Planning appeal against judicial review

The difference between a planning appeal and judicial review is not really about procedure. It is about who you are. A planning appeal belongs to the applicant and reopens the planning merits; judicial review belongs to anyone with sufficient interest and asks only whether the decision was lawfully made. If you are a neighbour or a parish council unhappy that permission was granted, the appeal route is closed to you entirely, and that surprises people every week.

England has no third party right of appeal. A refused applicant can go to the Planning Inspectorate under section 78 of the Town and Country Planning Act 1990. An objector faced with an approval has one court-based option and a set of non-legal alternatives that are usually more productive.

Who can use each route

Section 78 gives the right of appeal to the applicant, and only to the applicant, against refusal, against conditions imposed on a grant, or where the council has failed to decide within the statutory period. Nobody else can start it. An objector can submit representations to an inspector once an appeal is running, and inspectors read them, but the objector is not a party who can appeal a dismissal.

Judicial review is open to a claimant with sufficient interest in the matter, the test in section 31(3) of the Senior Courts Act 1981. Courts have read that broadly in planning: a neighbour, a local amenity society, a parish council and sometimes a national campaigning body all qualify. Sufficient interest is rarely the obstacle.

Where the decision came from an inspector rather than the council, the route changes name. Challenges to appeal decisions run under section 288 of the 1990 Act, a statutory review with the same legal character as judicial review and its own permission stage.

What each one can actually change

An appeal is a fresh consideration of the planning merits. The inspector redetermines the application, can take a different view of design, character, highway safety or heritage harm, and can grant permission subject to different conditions. New evidence is allowed within limits, and the inspector's decision replaces the council's.

Judicial review does none of that. The court does not decide whether the development is acceptable. It decides whether the decision-maker misdirected itself in law, ignored something it was legally required to take into account, acted unfairly, or reached a conclusion no reasonable authority could reach. If the claim succeeds, the usual remedy is that the permission is quashed and the application goes back to the council to be decided again, lawfully. It can be granted again on the second pass, and often is.

That is the point objectors most often miss. Winning a judicial review buys a rerun, not a refusal.

Time limits, and how unforgiving they are

The six-week planning judicial review limit is the one that catches people. It runs from the date the decision was made, not from the day you found out about it, and the court's power to extend it is effectively nil. By the time a neighbour has read the decision notice, spoken to a solicitor and found funding, a fortnight has often gone.

So the first thing to do on hearing that a contested permission has been granted is to diarise the six weeks and send a pre-action protocol letter early. The letter costs little, and it sometimes produces an admission from the council that a consultation step was missed.

Grounds you can run

Appeal grounds are planning grounds. The scheme is well designed, the harm is limited, the development plan supports it, the council misapplied its own policy, the condition is unreasonable or fails the tests for conditions. Inspectors expect the argument to be anchored in the adopted development plan and the current National Planning Policy Framework, and a well-structured Planning Statement does most of that work.

Judicial review grounds are public law grounds:

• Misinterpretation of a policy, which is a question of law for the court rather than a matter of planning judgement.
• Failure to take into account a material consideration, or taking into account something immaterial.
• Procedural unfairness, including a failure to consult where consultation was promised or required.
• Failure to give legally adequate reasons where the duty to give reasons applies.
• A decision so unreasonable that no reasonable authority could have reached it, which is a high bar and rarely the winning ground on its own.

Breach of a statutory duty is the ground that succeeds most often in practice: a habitats assessment not carried out, an environmental impact screening decision not made, a heritage duty under sections 66 or 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 not applied.

What it costs to be the claimant

An appeal carries no fee to the Planning Inspectorate. The applicant pays for their own consultants, and costs awards between parties are the exception, made where a party has behaved unreasonably.

Litigation is different. The general rule in the courts is that the losing party pays the winner's costs. For environmental claims within the scope of the Aarhus Convention, and most planning challenges by objectors qualify, the Civil Procedure Rules cap what an individual claimant can be ordered to pay the other side at £5,000, and at £10,000 for claimants other than individuals, with the defendant's exposure capped at £35,000. The caps can be varied by the court, and you have to claim Aarhus status in the claim form.

Even with the cap, you are funding your own solicitor and counsel, through a permission stage and then a hearing. Crowdfunding is common for a reason.

What to do before reaching for either

Most objector complaints are better answered before the decision than after it.

1. Make written representations within the publicity period, dealing only with material planning considerations, and say which development plan policy the scheme conflicts with.
2. Ask your ward councillor to request that the application go to committee rather than being decided under delegated powers.
3. Speak at committee. Three minutes in front of members changes more outcomes than any letter.
4. Where the proposal is of more than local importance, ask the Secretary of State to consider calling it in under section 77.
5. If the complaint is about how the council behaved rather than what it decided, the Local Government and Social Care Ombudsman handles maladministration, though it cannot overturn a permission.

Where a permission has already been granted and implemented in a way that departs from the approved drawings, that is enforcement territory rather than either of these routes, and a complaint to the council's enforcement team costs nothing.

Following how the rules themselves are changing helps too. The planning law updates timeline is where reform items are tracked, and the procedural time limits in this area have moved more than once.

If you are on the other side of the counter and preparing the application in the first place, browse the supporting report types by category or enter your postcode to see which ones the site is likely to need.

This is general guidance, not legal advice. Court deadlines in this field are short and strictly enforced, so take advice from a solicitor immediately if you are considering a challenge. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.