Section 288 challenges to a planning decision

A section 288 challenge is the statutory route for asking the High Court to quash a planning appeal decision, and the clock on it is six weeks from the date the decision is taken. That period is absolute. There is no discretion to extend it, no equivalent of the promptness allowance in judicial review, and a claim filed on day 43 is dead however good the point. So the first thing any planning consultant does on receiving an adverse appeal decision is diarise the date, and the second is decide within days rather than weeks whether the decision is challengeable at all.

What the route covers

Section 288 of the Town and Country Planning Act 1990 allows a person aggrieved to apply to the High Court to question the validity of certain orders and decisions made by the Secretary of State or by an inspector, including decisions on planning appeals, enforcement notice appeals determined under the relevant provisions, and decisions on called-in applications.

The corresponding restriction sits in section 284, which provides that the validity of those decisions may not be questioned in any legal proceedings except as provided by the Act. That is the reason section 288 exists as a separate route rather than being subsumed into ordinary judicial review: for decisions within its scope, it is the only door.

Decisions by a local planning authority are outside it. A grant of permission by a council is challenged by judicial review under the Civil Procedure Rules, on a different time limit and a different procedural footing. Getting that distinction wrong at the outset costs the claim.

The six weeks and how it is counted

The period runs from the date on which the decision is taken, not from the date you received it or the date your client read it. A decision letter that arrives late, or that goes to a former agent, does not restart anything.

This catches people in two situations. Where an appeal decision is issued shortly before a holiday period, and where an applicant only learns of the decision because a neighbour mentions it. Neither is a reason the court can act on. Check the date on the face of the decision and work from that.

Grounds, and the limits of what the court will look at

Two grounds are available. That the decision is not within the powers of the Act, and that a relevant requirement has not been complied with and the applicant's interests have been substantially prejudiced as a result.

In practice the first ground carries most challenges and is applied on ordinary public law principles: error of law, failure to take account of a mandatory material consideration, taking account of an irrelevant one, misinterpretation of policy, inadequate reasons, and irrationality.

What the court will not do is retake the planning judgement. Weight is for the decision maker. An inspector who understood the policy correctly and gave it little weight has made a decision the court will not interfere with, however strongly you disagree. Policy interpretation is a matter of law, while policy application is a matter of judgement, and most failed challenges are ones that dressed the second up as the first.

Reasons challenges are the other recurring category. The test is whether the reasons enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal controversial issues. Brevity is not itself a defect. A decision that simply never engages with a main issue raised at the inquiry is a different matter. Where the issue was, for instance, the correct application of a sequential test, our note on what the sequential test means in planning sets out the analysis an inspector is expected to work through.

The permission stage

Since the changes made by the Criminal Justice and Courts Act 2015, a section 288 claim requires the permission of the High Court to proceed. Permission is considered on the papers in the first instance, with the option to renew orally.

The practical effect has been to filter out the weaker challenges early and at lower cost, which is a benefit to a claimant who would otherwise have spent heavily before discovering the point would not run. It also means the grounds have to be properly pleaded at the outset. A claim drafted thinly, on the assumption that it can be developed later, will not get past the paper stage.

There is a second filter in the highly likely test, under which relief may be refused where it appears highly likely that the outcome would not have been substantially different had the conduct complained of not occurred.

What quashing achieves, and what it does not

The remedy is that the decision is quashed and the appeal is remitted for redetermination. It is not a grant of permission. A quashed refusal goes back to the Planning Inspectorate to be decided again, usually by a different inspector, on the law as the court has explained it.

That matters for advising a client. The realistic best outcome is another appeal decision, some months later, which may reach the same conclusion by a better route. Where the error is narrow and the planning merits were finely balanced, redetermination is worth having. Where the inspector disliked the scheme on its merits and expressed a legal conclusion badly, a successful challenge may buy nothing but delay and cost.

Set that expectation before the claim is issued, not after.

Costs, and how they compare with the alternatives

Costs follow the event on the normal principle, so an unsuccessful claimant will usually pay the Secretary of State's costs as well as their own. Where the claim falls within the Aarhus Convention provisions on environmental cases, a cost cap may apply, and whether it does should be checked at the outset because it changes the risk profile completely.

Against that sits the cost of the alternatives. A fresh application addressing the inspector's actual concerns is often quicker and cheaper than a challenge, and it puts the scheme in front of a decision maker who can grant it. A second appeal on amended plans does the same, particularly where the original refusal turned on the timing of an emerging plan rather than on the merits, an argument set out in our note on prematurity.

Choosing between the routes

1. Identify the decision maker. An inspector or the Secretary of State means section 288. A council means judicial review.
2. Fix the date the decision was taken and count six weeks from it.
3. Read the decision letter twice, once for what it decided and once for what it failed to deal with.
4. Ask whether the alleged error could realistically have changed the outcome, because the highly likely test will be applied to that question.
5. Price the challenge against a fresh application or a revised appeal, and check whether a costs cap applies.
6. Instruct counsel early enough for the grounds to be settled properly before filing.

Where the answer is to go again rather than to litigate, the work shifts back to the evidence base, and the documents that should have been stronger first time round are usually the ones the inspector criticised. You can browse the report types by category to see what a resubmission is likely to need, or enter the site postcode on PlanScope to check which constraints a fresh application would have to address.

This is general guidance, not legal advice, and you should take advice from a qualified lawyer before pursuing or abandoning a statutory challenge. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.