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

This is an appeal against a decision of His Honour Judge Mole QC, sitting as a Deputy High Court Judge, dated 17 September 2009 in which he dismissed applications under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) to quash a decision of the Secretary of State for Communities and Local Government (“the Secretary of State”) to grant permission for the development of land at Doon Street, Cornwall Road and Upper Ground, London SE1. The appeal is brought, by permission of the judge, by Mr William Ashton (“the appellant”) who was one of the unsuccessful applicants before the judge. The other unsuccessful applicants, the Historic Buildings and Monuments Commission for England (English Heritage) and Westminster City Council do not appeal to this court.

Planning permission was granted, subject to conditions, by the Secretary of State on 19 August 2008. The application for permission was made by the second respondents, Coin Street Community Builders Ltd, (“CSCB”) to the London Borough of Lambeth on 1 June 2007. The Secretary of State called in the application for decision and a local Public Inquiry was conducted on 12 February 2008 by an Inspector appointed by the Secretary of State. The proposal had the full support of the strategic (Greater London) and the local (London Borough of Lambeth) planning authority within which the appeal site is situated, but was opposed by other bodies including the applicants in the High Court. The Inspector recommended refusal of the application on environmental grounds but the Secretary of State decided to grant permission.

The permission granted, subject to conditions, is to undertake:

“Redevelopment of site to provide a 8,292 square metre multi purpose community sports centre and swimming pool, 902 square metres of retail/commercial/restaurant/bar floor space (use Classes A1, A2, A3 and A4), 329 residential units and underground part car parking for 56 cars contained within a 43 storey tower measuring 144.3 metres in height and part 7, part 8 storey block with roof terraces and courtyard.”

The appeal site is in Central London on the South Bank of the River Thames. If the permission is implemented, the 43 storey tower would be a prominent feature on London’s skyline. The Inspector noted, at paragraph 15.3 of his report, that “the cases of the principal parties focus mainly on the effect of the tower element of the proposed development on the view from St James’s Park, its effect on the setting of Somerset House and other listed buildings and its effect on the setting of conservation areas in Lambeth and Westminster”. The Inspector also noted, at paragraph 16.2, that “the residential element of the scheme would make a significant contribution towards meeting the strategic, 10-year housing target for Lambeth”. He noted, at paragraph 16.3, that “a further and particular benefit argued in support of the wholly private housing is its ability to fund the provision and operation of a sports complex for which a need has been identified”. In recommending refusal of permission, the Inspector attached weight to the tower element of the scheme “[imposing] itself on both its immediate and wider context”. It “would detract unacceptably” from the setting of important public buildings and conservation areas.

In deciding to grant permission, the Secretary of State expressed, at paragraph 46 of the decision letter, her views on the effect of the proposed scheme on “heritage assets and views of and across London”. She concluded, at paragraph 47:

“The Secretary of State considers that the benefits of the scheme to the local community are substantial. The provision and ongoing funding (for 50 years at no public cost) of a sports centre and swimming pool complex would address the lack of sports facilities and activities in what is acknowledged to be a deprived area. The scheme would also bring lasting wider social benefits, such as employment, and contribute to economic growth in this part of Lambeth. The scheme would contribute to a mix of uses and activity, of benefit to the immediate locality and the wider area, to be provided by the development of the Doon Street site overall. It would also improve the appearance of the local area. She also gives significant weight to the housing benefits of the scheme, albeit that no affordable housing is included. She concludes that these considerations outweigh the damage to the settings of the Strand and Roupell Street Conservation Areas and Somerset House. Overall, the Secretary of State concludes that the material considerations in favour of the application are of sufficient weight to determine the application other than in accordance with the development plan.”

It is accepted that the Secretary of State, as decision maker, may form her own view on such planning issues and disagree with those of her Inspector. Irrationality is not alleged.

There had been an Environmental Impact Assessment. Following a pre-inquiry meeting, the “main considerations” had been identified by the Inspector. These included the effect of the proposed development on its surroundings and whether the proposal accorded with national and local planning policies. No funding issue was included.

