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England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bradbury, R (On the Application Of) v Awdurdod Parc Cenedlaethol Bannau Brycheiniog (Brecon Beacons National Park Authority) [2025] EWCA Civ 489 (16 April 2025)
URL: https://www.bailii.org/ew/cases/EWCA/Civ/2025/489.html
Cite as: [2025] EWCA Civ 489

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Neutral Citation Number: [2025] EWCA Civ 489
Case No: CA-2024-001528

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
THE HONOURABLE MR JUSTICE JAY

[2024] EWHC 1242 (ADMIN)

Cardiff Civil and Family Justice Centre
2 Park Street
Cardiff CF10 1ET
16 April 2025

B e f o r e :

LADY JUSTICE NICOLA DAVIES
LORD JUSTICE LEWIS
and
LORD JUSTICE HOLGATE

____________________

Between:
THE KING
(on the application of DR ROSALIND BRADBURY)
Appellant
- and -

AWDURDOD PARC CENEDLAETHOL BANNAU BRYCHEINIOG (BRECON BEACONS NATIONAL PARK AUTHORITY)
Respondent
- and -

Mr JAMES DAVIES
Interested Party

____________________

Daniel Stedman Jones and Jake Thorold (instructed by Richard Buxton Solicitors) for the Appellant
Annabel Graham Paul (instructed by Geldards LLP) for the Respondent
The Interested Party did not appear and was not represented.

Hearing dates: 25 and 26 March 2025

____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Crown Copyright ©

    This judgment was handed down remotely at 11am on 16 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
    .............................

    LORD JUSTICE LEWIS:

    INTRODUCTION

  1. This is an appeal against a decision against of Jay J ("the judge") dismissing a claim for judicial review of two decisions of the Respondent, the Brecon Beacons National Park Authority, to grant planning permission for two developments at Dan y Bwlch Farm within the Brecon Beacons National Park. In summary, one development involved building a steel roof over an existing concrete yard, and the second involved the provision of a steel frame and roof to cover an existing livestock handling yard, together with rainwater storage tanks. As the judge expressed it, the aim was:
  2. "to create a single large structure, comprising an existing livestock shed, covered sheep handling system and a yard in between covered by a roof."
  3. The appellant, Dr Bradbury, brought a claim for judicial review of those decisions. The material ground of the claim for present purposes is that there was a failure to provide appropriate assessments under the Conservation of Habitats and Species Regulations 2017 ("the 2017 Regulations") to the planning committee which considered the applications for planning permission and a failure to publish those assessments prior to the meeting in breach of section 100D of the Local Government Act 1972 ("the 1972 Act"). As a result, it was claimed that the members of the planning committee did not have available to them highly material evidence upon which their decision would be based and interested parties were prevented from commenting on the assessments.
  4. The judge found that there was a breach of regulation 63(5) of the 2017 Regulations as the planning committee did not consider the assessments prior to deciding to grant planning permission. He further found that there had been a breach of section 100D of the 1972 Act. However, the judge considered that it was highly likely that the outcome would not have been substantially different if the conduct complained of had not occurred. He therefore refused a remedy in accordance with section 31(2A) of the Senior Courts Act 1981 ("the 1981 Act") and dismissed the claim for judicial review.
  5. The appellant appeals on the basis that the judge erred in refusing to grant a remedy. By a respondent's notice, the respondent seeks to uphold the order of the judge dismissing the claim on the additional grounds that he erred in finding that there had been a breach of regulation 63(5) of the 2017 Regulations and of section 100D of the 1972 Act.
  6. THE LEGAL FRAMEWORK

