One of SAVE's strongest suits has been the readiness, when other alternatives have been exhausted, to initiate legal action. There are several kinds of legal action possible; sometimes it is worth pursuing more than one at the same time. See these actions as part of your campaign: keep progressing an alternative scheme for the site, and keep the press informed and amassing support. You may not get permission for a Judicial Review or for a Public Inquiry, but the extra time it might win you, is precious for progressing an alternative vision for the site.
Leave for Judicial Review
This requests the court to review and quash a decision by a minister or local authority.
Any discussion of legal action must be preceded by a caveat on costs. Lawsuits, as everyone knows, can prove very costly so it is preferable to seek to win your case by other means: by influencing public opinion, by making your case to officials and politicians, or by making representations at public inquiries. And the more you can show you have been closely involved in the battle from an early stage, the more weight you will carry if and when you decide to initiate legal action.
The first principle must be to obtain good advice. If possible find a solicitor or barrister willing to advise you free of charge - perhaps out of office hours, when the meter is not ticking. If no such source is available, ask for a realistic estimate of potential costs on a stage by stage basis. Thus you will know what your liability is and can decide whether to proceed.
Second, be vary wary of any type of action where you are likely to be required to give an undertaking on costs to the court.
If, for example, you obtain an injunction to halt building or demolition works, you may be interrupting a building contract; though this may well be only temporary, the opposition may also seek an undertaking, or even a bond, to cover their costs should you lose.
Wherever possible it is better to aim the action at local or central government for, say, failing to use their powers to stop the work. If you win, it will be for them to serve an enforcement notice or injunction as appropriate. Moreover, the simple fact that court proceedings have been launched my halt the works.
If a fine building is in acute danger and the only way of saving it is immediate recourse to a judge-in-chambers for an injunction, be sure to find out what the costs will be. If a major contract is broken or delayed, they could be very high. However, much demolition is done on a piece work or per day basis, and you might simply be talking about the loss of a day's work or a day or two's profit.
In the first instance, a simple solicitors letter may be sufficient to halt the work you wish to stop or to prompt action on a derelict building. Simplest of all is your own letter based on the advice of lawyers, stating in formal legal terms the advice you have received and the action you intend to take if you do not receive a response. Where a building is under imminent threat or being callously neglected, voluntary organisations may be able to move more quickly than local authorities.
If you decided to apply for leave of Judicial Review, consider if you have recourse to Legal Aid. If you don’t, does someone else in your group? Also, if you are a charity, defending the environment (heritage counts as environment) you may be eligible to be covered by the Aarhus convention, European policy that will allow your costs to be capped. The Aarhus Convention allows for “the right to participate in environmental decision-making.” See this link for more details.
Recourse to the Aarhus Convention has allowed SAVE to fight many Judicial Reviews in recent years that we would have been unable to do previously. Our costs are generally capped at £10,000 if we lose.
If the planning application that you are battling is approved, consider whether it is eligible to be ‘called in’ for public inquiry. For the Secretary of State for Communities and Local Government to call it in, it has to fulfil at least three of the following criteria:
- it is of national importance
- it raises design issues
- there has been controversy
- it is in contravention of national planning policy.
It takes a fair bit of lobbying to secure a public inquiry. Ask your supporters to write directly to the Secretary of State, consider starting a new petition, and write to MPs and Peers who you think may be sympathetic to your cause, asking them to appeal to the Secretary of State about the matter. Create as much press as possible about your campaign for an Inquiry, and send the links and clippings to the Secretary of State to support your request.
If you secure a Public Inquiry, consider whether you would like official legal representation or not. Negotiate terms with the solicitor or barrister. If you cannot afford to pay for legal representation, you can represent yourself. It is a public inquiry and everyone is permitted to take part. Form a comprehensive team for the inquiry, covering all aspects of the case: architectural history, planning, design etc.
A writ of Mandamus
This is an action requesting the court require a minister - or local authority - to do what they are required to do by statute. For example, the Secretary of State for culture Media and Sport has a duty, not just a power, to compile lists of buildings of historic and architectural interest.
A case of Ultra Vires
This seeks to establish that a minister or local authority has acted beyond its powers.