Duties with respect to the leisure complex were set out in an agreement between the London Borough of Lambeth and CSCB pursuant to section 106 of the 1990 Act. The “leisure centre and community facility” was to be “provided by the developer at its own cost”. The development was to be carefully phased so that construction, completion and fitting out of the complex was required ahead of the full residential use of the site. Annual payments of £412,000 a year were required from the developer as on-going funding for the leisure complex.

I have set out, in summary form, the environmental issues on which the Inspector stated the cases of the principal parties mainly focused. The present challenge is a narrower one and turns on the reference in paragraph 47 of the decision letter to the provision and ongoing funding of the proposed sports centre and swimming pool complex. Mr Harwood, for the appellant, submitted that the Secretary of State’s reliance on funding of that complex contained a material error of fact in that she believed that the complex would be provided by the developer at no public cost. Alternatively, her reasoning on that issue was unlawful because it left substantial doubt as to whether she made that material error of fact.

The judge concluded, at paragraph 85 of his judgment, that the Secretary of State had not “made a mistake of fact or had regard to an immaterial consideration”. The judge further held, at paragraphs 86 and 87, that there was no failure to give comprehensible reasons on the point now in issue.

The judge held that the interests of the appellant had not in any event “been substantially prejudiced” by the decision. The appellant challenges the judge’s finding that he was not a person “aggrieved” within the meaning of that word in section 288 of the 1990 Act and consequently had no standing to make the statutory challenge to the Secretary of State’s decision (paragraph 114 of judgment). That issue need be determined only if the appellant would otherwise succeed on his substantive challenge and I will deal first with that challenge.

The error of fact alleged is in paragraph 47. Considering the benefits of the scheme to the local community, the Secretary of State was, it was submitted, in error in stating that the provision and ongoing funding for 50 years of a sports centre and swimming pool complex would be “at no public cost”. That was wrong, first, because public funding had already been provided and, secondly, because, on CSCB’s own case, public funding would be required. Even if the funds were not received from central or local government, funds provided from public sector sources did involve public money and should be regarded as public cost. The benefits achieved by the scheme were therefore inevitably at public cost and the Secretary of State was in error in finding otherwise. The cost to the public of funds from public agencies and charities being diverted into this project should have been considered. Had public funding, properly described so as to include funding from non-governmental public sources, been included, the balance of benefit and cost may have been decided the other way.

CSCB submitted a financial appraisal of the project to the Inspector. It showed receipt of a total of £890,950 from the London Development Agency and Waterloo Project Board SRB. The total costs for the scheme are stated to be £210,975,735. The appraisal made provision for an outlay of £12 million to provide the ongoing funding for the leisure complex as required under the section 106 agreement. The appraisal included a sum for “developer’s profit”. It was common ground that the project was viable only if funding beyond that to be received from sales and rent was obtained. A sum of over £23 million was defined in the appraisal as “soft-funding required for scheme”. On the basis of that appraisal, the project can only proceed at all if a very substantial amount of soft-funding is obtained.

In submitting that public funding would not be required, CSCB confined that expression to money received directly from central or local government, which would include the Greater London Authority and the London Boroughs. Soft-funding is said to include grants from public agencies, charities and private sector bodies and is distinct and separate from “public cost”. It is not suggested by Mr Maurici, for the Secretary of State, or Mr Forsdick, for CSCB, that the expression “soft-funding” has a general or precise meaning in planning law; it is used by CSCB as a convenient way of distinguishing other funding from public funding as they define it.

For CSCB, Mr Forsdick made the further submission that the public were protected by the section 106 agreement which requires the developers to meet the on-going cost of the leisure complex to the extent of £412,000 a year. How CSCB meet their obligation is of no planning significance and of no relevance to the planning benefit delivered, it was submitted. That benefit does not depend on the source of funding. It follows, submitted Mr Forsdick, that, even if the Secretary of State made an error of fact, it could not affect the balance in planning terms of assessing benefit and cost. It led nowhere.

