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Judicial review gains ground

Duncan Field

The government has focused a lot of attention on judicial review of planning decisions and introduced reforms intended to make it harder to initiate proceedings and speed up the judicial review process. 

For all those good intentions, a change in case law means that objectors are casting the net of judicial review wider still, potentially affecting all planning decisions taken.
Until recently, it was commonly understood that interpretation of planning policy was primarily a matter for the decision-maker. But in Tesco Stores v Dundee City Council [2012], the Supreme Court considered a challenge to a planning permission for an out-of-centre store on the basis that the council had misinterpreted and, therefore, misapplied certain policy tests.
It was held that policy should be interpreted objectively in accordance with the language used and read in its proper context, so it was a matter for the court. The rationale for this was that the public is entitled to rely on a policy document as it stands and not have to be concerned about the views of its author about what it means.
Since the Dundee case, predictably there have been several challenges to decisions by councils, inspectors and the secretary of state that have included the incorrect interpretation of policy as a ground for review. Those cases show how easy it is to add policy interpretation as a basis for challenge to a decision, but they also demonstrate its limitations. 
The courts have recognised that policy documents should not be construed as if they were statutes or contracts; wording will be given its ordinary meaning and some allowance will be made in relation to the precise language that is used. The courts also accept that many policy statements are drafted in such a way as to require an exercise of judgement in their application; once policy has been interpreted objectively, how that policy is applied is a matter for the decision-maker and the court will only interfere with this if the decision-maker has behaved irrationally.
So how best to guard against this threat of judicial review?
1) Use concise, clear, plain English when drafting policy. This reduces argument in the first place.
2) When applying policy, give wording its ordinary meaning – try not to stretch it to mean what you want it to say. It is a question of law so seek the second opinion of a lawyer.
3) When faced with conflicting but plausible interpretations of policy, identify which you think is correct but countenance how the outcome would differ (if at all) if the other interpretation were correct. If it would not make a difference, this could be fatal to any judicial review claim. 
The Prime Minister has expressed his “frustration” that judicial reviews have become “something of an industry”. Unfortunately for him, the industry is alive and well and a new product line has been added. 
Duncan Field is a partner in the Planning team at Wragge & Co LLP

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