Tewkesbury Borough Council v Secretary of State for Communities Housing and Local Government & Ors

A successful party to a section 78 planning appeal cannot ordinarily use judicial review to challenge reasoning which did not affect the favourable outcome. The statutory scheme provides a bespoke challenge under section 288 of the Town and Country Planning Act 1990 for a person aggrieved. Academic public-law issues may exceptionally be determined where the circumstances justify it, but the circumstances must be assessed as a whole. The non-binding nature of planning appeal decisions, the availability of a later challenge if the issue becomes decisive, the risk of incomplete argument, and the statutory restriction on relief are material considerations. A general question concerning national planning policy does not, by itself, establish exceptional public interest.

The Claimant had successfully resisted a section 78 planning appeal concerning 40 dwellings. The Inspector and the Secretary of State nevertheless rejected the Claimant’s approach to calculating five-year housing land supply, refusing to credit an earlier surplus of housing completions. The Claimant sought judicial review of that reasoning and declarations concerning the proper interpretation of national planning policy.

The Secretary of State and the second Interested Party argued that the claim was academic. The central issue was whether the Administrative Court should determine a challenge to reasoning in a planning appeal decision where the Claimant had obtained the substantive outcome it sought.

1. Claim dismissed. The court declined to determine the challenge because it concerned an academic dispute about reasons rather than the operative decision.
2. Judicial review may exceptionally address an academic public-law issue, but exceptionality is not established by applying an exhaustive two-condition test. The court must consider all the circumstances, including the statutory framework, the nature of the dispute, available alternative mechanisms, and the practical consequences of adjudication.
3. The bespoke remedy in section 288 of the Town and Country Planning Act 1990 was important. Parliament had limited that remedy to a person aggrieved. A party which succeeded in the planning appeal could not ordinarily obtain judicial review merely because it disagreed with an aspect of the reasoning.
4. Planning appeal decisions are not binding precedents. Disputes about planning-policy interpretation may ordinarily be addressed by Planning Inspectors in later appeals. If the interpretation has a decisive adverse effect in a later case, the statutory challenge procedure may then be used.
5. The court also considered the restriction in section 31(2A) of the Senior Courts Act 1981. Because the challenged reasoning was not decisive of the outcome, it was highly likely that the outcome would not have been substantially different. Relief therefore had to be refused unless exceptional public interest justified disregarding the restriction. The court found no such exceptional public interest.
6. There was an additional procedural concern. Future cases of this kind might lack a developer or other party able to present the opposing argument fully. That consideration supported declining jurisdiction in the present circumstances.