Section 288 of the Town and Country Planning Act 1990 enables “a person aggrieved” to apply to the High Court to quash, inter alia, a decision by an inspector in respect of a planning appeal on the grounds that the decision was outside the powers conferred by the Planning Acts and/or there has been a failure to comply with any of the requirements of those Acts.
In Wiltshire Council v Secretary of State for Communities and Local Government [2010] EWHC 1009 (Admin), the local planning authority (LPA) had refused to grant planning permission for a residential development. The developer appealed to the secretary of state, whose inspector granted planning permission. The LPA applied to the High Court under section 288, contending that the inspector had erred in law. The developer then applied to the High Court under CPR 3.4(2) to strike out the LPA’s statement of case, on the basis that it disclosed no reasonable grounds for bringing the claim.
The court accepted the developer’s arguments, but it treated the application as if it had been made under CPR 24(2) and gave summary judgment against the LPA. Although recognising that CPR 3 and 24 were not the usual way of disposing of a section 288 application, the judge pointed out that their jurisdictions provide a valuable means of ensuring that cases are dealt with justly and with a view to saving expense.
However, before reaching his conclusion, the judge set out an admirable summary of the basis, established in case law, on which the court approaches an application under section 288. It bears repeating here:
(1) The weight to be given to a material consideration is a matter of planning judgment for the inspector.
(2) Provided that he has regard to all material considerations, he can give them what weight he thinks appropriate or no weight.
(3) His decision in that respect, however, will always be subject to an argument that it is Wednesbury unreasonable.
(4) Since the inspector is the fact-finding body, the Wednesbury test will normally be a difficult obstacle for the applicant under section 288.
(5) The court will want ensure that a section 288 application is not used for a rerun of the arguments on planning merits.
(6) A decision letter must be read in good faith and as a whole and it must be construed in a practical manner.
(7) If the inspector has materially misunderstood a plan or policy, this may provide a foundation for quashing his decision.
(8) Reasons for his decision must be intelligible and adequate and deal with all the principal issues.
John Martin is a freelance writer
