Do you have leg to stand on? Standing to challenge Planning Inspector appeal decisions

Planning Law specialist Steven Hopkins and trainee solicitor 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 Law

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—

• that the action is not within the powers of this Act, or
• that any of the relevant requirements have not been complied with in relation to that action, he may make an application to the High Court under this section.”

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.  

Meaning of the term “aggrieved”

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”:

1. persons will ordinarily be regarded as “aggrieved” if they made objections or representations as part of the procedure which preceded the decision challenged and their complaint is that the decision was not properly made;
2. there are situations where a person who has not taken part in the decision or appeal process may nonetheless be “aggrieved” for the purposes of the Act (e.g. where a development has been inaccurately described, misleading the person so that they did not object where they ordinarily would have done);
3. however, a distinction must be drawn between a mere “busybody” (someone interfering with no legitimate concern) and a person having a reasonable concern in the matter to which the application relates.

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:

1. The appellant in the planning process;
2. Someone who took a sufficiently active role in the planning process, that is to say, probably a substantial objector, just not somebody who objected and did no more about it; or
3. Someone who has a relevant interest in the land.

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.

Examples of the courts applying the s288 standing provisions

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:

• The Court of Appeal found a Claimant did not have standing to challenge a decision of the Secretary of State for Communities & Local Government on the basis that his participation in the planning process was insufficient. The Claimant did not object to a mixed-use development proposal in Waterloo, including a 43-storey residential tower, nor did he make any representations, either written or oral, at the arranged public inquiry. The Court did not accept his argument that he was “aggrieved” because the residential tower would cast a shadow over the balcony of his flat and block his view of the London Eye and Palace of Westminster.
• The Planning Court found that two Claimants did not have standing to challenge an Inspector’s appeal decision on the basis that their participation in the appeal procedure was insufficient. Initially, a Local Planning Authority refused to grant planning permission for a residential development in Surrey to a developer. The Second Claimant objected to this initial application. The developer appealed. Neither Claimant wrote to the Planning Inspectorate objecting to the appeal, nor did they make representations at the subsequent public inquiry. The appeal was allowed by the Inspector who granted outline planning permission for the site. Although they applied to quash the Inspector’s decision, the Claimants were unable to subsequently challenge the Inspector’s decision after they were not deemed by the High Court to be “persons aggrieved”. In short, their failure to engage regarding the appeal proved fatal. 
• The Court of Appeal dismissed an appellant Local Planning Authority’s (LPA) argument which argued that the applicant (“Company B”) did not have standing to challenge a decision of the first Defendant (Secretary of State for the Environment) on the basis that they were not “persons aggrieved”. The LPA sought to overturn the High Court’s decision, following application by Company B, to quash an Inspector’s decision to dismiss an appeal by the original applicant (“Company A”) - i.e. requiring the Inspector to determine the appeal - on the basis that the wrong company had brought the statutory challenge. In other words, the LPA were arguing that Company A had standing, but Company B did not. Two planning permissions were granted by the appellant LPA to “Company A” for alterations to a building and change of use to business class B1 for a property in London subject to conditions. In seeking to discharge conditions an application made by Company A was refused by the LPA; Company A then made an appeal to the Planning Inspectorate. Company B, who had since purchased the property from Company A, were dissatisfied with the appeal decision and sought, and were successful in quashing, the appeal decision. Dissatisfied with the High Court’s decision, LPA argued before the Court of Appeal that Company B did not have standing because they had acquired the property at a later date and had not been the applicants for planning permission nor the appellant to the Planning Inspectorate. The CoA found that Company B did have standing because the conditions imposed by the LPA in the grant of planning permission were binding on Company B as owner of the relevant land.

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.