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Ashton v Secretary of State for Communities & Local Government

DATE: 24 May 2010

The Court of Appeal has dismissed an appeal against a decision of His Honour Judge Mole QC, sitting as a Deputy High Court Judge, in which he refused 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, often referred to as "the Doon Street Tower" (for further information please click here).

The appeal was brought 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 did not appeal. 

The Appellant's substantive ground of challenge was rejected.

The Appellant lived close to the proposed tower and was a member of a local group ("WCDG") which had objected. He himself though made no written objection at the local planning authority stage, nor did he make written or oral objection at the inquiry stage. Nor did the Appellant play any part in the presentation of the local group's case, nor any part in its preparation. The Judge below concluded that he took insufficiently active role in the process and so was not a “person aggrieved” for the purposes of s. 288 of the Town and Country Planning Act 1990. The Court of Appeal agreed:

"53.         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 10(a), 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 10(a). 

  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).

54.    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 [the conclusion was ""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."]"

James Maurici appeared for the First Respondent, the Secretary of State.  David Forsdick appeared for the Second Respondent - the Coin Street Community Builders"