Every constitutional lawyer agrees that judicial review is a supervisory jurisdiction, not a merits-based appeal. This means that the court of appeal (in its inferior jurisdiction) is there to ensure that the Environment and Planning Review Tribunal (EPRT) acts within the limits of the law and not to decide whether an administrative permit should be granted or refused.
Yet we had numerous cases where courts quashed a decision of the EPRT and, without remitting the matter for reconsideration, treat the permit itself as automatically revoked. It could be well argued that this move, often justified as a mere legal consequence, is in truth a shift from supervision to decision-making. When the court does not send the matter back for proper redetermination, it effectively assumes the role of the executive who retains an exclusive role to decide or refuse administrative acts. Remittal, therefore, is not a technicality—it is the constitutional path required under the rule of law.
The logic is simple.
As Lord Hailsham stated in Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155, the court’s duty in judicial review of administrative acts is “to see that the decision-maker keeps within the legal bounds of its powers,” not to substitute its view. If the EPRT grants a permit unlawfully, the court may quash that decision. But unless the EPRT had no jurisdiction whatsoever, the matter should return to it for lawful reconsideration. To extinguish the permit without remittal is to do more than identify an error—it is to resolve the administrative act itself. That is not review. That is substitution.
The idea that the permit simply “falls” as a legal consequence is, therefore, a constitutional fiction. It masks what is in substance a fresh decision by the court. In other words, the act of not remitting yet extinguishing rights is not supervision—it is substitution. That substitution violates the principle that it is for the tribunal, not the court, to exercise the discretion entrusted to it by statute. The Court of Appeal made this point clearly in R (Khatun) v Newham LBC [2004] EWCA Civ 55, where it held: “Where discretion is vested in a public body, only that body may lawfully exercise it.”
This means that planning permits should not be revoked by judicial declaration unless that outcome follows from a finding of clear nullity—and even then, the proper course is usually remittal, not replacement.
Admittedly, there are limited exceptions. In Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1988), the court substituted its decision only because remittal was legally futile. But that is the rare exception, not the rule. Otherwise, routine refusal to remit, undermines both procedural fairness and institutional competence. Courts are there to ensure legality, not to redesign administrative outcomes. Anything else risks turning the judge into the administrator.
[Note: To avoid domestic controversy and preserve a degree of analytical distance, this blog draws principally from UK case law. The purpose is not to import doctrine uncritically but to frame the argument within well-established public law principles that transcend jurisdictional boundaries. Cases such as Anisminic, Evans, and Khatun offer a structured and principled basis to understand why courts must supervise, not decide.]
