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 grounds that: (i) the action is not within the powers of the Act; or (ii) any of the relevant requirements have not been complied with. It is available, however, only to a person who is “aggrieved” by the action. Much judicial attention has been given over the years to exactly what that term means.
In Historic Buildings and Monuments Commission for England (English Heritage) v Secretary of State for Communities and Local Government [2009] EWHC 2287 (Admin); [2009] PLSCS 262, the claimants challenged the secretary of state’s decision 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. The challenge failed. As an ancillary matter, the court had to consider whether a local resident, Mr William Ashton, who had joined in the challenge, was a “person aggrieved” for the purposes of section 288. His sole ground of challenge was that the secretary of state had erred in stating that the leisure facilities forming part of the proposed development would be provided “at no public cost”.
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 grounds that: (i) the action is not within the powers of the Act; or (ii) any of the relevant requirements have not been complied with. It is available, however, only to a person who is “aggrieved” by the action. Much judicial attention has been given over the years to exactly what that term means.
In Historic Buildings and Monuments Commission for England (English Heritage) v Secretary of State for Communities and Local Government [2009] EWHC 2287 (Admin); [2009] PLSCS 262, the claimants challenged the secretary of state’s decision 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. The challenge failed. As an ancillary matter, the court had to consider whether a local resident, Mr William Ashton, who had joined in the challenge, was a “person aggrieved” for the purposes of section 288. His sole ground of challenge was that the secretary of state had erred in stating that the leisure facilities forming part of the proposed development would be provided “at no public cost”.
Undoubtedly, the intended 43-storey residential tower would affect Mr Ashton, since it was to be built 260m from his property and would cast a shadow on the balcony of his flat. He claimed to have been present at meetings of a local protest group, and to have attended the inquiry on two or three days, despite the fact that his name did not appear on the attendance sheet. Those objectors who spoke at the inquiry did not deal with the issue on which Mr Ashton based his challenge.
Counsel for Mr Ashton argued that the definition of “aggrieved” should be approached in the same as for the definition of “standing” for the purpose of a claim for judicial review. In the latter case, the courts have adopted a broad approach. For instance, it has been accepted that a litigant who has a real and genuine interest in obtaining the relief that he seeks is entitled to rely in his application on grounds in which he has no personal interest.
The secretary of state contended that the test for standing and that for determining whether someone is a “person aggrieved” were different for good reason. Parliament could have provided that they were the same, but chose not to do so.
The court held that Mr Ashton was not a “person aggrieved”. Parliament had chosen to set the threshold higher for the purpose of a challenge under section 288 than for a claim for judicial review. The right of statutory challenge comes at the end of a complex and formal series of opportunities for consultation, objection and hearing. It is understandable that parliament should have intended to limit the right of challenge to those who had played an active part in the process, which Mr Ashton had not done.
John Martin is a freelance writer
