacles.
Examples can include failing to consider a key material consideration, taking account of an irrelevant consideration, misapplying planning policy, or giving reasons that do not properly explain the outcome where adequate reasons are required.
They can also involve legally required assessment duties (for example, where environmental or habitats-related assessment requirements are involved).
Is there a time limit to make a judicial review claim?
The deadline for lodging a challenge to a planning decision with the court, including a judicial review claim and a statutory challenge in respect of an appeal decision, is 6 weeks following the decision being challenged. However you should also note that challenges relating to enforcement appeal decisions must be lodged within 4 weeks.
Given the strict time limits, you should contact a planning solicitor as soon as possible to protect your position.
What is the judicial review process?
The early stage of the planning judicial review process typically begins with identifying the correct route and deadline, reviewing the decision documents, and assessing prospects. Where appropriate, pre-action correspondence may follow, setting out the legal basis for the claim and the remedy sought.
The beginning of the process requires urgent preparation and then moves into a structured court timetable.
The court does not automatically hear every claim fully. There is usually a permission stage first, where the court decides whether the claim is arguable and should proceed to a full hearing.
If permission is granted, the matter proceeds to a hearing where the court determines whether the challenged decision was unlawful. If the claim succeeds, the court then considers what remedy should be granted.
What can the court do if a judicial review claim succeeds?
If a judicial review planning claim succeeds, the most common outcome is that the decision is quashed. The decision is then returned to the original decision-maker to be reconsidered lawfully.
A successful judicial review does not always mean the final planning outcome will change. It means the decision must be taken again, lawfully, but the same result may be reached.
What are the costs and risks of bringing a judicial review planning claim?
Judicial review carries cost risk, including the possibility of having to pay the majority of the legal costs incurred by the other party or parties.
Generally, the losing party pays their own, and the winner's, costs.
These can be many tens of thousands of pounds, particularly where experienced Barristers, or King’s (formerly Queen’s) Counsel, are involved. However, the winner should not expect to recoup 100% of their costs, generally that figure is around 80-90%.
Planning challenges are often document-heavy and move quickly, so the practical commitment is significant as well.
Our planning solicitors can advise early on likely costs exposure, proportionality, and strategy, including whether there are pragmatic alternatives or funding options worth exploring.
I'm a developer: What should I do if my planning permission is judicially reviewed?
If your planning permission is challenged, the claim is typically issued against the decision-maker, albeit you will be joined as a party to the proceedings.
You have the option of taking an active role in the proceedings and defending the decision alongside the decision maker, or leaving it to them. Often, developers prefer to err on the side of caution and defend the decision alongside the decision maker.
The early focus is usually on understanding the pleaded grounds, reviewing the core decision documents, and deciding what steps are needed to protect progress while the court process runs. We can work alongside planning consultants and technical teams to coordinate an effective response.
Speak to a judicial review solicitor
Our planning team led by Mark Turner, have comprehensive experience in judicial review cases and high-court planning matters, providing the bespoke support needed to deliver realistic projects, for businesses, developers and organisations. We work with you from the beginning of the process through to its completion and draw on the our team's shared expertise in the linked disciplines of environment, energy and regulation.
