Judicial review and section 288 challenges

 

Planning appeals end somewhere. Once an inspector or the Secretary of State has decided, or once a council has granted a permission a neighbour believes is unlawful, there is no further appeal on the planning merits. What is left is the High Court, and the court is interested in one question only: was the decision lawfully reached?

That is the part most people miss. A judicial review is not a second appeal. The court will not decide whether the scheme is a good idea, whether the design is ugly, or whether the inspector gave the right weight to the harm. It examines the law and the process, and if it finds a legal error it usually sends the decision back to be taken again. The same answer can come back.

England has more than one door into the High Court on planning matters, and using the wrong one is fatal. Section 288 of the Town and Country Planning Act 1990 is a statutory review of decisions and orders made by the Secretary of State. Ordinary judicial review under Part 54 of the Civil Procedure Rules covers most decisions taken by councils. Section 289 is a separate route for enforcement notice appeal decisions, with a much shorter deadline. This page explains which is which, who can use them, how long you have, what the court can actually do for you, and what it is likely to cost.

This page covers England. Section 288 extends to Wales as well, with the Welsh Ministers in place of the Secretary of State, but the surrounding Welsh procedure differs and readers in Wales should take local advice.

 

What judicial review is, and what it is not

 

Judicial review is the mechanism by which the High Court supervises public bodies. In planning it is used against councils, planning inspectors and the Secretary of State. The grounds are public law grounds, not planning arguments: acting outside the powers given by the Act, misinterpreting policy or law, failing to take account of something the decision maker was legally obliged to consider, taking account of something irrelevant, procedural unfairness, or giving reasons so inadequate that the losing party genuinely cannot tell why they lost.

Procedural failures at the very start of an application can found a claim too. A defective ownership certificate is the classic example, because an owner who was never told about an application affecting their land has an obvious complaint and a permission granted on a false certificate stands only until a court quashes it.

What it is not is a rerun. The planning merits belong to the decision maker. Courts say this repeatedly, and permission is refused all the time because a claim that looks like a legal challenge on paper is really a disagreement about planning judgement.

 

How irrational does a planning decision have to be?

 

The traditional shorthand comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. Irrationality is not established because the judge, another planner or most people reading the file would have reached a different conclusion. The decision has to fall outside the range of outcomes lawfully open to the decision-maker.

Planning judgment receives substantial latitude because Parliament has entrusted planning merits to planning authorities, inspectors and ministers rather than to judges. R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23 is an important part of that constitutional picture. The House of Lords held that Article 6 did not require the courts to rehear planning merits. Judicial review provides the necessary independent supervision by allowing the High Court to examine legality, procedural fairness, irrelevant or omitted considerations, irrationality and unsupported or perverse conclusions, while leaving planning policy and expediency to the statutory decision-maker.

That is why a strong judicial-review ground normally identifies a legal defect in the route to the decision, not simply a planning conclusion the claimant considers unreasonable.

There is also a statutory bar to be aware of. Section 284 of the Town and Country Planning Act 1990 provides that, except so far as provided by Part XII of the Act, the validity of the orders and decisions it lists shall not be questioned in any legal proceedings whatsoever. For anything on that list, the statutory route in Part XII is the only way in, and an ordinary judicial review claim will not get off the ground.

 

Section 288 or judicial review: which route applies

 

Section 288 applies to the orders listed in section 284(2) and to the actions of the Secretary of State listed in section 284(3). In practice the ones that matter are:

• a decision on a planning appeal under section 78, which is the single most common section 288 case
• a decision on an application called in under section 77, or made direct to the Secretary of State under section 62A, or referred under section 76A
• a decision on an appeal against a lawful development certificate refusal under section 195
• a decision on an appeal against a completion notice under section 93I, or a decision to confirm a completion notice under section 95
• a decision on a purchase notice
• a decision relating to consent under a tree preservation order or under the advertisement regulations
• a determination by the Secretary of State whether to approve a biodiversity gain plan
• orders revoking or modifying permission under section 97, discontinuance orders under section 102, tree preservation orders, and certain minerals orders under Schedule 9