    The Planning Legislation

  7. Planning permission is required for any development of land: see section 57 of the Town and Country Planning Act 1990 ("the 1990 Act"). A local planning authority may grant planning permission for a development either conditionally or unconditionally: see section 70 of the 1990 Act. The respondent is the planning authority for the area of the Brecon Beacons National Park: see section 4A of the 1990 Act.
  8. Part 6 of the 2017 Regulations make provision, amongst other things, for the assessment of the implications of plans or projects for certain sites when considering applications for planning permission. The assessment provisions are those contained in regulation 63 and 64 (see regulation 61 of the 2017 Regulations). Regulation 70 provides, so far as material in this case that:
  9. "(1) The assessment provisions apply in relation to –
    (a) granting planning permission on an application under Part 3 of the TCPA 1990 (control over development)….."
  10. Regulation 63 provides that:
  11. "(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which—
    (a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and
    (b) is not directly connected with or necessary to the management of that site,
    must make an appropriate assessment of the implications of the plan or project for that site in view of that site's conservation objectives.
    (2) A person applying for any such consent, permission or other authorisation must provide such information as the competent authority may reasonably require for the purposes of the assessment or to enable it to determine whether an appropriate assessment is required.
    (3) The competent authority must for the purposes of the assessment consult the appropriate nature conservation body 5 and have regard to any representations made by that body within such reasonable time as the authority specifies.
    (4) It must also, if it considers it appropriate, take the opinion of the general public, and if it does so, it must take such steps for that purpose as it considers appropriate.
    (5) In the light of the conclusions of the assessment, and subject to regulation 64, the competent authority may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be).
    (6) In considering whether a plan or project will adversely affect the integrity of the site, the competent authority must have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which it proposes that the consent, permission or other authorisation should be given."
  12. Regulation 64 of the Regulations provides that if the competent authority is satisfied that there are no alternative solutions and that the plan or project must be carried out for imperative reasons of overriding public interest, it may agree to the plan or project notwithstanding a negative assessment of the implications for the European site.
  13. The 1972 Act

  14. The respondent is the competent authority in the present case for the purposes of regulations 63 and 64 of the 2017 Regulations (see regulation 7). The respondent is a body corporate (see paragraph 1 of Schedule 7 to the Environment Act 1995 ("the 1995 Act")). It may arrange for the discharge of any of its functions by a committee or an officer of the authority (see paragraph 13 of Schedule 7 to the 1995 Act and section 101 of the 1972 Act). The respondent has made a scheme of delegation allocating responsibility for the discharge of particular functions to specified committees and officers. The material provisions provide that:
  15. "A1 General Provisions
    A1.1 This Scheme of Delegation is made by [the respondent] under section 101 of the Local Government Act 1972 and all other enabling powers. Any Committee to which powers are delegated may sub-delegate them to a Sub-Committee or Officer of the Authority. Any Sub-Committee may also sub-delegate powers to an Officer. …
    A.2.2 Planning Committee Terms of Reference
    The responsibilities of [the respondent's] development management functions are undertaken by the Planning Committee. That is, all powers and duties in relation to all development management functions arising from all current and extant planning legislation, except where those powers are delegated to officers.
    This includes:
    • Determining (that have not otherwise been delegated) development management matters, including planning applications, and any necessary decisions as to how they should be treated or handled within the requirements of the law …
    C2 Director of Planning and Place
    2. The Director of Planning and Place is authorised to act as follows:
    2.18 To sign off and comply with appropriate assessments under [… the 2017 Regulations] …".
  16. Provisions of the 1972 Act deal with access to agendas and background documents in respect of principal councils in Wales. Section 100BA provides so far as material:
  17. "100BA Access to agenda and connected reports: principal councils in Wales
    (1) Copies of the agenda for a meeting of a principal council in Wales and copies of any report for the meeting must be published—
    (a) electronically, and
    (b) in accordance with subsections (3) to (5).
    (2) If the proper officer thinks fit, there may be excluded from the copies of reports published under subsection (1) the whole of a report which, or any part which, relates only to items during which, in the officer's opinion, the meeting is likely not to be open to the public.
    (3) A document required to be published under subsection (1) must be published at least three clear days before the meeting, or, if the meeting is convened at shorter notice, then at the time it is convened."
  18. Section 100D of the 1972 Act provides so far as material:
  19. "100D Inspection and publication of background papers
    (1) Subject, in the case of section 100C(1), to subsection (2) below, if and so long as copies of the whole or part of a report for a meeting of a principal council are required by section 100B(1) or 100C(1) above to be open to inspection by members of the public, or are required by section 100BA(1) or 100C(1A) to be published electronically —
    (a) those copies shall each include a copy of a list, compiled by the proper officer, of the background papers for the report or the part of the report,
    (b) …
    (c) in relation to a principal council in Wales, each of the documents included in that list must be published electronically, but if in the opinion of the proper officer it is not reasonably practicable to publish a document included in the list electronically at least one copy of the document must be open to inspection at the offices of the council.
    ..…
    (3) Where a copy of any of the background papers for a report is required by subsection (1) above to be open to inspection by members of the public, the copy shall be taken for the purposes of this Part to be so open if arrangements exist for its production to members of the public as soon as is reasonably practicable after the making of a request to inspect the copy.
    ..
    (5) For the purposes of this section the background papers for a report are those documents relating to the subject matter of the report which —
    (a) disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and
    (b) have, in his opinion, been relied on to a material extent in preparing the report,
    but do not include any published works."
  20. The respondent is a principal council for the purpose of the relevant provisions: see section 100J of the 1972 Act.
  21. The 1981 Act

