National Pro Bono Week – Unpredictable outcomes

By David Sumner

Acting for local groups, local residents and conservation groups in seeking to protect the environment through the legal system in England and Wales can be met with a number of challenges. Each case is often determined on its own facts. Judicial review is a popular course of action to consider where the environmental concern is caused by the grant of a planning permission.

One of the major issues which clients often struggle to grasp is that judicial review does not look at the merits of the planning application, but the way in which the decision of the relevant local planning authority in granting permission is made.

The court is not going to consider whether the planning authority has made the right or wrong decision in granting the permission; instead they will examine the way in which the planning authority made the decision. The majority of enquiries for legal assistance I receive are not suitable for judicial review as they are merit based objections by local residents or groups. However, merely reaching the stage where residents or local groups know whether or not they have a claim can be an expensive process involving solicitors, barristers, planning consultants and other experts.

I first joined the Environmental Law Foundation as an advisor in 2008 based on my interest in environmental protection and in the potential remedies available from the legal system of England and Wales. Given the non availability of legal help funding and the restrictive terms and conditions applied by legal expenses insurers in respect of environmental legal challenges, ELF provides access to invaluable legal resources on a pro bono basis at least initially to the stage where local groups will have a good idea as to whether they have an arguable case.

This means as an ELF advisor that I am exposed me to a great array of interesting cases. Some of those cases will have arguable claims and others not. However, those that do have arguable claims will continue to proceed on the basis that there remains an element of litigation risk with any judicial review claim. It should also be noted that win or lose at judicial review, what happens thereafter can not be predicted.

I was recently involved in a Judicial Review High Court case concerning the development and expansion of a large hotel, which potentially threatened an array of coastal fauna and flora. Although we were eventually unsuccessful at Judicial Review, the litigation process itself and the arguments raised before the Court had the desired outcome, as the hotel developer drastically revised their plans to accommodate the concerns raised by the local environmental groups. Conversely I have been involved in successful claims at judicial review, but following judgement the applicant has simply, with expert advice and assistance, amended and re-submitted their planning application for development and ensured that the defects reviewed at court are dealt with.

Accordingly judicial review must not be viewed as an end to the dispute in itself, but merely a tool, or an aid to assisting those bringing a developer or the planning authority to account for failing to apply the proper process.