Planning appeal or statutory challenge in the High Court

An appeal and a statutory challenge answer different questions. An appeal to the Planning Inspectorate re-decides the planning merits: a different decision maker looks at the same proposal and reaches their own view. A statutory challenge under section 288 of the Town and Country Planning Act 1990 asks the High Court a much narrower question, which is whether the decision was made lawfully. The court cannot substitute its own planning judgement, and the application has to be filed within six weeks.

That six weeks is the point most people miss. By the time a neighbour has read the decision letter, taken advice and thought about it, a third of the period has usually gone.

What an appeal reconsiders

A section 78 appeal is available where a council refuses permission, grants it with conditions the applicant objects to, or fails to determine the application within the statutory period. The inspector redetermines the application from scratch, applying the development plan and any other material considerations as they stand on the day of the decision. New evidence can be submitted, though late material risks being refused or attracting a costs award.

Only the applicant can appeal. This surprises objectors more than anything else in the system. If a council grants permission and a neighbour thinks it was wrong to do so, there is no appeal route at all, and the only way to challenge it is judicial review in the Planning Court.

Three procedures exist. Written representations handle most appeals and run on paper with a site visit. A hearing is a round-table discussion led by the inspector. An inquiry involves advocates and cross-examination, and is reserved for large or legally complicated schemes. The Inspectorate decides the procedure, taking the parties' preferences into account.

Deadlines depend on what was appealed:

Check the current figures on the Inspectorate's own guidance before relying on them, because procedural time limits have been changed more than once.

What a statutory challenge can and cannot address

Section 288 applies to decisions of the Secretary of State and, in practice, to inspectors' decisions on appeals. The ground is that the decision was not within the powers of the Act, or that a procedural requirement was not complied with and the applicant has been substantially prejudiced. In plain language, an error of law.

The errors that succeed tend to fall into a short list. Misinterpreting a development plan policy, because the meaning of a policy is a question of law even though its application is a matter of judgement. Failing to have regard to an obviously material consideration. Giving reasons so inadequate that the loser cannot tell why they lost. Breaching a statutory duty, such as the duty in section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 to have special regard to the desirability of preserving a listed building and its setting, or the duty in section 38(6) of the Planning and Compulsory Purchase Act 2004 to determine in accordance with the plan unless material considerations indicate otherwise.

What a challenge cannot do is reopen the planning balance. Disagreeing with the weight an inspector gave to harm, or to housing need, is not an error of law. Courts say this repeatedly and claimants keep trying it.

Section 289 covers challenges to enforcement appeal decisions and works slightly differently, with permission required and a shorter practical window. Judicial review under Part 54 of the Civil Procedure Rules is the route for challenging a council's own grant of permission, its screening opinion, or its decision on a prior approval.

Who can use each route

Appeal rights belong to the applicant or the appellant on an enforcement notice. Nobody else, including a parish council that objected throughout, can appeal.

A section 288 application can be made by a person aggrieved. The courts read that fairly generously, and an objector who took part in the appeal by making written representations or appearing at an inquiry will normally qualify. Someone who never engaged at all may struggle. Judicial review uses a different test, sufficient interest in the matter, which a local resident or a constituted local group can usually satisfy.

Permission, deadlines and costs risk

Since the Criminal Justice and Courts Act 2015, a section 288 application needs the permission of the High Court before it proceeds. A judge reads the papers and decides whether the grounds are arguable. Refusal at that stage can be renewed at an oral hearing, and many claims stop here.

The time limits are unforgiving:

1. Section 288: six weeks beginning with the date the decision is taken.
2. Judicial review in planning: six weeks under CPR 54.5(5), which is shorter than the general three-month rule.
3. Section 289: six weeks, with permission required.

Courts have very limited power to extend these. Being on holiday, waiting for legal aid or struggling to instruct counsel will not rescue a late claim.

Costs are the other deterrent. In an ordinary claim the loser pays the winner's costs, which on a planning challenge involving a developer as an interested party can be serious money. Claims that qualify as Aarhus Convention claims, meaning environmental claims within the scope of the Convention, attract a capped costs liability set out in the Civil Procedure Rules. The caps are reviewed periodically, so check the current figures rather than a number quoted in an older article.

What each route can actually deliver

An appeal can grant permission. The inspector can allow the appeal, impose their own conditions, vary the ones the council imposed, or dismiss it. The outcome is a decision on the development.

A successful statutory challenge produces something less satisfying. The court quashes the decision and sends it back to be redetermined, usually by a different inspector. The scheme is not approved and it is not refused: it simply goes round again, correctly this time. The same result can follow even where everyone suspects the second decision will land in the same place, because the court is policing the process rather than the outcome.

That difference shapes strategy. If the complaint is that the decision was wrong on the merits, the challenge route will not help. If the complaint is that the decision maker never grappled with a point that mattered, it might.

Working out which route fits

Start with who you are. If you are the applicant facing a refusal, the appeal is almost always the first move, and it is worth considering whether a revised application or a section 73 application to vary a condition would be quicker than an appeal. The comparison of discharging conditions and amending a permission sets out when the section 73 route is available.

If you are an objector facing a grant, there is no appeal. Judicial review is the only route, the clock is six weeks, and the first task is to obtain the officer report and the decision notice and identify a legal flaw in them.

If you are the applicant who has lost an appeal, read the decision letter for what the inspector did with your main evidence. A letter that recites your argument and then explains why it carried little weight is a merits decision and is hard to touch. A letter that never mentions the argument at all is a different matter.

Where lawfulness of existing use is the underlying question rather than the merits of a new proposal, a certificate application may sidestep the argument entirely, and the comparison of a lawful development certificate and planning permission explains when that works.

Whichever route applies, the evidence base is what carries it. Enter your postcode on PlanScope to see which reports a site is likely to need, or browse the full list of report types to work out what an appeal statement should be supported by.

This is general guidance, not legal advice. Anyone considering a challenge in the High Court should take advice from a solicitor or counsel experienced in planning before the deadline runs. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.