Since 26 October 2015 section 288 has also covered a relevant costs order, meaning an order made under section 250(5) of the Local Government Act 1972 as applied by the 1990 Act. That is section 288(1A), inserted by Schedule 16 to the Criminal Justice and Courts Act 2015, with the definition at section 284(3A). A costs order made in connection with one of the decisions above can therefore be challenged under section 288 whether or not the underlying decision is challenged as well. A lot of older material gets this wrong, because before October 2015 there was no statutory filter on section 288 at all and costs orders were dealt with by judicial review.

Everything else goes by ordinary judicial review under Part 54. That includes the big one for objectors: a council decision to grant planning permission. There is no appeal against a grant, so a neighbour or an objector who thinks a permission is unlawful has the court and nothing else. Development plan documents are different again, with their own statutory challenge under section 113 of the Planning and Compulsory Purchase Act 2004.

A recent section 288 example is the Royal Mint Court Chinese embassy planning challenge, where the High Court considered diplomatic premises, enforceability of planning conditions, security material and human-rights arguments after the Secretary of State had granted permission and listed building consent.

 

Section 289 and enforcement notices

 

Enforcement is carved out separately. Under section 289(1), where the Secretary of State decides an appeal under Part VII against an enforcement notice, or since 26 December 2023 an appeal under section 93I against a completion notice, the appellant, the local planning authority or any other person with an interest in the land may either appeal to the High Court on a point of law or require the Secretary of State to state a case. Section 289(2) does the same for appeals against tree replacement notices under section 207.

Four things separate section 289 from section 288:

• the deadline is 28 days after notice of the decision is given, not six weeks, under paragraph 6.1 of the Planning Court practice direction
• permission is needed under section 289(6), and permission is also needed for any onward appeal to the Court of Appeal
• that onward permission can be granted by either the High Court or the Court of Appeal, and the test is the ordinary first appeal one: a real prospect of success, or some other compelling reason for the appeal to be heard. The Court of Appeal settled this in Dharmeshkumar v Secretary of State for Housing, Communities and Local Government [2026] EWCA Civ 247, correcting roughly 25 years of assumption that the stricter second appeal test applied
• the ground is a point of law, which is narrower in form than the section 288 wording even if it comes to much the same thing in practice

Section 289(4A) lets the High Court or the Court of Appeal order that the enforcement notice shall have effect, in whole or to a specified extent, pending final determination and any redetermination, on whatever terms the court thinks fit, including requiring the council to give an undertaking as to damages. Section 289(4B) does the same automatically for a section 207 notice, which is of no effect while the proceedings run. Section 289(4A) exists because an enforcement notice is already suspended by section 175(4) once an appeal is brought in time, and the Court of Appeal has held that a section 174 appeal is not finally determined while section 289 proceedings are on foot. The notice therefore stays suspended through the court stage unless the court orders otherwise, which is why a permission filter was added to section 289 by the Planning and Compensation Act 1991, after Robert Carnwath QC’s report Enforcing Planning Control found landowners bringing meritless appeals simply to keep notices suspended. Separately, section 285 stops you attacking an enforcement notice on grounds you could have taken in the appeal itself, so the time to run your arguments is at the appeal, not afterwards.

One overlap catches people out. Section 284(3)(e) lists a decision to grant planning permission under section 177(1)(a), or to discharge a condition under section 177(1)(b), among the actions to which section 288 applies. Those decisions arise inside an enforcement appeal, so a single decision letter can in principle involve both routes. If your grievance is with the deemed permission rather than with the notice, take advice before assuming section 289 is the answer. See our page on stop notices and breach of condition notices for the enforcement side of this.

