Legal

Judicial review is the mechanism by which the courts ensure that public bodies and entities discharging activities invested with a public law character act lawfully and fairly. It is concerned with reviewing decision-making processes, not with the merits of particular decisions. The principles underpinning judicial review have been distilled predominantly from case law and evolve as time goes on.

Judicial review in context

The local authority role in urban regeneration is usually fundamental to the success of a project. The decisions of local authorities are susceptible to judicial review. However, the decisions of third party private entities can also be susceptible to judicial review (see R (on the Application of Beer (Trading as Hammer Trout Farm)) vs Hampshire Farmers Market Limited and another (2003) EWCA CIV 1056 (“Hampshire”)). In Hampshire the council handed the running of a farmers’ market programme over to a company. A decision of the company to exclude an individual from the programme was held by the Court of Appeal to be susceptible to judicial review as the power to exclude had a sufficient public element, flavour and character.

Challenges to decisions invested with a public law character by way of judicial review, whether successful or not, can impact significantly on the cost and timely delivery of regeneration projects.

Lawfulness, procedural fairness/impartiality and reasonableness are the broad categories of grounds on which the court can intervene on judicial review. A number of decisions relevant to regeneration projects are challengeable on the basis of “apparent bias”. The appearance of bias can, as a ground of challenge, arise by reason of a decision-maker’s interest, conduct or behaviour during the decision-making process. The basic test is whether a fair-minded observer, having considered the facts, would conclude that there was a real possibility that the decision-making body in question was biased (Magill vs Porter [2001] UKHL67 (2002) 2 AC 357). The test is objective. It is immaterial that the decision-making body can show that it approached the decision with an open mind from a subjective perspective.

Much can be done to address allegations of procedural unfairness/bias; however, a certain amount of foresight and planning is required. The guiding principle is that not only must justice be done, but it must be seen to be done.

Dual roles of local authorities

In regeneration schemes local authorities often aim to use their substantial landholdings. As part of a scheme the landowning local authority may want to grant itself planning permission for redevelopment. The local authority in such circumstances is wearing, in effect, two hats – that of landowner and of local planning authority. It must ensure that it keeps these roles absolutely separate.

In submitting a planning application to develop its own land, the local authority must adhere strictly to the procedural requirements laid down in relevant regulations governing procedures for such applications. The courts are more than ready to strike down planning permissions issued by local authorities in respect of their own land where the procedural regulations have been breached – for example, failure properly and publicly to advertise such applications.

Applications by local authorities to develop their own land must be considered and determined by the planning committee of the local authority and not by a body of the authority having control of the land or even an interest in the land. The planning officer’s report should consider the application only on planning grounds against the backdrop of relevant planning policies. The planning committee’s discussions should revolve around those planning grounds. Any reference to reasons other than planning in any report or discussion on the application (for example, reference to land values in the context of the application) could constitute evidence of bias and lead to judicial review proceedings.

Procedural fairness can include whether or not there has been adequate consultation. In R (on the application of Smith) vs East Kent Hospital NHS Trust [2002] EWHC 2640 (Admin)) it was decided that in reorganising health services there was no duty to re-consult on an amended proposal which emerged during the consultation process. That said, if the amended proposal constituted a fundamentally new proposal, re-consultation may have been appropriate.

Ensuring that decisions are notified to relevant parties is also important, given the need for an aggrieved party to act promptly if a decision is to be challenged by way of judicial review. Delivery of the decision and the way in which the decision is couched can be fundamentally important as the issue of whether adequate reasons have been given can arise.

Conclusion

Challenges by way of judicial review can prove costly and cause lengthy delay. Within the context of partnering aimed at delivering regeneration schemes that benefit from public and private participation care must be taken where, for instance, the control of civic or community facilities is handed over to a third party. Within the context of relevant decision-making processes, the fact that decisions must be approached fairly and objectively by all involved should always be borne in mind.