Friday, 4 June 2010

‘A person aggrieved’ under s.288

One of the recurrent issues which has troubled the courts over the years is the legal standing (or locus standi, as old-fashioned lawyers like me still prefer to call it) of someone seeking to challenge an appeal decision under s.288.

There has been a plethora of judicial authority on this topic, but it surfaced yet again in Ashton v. SSCLG ([2010] EWCA Civ 600) in which judgment was given by the Court of Appeal on the 27th May.

This was the latest episode in the long-running saga of the Coin Street development, and the judgment was largely concerned with the Secretary of State’s substantive decision, which the Court of Appeal upheld. That would have been sufficient to enable the Court to dismiss the appeal, but they also found that the claimant did not in any event have sufficient standing under s.288 to bring this challenge.

After reviewing the authorities in some detail, Pill LJ set out this useful summary of the principles which can be extracted from those authorities:

1. Wide access to the courts is required under section 288 (article 10a, N'Jie).
2. Normally, participation in the planning process which led to the decision sought to be challenged is required. What is sufficient participation will depend on the opportunities available and the steps taken (Eco-Energy, Lardner).
3. There may be situations in which failure to participate is not a bar (Cumming, cited in Lardner).
4. A further factor to be considered is the nature and weight of the person's substantive interest and the extent to which it is prejudiced (N'Jie and Lardner). The sufficiency of the interest must be considered (article 10a).
5. This factor is to be assessed objectively. There is a difference between feeling aggrieved and being aggrieved (Lardner).
6. What might otherwise be a sufficient interest may not be sufficient if acquired for the purpose of establishing a status under section 288 (Morbaine).
7. The participation factor and the interest factor may be interrelated in that it may not be possible to assess the extent of the person's interest if he has not participated in the planning procedures (Lardner).
8. While recognising the need for wide access to the courts, weight may be given, when assessing the prior participation required, and the interests relied on, to the public interest in the implementation of projects and the delay involved in judicial proceedings (Advocate General Kokott in Ireland).

In this case, the claimant’s participation in the planning process was insufficient in the circumstances to acquire standing. He was not an objector to the proposal in any formal sense and did not make representations, either oral or written, at the Public Inquiry. Mere attendance at parts of the hearing and membership of a local campaign group, which had not brought proceedings in this court, were insufficient. Pill L J agreed with the conclusion of the judge at first instance (HH Judge Mole QC) that the claimant did not play a sufficiently active role in the planning process properly to be described as 'aggrieved' within section 288.

Moreover, the absence of representations before or at the Inquiry about the loss of amenity at the claimant’s property, either personally or through the campaign group , deprived the developer and the LPA of the opportunity to test the extent of the alleged loss and to call evidence in response. That being so, the Inspector (who was the fact finding tribunal) was not in a position to assess the extent of the loss and whether it amounted to a sufficient interest. The Court could not make good that deficiency.

Pill LJ made no finding as to whether the appellant would also have failed under the interest limb of the test, though it appeared likely that he would do so. A major project, approved following proper public consultation and a Public Inquiry, should not readily be challengeable on this or other grounds on the basis of a grievance about amenity such as the claimant’s appeared to be. What is a sufficient interest will always be a question of fact and degree. That reinforces the need to place the facts relied on before the decision maker during the planning process.

In practice, this case simply serves to underline an already well-established principle that to be ‘an aggrieved person’ you must have participated actively in the planning process. Being upset about an appeal decision after the event, when you did not take any effective steps to oppose the scheme at the time, will deprive you of the necessary standing to challenge the appeal decision under s.288.


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