Friday, 26 February 2016

Legal challenges to planning decisions after Champion

I reported on the Supreme Court decision in R (Champion) v. North Norfolk DC [2015] UKSC 52 on Friday, 7 August 2015 (Lack of EIA not fatal to planning permission). As the title of that piece indicated, I was concentrating in that article on the substantive issue that was before the Court, namely the legal effect of a failure to obtain a screening opinion in a case where it had been a legal requirement to do so. However, the decision clearly has wider implications for judicial review generally.

I am not a regular reader of Solicitors Journal but I spotted an interesting article by Robert McCracken QC in this week’s issue which discusses the wider implications of Champion. He identifies an inherent tension between two alternative judicial approaches to the issue of granting relief when the Court accepts that a legal error on the part of a decision maker has been shown to have occurred. It has long been the practice of the courts in this country to uphold the principle that the Court has a discretion as to whether or not to grant relief in such cases, and Champion is a clear demonstration of this approach.

Whether or not relief should be granted in a particular case is never an arbitrary decision, and certain broad principles have become well established. I don’t propose to rehearse all of these here, but some of the more important considerations are whether there was an alternative means available to the claimant to secure a review of the decision (for example a statutory appeal process), whether the claimant has been substantially prejudiced by the decision and whether, if the decision were to be quashed, there is a reasonable chance that a different decision would be reached upon the matter being redetermined. The second of these points appears to have been given particular weight in Champion (i.e. lack of substantial prejudice). [See my earlier blog post, mentioned above.]

In his article, McCracken points out that the Supreme Court (per Lord Carnwath) appears to be saying in Champion that, not only must there have been substantial prejudice, but the claimant must also show that the decision would have been different were it not for the legal error. I have already drawn attention in my earlier article to Lord Carnwath’s suggestion that a court considering an application for permission to bring judicial review proceedings should take into account the likelihood of relief being granted, even if a legal error were to be clearly established. I observed that, if this suggestion is followed, permission to bring such cases in future may be refused at the outset if the view is taken that, upon a full hearing of the case, relief is unlikely to be granted. This would seem to me to amount to a ‘pre-trial’ of the substantive issues, which would effectively undermine the purpose of the permission stage, and could lead to longer permission hearings, which were originally intended solely as a filter to knock-out unarguable cases.

The main thrust of McCracken’s argument, however, is that Lord Carnwath’s suggestion may not comply with European law, in light of the decision of the European Court of Justice in Gemeinde Altrip v Land Rheinland-Pfalz (Case C-72/12) [2014] PTSR 311, which suggests that it is not for the claimant to be required to show that the decision would have been different in the absence of legal error. However Altrip was specifically considered by Lord Carnwath in his judgement in Champion, and it is difficult in light of his conclusions to see how it can now be argued that the Supreme Court’s decision is incompatible with Altrip. I haven’t got time to go into this here in any more detail, but the judgment in Champion seems to me to be very much in line with previous decisions on similar matters in our domestic courts, (for example judgments such as R (Hart DC) v. SSCLG [2008] EWHC 1204 (Admin), and the Court of Appeal’s decisions in Gillespie v Secretary of State for Transport Local Government and the Regions & Ors [2003] Env LR 30 ([2003] EWCA Civ 400) and in R (Catt) v Brighton and Hove City Council & Anor [2007] EWCA Civ 298, in light of Waddenzee judgment).

The general thrust of Lord Carnwath’s judgment in Champion therefore appears to me to be perfectly valid, namely that in the absence of substantial prejudice to the claimant, the Court has discretion to withhold relief from a ‘successful’ claimant for JR. The fact that the error of law under challenge involved a technical breach of a European directive does not alter the position, for the reasons that were clearly stated by Lord Carnwath.

On another point, following the well known decision of the House of Lords in R v. Hammersmith & Fulham LBC (ex p Burkett) [2002] UKHL 23, it has been a rule that the challengeable event in the case of a decision to grant planning permission is the actual issue of the planning permission itself, rather than the decision (taken quite a lot earlier in some cases) that planning permission should be granted. This is relevant for the purpose of calculating the 6-week time limit for bringing forward an application for JR. It had previously escaped my notice that Lord Carnwath suggested at the end of his judgment in Champion that there might be an earlier ‘challengeable’ event (in this case the absence of a screening opinion for the purposes of EIA) in respect of which time should run for the purposes of JR. He simply reserved the Court’s position as to whether failure to challenge that earlier error in a timely manner might (contrary to Burkett) bar a challenge to a subsequent grant of planning permission on the same grounds.

Finally, McCracken reminds us in his article of section 31(2A) of the Senior Courts Act 1981 (inserted by the Criminal Justice and Courts Act 2015), which prevents the High Court from granting relief or costs on a claim for JR if the Court takes the view that it is “highly unlikely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. However, there is an exception where the Court determines that there are “reasons of exceptional public interest”. This new provision effectively puts into legislative form the principle that Lord Carnwath was expressing in his judgment in Champion.


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