Why Bother with Judicial Reviews?


An Extraordinary Full Council Meeting was held in Hungerford on 19 June to determine whether to request a judicial review of West Berkshire Council (WBC)’s site allocation for the proposed 100 homes off Salisbury Road which might involve a consideration of WBC’s Development Plan Document (DPD). The unanimous decision was to do so. You can read more here.

I think everyone agrees new homes need to be built. Hungerford Town Council (HTC) fully accepts and welcomes that some will be built in the town. Many, including traders and would-be residents, welcome this too. The decision about the Salisbury Road allocation has been taken by WBC. HTC has misgivings about the site, as do (for a variety of reasons) many residents, if the meeting in January is a guide. Others support the development (also for a variety of reasons, some of them declared). No development of any size will fail to attract criticism, justified or not.

The decision having been taken, the question then arises as to what can or should be done about it by those that disagree. This involves considering a number of factors. Two of the most important are the level of local public opinion and the strength of the case for challenging the decision. Both present problems.

The level of local opposition to a development is often proportionate to the development’s size. Opposition will be based on different things including traffic, parking, drainage, utilities, road access, schools, environmental impact and the number of affordable homes. Each is examined by the responsible authority, WBC in this case, and the developer is often expected to make amendments, as happened in February with this plan. Other objections, such as that the development will ‘change the character’ of the town, are more unquantifiable and subjective. The opinions of a local whose view will no longer be over fields and of a town-centre shopkeeper who depends on local trade will be different towards perhaps 350 new residents. The head of the Primary School, which is already full to bursting, might despair at the prospect of more pupils. The head of John O’Gaunt, which is not, actively welcomes it. All these and numerous other factors are taken into account by WBC. Like any big decision, it involves expert knowledge and compromise between competing wishes or obligations.

Many of these objections may be real enough but are outweighed by expert evidence (which can, of course, later be shown to wrong) or wider benefits or necessity and so don’t constitute grounds for an appeal. If, however, it is a felt that the decision either infringes policy or process that’s a different matter. That can only be tested by a higher authority.

The first possible step is to request that the decision be called in (reviewed) by the district council’s higher planning committee (which did not happen here) or by the Secretary of State. This didn’t happen here either but this proves nothing about the merits of the case, the SoS’s response being that it would prefer such matters be ‘resolved at a local level’.

At the centre of the ‘local level’ is West Berkshire Council, in an invidious position in respect of every application. It is currently obliged to ensure that 525 houses a year are built until 2026: but this may change given the increasing national profile of what many have dubbed the ‘housing crisis’. It’s perhaps worth having a quick look at this.

A report by the Office for National Statistics in May 2016 highlights, amongst other points, the declining number of first-time buyers, the increase in average deposits, the increase in house prices (7% a year since 1980) and – perhaps the one that underpins all of these – the decline in the number of new homes being built each year: 250,000 in 1979/80 against 150,000 in 2014/15. In the same period, the number of homes built for occupancy by local-authority or housing-association tenants fell from about 110,000 a year to around 35,000.

Leaving aside socio-demographic changes such as the rise of the ‘singleton’ lifestyle and the fact that a lot of older housing stock is now where people no longer want to live, is beyond economic repair (as with Hutton Close) or is actively dangerous (as with Grenfell Tower), the demand for new homes is driven by there now being about 10 million more people in the UK than there were in 1981. There are also about 750,000 more people aged 18-34 living with their parents in 2016 than there were in 2000 and it’s impossible to believe all are doing so through choice. For many, perhaps particularly in an area like West Berkshire, the chances of getting on the housing ladder are becoming increasingly remote.

The rental sector can take up some of this demand but recent government policies, most recently the proposed outlawing of tenancy fees in the Queen’s Speech in June 2017, don’t seem calculated to increase a potential landlord’s desire to rent their property. Opinions differ as to the figures involved and the reasons for these but by many estimates there are well over a million empty domestic properties in the UK, a figure which has increased, perhaps doubled, in the last 20 years.

It would be hard to argue that the central government’s responses to all these problems have been either consistent or effective.

Two other things can’t help. One is the well-publicised cuts to local-government finances since 2016 (and the less well-publicised uncertainty surrounding the funding model based on business rates which will apply from 2109-20). The other is the fact that local councils have to charge for planning applications according to a tariff which does not always reflect the work involved. Perhaps partly as a result of these, WBC has admitted that it cannot enforce every reported planning breach. On the occasions when WBC does attempt to assert itself, it can be slapped down by HM Planning Inspectorate (as with the development in Eddington). The result is that the planning process risks being brought into disrepute, polarising opinion and increasing the emotional response to any decision. This, coupled with the backdrop of ‘crisis’, makes it harder to spot when some genuine problem has arisen that needs redress.