 

Other planning challenges and their deadlines

 

Sections 288 and 289 are not the whole picture. Several other planning decisions have their own statutory routes, each with its own trigger date, and picking the wrong one is as fatal as missing the date:

• a local plan or other development plan document goes under section 113 of the Planning and Compulsory Purchase Act 2004, with leave of the High Court required by section 113(3A) and six weeks beginning with the day after the relevant date
• a neighbourhood development order goes under section 61N of the Town and Country Planning Act 1990, by judicial review, six weeks beginning with the day after the decision is published or the referendum result is declared. A neighbourhood plan uses the same route, applied by section 38C(2) of the 2004 Act
• an order granting development consent for nationally significant infrastructure goes under section 118 of the Planning Act 2008, by judicial review, six weeks beginning with the day after publication of the order or, if later, of the statement of reasons

Two warnings on those. Councils’ own local plan adoption statements very often still quote the pre-2015 wording, six weeks starting with the relevant date, which was repealed and replaced by the leave requirement and the day after rule. And the infrastructure position has already moved. Section 13 of the Planning and Infrastructure Act 2025 came into force on 18 February 2026. It leaves the six weeks alone, but permission in a challenge to a national policy statement or a development consent order is now decided at an oral hearing rather than on the papers, and where the High Court certifies the claim as totally without merit there is no onward appeal to the Court of Appeal. Ministers are consulting on extending that model to ordinary planning challenges under the Town and Country Planning Act 1990, so treat it as an area to check rather than assume.

 

Who can bring a challenge

 

Under section 288 the applicant must be a person aggrieved by the order or action. The authority directly concerned can also apply, under section 288(2), which is how councils challenge inspectors’ decisions they think are wrong in law.

“Person aggrieved” is narrower than it sounds. In Eco-Energy (GB) Ltd v First Secretary of State [2004] EWCA Civ 1566, Buxton LJ described the category as the appellant in the planning process, or someone who took a sufficiently active role in it, probably a substantial objector rather than a person who objected and then did no more, or someone with a relevant interest in the land. Sending in a one line objection and hearing nothing since is unlikely to be enough. The same case settles two further points. You cannot turn yourself into a person aggrieved by taking over the planning application after the decision has been made, and once the six weeks have run the court will not let a different person be substituted as the claimant.

For ordinary judicial review the test is sufficient interest in the matter, under section 31(3) of the Senior Courts Act 1981. Neighbours, objectors, parish and town councils and local campaign groups regularly clear that bar. Standing is rarely the thing that sinks a planning claim. The deadline and the merits are.

Third parties should be clear about their position before spending money. An objector has no right of appeal against a grant of permission at all, whatever they were told at committee. Our guide to planning appeals and timescales sets out who can appeal and when, and the short answer for objectors is that the court is the only route. Before assuming that, read our guide to objecting to a planning appeal, because where the applicant has appealed a refusal there may be a far cheaper way to be heard.

 

Six weeks, and the clock is unforgiving

 

Section 288(4B) requires the application for leave to be made before the end of the period of six weeks beginning with the day after the relevant date. The relevant date is:

• for an order under section 97 that takes effect under section 99 without confirmation, the date the order takes effect
• for any other order, the date it is confirmed
• for an action, the date the action is taken, which for an appeal decision means the date of the decision letter
• for a relevant costs order, the date the order is made

For ordinary judicial review, CPR 54.5(5) requires the claim form to be filed not later than six weeks after the grounds to make the claim first arose, where the decision was made by the Secretary of State or a local planning authority under the planning Acts. That is much shorter than the three months that applies to judicial review generally, and it was cut to six weeks deliberately to line up with the statutory challenge period. For a grant of permission, time normally runs from the issue of the decision notice rather than from the committee resolution that preceded it. That is the effect of R v London Borough of Hammersmith and Fulham, ex parte Burkett [2002] UKHL 23, where the House of Lords held that on a challenge to the grant itself time runs from the date of the grant, because until permission is actually granted the resolution creates no legal rights and may never be implemented. Burkett was decided when the general limit was three months rather than the six weeks that now applies to planning, so read it for when the clock starts, not for how long you have.

