Challenging Planning Decisions
All of the projects described in this web site are concerned with planning decisions which are capable of being challenged in a variety of ways, including:
- Objections and representations in relation to emerging Core Strategies or other documents in the Local Development Framework aimed at showing that the documents are not 'sound' in one of numerous aspects and degrees;
- EIA screening and/or scoping decisions - by application to the Secretary of State for a screening direction or ultimately by judicial review;
- Call-in of a planning application by the Secretary of State;
- Judicial review of a decision to grant planning permission or to grant a Lawful Development Certificate by the LPA;
- Judicial challenge of a decision by the Secretary of State on a call-in or retained appeal;
- Objections to a planning CPO - generally resulting in a CPO inquiry or potentially a judicial challenge in the courts.
My key objective, whether acting for either planning authorities, landowners and/or developers promoting schemes, is to minimise the risks of the scheme being successfully challenged in any of these various forms. This generally involves meticulous scrutiny of the application and its supporting documents to ensure that they are robust, clear and persuasive in explaining the benefits and impacts of the scheme. Strategic Environmental Assessment, Transport Assessments, Appropriate Assessments under the Habitats Directive, Equality Assessments under the Equality Act 2010 and of course Environmental Impact Assessments are all target issues which will render a decision vulnerable to successful challenge if the documentation is not robust. The process demands great professional skill and integrity. Cynical 'papering over the cracks' will frequently be found out and punished, particularly where schemes are controversial or where CPO is likley to be required in order to deliver the scheme.
Effective communication between all parties - including objectors to the scheme - is a vital part of the preparation and promotion process for any major scheme - and for smaller schemes too. As a mediator appointed by the Planning Inspectorate to participate in its 'Planning Mediation' pilot project some 10 years ago it soon became very obvious that serious problems in promoting development can be attributable to poor quality (and sometimes nil) communication between the key parties. Effective communication involves more than mechanistic circular 'stakeholder' letters, exhibitions or consultation meetings. All parties should be alert to the messages that are being delivered, seek to agree the key objectives and the essential principles needed to evaluate the proposals being considered. By following a process within these guidelines, it may not be possible to avoid all opposition but it will generally provide a strong and persuasive case for the project that eventually comes forward for approval and minimise the risk of refusal, call-in or judicial review, with all the losses, costs and delays that these outcomes will entail.
The following case studies illustrate the point:
Arsenal Stadium Regeneration
Avoided call-in and survived challenges to the planning permission and the decision of the Secretary of State to confirm the CPO.
Brent Cross and Cricklewood Regeneration
Avoided call-in and Mayoral direction. The threats of judicial review in relation to the planning permission did not materialise.
Call-in decision reversed by the Secretary of State after the Environment Agency withdrew its objection following detailed discussions on the interpretation of the then new PPG25 guidance on development and flood risk.
The developers and landowners of the surrounding sites could have avoided the delays that resulted from my client's request (on my advice) for a Screening Direction in respect of each of the several schemes that had earlier achieved resolutions to grant planning permission if they had prepared the necessary environmental statements in the first place.
St Katharine Docks
Again, the applicant's failure to provide a robust Environmental Assessment not only meant that their costs were increased throughout the application and appeal process, but if they had properly dealt with the EIA process and if they had effectively engaged with the local community and English Heritage they might have produced a scheme that was not refused or which might have been upheld on appeal.
Challenging Planning Decisions Case Studies
I acted for Premier Marinas in their successful application to redevelop a marina and marine engineering works for a mixed use marina, marine engineering and residential scheme.
Without a shadow of doubt Paul is the most thorough reviewer of Environmental Statements we have come across. He wastes no time in understanding fully the complexities of the project - whatever the subject - and is meticulous in his examination of the documents including the often forgotten appendages. Moreover he is efficient with his time and such a delight to work with. We always encourage our clients to engage his services wherever possible.
Nick Roberts, Managing Director, the Landmark Practice