Missing out on exploiting a ransom strip is not enough to qualify a landowner as a “person aggrieved” with sufficient standing to bring a section 288 challenge to a planning permission, the High Court has ruled.
Lindblom J rejected an “entirely opportunistic” case brought by the trustees of a pension fund after an inspector’s grant of outline planning permission for up to 80 homes in Rackheath, Norfolk, failed to require a pedestrian and cycle access over their 1 metre wide strip of land separating the development site from woodland.
Phillip Jeans, his wife Sandra and JB Trustees Ltd – the trustees of the Seymour Holdings Pension Fund – had claimed that the inspector erred in law in granting outline permission to Dennis Jeans Development Ltd, a company owned by Phillip Jeans’ brother, with a condition requiring two alternative pedestrian and cycle accesses.
Satnam Choongh had argued on the trustees’ behalf that a person whose property rights are harmed by an unlawful decision could be described as a “person aggrieved” for the purposes of section 288 of the Town and Country Planning Act 1990.
He said that, in the representations made on their behalf before the local authority and initially before the inspector, the trustees had shown their concern for the proper planning of the area, including doubts about the safety of the proposed arrangements for access to the development.
He claimed that it made no difference to the claimants’ standing that they had not taken part in the appeal process after they withdrew their objection and asked the inspector to disregard their comments, arguing that their interests were no different, and the effect of the inspector’s decision on those interests was no different either.
Had the inspector imposed a condition requiring the provision of a pedestrian link to Canfor Road, he said that the claimants’ ransom strip would be of considerable value, therefore the failure to do so had the effect of devaluing their property.
However, ruling that this was not enough, the judge said: “By withdrawing its objection to the proposed development, and the representations it had made, the Pension Fund left nothing before the inspector to show either that it had any relevant concern for the environment or for the proper planning of the area, or about the way in which the development might affect any property or commercial interest it sought to protect or promote.
“It follows, in my view, that the highest the claimants can now put their case on standing is this. Though they had abandoned their objection to the third defendant’s proposal, dropped out of the appeal process, and then said nothing to the inspector about any planning concern or any private interest of their own, or about the conditions he should impose if he granted planning permission, they were still hoping his decision would yield them a ransom, but became a ‘person aggrieved’ when it did not.
“That is not an attractive argument. And I do not accept it. In truth, the claimants’ only source of grievance lies in the fact that they had hoped for a ransom, which now they will not have. Their expectation of gain has turned out to be false. But their hope of a ransom was not, apparently, something they wanted to impress on the inspector, even in the guise of a planning objection. One can understand why. It had no planning significance at all.
“Whether the claimants were told this by those advising them at the time I do not know. At any rate they did not want to say anything to the inspector, altruistic or self-seeking, when they had the chance to do so. They did not try to influence his decision at all. They may now wish that they had.
“But these proceedings are entirely opportunistic. In the particular – and peculiar – circumstances of this case, I cannot accept that the claimants are a ‘person aggrieved’.”
JB Trustees td and ors v Secretary of State for Communities and Local Government and ors Administrative (Lindblom J) 18 November 2013
Satnam Choongh and Victoria Hutton (instructed by K&L Gates LLP) for the claimant
Justine Thornton (instructed by The Treasury Solicitor) for the first defendant
John Pugh-Smith (instructed by LSR Solicitors & Planning Consultants) for the third defendant
