Section 288 of the Town and Country Planning Act 1990 enables, among other things, the decision of the secretary of state on a planning permission or an appeal to be challenged in the High Court, on the ground that: (a) the action is not within the powers of the Act; or (b) any of the relevant requirements have not been complied with in relation to that action. The challenge is available, however, only to a person who is “aggrieved” by the action.
In Ashton v Secretary of State for Communities and Local Government [2010] EWCA Civ 600; [2010] PLSCS 143, a section 288 challenge had been made to the decision of the secretary of state to grant planning permission, on a called-in application, for a mixed-use development including a 43-storey residential tower close to the Royal National Theatre. That challenge failed, but one of the unsuccessful applicants – a local resident – appealed to the Court of Appeal. His appeal was also unsuccessful, but the court chose to give some guidance on what is meant by a “person aggrieved” for the purposes of section 288.
The appellant contended that the proposed residential tower, some 260m away, would cast a shadow on the balcony of his flat. He claimed that he had attended meetings of a local protest group, and the inquiry on two or three days, despite the fact that his name did not appear on the attendance sheet. He did not make representations to the local planning authority or at the inquiry. Those objectors who spoke at the inquiry did not deal with the issue on which the appellant had based his challenge, namely a funding issue.
The Court of Appeal, agreeing with the first instance judge, concluded that the appellant was not a “person aggrieved” in this case. To have qualified as such, he would have to have played a sufficiently active role in the planning process. He was not an objector to the proposal in any formal sense and did not make representations, either oral or written. Mere attendance at parts of the hearing and membership of an objectors’ group that had not brought proceedings were insufficient. He would also have needed to demonstrate that the order and its effects had an adverse “impact” on him, or his interests. Without making any finding in that respect, the court thought it unlikely that he would be able to do so.
John Martin is a freelance writer
