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

Factual and Procedural Background

This appeal concerns a decision by His Honour Judge Mole QC dismissing applications under section 288 of the Town and Country Planning Act 1990 to quash a decision of the Secretary of State for Communities and Local Government ("the Secretary of State") granting planning permission for a development at a site in Central London on the South Bank of the River Thames. The appeal is brought by the Appellant, who was one of the unsuccessful applicants before the judge. Other unsuccessful applicants did not appeal.

The planning permission was granted on 19 August 2008 for a major redevelopment including a 43-storey tower with a multi-purpose community sports centre and swimming pool, retail and commercial space, residential units, and car parking. The application was initially made by Company A to the local planning authority and was subsequently called in by the Secretary of State for decision following a local Public Inquiry. The proposal had support from both the strategic and local planning authorities but was opposed by several other bodies including the Appellant and others.

The Inspector appointed by the Secretary of State recommended refusal on environmental grounds, focusing on the impact of the tower on views and conservation areas, but the Secretary of State decided to grant permission, weighing the substantial community benefits and housing contributions against the environmental concerns.

The Appellant challenged the Secretary of State’s decision on the basis that the Secretary of State mistakenly believed the sports centre and swimming pool complex would be provided and funded at no public cost, when in fact public funding had been or would be required. The High Court judge rejected this challenge and found the Appellant lacked standing to bring the claim. The present appeal concerns both the alleged error of fact and the question of standing.

Legal Issues Presented

1. Whether the Secretary of State made a material error of fact in concluding that the provision and ongoing funding of the sports centre and swimming pool complex would be at no public cost.
2. Whether the Appellant has standing as a "person aggrieved" under section 288 of the Town and Country Planning Act 1990 to challenge the Secretary of State’s decision.

Arguments of the Parties

Appellant's Arguments

• The Secretary of State’s reliance on the funding of the leisure complex involved a material error of fact because public funding had already been provided and would be required in the future.
• The term "public cost" should include all public sector sources, including funding from public agencies and charities, not just central or local government money.
• The failure to consider the diversion of public funds as a cost was unlawful and could have affected the planning balance.
• The Appellant contended he had standing as a person directly affected by the development, living near the site and suffering loss of amenity, and that a person aggrieved need not have participated in the planning process to have standing.

Respondents' (Secretary of State and Company A) Arguments

• The Secretary of State’s statement that the leisure complex would be provided "at no public cost" referred only to costs borne directly by central or local government taxpayers, consistent with the Inspector’s report and briefing documents.
• The use of "soft-funding," including grants from public agencies and charities, was distinct from public cost as understood in the planning context.
• The Secretary of State was entitled to form her own view and no irrationality or error of fact arose.
• The Appellant lacked standing because he did not take a sufficiently active role in the planning process, was not a formal objector, did not make representations at the Inquiry, and his membership of a community group was insufficient.
• The Appellant’s failure to raise his amenity concerns during the planning process deprived the decision makers of the opportunity to consider and respond to those concerns.
• Refusal of standing to the Appellant would not breach article 10a of the Environmental Impact Assessment Directive as interpreted by relevant case law.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the Secretary of State’s statement that the sports centre and swimming pool would be provided and funded at no public cost. It found that the term "public cost" was used in the context of direct costs to central or local government taxpayers, consistent with the Inspector’s report and the official briefing. The court rejected the Appellant’s argument that prior or anticipated "soft-funding" from public agencies and charities constituted public cost in the relevant sense. The court noted that the planning procedures had proceeded on the basis that such soft-funding was not public cost and that the Secretary of State’s conclusion was not irrational or erroneous.

Regarding standing, the court considered the statutory test under section 288 and relevant case law, including EU Directive requirements for wide access to justice. It emphasized that normally a person must have taken a sufficiently active role in the planning process or have a relevant interest in the land to be considered "aggrieved". The Appellant’s limited participation, lack of formal objection, and failure to raise amenity concerns during the Inquiry meant he did not meet this threshold. The court acknowledged exceptions where failure to participate may not bar standing but found no such circumstances here. The court also noted that the absence of representations deprived the decision makers of the opportunity to assess the alleged loss of amenity.

Overall, the court concluded that there was no material error of fact in the Secretary of State’s decision and that the Appellant lacked standing to bring the challenge.

Holding and Implications

The court DISMISSED THE APPEAL.

The direct effect is that the Secretary of State’s decision granting planning permission stands and the Appellant’s challenge is rejected on both substantive and standing grounds. No new precedent was established, but the judgment clarifies the interpretation of "public cost" in planning decisions and reinforces the importance of active participation in the planning process for standing under section 288 of the Town and Country Planning Act 1990.