Legal: Judicial review process throws up surprises

Judicial review of decisions made by public bodies has never been particularly popular with politicians.

However, despite suggestions that it has become a runaway legal train, statistics supplied by the Scottish Courts Service reveal that since reaching a peak of 378 in 2009 the number has fallen away dramatically in each subsequent year – and was 278 in 2012.

Judicial review of immigration tribunal decisions represent significantly more than half the total over the last eight years, and three quarters in 2012.

Apart from 40 actions in the “miscellaneous” category, all the remaining classes of judicial review were in single figures in 2012. But what are the courtroom realities that lie behind the statistics?

Analysis of the 64 planning cases that went to proof between 2003-2012 by Neil Collar, head of planning law at Brodies, challenges some of the prevailing myths: first, it is not a growth industry: the number of court decisions has remained relatively stable at half a dozen or so each year; judicial review is not a NIMBY’s charter – only about half of cases are brought by objectors, and many of those are commercial interests, not private individuals; almost 75 per cent of cases decided by the judges were unsuccessful. Only 17 planning decisions have been quashed over the last ten years.

Collar said: “What our research shows is that the bar is very high. Judges are reluctant to intervene.

“The objector has to try very hard to find something clearly defective in the process to persuade a judge to quash a decision. And, of course, a decision for or against in a judicial review is not about the merits of the decision, only whether it was lawfully reached.

“Most of us could probably name a planning decision or two that turned out wrongly but were entirely lawfully arrived at.”

While the number of planning decisions that have been quashed may be a tiny proportion of the 40,000 applications filed each year, the report concludes that judicial review can have significant implications, both for developers – who may face lengthy delays of up to three years while their case is decided – and for decision makers.

Collar said: “The threat of possible legal challenge appears to act as a positive incentive to get the procedures right first time.” The Brodies partner number crunched only the cases that had proceeded to proof and therefore had an outcome.

A greater number of applications are lodged with the court of session but do not proceed.There is no analysis of the attrition but the reasons include negotiation, and settlement through to lack of funds.

More than half of the cases involved housing or retail development disputes. Housing cases have a lower than average success rate at 17 per cent. There have been seven judicial reviews of wind farm decisions. None has been successful, whether brought by a developer or objector.

One remarkable revelation is that the “success” rate of challenges to a planning decision is much lower, at 27 per cent, than similar challenges in England that run at 40-45 per cent.

Success was fairly equally shared by the original applicant, the planning body or a commercial objector.

Individual objectors fared far less well: “I was surprised at the low success rate of private individuals attempting to overturn a planning decision compared to the corporate objectors,” Collar said. “I can’t really say why that might be the case. Does the emotional investment made by an individual sometimes persuade them to continue past the point where the lawyers for a corporate client are advising to make a strategic withdrawal? It is probably fertile ground for someone else to research.”

• Read the Brodies report here