Hill, R (on the application of) v First Secretary of State & Anor

In a challenge under section 288 of the Town and Country Planning Act 1990, the court may decline to quash a planning inspector’s decision where the claimant suffers no practical prejudice and the challenge is effectively academic. This applies where the claimant obtained the permission sought, albeit in a form incapable of implementation because an unchallenged time-limit condition remained in force. Inspectors should consider carefully the interaction between section 73 applications and time limits imposed by an earlier permission. It will normally be unreasonable to grant permission subject to a condition which makes implementation impossible on its face. The court’s function in judicial review is to correct legal error, not to provide a second opportunity to contest the planning merits.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision concerning an outline residential planning permission. The inspector allowed part of a section 73 application by removing a design condition, but retained a condition requiring reserved matters to have been submitted by an earlier date. He dismissed a related appeal concerning reserved matters.

The claimant argued that the resulting permission was incapable of implementation and that the inspector should either have imposed a new time limit or dismissed the section 73 application. The defendants argued that the challenge was academic and that the claimant was not, or should not be treated as, a person aggrieved. The central issues were whether the decision was unlawful and whether the court should exercise its discretion to quash it.

1. The application was dismissed. The inspector’s decision was not quashed, and the claimant was ordered to pay the first defendant’s costs, summarily assessed at £5,937.

2. The decision letter had to be read as a whole. The inspector had made clear that the original time limit would remain and that extending it, in effect renewing the earlier permission, was inappropriate. The claimant had not asked for condition 3 to be removed or altered, and the inspector had nevertheless considered and rejected that possibility.

3. In those circumstances, the claimant could not sensibly be regarded as a person aggrieved under section 288(1). At its highest, he had received a useless permission which he had sought, whereas the logically appropriate outcome, if there had been an error, would have been refusal of the section 73 application and dismissal of both appeals.

4. Even if the claimant was a person aggrieved, the court would exercise its discretion under section 288(5) not to quash the decision. The challenge could have produced no beneficial result and was therefore wholly academic. Judicial review was not a means of obtaining a second opportunity to argue the planning merits.

5. The court observed that local planning authorities and inspectors should be alert to time-limit issues when dealing with section 73 applications. It would normally be unreasonable to grant a permission subject to a condition which, on its face, made implementation impossible. However, the court did not need to determine definitively the ambit of section 73(2), because the claimant had not challenged the relevant time-limit condition and the inspector had expressly rejected its extension.

The judgment describes two planning appeals before the inspector. Appeal A, concerning the section 73 application, was allowed in part. Appeal B, concerning approval of reserved matters, was dismissed. The application for judicial review under section 288 was then dismissed by the Administrative Court, and permission to appeal was refused.