For planning authorities and developers, the possibility of judicial review of a planning consent can cause real uncertainty. The changes which are due to be brought into force are likely to significantly limit the number of challenges which go forward.
Section 89 of the 2014 Act introduces a time limit of 3 months, beginning with the date on which the grounds giving rise to the application first arise. In respect of planning decisions, this is likely to begin with the date on which a consent is issued.
This is likely to bring a greater degree of certainty to planning authorities and developers in planning matters. Currently, there is no time limit and all that can be relied upon is a plea of mora, taciturnity and acquiescence (i.e. undue delay and inaction) if a challenge is raised after approximately 3 months. However, such pleas are not always successful. For more information on the current position, see Douglas Milne's article from February 2014.
Missive contracts which are conditional on planning could now contain preconditions with a more accurate reflection of the timescales in which a challenge could be raised.
The Court however does have the power to extend the period to what it considers "equitable having regard to all the circumstances." Therefore, there still remains a risk that challenges could be raised after the expiry of the three month period.
Requirement for permission
The second significant change is the move to introduce the requirement for permission for judicial review proceedings to proceed, following the approach taken in England.
At present, there is no form of sifting of judicial review petitions, and even the weakest challenges will be entitled to a full hearing on the merits.
Under the new provisions, the Court may grant permission for an application to the supervisory jurisdiction of the Court (i.e. for judicial review) to proceed only if it is satisfied that:
- the applicant can demonstrate a sufficient interest in the subject matter of the application; and
- the application has a real prospect of success.
The Court may decide an application for permission on paper only, without a hearing. However, where such an application for permission is refused, or the Court allows the application to proceed only subject to certain conditions, the applicant may request an oral hearing to review the initial decision. The review hearing requires to be heard by a different judge.
If the application for permission is refused after an oral hearing, there is a further right of appeal to three judges in the upper division of the Court of Session (the Inner House).
This requirement is likely to significantly reduce the number of judicial review challenges which proceed, and local authorities and other interested parties will no longer have to incur significant time and expense on challenges which have no merit. This should also prevent challenges reaching the stage of a substantive hearing where the challenger has no title to bring such a challenge.