The source of the funding for the scheme was not in issue at the Inquiry but arose when other points were taken. English Heritage submitted that the scheme was not viable because it was reliant upon “soft-funding” which would not be secured. As recorded at paragraph 8.10 of the Inspector’s report, they submitted that soft-funding of around £23 million would be required for the scheme to achieve financial viability, that there was no prospect of securing funding and that without it the scheme could not proceed. It followed, they submitted, that community benefits, on the basis of which planning permission was sought, may not materialise. The Inspector also recorded that submission at the section of his report headed Conclusions (paragraph 15.104).

The financial viability of the scheme, as distinct from the source of funding, is not directly in issue in this appeal but at the Inquiry English Heritage had latched onto the project’s dependence on obtaining “soft-funding”. The Inspector considered their submissions and must have been aware of the proposed source of funds and the sense in which the expression “soft-funding” was being used both by CSCB and by English Heritage.

A further reference to cost appears when CSCB’s justification for not making provision in the development for affordable housing was considered. The Inspector concluded, at paragraph 15.101:

“The Applicants' case for not providing affordable housing is based on the premise that the development would deliver a sports centre and swimming pool in accordance with a site specific Major Development Opportunity identified in the Lambeth UDP . . . and at no public costs and under a financial arrangement intended to provide for the operation and maintenance of the facility for a period of 50 years. That, the Applicants argue, could not be achieved without the income generated by 329 units of private, open-market housing. The provision of any affordable housing would, it is said, undermine the financial basis of the scheme and preclude provision of the sports centre and swimming pool.”

It is extremely difficult to see how the Inspector could have summarised the affordable housing issue in that way if he had been under the impression that the soft-funding required was being treated as a public cost.

The Secretary of State’s conclusion on affordable housing was stated at paragraph 33 of the decision letter:

“The Secretary of State has carefully considered the case for not providing affordable housing. This rests on the fact that the development would deliver a sports centre and swimming pool, in accordance with a site specific Major Development Opportunity, at no public cost, and with the operation and maintenance of the facility funded for 50 years. A financial appraisal of the scheme has been independently assessed on behalf of the GLA and Lambeth Council, who have accepted its conclusion that affordable housing cannot be provided without adversely affecting the scheme’s viability. The Secretary of State sees no reason to disagree with this conclusion.”

The Inspector also referred, at paragraph 11.18, to the submission of a Lambeth Borough Councillor, and Lead Member for Planning, that “the scheme represents the only available option of achieving facilities which, through a section 106 agreement, would be secured for 50 years with no costs to the tax payer”. That too tends to confirm that public cost was being equated with cost to the tax payer.

The appellant obtained disclosure of the document in which the Secretary of State was formally briefed by her officials following receipt of the Inspector’s report. The briefing contains a single reference to public cost. In paragraph 27, it is stated:

“The provision of a sports centre and swimming pool at no public cost, with the operation and maintenance to be funded for 50 years (at a rate of £412,000 pa), would be in accordance with a site-specific Major Development Opportunity identified in the UDP” (unitary development plan).

That is accepted by Mr Harwood as being consistent with the contents of the Inspector’s report. The contents of the briefing add nothing to the argument before the court. The application for disclosure was made very late but the court was prepared to consider the document. Mr Maurici, for the Secretary of State, wanted it recorded that there had been no opportunity to produce in response statements from the briefing officials or to consider other departmental memoranda which may have been relevant to the decision making process. It is not necessary in this appeal to consider the admissibility or relevance of documents such as these.

What is considered to be public cost was not directly in issue at the Inquiry and was not considered in detail either by the Inspector or, before making her decision, by the Secretary of State. It was not one of the principal issues. It was not argued at the Inquiry that use of soft-funding was a public cost or involved a lower public benefit. It is not surprising that the source of funding was considered only briefly.

