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Challenging a Decision

When a planning permission or listed building consent, for example, has been refused, disappointed applicants have a right of appeal in most cases.

Where a permission or consent has been granted, disappointed opponents of the decision have some limited rights to challenge or judicially review the decision.

Where a local planning authority has indicated it is minded to grant a permission or consent, the Secretary of State may call-in the decision for his or her own determination instead of the local authority.

Appeals

Where a local planning authority refuses planning permission or grants it subject to conditions that the applicant objects to, the applicant may appeal to the Planning Inspectorate (1). An appeal may also be made if no decision has been reached eight weeks after the application was received by the local planning authority (or thirteen weeks in the case of major developments) (2).

Appeals must generally be brought within six months of the date of the decision or the end of the local authority's decision-making period (when no decision was forthcoming). However, some time limits are shorter, such as for a refusal of planning permission for a householder planning application that has a twelve-week appeal time limit (3).

Appeals are decided by a planning inspector, but where the issues are of national significance the decision may be 'recovered' by the Secretary of State so that he or she can make the decision personally.

Appeals may be made against a refusal of listed building consent or against a failure by the local authority to decide such applications within eight weeks of receiving the application or against the conditions imposed on a granted consent (4). The process is very similar to that for planning permission.

The appeal decisions are subject to the same decision-making principles as apply to the local planning authority's original decision. Appeals are not limited to a particular issue. The inspector will make the decision taking into account all material considerations.

The inspector or Secretary of State's decision on an appeal is final in the sense that it cannot itself be appealed (5). However, as with any decision, it can be challenged for lack of legal validity through the courts (6) (see below).

Similarly there is no right of appeal against a scheduled monument consent, neighbourhood development order or development consent, but there are similar rights of challenge to the court.

Judicial Review or Statutory Challenge of a Permission or Consent

Many decisions by local planning authorities and the Secretary of State are in principle subject to possible judicial review by the courts. Sometimes statute dictates what this right of challenge is limited to, but generally all such court reviews are referred to as judicial reviews.

In general terms, a court may quash (or invalidate) a decision on grounds such as:

  • Due process was not followed in the lead-up to the decision;
  • An irrelevant factor was taken into account;
  • A relevant factor was not taken into account;
  • The decision was based on a wrong understanding of a relevant law or fact;
  • The decision was not one that a reasonable Secretary of State, appeal inspector or local authority would make (so-called Wednesbury unreasonableness).

A court will not decide whether the decision was the right one, but simply if it is legally valid given the procedural requirements for fair decisions and the need for rationality in their reasoning.

A challenge must be made within a time limit that depends on the type of decision being challenged and must always be made promptly. It may be as little as four weeks from the date of the decision and is six weeks in the case of applications to the Planning Court.

A challenge can only be brought by someone with appropriate 'standing'. They must, in the opinion of the court, have sufficient interest in the outcome of the decision to justify their application. Whether the challenger raised objection to the application for permission or consent in the first place will be one factor. The degree to which their personal, commercial or other interests will be affected by the proposed works will also be central to the consideration.

Call-in by the Secretary of State

At any point up to the issuance of a decision on a planning permission or listed building consent by a local planning authority, the Secretary of State for Communities and Local Government can direct that the application be referred to him or her for their decision instead (7).

Anyone can ask the Department for Communities and Local Government to consider calling in an application, although they are comparatively rare. In its most recent statement of policy on call-ins the Government said "The Secretary of State will, in general, only consider the use of his call-in powers if planning issues of more than local importance are involved. Such cases may include, for example, those which in his opinion may conflict with national policies [the NPPF] on important matters [amongst others]" (8)

Once the formal permission or consent has been issued the application can no longer be called-in. The Secretary of State may therefore put a temporary stop on the local planning authority issuing a planning permission or listed building consent whilst he or she is deciding whether to call it in (9).

References

(1) s78 Town and Country Planning Act 1990

(2)Paragraph 29 Town and Country Planning (Development Management Procedure) (England) Order 2015

(3)Paragraph 29 Town and Country Planning (Development Management Procedure) (England) Order 2015

(4) ss20 and 74 Planning (Listed Buildings and Conservation Areas) Act 1991; Paragraphs 3 and 8 Planning (Listed Buildings and Conservation Areas) Regulations 1990

(5) s79(5) Town and Country Planning Act 1990 (for planning permission) and ss22(3) and 74 Planning (Listed Buildings and Conservation Areas) Act 1990 (for listed building and conservation area consent).

(6) ss284 and 288 Town and Country Planning Act 1990 (for planning permission); ss62 and 63 Planning (Listed Buildings and Conservation Areas) Act 1990 (for listed buildings and conservation area consent)

(7) s77 Town and Country Planning Act 1990 (for planning permission) and s12 Planning (listed Buildings and Conservation Areas) Act 1990 (for listed building and conservation area consent)

(8) The Parliamentary Under-Secretary for Communities and Local Government (Nick Boles), House of Commons, 26th October 2012 

(9) Paragraph 31 Town and Country Planning (Development Management Procedure) (England) Order 2015 and ss13 and 15 Planning (Listed Buildings and Conservation Areas) Act 1990 (for listed building and conservation area consent)

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