Navigating the planning process: reducing the risk of legal challenge

High profile or contentious development projects at the planning stage will often face the threat of judicial review challenge by objectors. Ben Garbett outlines how developers can ensure that the legal risks are minimised.

What are the legal risks, and how can they be reduced?

Irregularities in the planning process can give rise to legal grounds of challenge which could ultimately lead to the consent being quashed, not to mention the significant cost and delay of defending a claim in the High Court. A significant responsibility falls upon the local planning authority to ‘get things right’, but many of them are under-resourced and prone to error.

Unfortunately, the opportunity to correct defects after the grant of permission can be extremely limited.

The legal risks can be reduced by instructing a planning lawyer to audit the planning process and to engage with the authority handling the application process.Claims will not always be avoided but pro-active use of legal experts will increase the chance of defending any claims successfully at the earliest possible stage of the legal process.

Examples of things to watch out for include:

• The committee report: Is the planning officer’s report inadequate or misleading? Have ‘material’ planning issues been ignored, or have irrelevant matters been taken into account?
• ‘Planning obligations’ (Section 106 agreements): Do the proposed obligations meet the requirements of the new ‘CIL’ Regulations? Was a draft of the agreement made available for comment on the public register prior to the decision being taken?
• Planning conditions: Are any of the recommended conditions vague or imprecise in their meaning, or is compliance with any condition subject to the wording "..unless otherwise agreed in writing with the local planning authority"?
• Environmental impact assessment: Has the authority published clear reasons for giving a negative screening opinion? Has it re-consulted the public on supplemental information provided as part of an Environmental Statement?
• Notice of planning permission: Does it include an adequate ‘summary’ of the reasons for granting consent and cite the relevant development plan policies? Do they reflect the committee debate which occurred? By what process were they formulated and adopted?

How Keystone Law can help

Having an experienced planning lawyer on board can ensure that any legal risks are minimised in advance.Keystone Law can provide the following planning law services:-

• Legal compliance audits to identify potential risks before an application is determined.
• Management of legal risk: advice on appropriate action, where possible, to reduce the risk of challenge including active engagement with the local planning authority.
• Defending judicial review claims in the High Court.

Ben Garbett is an experienced planning law specialist in the Keystone Commercial Property Team. Ben deals with a broad range of planning, highways and compulsory purchase matters.