I have no doubt that, when using the expression “public cost”, the Inspector was referring to costs directly upon central or local government. Planning procedures have been followed on the basis that soft-funding, as defined by CSCB, and used for example by English Heritage, is not a public cost. There is no reason to doubt that the Secretary of State understood the sense in which the Inspector has used the terms. What the Inspector in his report, and then the Secretary of State in her letter, were saying was that the project would not be a burden on national or local taxpayers. In context, the expression “at no public cost” was accurately used by the Secretary of State and there was no misunderstanding. Whether the £23 million necessary to make the scheme viable is likely to be raised need not of course be considered in this appeal.

I reject the submission that the prior receipt and expenditure of almost £900,000 from public bodies renders the Secretary of State’s statement about public cost erroneous. The Secretary of State was rightly concerned, as had been the Inspector, with the benefits and costs for the future and the prior receipt of funds, even if shown to be public funds, could be and would be expected to be, left out of account.

Reading paragraphs 33 and 47 of the Secretary of State’s decision letter together, I am inclined to the view that, when referring to public cost in paragraph 47, the Secretary of State had both the provision and ongoing funding of the leisure complex in mind. That is clearly the effect of paragraph 33 and I would read the words ‘public cost’ in brackets in paragraph 47 consistently with paragraph 33 as covering both provision and ongoing funding. If, contrary to my view, the Secretary of State was referring to the absence of public funds only with respect to ongoing funding, it does not affect adversely the decision in the absence of any misunderstanding as to the sense in which the expression was used.

In the absence of an error of fact, Mr Forsdick does not need to rely on the further submission made at paragraph 14. All I would say is that I do not exclude the possibility that, in circumstances such as the present, the method of funding a project might be a material consideration in planning terms.

I see no merit in the submission that the Secretary of State’s decision was inadequately reasoned. The balance was struck by the Secretary of State on the basis that the leisure complex would not involve public cost, as defined. In the view of the Secretary of State, the decision maker, the balance was in favour of granting permission. If, as I have held, the Secretary of State was not in error in her statement, the cost factor in the balance had been sufficiently defined and expressed.

On my finding on the merits of the complaint, it is not necessary to rule on this issue in the present case. However, comment may be appropriate because the facts highlight the issue in a stark form and because the judge has made a finding which may in any event be cited in future cases.

Section 288(1) of the 1990 Act provides, in so far as is relevant:

“If any person –

. . .

(b)

is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action, on the grounds -

(i)

that the action is not within the powers of this Act, or

(ii)

that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the High Court under this section”

The section applies to the action of the Secretary of State in this case.

It appears to me that two aspects of the issue need to be considered. The first is whether, and if so to what extent, the person seeking to bring proceedings in the High Court under section 288 need have taken part in the planning procedures which led to the decision complained of. The second is to consider whether, and if so to what extent, it is necessary for a person to demonstrate that the order and its effects have an adverse impact on him, or his interests, if he is to acquire the status of a person aggrieved within the meaning of section 288.

The judge had regard to both factors. On the first, he stated, at paragraph 111, that the question is whether the person in question took a “sufficiently active role in the planning process”, citing Buxton LJ in Eco-Energy (GB) Ltd v First Secretary of State [2005] 2 P. & C.R. 5, paragraph 7. The judge also referred, at paragraph 113, to “the nature of the grounds on which the appellant claims to be aggrieved”. He stated:

“However, the point [the appellant] seeks to take is not one in which he has any particular interest other than that it is, he maintains an arguable point with which to challenge the decision.”

The judge stated his conclusion, at paragraph 114:

“I do not doubt the genuineness of [the appellant’s] interest in the outcome of the decision-making process but in my judgment he did not play a sufficiently active role in the planning process properly to be described as ‘aggrieved’ within section 288.”

