The planning system, like so many others, has undergone significant change as it has adapted to the challenges posed by the Covid-19 pandemic.
However, whilst the adaptations have been necessary to maintain a level of momentum within the system and mitigate the negative impact that a shutdown would have had, they’ve not always been as effective or fair as they may have been and concerns have started to emerge.
Here, Mark Turner of FBC Manby Bowdler’s specialist Planning Department, explains what some of those challenges are and how they can be navigated.
In ‘normal’ times, most planning applications would be considered by an individual case officer who, under powers known as ‘delegated powers’ would determine the outcome of the application. More complex or major applications, or those where a request was made by a local councillor, would likely be determined by the council’s planning committee at a public meeting. This meeting would entail discussions by councillors, council planning officers, and the public, who would have the opportunity to speak in favour of or against applications.
Covid-19, of course, changed all that and committee meetings were no longer able to take place. The Government responded by introducing regulations to allow remote meetings, but the way in which individual local councils have responded to this has varied and it’s here that concern has been raised.
In Shropshire, for example, virtual meetings are being held. Members of the public can listen in but instead of being able to address the committee themselves, they are required to submit written comments prior to the meeting which are then read at the meeting by a council employee.
This amended process has been criticised by the Campaign to Protect Rural England (CPRE), which has expressed concern with the requirement for comments to be submitted only a short time after the committee agenda and relevant application documents have been published which, it says, will result in a ‘curtailment of democratic freedom’.
Further concern has been raised that the council can email objections to the agent or applicant and allow them to respond, yet those responses will not be shared with objectors prior to the meeting. This, according to the CPRE, shifts the balance in favour of the applicant.
In Powys, meanwhile, there are concerns that all planning applications, including those which are large scale or with added complexity, are now being decided by individual case officers instead of going before the committee. Here, every committee meeting scheduled to be held since 19 March 2020 has been cancelled and there is currently no clear timeframe for when meetings might recommence.
Whatever the reality of either situation, or indeed of other local councils, it’s undeniable that some will see the changes as impacting negatively on the level of democracy in the planning process. Consequently, there could be an increase in the number of people wishing to challenge planning permissions which have been granted under the amended processes.
The only way that planning permission can be challenged by an objector is in the High Court via a process known as judicial review. However, a judicial review case can only be brought on the grounds of the council in question having made a legal error in their decision making; it does not act as a re-run of the planning merits of the case, in the same way as an applicant’s appeal against refusal would.
If a judicial review claim can be made out, for example it is proven that the council has acted illegally; that it has failed to consider relevant matters or, conversely, that it considered irrelevant ones; that it has made an irrational decision; or that there was a legitimate expectation that an application be considered in a particular way, then the court has power to quash the permission.
Judicial review is, however, a complex and expensive process, and the grounds for bringing a case are limited. Added to this, claims must be lodged with the court within six weeks of planning permission being granted so anybody who is thinking about bringing a claim must act quickly.
The planning team at FBC Manby Bowdler can advise on judicial review claims, as well as assist with objections to applications. For further information please contact Mark Turner on the details below: