Judicial review or appeal: which route for which defect

Choosing between judicial review or appeal in planning turns on the kind of defect you are complaining about. If the council reached a planning judgement you disagree with, the route is an appeal under section 78 of the Town and Country Planning Act 1990, decided on the merits by a planning inspector. If the decision was reached unlawfully, the remedy lies in the Planning Court: judicial review for a decision of the local planning authority, or an application under section 288 where an inspector or the Secretary of State decided it. The window for the court route is six weeks, and it is unforgiving.

Most agents spend their careers in the first column of that table and never see the second. Knowing where the boundary sits still matters, because the client whose neighbour has just been granted permission has no appeal at all.

Merits and legality are different questions

An inspector on a section 78 appeal re-decides the application. They form their own view on design, amenity, heritage harm, the tilted balance and the weight to give each policy, and they can allow the appeal simply because they read the evidence differently from the case officer.

The Planning Court does none of that. It asks whether the decision maker stayed within the law: whether they took account of what they were obliged to consider, interpreted policy correctly, gave the reasons the law required and followed a fair procedure. A judge who thinks the scheme is poor will still dismiss a claim if the council got there lawfully.

That last row is the one clients misunderstand most often. A court win hands nobody a permission.

The six week window and how it is counted

For a decision under the planning Acts, a judicial review claim must be filed no later than six weeks after the grounds first arose, under the Civil Procedure Rules. For a challenge to an appeal decision, section 288 sets the same six weeks, running from the date of the decision letter. There is no extension for negotiation, holidays or waiting for counsel's opinion, and the court's discretion to extend is far narrower than in ordinary public law claims.

Six weeks is not long enough to obtain the committee report, take instructions, get advice and draft grounds comfortably. Start the clock in your diary on the day the decision notice is published and work backwards.

Section 288 applications also need the permission of the court, a filter added in 2015. So a claim form that reads like a disguised merits argument tends to fail at that first stage without the client ever getting a hearing.

Who can bring a claim

Standing in judicial review rests on having a sufficient interest in the matter, under section 31(3) of the Senior Courts Act 1981. In planning cases the courts have taken a fairly generous view: immediate neighbours, local amenity societies and parish councils have all been accepted, and a competing operator may have standing where the decision affects its interests.

Standing is rarely the reason a planning claim fails. Delay and the absence of a real legal error are.

If your client is an objector rather than the applicant, the court route is the only route. There is no third-party appeal against the grant of planning permission in England, which is why objectors who have exhausted consultation often arrive at a solicitor with four weeks already gone.

Grounds that get permission

The recurring winners are unglamorous and procedural. A failure to determine the application in accordance with the development plan unless material considerations indicate otherwise, contrary to section 38(6) of the Planning and Compulsory Purchase Act 2004. Misinterpretation of a development plan policy, which the courts treat as a question of law for them rather than a matter of judgement for the council. Failure to give legally adequate reasons where a duty to give them arises. A material consideration left out of account altogether, or an immaterial one taken into account. Failures in the screening or assessment steps required by the Environmental Impact Assessment Regulations 2017, or in habitats assessment.

Irrationality claims cost little to plead and almost never succeed. If your grounds rest on the proposition that no reasonable authority could have decided this, review them again.

An illustrative test: take the officer report and the minutes, and for each ground write the single sentence the judge would have to accept. If that sentence contains the words "should have given more weight to", it is a merits point wearing a costume.

What quashing achieves

A successful claim produces a quashing order, and the application goes back to be decided again, lawfully, by the same authority. The council may reach the same conclusion on a corrected basis. For an objector that can still be worth the cost, because the second decision is made in public with the error identified, and because the delay itself sometimes changes the scheme.

Relief is also discretionary, and section 31(2A) of the Senior Courts Act 1981 requires the court to refuse it where it is highly likely that the outcome would not have been substantially different had the conduct complained of not occurred. Expect the defendant to run that argument on any procedural ground.

Where the defect is curable, a section 73 application, a non-material amendment or a fresh application is usually faster and less costly than litigation. The fee regulations allow one further application without a fee in defined circumstances after a refusal, which is worth checking against the current schedule before anyone drafts a claim form. Our note on deciding whether a refusal reason is worth appealing works through that triage in more detail.

Costs, protective orders and the pre-action letter

Costs shape the decision more than the law does. In an ordinary planning judicial review the unsuccessful party pays, and a defendant council plus an interested party developer can each claim their costs. Claims that qualify as Aarhus Convention environmental claims carry cost caps set by the Civil Procedure Rules, currently in the region of £5,000 for an individual claimant and £10,000 for others, with a reciprocal cap on the defendant's recovery. Those figures are set in the rules and change, so check the current version before advising anyone that a challenge is affordable.

At appeal, by contrast, each side normally bears its own costs, with awards reserved for unreasonable behaviour. That asymmetry is why a marginal case belongs at appeal if any appeal right exists.

Send a pre-action letter under the Pre-Action Protocol for Judicial Review even though six weeks is tight. It is required, it sometimes produces a concession or a decision to retake the decision voluntarily, and the response tells you how the defendant will run the case. Set the deadline short and say why.

Build the documentary record while you are waiting: the decision notice, the officer report, the committee minutes and webcast, the consultation responses, the policies relied on and their full wording, and any statement of case from an earlier appeal. Our guidance on writing a statement of case an inspector can use applies to grounds drafting too, because the discipline of tying every assertion to a document is the same. And if you are relying on how other inspectors have approached the issue, read using appeal decisions as evidence in an application first, since a court will treat those decisions very differently from an inspector. Where the decision under attack was recovered or called in, recovered appeals and called-in applications sets out who made it, which determines whether you are in section 288 or judicial review territory.

For the underlying application, a well-evidenced Planning Statement that engages every development plan policy and records what the council was asked to consider is the least costly insurance against both outcomes. PlanScope drafts that document from your site data and flags where facts are missing.

This is general guidance, not legal advice; check the position with your local planning authority or a qualified solicitor before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.