In the grounds of claim dated 30 September 2008, it was stated that the appellant “is a local resident whose property will be affected by the development; he is a long standing member of the Waterloo Community Development Group” (“WCDG”). Later, on 21 May 2009, he submitted to the court a statement in support. He described a long involvement in a campaign to develop the appeal site and adjacent sites for affordable housing. He moved into his property at Broadwall in the 1990s and was “extremely indignant and angry” when he found out in 2005 about CSCB’s proposal for Doon Street. He stated that it would interfere with his residential amenity. He lives on the top floor of a four storey block which is 260 metres north-east of the proposed tower. He will be in full view of the widest flank of the tower, which he puts at 40 metres, and it will cast a shadow over his balcony. His view towards Westminster, including his view of the London Eye and the Palace of Westminster, will, he said, be blocked. He was also dismayed that no provision had been made for affordable housing and he did not see why the public purse should pay for the leisure facilities proposed.

The appellant did not feel able to make representations to the local authority or at the Public Inquiry and said he asked WCDG to make representations on his behalf. He attended parts of the Inquiry but does not recall signing the attendance list which is customarily made available. A representative of WCDG, Mr Ball, attended the Inquiry every day, provided a long proof of evidence and gave oral evidence. General environmental concerns were raised by him. The Inspector’s general conclusion was that he did not consider “that the effects of the development would be such as to create unacceptable living conditions in nearby dwellings”.

When he heard of the Secretary of State’s decision, the appellant met Mr Ball and expressed his belief that the decision was flawed and should be challenged. He was told that WCDG was unable to challenge because of its funding relationship with the London Borough of Lambeth. Mr Ball explained to the appellant that he could challenge the decision. He approached solicitors and obtained legal aid.

For the appellant, Mr Harwood submitted that a person may be a “person aggrieved” without prior involvement in the planning process. A person who is directly affected by a project may challenge its lawfulness whether or not he has been previously involved in the decision making process. The appellant is directly affected by the scheme; he will “literally live in the shadow of the tower” and it also affects his views. A person aggrieved need not be aggrieved by the particular legal issue he chooses to raise. If he has standing to challenge the decision, he may challenge it on any ground he can find.

That last proposition was established, and the principle is not challenged by Mr Maurici, in R (Kides) v South Cambridgeshire District Council [2003] 1 P. & C.R. 19. Jonathan Parker LJ stated:

“That leaves the issue of standing. As to that, it seems to me that there is an important distinction to be drawn between, on the one hand, a person who brings proceedings having no real or genuine interest in obtaining the relief sought, and on the other hand a person who, whilst legitimately and perhaps passionately interested in obtaining the relief sought, relies as grounds for seeking that relief on matters in which he has no personal interest.

I cannot see how it can be just to debar a litigant who has a real and genuine interest in obtaining the relief which he seeks from relying, in support of his claim for that relief, on grounds (which may be good grounds) in which he has no personal interest.

It seems to me that a litigant who has a real and genuine interest in challenging an administrative decision must be entitled to present his challenge on all available grounds.”

Thus an appellant who achieves standing by reason of the effect of a development on amenities at his home may challenge a decision on the ground that there was a flaw about cost in the decision making process.

Mr Harwood also relied on the decision of Ackner J in Turner & Anr v Secretary of State for Environment (1974) 28 P&CR 123 at 139:

“On the other hand I see good reason, so long as the grounds of appeal are so restricted, for ensuring that any person who, in the ordinary sense of the word, is aggrieved by the decision, and certainly any person who has attended and made representations at the inquiry, should have the right to establish in the courts that the decision is bad in law because it is ultra vires or for some other good reason. It is true that the would-be developer may be held up while the appeal is made, but, as the dates in this case indicate, the procedure is a reasonably expeditious one and I have no doubt that an application for special expedition, where justified, would be listened to sympathetically by the court.”

An Environmental Impact Assessment (“EIA”) has been conducted in this case and the domestic requirements on standing must conform with article 10a of the Environmental Impact Assessment Directive (85/337/EEC). That provides, as far as relevant:

“Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:

(a)

having a sufficient interest, or alternatively,

(b)

maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition,

have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.

. . .

What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To this end, the interest of any non-governmental organisation meeting the requirements referred to in Article 1(2), shall be deemed sufficient for the purpose of subparagraph (a) of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) of this Article.”

