Judicial review or the statutory planning appeal route

The difference between judicial review vs planning appeal is the difference between arguing that a decision was wrong and arguing that it was unlawful. A section 78 appeal takes the planning merits to an inspector who reaches their own view on the development. Judicial review, and its statutory cousin under section 288 of the Town and Country Planning Act 1990, asks the High Court whether the decision maker acted within their powers. The court does not decide whether the extension should be built.

Which route is open to you is usually settled by who you are and what was decided. An applicant refused permission appeals. A neighbour aggrieved by a grant of permission has no appeal at all and must go to court. An applicant who loses an appeal challenges the inspector's decision under section 288 rather than appealing again.

What each challenges and on what grounds

A section 78 appeal lies against refusal of permission, the imposition of conditions, or failure to determine within the statutory period. The Planning Inspectorate redetermines the application, applying section 38(6) of the Planning and Compulsory Purchase Act 2004 and the development plan, and the inspector can grant permission, refuse it or vary conditions.

Judicial review lies against a decision of a local planning authority, most often a grant of permission, and occasionally against a screening opinion, a certificate or a committee resolution. The grounds are public law grounds: acting outside the statutory power, failing to take a material consideration into account, taking an immaterial one into account, procedural unfairness, inadequate reasons, misinterpreting policy, or reaching a conclusion no reasonable authority could reach.

Section 288 is the statutory route for challenging a decision of the Secretary of State, which in practice means an inspector's appeal decision. The grounds are essentially the same public law grounds, and permission from the court is required, as it is for judicial review.

Policy interpretation sits in an interesting place. The meaning of a development plan policy is a question of law for the court, while its application to the facts is a matter of planning judgement for the decision maker. That line is where many successful challenges are found, and it is one reason the status of a document matters, as set out in design code or a design guide supplementary document.

Merits against legality

The practical consequence of the distinction is that a court challenge cannot give you permission.

Win a section 78 appeal and you have a planning permission. Win a judicial review of someone else's permission and the permission is quashed, which sends the application back to the authority to decide again, lawfully. It can then grant permission a second time, properly reasoned, and frequently does. Win a section 288 challenge and the appeal decision is quashed and remitted for redetermination, often by a different inspector, with the same evidence.

So a legal challenge buys a second decision rather than a different outcome. That is worth remembering before spending money on it, and it is why experienced objectors look hard for a ground that will survive redetermination, such as a failure to carry out an assessment that would change the evidence base, rather than a reasons challenge the authority can cure with better drafting.

Time limits and the six week rule

The deadlines are short and unforgiving, and they differ by route.

Six weeks is the number to remember for anything going to court. It is a hard limit rather than a target, and the court's power to extend it in planning cases is very limited. The clock on a judicial review of a grant of permission runs from the decision, not from when you found out about it, which catches objectors who assumed they would be notified.

Pre-action correspondence has to fit inside the six weeks. In practice that means a letter before claim within the first two weeks, which means instructing solicitors within days of the decision notice appearing on the register.

Standing and who may bring a claim

A section 78 appeal can be made only by the applicant or someone acting on their behalf. Third parties cannot appeal a grant of permission, however strongly they feel about it. That asymmetry is deliberate and it is the single most common source of surprise for neighbours.

Judicial review requires sufficient interest in the matter, under section 31(3) of the Senior Courts Act 1981. Immediate neighbours, parish councils and local amenity societies generally have it. National campaign bodies have been accepted in environmental cases where the issue is of genuine public importance. A person with no connection to the area and no interest beyond disapproval normally does not.

Section 288 requires the claimant to be a person aggrieved by the decision, which includes the appellant, the authority and, in appropriate cases, objectors who took part in the appeal. Participation in the process helps establish that status, which is a practical reason for objectors to make written representations rather than staying silent until the decision arrives.

Remedies available in each

An inspector allowing an appeal grants permission, subject to conditions they impose. They can also award costs, though only for unreasonable behaviour.

The court's remedies are different in kind. A quashing order sets the decision aside. A declaration states the legal position. A mandatory order requires the authority to do something, such as determine an application properly. Damages are not generally available in planning judicial review, and the court has a discretion to refuse relief where the outcome would have been the same, under the statutory test introduced by the Criminal Justice and Courts Act 2015.

That discretion matters. A claimant can establish a legal error and still lose the remedy because the court concludes it is highly likely the outcome would not have been substantially different. Technical grounds without substantive consequence are poor investments.

Costs and protective costs orders

A section 78 appeal has no fee and, in a written representations case, modest costs. The appellant pays their own professional fees and expects to bear them whatever the outcome.

Court litigation carries the loser pays rule, and that is the real barrier. A judicial review that goes to a hearing can cost tens of thousands of pounds, and an unsuccessful claimant is ordinarily liable for the defendant's costs as well as their own.

The exception is the environmental costs protection regime for Aarhus Convention claims. Where a claim relates to environmental matters within the Convention, the Civil Procedure Rules cap a claimant's liability for the other side's costs at £5,000 where the claimant is an individual and £10,000 in other cases, with the defendant's recoverable costs capped at £35,000. The caps can be varied by the court, and whether a claim qualifies is itself sometimes disputed, so take advice on it early rather than assuming the cap applies.

Illustrative example. A residents association objects to a permission granted at committee against officer advice. The minutes show members were not told about a consultee objection on highway safety. The association writes a letter before claim in week two, the authority concedes the procedural point in week five and agrees to redetermine the application, and the claim is settled without a hearing. On redetermination, with the objection properly reported, the committee grants permission again with an additional condition. The association secured a lawful process and did not stop the development. Whether a decision was taken at committee or under delegated powers often shapes exactly this kind of ground, as explained in committee determination or delegated decision.

Identifying which route is open

Work through it in order.

1. Who was the decision maker? A local planning authority points to judicial review. The Secretary of State or an inspector points to section 288, or section 289 for an enforcement appeal.
2. Who are you? An applicant has the appeal route. A third party does not.
3. What was decided? A refusal or a condition is appealable. A grant of permission to someone else is not.
4. What is the complaint? Disagreement with the planning judgement belongs in an appeal. A flaw in how the decision was reached belongs in court.
5. What date is on the decision notice? If a court route is in play, count six weeks from it and work backwards.

Where both an appeal and a legal challenge appear possible, the appeal is almost always the better route for an applicant, because it produces a decision rather than a reconsideration. Court action is for the cases where no appeal exists or where the decision making itself went wrong.

If your position is that the planning case was not properly put the first time, the answer is better evidence rather than litigation, and the report types by category and a well-argued Planning Statement do more for an appeal than a legal argument ever will.

This is general guidance, not legal advice. Court deadlines are short and strictly applied, so take advice from a planning solicitor or counsel immediately if a legal challenge is being considered.