Judicial Review: The minimum required from local authorities

Clare Hardy, Geldards, Derby

Every local authority hopes to avoid challenges to any of its decisions and if a challenge does arise a local authority would be expected to defend it robustly.  But what happens when a local authority cannot afford to do so?  That was the situation which the Planning Court needed to consider recently in the case of of R (on the application of Midcounties Co-operative Ltd) v Forest of Dean District Council and another [2015] All ER (D) 48 (May), in which the Council did not appear and was not represented.  The court made observations which should be remembered by any local authority which finds itself subject to an application for judicial review.

The decision in question in this case was the grant of planning permission to Trilogy Developments Limited for a retail store and associated development in Cinderford, Gloucestershire.  The Council’s decision was challenged by way of judicial review by the owner and operator of an existing supermarket in the same town.  The challenge was successful and the grant of planning permission was quashed.  Although the substance of the judgment is of interest from a planning perspective, the case is particularly noteworthy because of the lack of involvement by the Council.

Although the Council supported the opposition of Trilogy Developments to the challenge, it decided that the Council itself would not defend the challenge.  Accordingly, whilst the Council was a party to the proceedings as defendant, the active defence of the claim was left to Trilogy Developments as the interested party.  Whilst this is not unknown in judicial review, where an authority might concede a claim but an interested party might decide to resist it, this case was unusual because the Council’s stance was motivated by its financial position.  It informed the court that it did not concede the claim but that, since it could not afford to take an active part in the proceedings for financial reasons, it supported Trilogy Developments in its resistance.

The court (Singh J) commented that a stance such as this could lead to tension with certain fundamental aspects of the way in which judicial reviews are conducted.  He pointed out that public authority defendants have a duty of candour and co-operation, so as to assist the court in understanding their decision-making processes and deal with the issues fairly.  Although interested parties may be subject to the duty of candour and co-operation in some circumstances, this may not necessarily be sufficient for all the practical issues which may arise in judicial review proceedings.

Mr Justice Singh suggested that a defendant public authority which cannot, for financial reasons, defend its own decision in judicial review proceedings should at least consider:

  • Whether it has complied with its duty of candour and co-operation by disclosing all relevant documents.
  • Whether its duty of candour and co-operation requires it to file a witness statement to assist the court in understanding its decision-making process and dealing with the claim for judicial review fairly.
  • Whether it should file an acknowledgement of service, with summary grounds of resistance, even if only in outline form, so that at least the gist of why it maintains that its decision is correct in law is explained.
  • Whether a representative of the authority (not necessarily a lawyer) should be present in court at any hearing, so that the authority is in a position to know what is going on and it can rapidly take steps to deal with points which may arise unexpectedly or answer judicial questions if invited to do so.

As times of austerity continue, those local authorities that are unfortunate enough to find themselves defending judicial review proceedings may increasingly have to take tough decisions about how actively they can afford to be involved. As well as ensuring that their decisions and decision-making processes are sufficiently strong to withstand challenge, they should also have appropriate systems to ensure that they consider the minimum expectations of the court when they are defendants to judicial review claims.

If you require assistance with judicial review proceedings or with reviewing your decisions to minimise the threat of judicial review, Geldards can assist.  Please contact Jonathan Butler on 01332 378321 or jon.butler@geldards.com or Jonathan Griffiths on 029 2039 1723 or jonathan.griffiths@geldards.com