Article 1(2) provides that non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest under article 10a.

The standing of a non-governmental organisation for this purpose was considered in the ECJ in Miljöskyddsförening v Stockholm,C-263/08 (judgment 15 October 2009). The ECJ considered the rights of “small, locally established environmental protection associations” (paragraph 40). The Court stated, at paragraph 45:

“. . . the national rules thus established must, first, ensure, ‘wide access to justice’ and, second, render effective the provisions of Directive 85/337 on judicial remedies. Accordingly, those national rules must not be liable to nullify Community provisions which provide that parties who have a sufficient interest to challenge a project and those whose rights it impairs, which include environmental protection associations, are entitled to bring actions before the competent courts”.

The ECJ further stated, at paragraph 49, that the right to access “in the procedure in drawing up the decision relating to a project is no justification for the fact that judicial remedies against the decision adopted at the end of that procedure are available only under very restrictive conditions”. It is not suggested by the Secretary of State in this case that the right of involvement at an earlier stage is alone a sufficient remedy.

Reference was made by counsel to Eco-Energy, where Collins J held that the claimant was not a “person aggrieved” for the purposes of section 288. He stated, at paragraph 33:

“In my view there is no appeal properly in being. It cannot be said that a person who had no interest in the land, and still has no interest in the land, and who was not attending at the inquiry and was not taking any active interest in the appeal process, can suddenly step into the shoes of those who were properly to be regarded as applicants in order to seek to appeal to this court.”

The case came on appeal to this court to consider whether Eco-Energy had an interest in the relevant land. Buxton LJ, with whom Peter Gibson LJ and Jacob LJ agreed, stated, at paragraph 7:

“The first question that arises is: who, indeed, can apply to the court under s.288? The judge considered, and there is before us, the case of Times Investment Ltd v Secretary of State for the Environment [1991] P.L.R. 67. In my judgment, the upshot of that authority (which of course is binding on us) is that persons aggrieved under s.288 are either (1) the appellant in the planning process, or (2) someone who took a sufficiently active role in the planning process-that is to say, probably a substantial objector, not just somebody who objected and did no more about it-or (3) someone who has a relevant interest in the land. It will be apparent that EE Ltd can only qualify as a person aggrieved under the third category.”

For the Secretary of State, Mr Maurici submitted that Eco-Energy is binding authority for the proposition that for the appellant to be a person aggrieved within the meaning of section 288 it was essential for him to have taken an active role in the planning process. The statutory process of consultation has been undertaken by Lambeth. The appellant was not formally an objector. His membership of WCDG, which has not brought court proceedings, was insufficient. Moreover, the appellant had played no part in the preparation or presentation of the WCDG case at the Inquiry. While WCDG did raise concerns on the effect of the proposed residential amenities in the area, they were not raised in relation to the appellant’s building.

If he sought to establish a “sufficient interest” or an “impairment of a right”, it was submitted, it was incumbent on the appellant to do so in the course of the planning process and not merely in a witness statement served only shortly before the trial in his High Court proceedings. The respondents had no opportunity, at the Inquiry, to consider and to give evidence about the alleged effect of the shadowing of, and diminution of view from, the appellant’s premises which is said to form the basis for his standing.

Mr Maurici distinguished the Stockholm case on the basis that it was concerned with non-governmental organisations. He submitted that to refuse the appellant standing would not involve a breach of article 10a. The article recognised the need to establish a “sufficient interest” or the “impairment of a right”.

Mr Maurici referred to Commission of the European Communities v Ireland (Case C-427/07) (judgment 16 July 2009). At paragraph 82, the ECJ stated:

“. . . Member States must ensure that, in accordance with the relevant national legal system, members of the public concerned having a sufficient interest, or alternatively, maintaining the impairment of a right, where the administrative procedural law of a Member State requires this as a precondition, have access to a review procedure under the conditions specified in those provisions, and must determine what constitutes a sufficient interest and impairment of a right consistently with the objective of giving the public concerned wide access to justice.”