 

Gerber: even a good legal point can be lost through delay

 

R (Gerber) v Wiltshire Council [2016] EWCA Civ 84 is a stark planning example. The council’s permission for a solar farm contained serious legal errors which were not challenged on their merits in the Court of Appeal. But the claimant had waited for more than a year after the permission before bringing judicial review proceedings, while the developers had acquired rights in the site and built the solar farm.

The Court of Appeal held that it had been wrong to extend time and quash the permission. The length and lack of justification for the delay, substantial prejudice to the developers and the public interest in finality all mattered. The case was decided under the older timing rules, but its practical lesson remains current: where a planning permission has been publicised and third parties are entitled to rely on it, courts expect an objector to move very quickly. A strong underlying legal error is not a reason to assume a late challenge will be rescued.

For section 289 it is 28 days.

Filing is not enough. Paragraph 4.11 of the Planning Court practice direction requires the claim form to be served within the same statutory period, on the defendant and on every interested party, and the court has no jurisdiction if that is missed. In Arun District Council v Secretary of State for Housing, Communities and Local Government [2026] EWHC 1172 (Admin) a council filed in time and served the Secretary of State in time, but tried to serve the developers through their former planning consultant, who had never said he could accept service. Correct service happened 32 days late. The court held that a section 288 challenge is a single claim, not separate claims against separate defendants, so failing to serve one interested party in time destroyed the whole thing. It made no difference that the developers had said they did not want to take an active part, and none that the Secretary of State had suffered no prejudice. The court declined jurisdiction and permission was refused.

Treat all of these deadlines as absolute. The section 288 period is fixed by the Act itself rather than by rules of court. Extensions are judged by analogy with the rule on extending time for service, which means you must show you took all reasonable steps to serve in time and then applied promptly, and the merits of your case are irrelevant to that question. Six weeks sounds generous until you allow for getting the decision letter to a solicitor, obtaining an opinion, sending a pre-action protocol letter, drafting grounds, having the court seal the claim and then serving everybody. Sending the pre-action letter does not stop the clock. In practice you have days, not weeks, to decide whether you are doing this.

 

Permission, and the grounds that actually work

 

Section 288(4A) provides that an application may not be made without the leave of the High Court. That filter arrived on 26 October 2015 through section 95 of and Schedule 16 to the Criminal Justice and Courts Act 2015. Before then statutory challenges went straight through to a hearing while judicial review claims were filtered, which was an anomaly. Both are now filtered.

The grounds on a section 288 application, at section 288(5)(b), are that the order or action is not within the powers of the Act, or that the applicant interests have been substantially prejudiced by a failure to comply with a relevant requirement. Relevant requirements means requirements of the 1990 Act or of the Tribunals and Inquiries Act 1992, or of any order, regulations or rules made under either, that apply to the order or action: section 288(9). The second limb is why a procedural failure alone is not enough. You have to show the failure actually prejudiced you.

Judicial review has a further hurdle worth understanding before you spend anything. Sections 31(2A) and 31(3D) of the Senior Courts Act 1981, inserted by section 84 of the Criminal Justice and Courts Act 2015, require the court to refuse permission, and to refuse relief, where it appears highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. The court can disregard that for reasons of exceptional public interest, but if it does it must certify that it has. The threshold is deliberately high and the courts have been reluctant to speculate about what a lawful process would have produced, but the provision does kill claims where the legal point would have made no practical difference.

Whichever route applies, send a pre-action protocol letter first. It is expected, it occasionally produces a concession, and failing to send one is a costs risk.

 

What the court can do if you win

 

Less than people hope. On a section 288 application the court may quash the order or action, under section 288(5)(b). It may also suspend the operation of the order or action by interim order, either while it decides whether to grant leave under section 288(4C) or once the application is running under section 288(5)(a), though it may not suspend a tree preservation order. For tree preservation orders and orders under section 221(5) the power to quash or suspend can be exercised in whole or in part.