Unlike with the NHS and social care, two other areas to which the word ‘crisis’ is routinely applied and to which the government routinely attempts to respond (without admitting the unspeakable truth that we must either pay more towards or expect less of these), housing is increasingly provided by private companies. One result, which is outside this debate, is the constant tension between the number of ‘affordable’ houses that should be built in each case. The planning system was designed in the early 20th century when municipalities planned and built, often oblivious to views other than their own and sometimes with disastrous results. By some estimates the current crisis is on a similar scale to that in the 1950s. Do we wish to return to a time when the local authority was all-powerful and brooked no opposition? I think not.

I’m not saying WBC or any other authority is proceeding in such a high-handed way. I’m sure they would not wish to, nor to be accused of it. Also, they can’t, as there are now regulations about matters ranging from the presence of an AONB to traffic impact which have to be taken into account. There are also forms of redress which are open to objectors, one being a judicial review.

Experts and dedicated professionals though WBC’s planners are, their decisions aren’t infallible. A vast number of factors need to be considered with each decision. WBC must be deeply frustrated that some of these, Sandleford in particular, are getting bogged down in disputes with developers. WBC also has to consult with various bodies, including the public, HTC and the AONB. It has to follow its own local plan. It also needs to be realistic in what it can accomplish and I suspect it would rather deal with one application for 100 homes than five applications for 20. Finding a solution in each case that fully satisfies all these interests is impossible. Every decision involves a weighing of various competing and sometimes incompatible points of view to find the best, or sometimes the least bad, solution. Some considerations may need to weigh more heavily than others. National policy is clearly one. So too must be the officially protected status of entities like the AONB.

Despite everybody’s best intentions, such balancing acts can sometimes be, or be perceived to be, flawed. We are fortunate that in Britain we can submit such matters to independent scrutiny.  If HTC or any other body feels a decision is wrong they are entitled – and perhaps morally obliged – to see this is remedied. Some might argue that, if a decision urgently needs to be made, oversights or errors in the way it was arrived at somehow don’t matter. This is to embark on a slippery slope from which a number of evils can follow. If the (nationally agreed) process, AONB status or any other factor is causing the problem then the solution is to change them or at least provide a legal judgement which can act as a guide for future decisions. Anyone suggesting HTC should not proceed with a judicial review on grounds of cost is, to my mind, missing the point about what representative democracy means.

HTC has a role to play in this chain. Its councillors are unpaid and if they did not obtain their positions by contested elections that is only because there were no others prepared to stand. WBC’s councillors do fight elections and have more power and so could be accused of more errors: but it’s only by choosing to offer oneself for service of either of these kinds that the possibility of making a mistake even arises. I study the ‘Rotten Boroughs’ section of Private Eye and have in the last few years have seen no reference to malpractice by WBC or HTC. Whatever our views of our councils and councillors (or Private Eye), for that also we should be thankful.

HTC’s decision to launch a judicial review has not met with everyone’s approval, though the donations to the crowdfunding show many feel otherwise. Specialist advice has been obtained and HTC has a budget for legal costs and has taken steps to raise money in other ways. It is entitled to do this. There’s an important point at stake which has nothing to do with NIMBY-ism or self-interest and everything to do with ensuring decisions are taken in the right way. Whatever the verdict, a precedent will have been established that will assist other councils that find themselves in a similar position regarding an AONB or any other similar body.

One comparison springs to mind. Last year, Gina Miller and others launched a successful judicial review into the government’s proposed handling of the Brexit process. They, and the judges who decided this, were portrayed in some quarters as vile enemies of the people seeking to overturn Britain’s democratic will. The point was far simpler: who makes the laws round here, parliament or government? The courts decided, quite correctly, for the former. The hurdle the government had to cross in having a debate and a vote was small but an important principle had been asserted: correct process cannot be set aside because of perceived emergency.

I’m not suggesting HTC’s judicial review exposes issues of such magnitude. Well, perhaps I am.  There are important points of principle and precedent involved. Any legal process is uncertain but that should not be a barrier to embarking upon it. It has not been undertaken lightly or self-interestedly. Whichever way it goes, this judicial review will help establish clarity for all councils, and organisations such as AONBs, in this complex, emotive and divisive area – and for the benefit of us all.

This article was written by Penny Post and does not necessarily reflect the views of HTC, the ANOB or any other organisations or individuals mentioned in the text.


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