At paragraph 83, the Court noted that Ireland had adopted provisions under which the right of access to justice in this area “depends directly” on the applicants’ interest. At paragraph 84, the Court stated:

“. . . there is no need to ascertain whether the criterion of substantial interest as applied and interpreted by the Irish courts corresponds to the sufficient interest referred to in Directive 2003/35 [which inserted article 10a into Directive 85/337] as that would lead to calling into question the quality of the transposition having regard, in particular, to the competence of the Member States recognised by that directive to determine what constitutes a sufficient interest consistently with the objective which that directive pursues.”

Under Irish law, the applicant must prove a peculiar and personal interest of significant weight which is affected by or connected with the development in question (Harding v Cork County Council & Anr [2008] IESC 27). When considering that test, Advocate General Kokott stated, at paragraph 69:

“However, in order to determine what constitutes sufficient interest to bring an action, a balance must necessarily be struck. Effective enforcement of the law militates in favour of wide access to the courts. On the other hand, it is possible that many court actions are unnecessary because the law has not been infringed. Unnecessary actions not only burden the courts, but also in some cases adversely affect projects, whose implementation can be delayed. Factors such as an increasing amount of legislation or a growing litigiousness of citizens, but also a change in environmental conditions, can affect the outcome of that balancing exercise. Accordingly, it cannot be automatically inferred from more generous access to the courts that was previously available that a more restrictive approach would be incompatible with the objective of wide access.”

The Court found Irish law to be compatible with the Directive on the issue of standing though there were findings against Ireland on other grounds.

In Lardner v Renfrewshire Council [1997] SCLR 454, the Court of Session, Inner House, considered the effect of the Scottish equivalent of section 288, section 232 of the Town & Country Planning (Scotland) Act 1972. The Lord President (Lord Rodger) cited Lord Denning’s interpretation of the words “a person aggrieved” in Attorney General of the Gambia v N’Jie [1961] AC 617 at 634:

“The words ‘person aggrieved’ are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests.”

Referring to the appellant in Lardner, the Lord President stated, at page 457:

“He is a member of the public who has an interest in what happens to the site because it is near him and he uses it, but on the other hand he did not avail himself of the opportunities which Parliament has afforded for participating in the process for adopting the local plan. We do not suggest, of course, that someone who has not objected to a draft plan or taken part in an inquiry can never be ‘a person aggrieved’. On the other hand, there is a difference between feeling aggrieved and being aggrieved: for the latter expression to be appropriate, some external basis for feeling ‘upset’ is required-some denial of or affront to his expectations or rights. So in Cumming v Secretary of State for Scotland [1992 SCLR 831], an appeal relating to a planning application, the appellant had not participated in the process, but was none the less held to be ‘a person aggrieved’ under section 233 of the Act since the inadequacy of the description of the development in the application and advertisement could well have misled the appellant or put him off his guard so that he did not object or take part in the inquiry. The particular circumstances of any case require to be considered and the question must always be whether the appellant can properly be said to be aggrieved by what has happened. In deciding that question it will usually be a relevant factor that, through no fault of the council, the appellant has failed to state his objection at the appropriate stage of the procedure laid down by Parliament since that procedure is designed to allow objections and problems to be aired and a decision then to be reached by the council. The nature of the grounds on which the appellant claims to be aggrieved may also be relevant. We express no view on the merits of those advanced by the appellant, but we observe that they all relate to matters which he could have put, or endeavoured to put, to the council or to the reporter at the inquiry. Had he done so, his objections could have been considered at the due time. Instead of that, the appellant now seeks to have these issues reopened after the decision has been taken in accordance with the prescribed procedure. In these circumstances, having regard both to the nature of his interest in the site and to his failure to take the necessary steps to state these objections at the due time, the appellant cannot properly be regarded as ‘a person aggrieved’ in terms of section 232.”

