Judicial review changes: inevitably the same result if no unlawfulness?

baconsthorpe-castleNorth Norfolk District Council v. Secretary of State for Communities and Local Government, [2014]  EWHC 279 (Admin), Robin Purchas QC sitting as a Deputy High Court Judge, 14 February 2014 – read judgment

In my last post, I explained how Chris Grayling’s proposed reforms might affect planning and environmental challenges, and, hey presto, within the week, a perfect illustration of one of the points which I was making – with implications for all judicial reviews.

One of the proposals in the Criminal Justice and Courts Bill (see here) is that a challenge to an unlawful decision should fail if it is highly likely that the outcome for the applicant would not have been substantially different, had the public authority not acted unlawfully. This compares with the current test which is that the decision should be quashed unless it is inevitable that the decision would be the same.

 Cue a proposed wind turbine (86.5m to blade tip) to be placed on one of the highest points of Norfolk and affecting the setting of two Grade I listed buildings (Baconsthorpe Hall and Barningham Hall) and a number of Grade II* churches. The Inspector allowed the turbine on appeal from the local planning authority, which decision the judge has now set aside.

The judge found that the Inspector did not comply with the terms of section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, which requires him to “have specific regard to the desirability of preserving the building or its setting…”. After careful analysis of the Inspector’s reasons, the judge found that they did not demonstrate that he had paid such special regard. One has some sympathy with the Inspector because this relatively straightforward duty, found in statute, was overlaid with national policy and local policy (none of which could detract from the meaning of the statute when they conflicted) but which tended to distract from his principal duty to follow the statute. He was also not helped because in the name of “efficiency” there had not been a full inquiry in front of him, rather an informal hearing. That all said, the Inspector took his eye off the ball. He seems simply to have undertaken a planning balancing of the undoubted deleterious effect of the turbine upon the listed buildings and the renewable energy benefits of the turbine – this is not of course the same as having “special regard” for the effects upon the listed buildings.

The upshot was that the judge found the decision was unlawful, in that it did not adopt and apply the correct statutory test.

Now to the question of relief: how should such a conclusion impact on the Inspector’s decision? This is what the judge said:

83. In the particular circumstances of this decision it is not possible to know how the balance would or might have been affected if he had had special regard to the desirability of the preservation of the settings….

84. I accept that on the conclusions which he set out he could still have come to the same overall decision, but I do not consider that it is possible for this Court to say that he would inevitably have done so if he had in fact taken the statutory requirement into account.

85.In these circumstances I conclude that this inspector did not comply with section 66(1) of the LBA 1990. In my judgment it is not possible to say that he would inevitably have come to the same conclusion, had he directed his mind to that requirement and approached his decision on that basis.

One can readily see the problem facing the judge in this and many cases. The decision-maker has gone wrong. Therefore he has not answered the right question. The judge’s job under the current rules is that if he does not know what the decision-maker would have said in answer to the right question, he must quash the decision. Otherwise the judge is setting himself up as a specialist planning inspector who had heard the evidence; the judge is neither.

The problem with the proposed reform is that the judge will be creeping nearer the position where he becomes the decision-maker. He must decide whether the impact of this wind turbine on these listed buildings is such that it is “highly likely” the inspector would have refused permission for the turbine on appeal. The proposed change in approach may be modest (from “is it inevitable?” to “is it highly likely to be the same?”) but once you make the shift, you start asking judges to make planning or housing or local authority budgeting decisions – which, I repeat, is not the judge’s job. This is because the decision-maker did not actually take the decision which the judge is being asked to second-guess; he took a different decision using different rules.

One side-effect of this is that you are likely to encourage evidential overkill, in that every conceivable piece of material before the decision-maker will get put before the judge, in case it matters. I hope that is not what Grayling wants – hypertrophied judicial review, costing more and taking longer. As I remarked in my earlier post, he seemed phlegmatic about it in his consultation response. Perhaps a little closer knowledge of j.r. in action might actually deter such a short-sighted position.

This proposal would apply across the whole range of judicial review. But there is also one specific quirk in the environmental field; any reforms will have to fit with the special rules which may apply when second-guessing the lack of an environmental impact assessment; EU rules may require a more onerous test to be applied on this issue: see my post on the Altrip case here. And such EIA challenges are pretty common in judicial review cases.

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