Judicial Review of office to residential changes

The High Court granted permission last Friday to four London borough councils to go ahead with applications for judicial review of the amendment of the GPDO that took effect on 30 May, allowing change of use of offices (B1) to residential use (C3). The hearing is currently scheduled for 4 December.

The fact that the High Court has granted permission for a full hearing merely indicates that there is at least an arguable point in the case, but this cannot be taken as an indication that these challenges will succeed. The ability of local planning authorities to make an Article 4 Direction if they are concerned about such changes in their area must surely be a strong argument against the legal challenge that has been mounted against this extension of permitted development rights. The timing of the application for judicial review might also be a problem for the local authority claimants if De-CLoG chooses to raise this (as I pointed out in this blog some time ago).

The number of prior approval applications received by some London Boroughs under the new rules has caused surprise and alarm in those authorities, but I am not convinced that an attempted judicial review of this subordinate legislation is the right way forward.

On the other hand, one of the grounds of challenge relates to the way that applications for exemption from the new PD rights were considered by De-CLoG. I did have misgivings about this at the time (which I mentioned in a previous blog post). This is one aspect of the matter in respect of which the government could be vulnerable.

If the hearing timed for 4 December goes ahead on that date, judgment will probably be reserved and is likely to be delivered either just before or shortly after the Christmas/New Year break. An appeal to the Court of Appeal by whichever party loses could well be on the cards, so a final answer may not be known for some months yet, maybe well into 2014. Meanwhile, there is nothing to stop applicants getting on with their prior approval applications. In fact the possibility (however remote) that these permitted development rights could be withdrawn as a result of this legal challenge may encourage an even greater number of prior approval applications to come forward in order to get these proposals through before the drawbridge can be pulled up.

© MARTIN H GOODALL

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Gorge Fly Shop Weekly Fishing Report January 12th

Gorge Fly Shop Weekly Fishing Report

"Fly Fish the World with Us"

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Judicial review – a different solution

One of the drawbacks of judicial review, as anyone who has ever been involved with the process will be very well aware, is that when a decision is quashed by the court the decision under challenge is not reversed; it is simply set aside, leaving the decision-maker to retake the decision. The decision-maker in redetermining the matter can very easily reach the same decision again, provided that they do so in a way that avoids the legal error that led to the original decision being quashed. There are several examples of which I am aware where there have been successive quashing orders of a retaken decision; but the public body or authority involved will nearly always get their own way in the end. Thus a successful action seeking to judicially review an unlawful action or decision all too often proves to be a pyrrhic victory.

The court cannot substitute its own judgment for that of the LPA or other body whose decision is under challenge, because the court simply does not have before it all the relevant facts that would need to be taken into account and weighed up in retaking the decision, nor does it have the necessary expertise to exercise a technical (as distinct from legal) judgment. But in planning cases, at least, it would be entirely possible to introduce amending legislation (whether primary legislation or, possibly, a simple rule change) to provide that when planning permissions and perhaps certain other planning-related decisions by LPAs are quashed, jurisdiction would then pass to the Secretary of State (in practice, the Planning Inspectorate on his behalf) to redetermine the application as if it had been made to him in the first instance. This might or might not involve a public inquiry, depending on the circumstances of the case. A mandatory order requiring the issue of an enforcement notice (admittedly very rare in practice) might also be transferred to the Secretary of State for implementation.

I am not aware of this suggestion ever having been put forward before, although I would not be at all surprised to learn that something of this sort may have been canvassed at some time in the past. However, I do not expect that it is an idea that government (of any political persuasion) is likely to take up, unless there is a groundswell of opinion resulting from dissatisfaction at the outcome of the current judicial review process in planning cases.

© MARTIN H GOODALL

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