Judicial review risk: 5 things every housebuilder should know

Back in January we reported on planning and judicial review in Scotland. Our analysis showed that the number of planning judicial reviews remained relatively low but that the majority were about housing development. Our report only covers those challenges that made it into court. It does not include challenges that were conceded by planning authorities at an earlier stage. Even if successful court challenges remain relatively rare the delay caused by a judicial review can be a significant problem for housebuilders, putting projects on hold and increasing costs. Below we share five key things that every housebuilder should know when thinking about judicial review risk.

1. Planning judgment - in determining a planning challenge the court is concerned with the legality of the decision-making process and not with the merits of a decision. The courts have repeatedly said that matters of planning judgment are for the planning decision-maker and the court will only interfere if the decision maker has made an irrational decision. That is a high hurdle for any challenger to overcome and it's therefore in a housebuilder's interests to ensure as many of the key issues as possible are matters of planning judgement. Examples of planning judgment include decisions about whether a building is in keeping with its surroundings or if a site is sufficiently accessible.
2. Interpretation - in contrast interpretation of planning policy is an area where the court can and will intervene. A failure by a planning decision-maker to properly interpret a policy (e.g. in the local development plan) can lead to the decision being quashed by the court. Housebuilders should carefully review the report prepared by the planning authority to check the correct policies in the development plan are identified and applied.
3. Other legal obligations – planning authorities are also subject to a wide-range of other overarching legal duties, for example, the public sector equality duty under the Equality Act 2010. It is also important that any report prepared by the planning authority properly considers its overarching legal duties and records them in its report where possible. Housebuilders may want to consider highlighting relevant legal duties in advance to the planning authority to help ensure they are properly covered in any report.
4. When is a permission 'safe' – the time limit for a legal challenge will either be 6 weeks or 3 months depending on the type of decision being challenged and the challenger. Housebuilders may want to diarise from the date of the grant of permission and seek advice or check with the relevant court before starting work on site.
5. What if the planning decision-maker concedes – a housebuilder will normally get served with any legal challenge as an interested party. A housebuilder can then decide whether to take part in the legal challenge or to let the planning decision-maker defend its decision. It is possible (although unusual) for a developer to defend a decision, even when the planning decision-maker has conceded. One of the key benefits of taking part in a court process is it potentially allows a housebuilder to keep their permission alive in circumstances when it may be quashed. However, whether it is worth staying in the court proceedings will be highly fact-specific and any housebuilder served with a challenge should take legal advice.

The above list is not exhaustive. Planning law is complex and evolving all the time, particularly in cases before the courts. If you would like to discuss the issues in this blog then do not hesitate to contact Niall McLean or Neil Collar, or your usual Brodies contact.