Top 10 points to remember if considering a high court challenge

Common examples include:

  • You are a third-party objector to an application for planning permission or listed building consent which has been granted;
  • You are the applicant seeking planning permission or listed building consent for a development but both the local authority and Planning Inspector have refused to grant permission;
  • You have been served with an enforcement notice for a change of use of land, and you have lost your enforcement notice appeal.

If you are considering taking your case to the High Court, here are 10 key points to keep in mind.

1. You must have exhausted all other routes of appeal, as this is an avenue of last resort.

2. It is not a re-run of the merits of the planning decision. It must fall within one of the legal grounds of challenge namely:

• Illegality – most commonly where a local authority or Inspector has misapplied law, policy or material considerations when determining a planning matter.
• Irrationality – otherwise known as Wednesbury unreasonableness. In other words, the decision: "is so unreasonable that no reasonable authority could ever have come to it".
• Procedural unfairness – simply that the proper procedures have not been followed, such as a failure to consult on a planning application.
• Legitimate expectation – where an authority’s own statements or conduct have led to an expectation as to the way it will act, such as a failure to follow their own planning enforcement policy.

3. After the Court has considered the grounds, they then go onto consider whether, regardless of this fault, would it have made any difference to the outcome of the decision. If not, the court won't interfere.

4. The remedy is usually to quash the problem decision and then remit the matter back to the relevant authority to re-determine. It is not for the High Court to determine the decision themselves.

5. There are very strict timescales to bring these High Court challenges – most planning claims must be issued within six weeks of the decision and within this, in most cases, a 14-day period should be allowed for a response from the defending authority to your letter before claim setting out your grounds of challenge.

6. The letter before claim can be a very effective tool in securing consent of the defendant to quash their decision without full High Court litigation. It is not uncommon for a consent order to be agreed before or during proceedings.

7. In most planning High Court challenges, there is a requirement to seek permission to bring the claim. More often than not, this is determined on the papers submitted to the High Court. The test is generally whether the grounds are arguable (a lower bar than the substantive hearing).

8. Unlike planning appeals, costs in High Court cases tend to be awarded to the winning party. On occasion, interested parties may be able to claim their costs from the losing party too.

9. Consider if you are entitled to apply for any cost cap on your exposure to the other party’s fees in the event you are unsuccessful. These tend to be more relevant to those who can show that they have limited financial resources.

10. And of course, it goes without saying, that you should take legal advice from a planning solicitor as soon as possible if you are thinking about bringing a High Court claim, as such cases require careful consideration and compliance with a strict set of Civil Procedure Rules and Practice Directions.

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