Section 288 challenge or judicial review: which applies

Two different courts routes exist for challenging a planning decision in the High Court, and picking the wrong one wastes the only six weeks you have. A decision made by the Secretary of State or an inspector, which covers appeals, called-in applications and recovered appeals, is challenged by statutory application under section 288 of the Town and Country Planning Act 1990. A decision made by the local planning authority itself, whether a grant, a refusal or a screening opinion, is challenged by judicial review under Part 54 of the Civil Procedure Rules. Both are heard in the Planning Court, both need permission from a judge, and both are about legality rather than planning merits.

Which route covers which decision

Section 288 is the statutory route for decisions taken on behalf of the Secretary of State. In practice that means appeal decisions, whether written representations, hearing or inquiry, together with called-in applications and decisions on recovered appeals.

Judicial review covers almost everything a council does: the grant of permission, a refusal where no appeal is pursued, a decision to issue or not issue an enforcement notice, a screening or scoping opinion under the Environmental Impact Assessment Regulations 2017, the discharge of a condition, and a decision that an application is invalid.

Development plan documents have their own route again. Section 113 of the Planning and Compulsory Purchase Act 2004 governs challenges to an adopted local plan or neighbourhood plan, and runs from the date of adoption rather than the date of the inspector's report. If you are working through examination stages, the practical questions about what makes a plan legally sound are set out in our note on soundness at a plan examination.

Enforcement notice appeal decisions are different again. A challenge under section 289 of the 1990 Act needs leave from the court before the application can even be made.

How the six weeks is counted

Six weeks is short and the courts treat it as hard. For section 288 the period runs from the date of the decision, which is the date on the decision letter rather than the date you received it, opened the email or read it.

For judicial review of a planning decision, Civil Procedure Rule 54.5 requires the claim form to be filed no later than six weeks after the grounds first arose. For a grant of permission that is the date the decision notice is issued, not the date of the committee resolution and not the date the section 106 agreement completes.

There is no discretion to extend the statutory six weeks under section 288. For judicial review, the period cannot be extended by agreement between the parties either, so a defendant council offering to "look at it again" does not buy you time. File first, negotiate second.

The pre-action protocol for judicial review asks you to write to the defendant before issuing. With a six-week clock that letter often goes out in week two, and it does not stop time running.

Grounds, and why the merits are off the table

The court asks whether the decision was lawfully reached, not whether it was the right answer in planning terms. The usual grounds are:

1. Error of law, including misinterpretation of national or local policy, which the courts treat as a question of law for them rather than a matter of judgement for the decision maker.
2. Failure to take a material consideration into account, or taking an immaterial one into account.
3. Failure to give adequate reasons where reasons are required.
4. Procedural unfairness, including a breach of the publicity and consultation requirements in the Development Management Procedure Order 2015.
5. Irrationality, which sets a high bar and rarely succeeds on its own.

A decision letter that weighs heritage harm against public benefit and comes out the other way from your client is not challengeable because you disagree with the weighting. Weight is for the decision maker. The challenge has to bite on how the test was framed, whether a statutory duty such as section 66 or section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 was applied at all, or whether the reasoning is so opaque that the reader cannot tell what was decided and why.

Where an earlier grant on the same land is part of the argument, the interaction between overlapping permissions matters, and the position is summarised in our explanation of the Pilkington principle.

The permission filter

Both routes now have a permission stage. The judge reads the claim on paper and decides whether there is an arguable case with a realistic prospect of success. Most claims that fail, fail here.

Two further hurdles sit alongside the arguability test. Section 31(3C) and section 31(2A) of the Senior Courts Act 1981 require the court to refuse relief, and to refuse permission, where it is highly likely that the outcome for the applicant would not have been substantially different had the conduct complained of not occurred. So a technical defect with no practical consequence will not get you through.

Permission decisions on the papers can be renewed at an oral hearing in judicial review. Plan accordingly when budgeting.

Standing and costs

For judicial review the claimant needs sufficient interest in the matter, which in planning has been read generously: neighbours, local amenity societies and parish councils regularly have standing. For section 288 the statutory test is that the claimant is a person aggrieved by the decision, which the courts have also read broadly enough to include objectors who took part in the appeal.

Costs are the real deterrent. The losing party normally pays the winner's costs, and for a private individual challenging a major scheme that exposure is uncomfortable. Two protections are worth checking at the outset. Claims that fall within the Aarhus Convention, which covers most environmental challenges, attract a capped costs regime under the Civil Procedure Rules, with caps that are reviewed and should be read from the current rules rather than assumed. A costs capping order can also be sought in public interest cases. Interested parties, typically the developer, may be awarded a separate set of costs, and that is often overlooked in the early budget.

Remedies, and what "winning" gets you

A successful claim quashes the decision. It does not grant permission and it does not refuse it. The matter goes back to the decision maker to be retaken lawfully, which may produce the same answer with better reasoning.

The court can also grant a declaration, a prohibiting order or a mandatory order, and in a small number of cases can substitute its own decision where the defect was purely one of law and only one outcome was possible. That is rare in planning.

For a refused appeal, a quashing order puts the appeal back before the Planning Inspectorate for redetermination. Expect a fresh decision letter months later, and expect the inspector to be alive to the point the court identified.

The first week

Two practical points from experience. Get the officer report and the consultation responses before you form a view, because the reasoning that looks absent from the decision notice is often present in the report that the notice adopts. And be honest with the client early about the likely result: a quashing order buys a second determination, nothing more.

This is general guidance, not legal advice. A High Court challenge turns on the specific decision and its documents, so take advice from a planning solicitor or counsel before relying on any of it, and check current Civil Procedure Rules for time limits and costs caps.

If the outcome you want is a fresh application rather than litigation, working out which supporting documents the council will expect second time around costs less than litigation and is the better starting point. Browse the 66 report types on PlanScope and draft what the redetermination will need. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.