Judicial review of discharge of conditions - a risk often overlooked

Judicial review of discharge of conditions

The recent case of R (on the application of Menston Action Group) v Bradford Metropolitan District Council (MDC) (2016) England and Wales Court of Appeal (EWCA) Civ 796 provides a reminder that all planning decisions are at risk of challenge by judicial review not just the grant of a planning permission.

In the Menston case a local action group challenged the decision of Bradford MDC to approve a sustainable drainage scheme in discharge of a planning condition. The local action group was refused its application for judicial review and appealed to the Court of Appeal which dismissed the appeal on the grounds that Bradford MDC had acted reasonably in making its decision.

The case is fact specific but the point of real interest is that this was a challenge in respect of a decision to approve a scheme to discharge a condition. Such challenges are unusual as they will often turn on technical issues and if successful do not in any event lead to the quashing of the planning permission, only the quashing of the decision to discharge the condition. A developer could re-submit a scheme which may the second time around be determined lawfully.

If however the scheme that is being proposed to discharge a condition is the only available technical solution, or the only viable technical solution, it may be that a successful challenge by judicial review could stifle development even if the planning permission itself remains extant.

Developers when determining which matters they wish to be dealt with by conditions should consider carefully whether those matters are ones which have been the subject of objections by third parties during the determination of the planning application or are matters which are likely to prove contentious as this will increase the risk of a challenge by judicial review. Purchasers of properties on a planning conditional basis and lenders should also consider whether it is expedient to make a transaction conditional on the expiry of the six week time period for judicial review in respect of all planning decisions, not just in respect of the grant of the planning permission.

Comment

The risk of judicial review is relatively low in comparison to the number of planning decisions which are made by local authorities and other relevant bodies. The Menston case is a helpful reminder that the risk extends to matters such as discharge of conditions (and not just grant of planning permission). How to address that risk contractually is a commercial decision for purchasers and their lenders, having assessed the risk through appropriate due diligence.