Ashton v Secretary of State for Communities & Local Government & Anor

In a statutory planning challenge, the meaning of a decision-maker’s reference to public cost must be assessed in context. It may refer accurately to the absence of a future burden on national or local taxpayers. Earlier public funding need not form part of that future cost. The source of funding may nevertheless be a material planning consideration.

For standing under the Town and Country Planning Act 1990, section 288 requires a fact-sensitive assessment. Participation in the planning process will normally be relevant, but non-participation is not invariably fatal. The court must assess objectively the nature, weight and prejudice of the claimant’s substantive interest, while recognising the need for wide access to justice. A person with standing may rely on any available legal ground.

Coin Street Community Builders Ltd sought planning permission for a major mixed-use development on London’s South Bank. The Secretary of State called in the application after a public inquiry. Although the Inspector recommended refusal on environmental grounds, the Secretary of State granted permission.

William Ashton and other applicants applied under section 288 of the Town and Country Planning Act 1990 to quash the decision. His Honour Judge Mole QC dismissed the applications in [2009] EWHC 2287 (Admin), finding no material error of fact, inadequate reasoning or standing. Ashton appealed, alleging that the Secretary of State had misunderstood the scheme’s public cost and that he was a person aggrieved despite limited participation in the planning process. The central issues were the legality of the funding assessment and the requirements for standing.

Disposition. Lord Justice Pill dismissed the appeal on the merits and on standing. Lord Justices Maurice Kay and Moore-Bick agreed.

1. Merits. The Secretary of State’s reference to the development being provided at no public cost was read with the surrounding decision letter. In context, it meant that the scheme would not impose a future burden on national or local taxpayers. Earlier receipts from public bodies did not make that statement a material error, since the decision addressed future costs and benefits. The Secretary of State’s reasons were sufficiently intelligible when read as a whole. The court did not exclude the possibility that the method of funding might be a material planning consideration in an appropriate case.
2. Standing framework. Section 288 of the Town and Country Planning Act 1990 requires consideration of whether the claimant is a person aggrieved. Article 10a of Directive 85/337/EEC requires wide access to justice. The relevant considerations include participation in the planning process, the opportunities available, any explanation for non-participation, the nature and weight of the substantive interest, the extent of prejudice, objective assessment of the grievance, whether the interest was acquired to obtain standing, the relationship between participation and interest, and the public interest in avoiding delay to approved projects.
3. Application. Ashton was not a formal objector and made no oral or written representations at the inquiry. Attendance at part of the hearing and membership of the Waterloo Community Development Group were insufficient. No representations had been made about the alleged loss of amenity at his property, so the Inspector had no opportunity to assess its extent or significance and this court could not cure that deficiency. The court made no final finding on the interest limb, although it considered that Ashton was likely to fail there as well. The appeal was dismissed on both grounds.

1. Court of Appeal (Civil Division) — [2010] EWCA Civ 600; appeal dismissed on the merits and because the appellant was not a person aggrieved.
2. Administrative Court, Queen’s Bench Division — His Honour Judge Mole QC dismissed the statutory challenges in [2009] EWHC 2287 (Admin).