Quashing does not give you the decision you wanted. It puts the matter back to be redetermined by the Secretary of State, usually by a different inspector, applying the law correctly. The same result can and often does follow. On a section 289 appeal the court cannot quash the inspector’s decision at all. It decides the point of law and remits the matter to the Secretary of State for rehearing and redetermination in accordance with the court’s opinion. On judicial review the remedies are those in section 31 of the Senior Courts Act 1981, principally a quashing order, and all of them are discretionary.

 

What it costs

 

There is no planning application fee for going to court. This is the court system, not the planning system, so the schedule of planning fees does not apply. If you are still at the application or appeal stage and it is application fees you need, those are on our planning fees page.

What you face instead is a court issue fee plus your own solicitors and counsel, and the real risk is the other side costs. In the High Court, costs broadly follow the event, so the losing party normally pays the winner. That is the reverse of a planning appeal, where each side normally bears its own expense unless someone has behaved unreasonably: see our page on the award of costs in planning appeals. A contested planning challenge that reaches a substantive hearing is a five figure exercise, and losing can double it.

There is one significant protection. Where the claim qualifies as an Aarhus Convention claim, which many planning and environmental challenges do, CPR 46.26 caps the costs a claimant can be ordered to pay at £5,000 where the claimant is claiming only as an individual, and £10,000 in other cases, with a reciprocal cap of £35,000 on the defendant. Those figures can be varied by the court on application under CPR 46.27, and a claimant seeking the protection has to file a schedule of financial resources, so do not treat the caps as automatic.

 

Should you go to court at all?

 

Often, no. Before anyone spends money on a challenge, work through the following honestly:

• if a statutory appeal is still open to you, use it, because the court will normally refuse judicial review where an adequate alternative remedy existed and was not taken
• ask what winning actually gets you, because a quashing order buys a redetermination, not a permission or a refusal
• be honest about whether your complaint is a legal error or a disagreement with planning judgement, since the second one loses at the permission stage
• test your point against the highly likely no different outcome filter before you commit
• work out the deadline first, before anything else, because it is six weeks for section 288 and judicial review and 28 days for section 289, and none of those is the ordinary appeal timescale
• weigh the costs asymmetry, since a developer or a council will usually be better resourced than an individual objector
• check whether Aarhus costs protection is realistically available to you

There are situations where the court is genuinely the only route. There is no right of appeal against an award of costs at a planning appeal, or against many of the decisions listed in section 284, so if the decision maker has gone wrong in law the High Court is where it gets fixed. Where there is no alternative, a well founded challenge is worth taking. Where there is an alternative, or where the real complaint is that the inspector should have preferred your evidence, it very rarely is.

If you are going to do it, instruct a planning solicitor the day the decision letter arrives. Nothing wastes a good point faster than running out of the six weeks.

See also our guide to the types of planning application.

 

Relevant legislation

 

Statute changes, and the versions on legislation.gov.uk carry a Changes to Legislation panel at the top of each provision listing amendments that are not yet incorporated into the text. Check that panel before relying on any of these.

• Section 284, Town and Country Planning Act 1990
• Section 288, Town and Country Planning Act 1990
• Section 289, Town and Country Planning Act 1990
• Section 61N, Town and Country Planning Act 1990
• Section 113, Planning and Compulsory Purchase Act 2004
• Section 118, Planning Act 2008
• Section 31, Senior Courts Act 1981
• Section 84, Criminal Justice and Courts Act 2015
• Schedule 16, Criminal Justice and Courts Act 2015
• Part 54, Civil Procedure Rules
• The Civil Procedure Rules 1998, SI 1998/3132

Other Planning Appeal Sections

 

Judicial Review Page Updated: 30th August 2026