Planning Law specialists Steven Hopkins and Edward Green discuss the issues and considerations that need to be factored in when challenging the decisions of a Planning Inspector.
Holmes & Hills are frequently instructed by Third Parties seeking to challenge/quash the decision of a Planning Inspector to grant planning permission upon appeal by making a statutory challenge under Section 288 of the Town and Country Planning Act 1990 (“the Act”). Before a statutory challenge is launched, one of the first questions we ask ourselves is: “Will the instructing third party meet the requirements in relation to “standing” under section 288 of the Act?”. We ask this because if a third party does not have standing then they run the real risk of making an application (and incurring costs) without success. It may also be the case that the, or a, “correct” applicant (i.e. with standing) can be identified and is willing to pursue a statutory challenge notwithstanding the inability of the third party to do so.
Over the years, the requirement to have standing has been the subject of considerable Judicial discussion. Though there is now leading authority in the area, the decision as to whether a third party has standing to mount a challenge will always require the Courts to look at the circumstances of the case in hand.
The first port of call when deciding whether a Third Party has standing to challenge a Planning Inspector’s decision is to look to Section 288(1)(b) of the Act. Section 288(1)(b) clarifies that if any person:
“is aggrieved by any action on the part of the Secretary of State [or the Welsh Ministers] to which this section applies and wishes to question the validity of that action on the grounds—
A Planning Inspector is appointed by the Secretary of State and hence their decisions fall within “any action on the part of the Secretary of State” … “to which this section applies” (s288(4) & S284(3)(b) of the Act).
As can be seen by the wording of s288(1)(b), it is only a person who is aggrieved by the decision of a PINS on appeal who may bring a challenge.
The leading authority on the meaning of a person “aggrieved” for the purposes of s288(1)(b) is the Supreme Court decision in Walton v Scottish Ministers. The court in Walton accepted the broadness of the concept of being “aggrieved” and noted that the meaning of the term will vary depending on the context of the case in hand. In addition, the following three key points were made in Walton regarding the meaning of a “person aggrieved”:
The upshot of these three points is that if the Claimant does not make an objection/representation as part of the procedure preceding the decision under challenge (i.e. the Planning Inspector’s appeal decision), then the Courts will have to decide whether the applicant is “aggrieved”, or a mere “busybody”. The Courts will make this decision on a case-by-case basis after consideration of all relevant facts. Further, the Court in Walton said that in making this decision, a Court must have regard to the nature of the grounds on which the Claimant claims to be aggrieved.
Helpful examples of the type of applicant who will be deemed to be “aggrieved” were provided by the Court of Appeal in the case of Eco Energy (GB) Ltd v First Secretary of State. The case outlined that a ‘person aggrieved’ is either:
To summarise, for a person to be aggrieved for the purposes of s288(1)(b) of the Act, they will usually be expected to have taken a sufficiently active role in the planning process leading up to the appeal decision. Often, this will include making objections or representation in the planning process preceding the decision. However, making an objection or representation is not a pre-requisite for being “aggrieved” under s288(1)(b). There are circumstances where a person who did not take part in the planning process may be still be “aggrieved” under s288(1)(b). In these circumstances, the Court will consider the nature of the grounds for which the person is claiming to be aggrieved and the facts of the case. However, a person who will never be “aggrieved” is the mere “busybody” who interferes in matters which do not concern them.
As previously mentioned, each decision by the Court as to whether a party has standing to challenge a PINS decision on appeal will turn on the facts of the case. The following three case-studies illustrate the Courts approach to standing the in context of a statutory challenge under s288 of the Act:
As can be seen from the above, the issue of “standing” can cause applications under s288 of the Act to fall at the first hurdle and should be considered by those wishing to mount such challenges, but also those seeking to resist, or defend, application to quash a Planning Inspector’s appeal decision. Failure to do so may result in failed applications (and the resulting wasted costs) for would-be Appellants but, conversely, increase risk of the appeal decision being quashed for would-be Defendants which, in the case of grants of planning permission by a Planning Inspector, may ultimately result in the loss of a valuable planning permission.
If you are intending to challenge a Planning Inspector’s Appeal decision or have any queries about the content of this article, please contact Steven Hopkins for specialist legal advice.