Legal Avenues for Contesting Planning Decisions

This week, opponents of plans to construct an incinerator within a UNESCO World Heritage site officially initiated legal proceedings to challenge the government’s approval. The facility, intended for land on Portland Port, received authorization in September, despite an initial refusal by Dorset Council. Members of the Stop Portland Waste Incinerator (SPWI) group have now submitted a case to the High Court, seeking a statutory review of the decision with the aim of nullifying the government’s ruling. This situation prompts questions about the regulations governing challenges to planning decisions, the definition of a statutory review, and the likelihood of the campaigners’ success. Local Planning Authorities (LPAs), typically local councils, issue hundreds of planning decisions nationwide every week. If a planning permission decision contradicts an LPA’s local development plans, or includes a condition that is objectionable, interested parties retain the right to appeal the verdict. This sequence of events occurred in the incinerator case, where developer Powerfuel Portland appealed Dorset Council’s decision to deny planning permission for its proposed energy recovery facility. Once an appeal is lodged, it is directed to the government’s Planning Inspectorate, which then determines its validity and the type of investigation required. Public inquiries are reserved for complex cases, including those that may necessitate consideration of legal issues, as was the situation with the Portland incinerator judgement. Following the inquiry, the inspector prepares a recommendation, which is subsequently forwarded to the Secretary of State for Housing, Communities and Local Government, who holds the ultimate authority on any decision. Regarding the Portland case, the government adopted the inspector’s recommendation and approved the plans, thereby overturning Dorset Council’s earlier decision. Ricardo Gama, an environmental solicitor at Leigh Day, the legal firm representing the campaigners, stated that the SPWI group “believe that Powerfuel Portland have put forward a speculative scheme in completely the wrong place, contrary to planning policy”. The group asserted that the Secretary of State’s decision “does not satisfy” Dorset Council’s Waste Plan, which designates specific sites for waste disposal closer to the county’s major waste-generating settlements. Debbie Tulett, who filed the legal challenge, commented: “It is both devastating and frustrating to see the government’s opinion that the incinerator would do no harm to the iconic landscape of the Isle of Portland.” She added, “While it is difficult to legally challenge this aspect of their decision, we are able to take the government to task on their overlooking of planning policy.” Giles Frampton, director of Powerfuel Portland, remarked: “The planning decision itself, including the identified benefits and limited localised impact of the project, is not being contested in the legal challenge. “What is claimed is that the Secretary of State did not act legally in making the decision.”” He further indicated that Dorset Council had reported consulting expert legal advice and had “concluded any challenge on this basis would likely fail in court”. Mr Frampton concluded: “Despite this, Stop Portland Waste Incinerator group has decided to launch a legal challenge against the Secretary of State’s decision, which will be robustly defended.” Should an interested party, such as the campaigners against the incinerator plans, deem a planning inspectorate’s verdict legally incorrect, they can refer the matter to the High Court. This court oversees the most intricate and significant civil cases in England and Wales, including judicial reviews into the actions of government departments and public bodies. Legal challenges pertaining to planning decisions manifest in two distinct forms: a judicial review or a statutory review. While both mechanisms are exclusively for disputing judgements that may be legally erroneous, Mr Gama clarified: “Certain decisions, including decisions by the Secretary of State to grant planning permission, can only be challenged using the statutory review procedure.” Following the submission of an application for a statutory review, it requires authorization from a High Court judge to proceed to a hearing. Leigh Day anticipates this process will span “a couple of months” for the SPWI group’s challenge. Subsequently, a hearing would convene at the Royal Courts of Justice, where legal arguments would be presented by both parties before the judge renders a verdict. Within a statutory review, the objective for the appealing party is to have a decision annulled, which would entail remitting the case to the planning inspectorate for further consideration. It remains possible that the inspectorate could still uphold the original decision. Should a statutory review prove unsuccessful, recourse to the Court of Appeal may be available; however, this would entail additional expenses and offers no assurance of overturning the High Court’s ruling. BBC Dorset content is available on Facebook, X, and Instagram. Copyright 2024 BBC. All rights reserved. The BBC disclaims responsibility for the content found on external websites. Information regarding its approach to external linking is provided.