Do you know your section 288 from your section 289?

There are many perplexing differences in the procedures for challenging the secretary of state’s decisions in planning appeals, which are different from judicial review challenges to local authority decisions to grant planning permission.

Planning appeals under section 78 of the Town and Country Planning Act 1990 against refusals of planning permission by local authorities can only be challenged under section 288 of the Act and appeals against enforcement notices served by authorities must be appealed under
section 289. That is, section
288 ‘applications’ are for planning appeals and section 289 ‘appeals’ are for enforcement notice appeals.

Wednesbury unreasonableness

The basic legal arguments are likely to be similar; both proceedings are a ‘point of law’ challenge to the validity of the secretary of state’s decision, i.e. alleging Wednesbury unreasonableness, failure to take material considerations into account (or taking immaterial considerations into account), inadequacy of reasoning, etc.

The section 288 application is a part 8 claim and the section 289 appeal is a part 52 civil appeal. The court’s leave will be required for both under section 288, assuming clause 57 of the Criminal Justice and Courts
Bill becomes law and under section 289, by under existing section 289(6).

For the time being, though, section 288 does not require leave or permission. Detailed requirements are set out in the practice directions (PD 8A and
PD 52A, respectively).

Time limits

Section 288(3) specifies a non-extendable time limit of
six weeks from the date of the decision. The claim must be filed at the Administrative Court and served within the deadline, but because the requirement for service is laid down in the rules, the deadline for service can be extended if appropriate.

The time limit for appealing under section 289 is 28 days from the date of receipt of the decision. This time limit is under the rules so can be extended
if appropriate.

Under section 288, the
part 8 claim form must state the remedy sought and the legal basis for claiming that remedy; compare the Administrative Court guidance on section 288 applications that “the [claim]
form may be rejected if it does not contain any grounds of law…”

The section 289 appeal application must be in writing and set out the reasons why permission should be granted and, if the time limit has expired, the reasons for any delay. It is worth noting that there are further detailed requirements
for what must be included with the application.

The section 288 application/part 8 claim must be served on the secretary of state and the local planning authority. The rules are slightly different where the local authority is the challenger.

The section 289 application for leave or permission to appeal must be served on the secretary of state, the local planning authority that served the notice, and any other person having an interest in the land to which the notice relates. Again, the rules differ slightly when the authority is the appellant.

Note that everyone must
be served before filing in the Administrative Court. This
must be verified by witness statement(s) or affidavit(s) and any failure of service explained.

Evidence for a section 288 application must be filed and served on the other parties within 14 days after service of the claim. Evidence in support of a section 289 appeal must be filed at court at the same time as making the appeal application.

By now, you should be prepared to launch an application under section 288 or an appeal under section 289. However, always remember to check the Act and the rules.

One more thing: which procedure do you use to challenge the grant of planning permission on an enforcement appeal? No, it’s not section 289, it’s actually section 288 (see section 284(3)(e) of the 1990 Act).

I told you there were lots of perplexing differences. 

Meyric Lewis a barrister practsising from Francis Taylor Building