Planning appeal or judicial review after a refusal

Appeal or judicial review after a planning refusal is usually a false choice, because the two routes answer different questions. An appeal asks whether the scheme should be permitted. A court asks whether the decision was lawfully made. Almost every applicant refused by a council wants the first question answered, and the appeal is the way to get it.

The court route matters in a narrower set of cases, and the deadline for it is six weeks rather than six months. Miss that and the option is gone.

What each process can achieve

An appeal under section 78 of the Town and Country Planning Act 1990 is a full re-determination by an inspector. The inspector reads the case afresh, forms their own planning judgement and either grants permission, with conditions, or dismisses the appeal. The council's view carries no special weight.

A challenge in the High Court cannot grant permission. At best it quashes the decision and sends the matter back to be decided again, by the same decision maker, applying the law correctly. The same answer can come back, lawfully reasoned, and often does.

So the practical question is what outcome you need. A permission means an appeal. A finding that a council or an inspector went wrong in law, with the decision remade, means the court.

Merits against lawfulness

Inspectors decide planning judgement. Courts do not interfere with planning judgement, and they say so repeatedly. The grounds that work in court are errors of law: misinterpreting a policy, failing to take account of a material consideration, taking account of an irrelevant one, acting irrationally in the legal sense, giving inadequate reasons, or failing to follow a required procedure.

Disagreeing with the weight given to a consideration is not a ground. Weight is for the decision maker. That single point disposes of most of the challenges people contemplate after a refusal they consider unfair.

The distinction is worth stating to clients early, because the emotional response to a refusal is usually about the outcome while the legal question is about the process.

Which route follows which decision

This is where the terminology confuses people, and getting it wrong wastes the deadline.

Section 288 applies to decisions of the Secretary of State, which includes inspectors deciding appeals. It does not apply to a council's refusal. A council's decision is challenged by judicial review under the ordinary procedure, with the shortened six week limit that applies to claims under the Planning Acts.

Both court routes run on six weeks, and in both the clock starts from the decision rather than from when you read it.

Deadlines and standing

Six weeks is short and the courts treat it strictly. The papers have to be assembled, counsel instructed, grounds drafted and the claim issued within that period, which in practice means instructing within the first fortnight.

Standing differs between the routes. An appeal belongs to the applicant alone. Neighbours, parish councils and campaign groups cannot appeal a grant of permission, and judicial review is their only route. For a section 288 challenge the test is whether the claimant is a person aggrieved, which is read broadly and covers objectors who participated in the appeal.

Judicial review also has a permission stage. The claim is filtered on the papers before it proceeds, and a claim certified as totally without merit can be refused permission with no right to renew at a hearing.

Costs exposure

The two routes are not comparable on cost, and this is usually the deciding factor for a private applicant.

In an appeal, each party bears its own costs. An award can be made where a party has behaved unreasonably and caused wasted expense, and applications succeed often enough to be worth considering, though the threshold is genuine unreasonableness rather than a losing case.

In court, costs follow the event. A claimant who loses pays the other side's costs, and on a planning judicial review with a defendant council and an interested party developer there can be two sets of costs to pay. Cost capping is available in Aarhus Convention claims, which covers most environmental challenges, with caps set in the Civil Procedure Rules. Check the current figures and the procedure for claiming the cap, because the applicant has to apply for it and provide financial information.

Illustrative example: a refusal on an infill plot where the officer report misquoted a policy criterion. The applicant's first instinct was a challenge. The advice was to appeal, because the inspector would read the policy correctly anyway, the appeal cost a fraction of a claim, and a quashing order would only have returned the application to the same committee. The appeal was allowed in under six months.

Remedies and what you actually get

A quashing order returns the decision to the decision maker. Where an inspector's decision is quashed under section 288, the appeal is redetermined, usually by a different inspector, on the material already submitted plus anything the parties are permitted to add. That takes many months on top of the litigation.

Declarations and mandatory orders exist but are rarely useful in planning. The court will not substitute its own planning decision, and it will not direct a particular outcome.

There is one situation where the court route is the only option: a third party seeking to overturn a grant of permission. There is no appeal against a grant, so an objector who believes the council acted unlawfully has judicial review or nothing.

Deciding after a refusal

Work through four questions in order.

1. What outcome do you need, a permission or a corrected process?
2. Is there an error of law that an inspector would not simply cure by deciding the case properly?
3. What is the deadline position, given that the six week clock is already running?
4. What is the cost exposure if you lose, and who carries it?

In most cases the answer is to appeal, and to put the effort into the evidence rather than into the law. Where the refusal is fixable by design, a fresh application is better again, and the choice between application routes is covered in our note on outline or full permission for a small site. Whichever route you take, the case is only as good as the policy analysis behind it, which is what the Planning Statement carries.

If a legal challenge is seriously in play, take specialist advice within days of the decision. There is no mechanism to extend the six week limit while you make up your mind.

This is general guidance, not legal advice; check the position with a qualified professional before relying on it.

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