The end of planning judicial reviews?

July 2, 2013

Over recent years, there have been a number of extremely high profile planning and environmental judicial reviews; for example, there have been numerous legal challenges to the John Lewis proposals at Sprucefield, challenges to Area Plans and challenges to major infrastructure projects. Such legal challenges have been cited as a barrier to economic development in Northern Ireland.

For these reasons, the Assembly passed the DUP and Sinn Féin amendment to the Planning Bill restricting the ability of anybody seeking to object to a planning decision via the process of judicial review. In Northern Ireland, we have no third party right of appeal therefore a member of the public or commercial enterprise aggrieved by a planning decision can only challenge that decision by way of a High Court challenge known as judicial review.

The amendment states that a person aggrieved by a decision may, within 6 weeks of the decision being taken, appeal to the High Court on any question of law material to the decision or determination only where the question of law raises matters of compatibility of the decision with the European Convention on Human Rights or the compatibility of the decision with EU law. In essence, this amendment removes the ability to challenge a planning decision by way of judicial review and instead puts in place a statutory appeal mechanism. This is highly significant in that it severely limits the scope of challenge to a planning decision, restricting it only to matters of European Convention on  Human Rights or compatibility with EU law. Therefore, in a situation where, for example, there has been an extreme departure from published planning policy or indeed a failure to, for example, notify a neighbour of a planning application or a failure to consult with statutory consultees, there would, potentially, be no right of challenge.

However, the amendment may simply mean that the sophisticated commercial operator wishing to challenge a planning decision for the purposes of commercial advantage would simply have to launch that challenge at an earlier stage in the process. For example, where the Department has failed to undertake appropriate statutory consultation or a case officer’s report recommends the approval of an application which does not comply with planning policy, such an objector may wish to launch a challenge by way of judicial review to that particular report or failure. This would of course provide the Department with the opportunity to address and correct such shortcomings before a final determination is reached. This may have the undesired consequence of having multiple applications for judicial review throughout a planning decision making process. However, such tactics may not be available to the individual for community activists who are simply not aware that a planning application has been made or does not have the resources to carefully and closely monitor the planning file or have access to professional advice to understand the procedural requirements at each stage of the planning process.

However, such an applicant may find that their rights as set out in the European Convention on Human Rights are in fact engaged in such circumstances and therefore they may find it possible to launch a challenge by way of judicial review. Furthermore, many of the recent challenges to planning decisions have in fact been based on deficiencies in or the absence of Environmental Impact Assessments, Strategic Environmental Assessments and Habitats Directive Assessments. Such challenges would still be capable of being brought under the new statutory process in the High Court.

In conclusion, whilst at first blush the proposed amendments seem to sound the death knell for planning judicial reviews, in fact, the outcome may be that the sophisticated commercial objector may simply launch multiple challenges at each stage of the planning process to delay or prevent a decision being issued in the first place. Quite what the reaction of our High Court to such tactics will be remains to be seen. The legislation may, however, severely limit challenge to decisions made by the PAC.

The amendment emphasises the need for all objectors to carefully monitor each stage of the planning application process and seek professional advice to ascertain whether or not there has been a breach of planning policy, or the process as set out in various documents.