Planning Applications

Part of the debate – in Westminster Hall at 10:59 am on 7th April 2010.

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Photo of Oliver Letwin Oliver Letwin Shadow Minister without Portfolio 10:59 am, 7th April 2010

I am very grateful to my hon. Friend for displaying his usual legal acuity, because it is exactly the question of judicial review to which I now turn. I received responses from Ministers suggesting that judicial review might be the answer in this case. However, I have two questions to ask the Minister about judicial review.

First, why would anyone suppose that the inhabitants of West Bexington, or the inhabitants of any similar village or neighbourhood in Britain, would be able to spend money on a judicial review of a planning decision? Why would anyone suppose that those inhabitants would be willing or able to risk the costs that they might incur in challenging a council that has the taxpayer behind them?

Indeed, is not the whole point of the planning system that it is not in court and that it is a substitute for going to court? If we wanted to have all planning decisions made in court, we would have them all made in court, as some other decisions are made in court. But the point of having planning decisions not made in court is to prevent those types of court costs arising. In fact, at the moment we even have a system of appeals against planning decisions that does not involve courts, so that someone does not have to have very expensive barristers to appeal a planning decision; although people may employ planning barristers at planning appeals, they do not have to have that type of apparatus.

In other words, very considerable efforts have been made to reduce the exposure and liability of those who challenge planning decisions, and clearly if people have to rely on judicial review to contest planning decisions, they would be exposed to very considerable liability, so the first question I ask the Minister is why does she suppose that anyone would be able to mount a judicial review in these circumstances?

My second question for the Minister is even more important, and it relates directly to what my hon. Friend asked about in his intervention. Why would anyone suppose that a judicial review would be an answer to this question? As I understand the matter, the law is quite clear in this area. If someone has planning permission, they have planning permission; it is a sort of piece of property, as I understand it. Therefore, if someone were able to mount a judicial review-that is, they had the funds to do so and they were willing to undertake the liabilities associated with it-the judicial review might rule that the original decision was unreasonable. Incidentally, the judicial review certainly could not rule that the decision was ultra vires, because it is clearly within the powers of a planning authority to grant planning permission. The only thing that a judicial review could do to rule in someone's favour would be to say that the original decision was an unreasonable one.

However, even if a judicial review were to rule that the original decision was unreasonable, is there any indication, or does the Minister have any legal advice to suggest, that the decision by the judicial review would invalidate the planning permission? If the council was shown to have made an unreasonable decision in granting planning permission, that might have other consequences for the council-I do not know what those consequences would be. I am not all sure, however, that under current English law there would be any remedy for those who objected to the planning permission, because it would still be the case, as far as I can make out, that the permission itself was valid and a piece of property on the part of the person who held it.

I want to press the Minister on those two questions. First, why would anyone in her Ministry believe that judicial review is really accessible to people who are in this situation? Secondly, why does anyone in her Ministry believe that judicial review is an adequate remedy in these circumstances? Finally, I want to make a positive suggestion. There is a very straightforward way of solving this problem and I have already raised it with Ministers in correspondence. I am glad to say that my own party has now taken it up and I hope that we might achieve consensus on the suggestion that we change planning law, so that it follows common sense in this respect.

I think that it is a matter of common sense that if someone applies for something on the basis of information that an ordinary and reasonable person, including an ordinary, reasonable and expert person such as a planning officer, is misled by, any permission that that person might obtain should not be valid. It would not be an enormous change in planning law-it is certainly not as large as some other changes in planning law that I think we need to make-to arrange things so that if I make an application on the basis of drawings or other information that cannot be understood for what they are, even by professionals, then my application, if I obtain it, is invalid.

That would be a small but useful change. It would put the onus on the person making the application to go the extra mile to ensure that their accompanying drawings and other information adequately illustrated what the thing would look like in relation to things around it. The applicant would be worried that it might otherwise be alleged that their application had been in some way misleading. If they knew that the application would not be valid if it were judged that the information accompanying it had been misleading, they would want to go that extra mile to ensure that it was not misleading. Surely it would be better to build that incentive into the system.

I believe that there is a general principle in our law, constitution and political practices that if something has gone wrong, there should be a remedy. Many of my constituents in West Bexington, as well as objecting to what happened and to the state of the law, object on the grounds of unfairness because they feel that there is no remedy. I hope that the Minister is willing to acknowledge that there is a need to ensure that there is a remedy in such circumstances, that at present a remedy is not available, and that that is bound to generate a sense of unfairness of the kind that my constituents, many of whom live in West Bexington, feel.