In Morbaine Ltd and Roberts v First Secretary of State & Ors [2005] J.P.L. 377, Blackburne J considered whether Morbaine, a commercial property development company, was a “person aggrieved” when the company lodged no objection to the planning application, took no part in the inquiry and had no proprietary interest in any land affected by the proposed development. Blackburne J stated, at paragraph 15:

“Here by contrast Morbaine, a complete stranger to the application site and to the area affected by Lear's development proposals, happened by chance upon the Helical site at about the time or shortly after the IDL was published, which, of necessity, was long after the planning inquiry into Lear's development proposals had ended and the inspector had produced her report.   Without any commitment to, let alone any proprietary or other enforceable interest in, any land affected by a grant of permission for the application site, Morbaine sees an opportunity to further its own commercial interests through the acquisition of another site if, by means of a successful challenge under section 288, it can upset the grant of planning permission for the application site.   In my judgment, commercial opportunism of that nature falls short of the interest (the "real or genuine interest in obtaining relief" which the Court of Appeal had in mind in Kides) which must be shown to give it standing to complain.   It is remote from any denial of or affront to a person's expectations or rights to which Lord Rodger referred in the Lardner decision.   It follows that Morbaine does not qualify as a person ‘aggrieved’ by the decision of the Secretary of State to grant planning permission for Lear's proposals for the application site.”

I do not find it necessary to consider whether the meaning of “person aggrieved” in section 288 of the 1990 Act, as to which there is considerable authority, is different from the “sufficient interest” test derived from section 31 of the Senior Courts Act 1981.

The following principles may be extracted from the authorities and applied when considering whether a person is aggrieved within the meaning of section 288 of the 1990 Act:

1.

Wide access to the courts is required under section 288 (article 10a, N’Jie).

2.

Normally, participation in the planning process which led to the decision sought to be challenged is required. What is sufficient participation will depend on the opportunities available and the steps taken (Eco-Energy, Lardner).

3.

There may be situations in which failure to participate is not a bar (Cumming, cited in Lardner).

4.

A further factor to be considered is the nature and weight of the person’s substantive interest and the extent to which it is prejudiced (N’Jie and Lardner). The sufficiency of the interest must be considered (article 10a).

5.

This factor is to be assessed objectively. There is a difference between feeling aggrieved and being aggrieved (Lardner).

6.

What might otherwise be a sufficient interest may not be sufficient if acquired for the purpose of establishing a status under section 288 (Morbaine).

7.

The participation factor and the interest factor may be interrelated in that it may not be possible to assess the extent of the person’s interest if he has not participated in the planning procedures (Lardner).

8.

While recognising the need for wide access to the courts, weight may be given, when assessing the prior participation required, and the interests relied on, to the public interest in the implementation of projects and the delay involved in judicial proceedings (Advocate General Kokott in Ireland).

I do not consider that the appellant had standing under section 288 to bring the present claim. His participation in the planning process was insufficient in the circumstances to acquire standing. He was not an objector to the proposal in any formal sense and did not make representations, either oral or written, at the properly constituted Public Inquiry. Mere attendance at parts of the hearing and membership of WCDG, which has not brought proceedings in this court, were insufficient. I agree with the judge’s conclusion set out at paragraph 32 above.

Moreover, the absence of representations before or at the Inquiry about the loss of amenity at his property, either personally or by WCDG, deprived CSCB and the local planning authority of the opportunity to test the extent of the alleged loss and to call evidence in response. That being so, the Inspector, the fact finding tribunal, was not in a position to assess the extent of the loss and whether it amounts to a sufficient interest. This Court cannot make good that deficiency.

I make no finding as to whether the appellant would also fail under the interest limb of the test, though it appears to me likely that he would do so. A major project, approved following proper public consultation and a Public Inquiry, should not readily be challengeable on this or other grounds on the basis of a grievance about amenity such as the appellant’s appears to be. What is a sufficient interest will always be a question of fact and degree. That reinforces the need to place the facts relied on before the decision maker during the planning process.

I would dismiss this appeal on both grounds.