  22. Section 31 of the 1981 Act provides for claims for judicial review. Section 31(1), (2) and (4) provide:
  23. "(1) An application to the High Court for one or more of the following forms of relief, namely—
    (a) a mandatory, prohibiting or quashing order;
    (b) a declaration or injunction under subsection (2); or
    (c) an injunction under section 30 restraining a person not entitled to do so from acting in an office to which that section applies,
    shall be made in accordance with rules of court by a procedure to be known as an application for judicial review.
    (2) A declaration may be made or an injunction granted under this subsection in any case where an application for judicial review, seeking that relief, has been made and the High Court considers that, having regard to—
    (a) the nature of the matters in respect of which relief may be granted by mandatory, prohibiting or quashing orders;
    (b) the nature of the persons and bodies against whom relief may be granted by such orders; and
    (c) all the circumstances of the case,
    it would be just and convenient for the declaration to be made or the injunction to be granted, as the case may be.

    …..

    (4) On an application for judicial review the High Court may award to the applicant damages, restitution or the recovery of a sum due if–
    (a) the application includes a claim for such an award arising from any matter to which the application relates; and
    (b) the court is satisfied that such an award would have been made if the claim had been made in an action begun by the applicant at the time of making the application."
  24. Subsections 31(2A) to (2C) deal with a situation where the court must refuse a remedy on a claim for judicial review. They provide:
  25. "(2A) The High Court—
    (a) must refuse to grant relief on an application for judicial review, and
    (b) may not make an award under subsection (4) on such an application,
    if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
    (2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest."
    (2C) If the court grants relief or makes an award in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied."

    THE FACTS

    The background

  26. The Dan y Bwlch Farm is a sheep and cattle farm within the Brecon Beacons National Park. The farm operations involve the fattening of 7,500 store lambs each year over periods of four to six weeks. There are 600 to 800 lambs on the holding at any one time. This is in addition to a herd of 800 breeding ewes and 70 cattle.
  27. The site falls within the catchment area of the River Wye River Special Conservation Area ("the River Wye SAC"). A spring rises approximately 60 metres to the south-east of the site and ultimately joins the River Wye at Monmouth. At the material time, the River Wye suffered from pollution from, amongst other things, phosphates caused in part by organic manures and slurries entering the system and ending up in the river. Sheep are one of the sources of that material.
  28. The applications for planning permission

  29. The interested party, Mr Davies (who is the son of the owner of Dan y Bwlch Farm) made two applications for planning permission in 2020. One was application 20/18928/FUL for the erection of a steel portal frame, standard agricultural building to cover the sheep handling system and the provision of rainwater storage tank. The second was application 20/18931/FUL for the erection of a steel portal frame and roofing to form a covered yard in-between two buildings and the provision of rainwater storage tank.
  30. The respondent commissioned independent agricultural advice from a firm of consultants called Reading Agricultural. Its analysis was that the subject matter of the planning applications "are effectively covered areas under which sheep can be handled, rather than additional housing for increased numbers of sheep". It concluded that the "erection of the buildings does not intensify the agricultural operations of the farm as livestock numbers will remain the same."
  31. Assessments were carried out under the 2017 Regulations in April 2021 ("the April 2021 assessments") for the two applications. The assessments noted that the proposed development was located within the River Wye SAC. They noted that the proposed structure would provide a covered area for sorting, loading and handling sheep and there was no proposed increase in the number of livestock. They referred to the Drainage Strategy and the Drainage Plan which had been submitted and which provided for an effluent tank with a capacity of 3,800 litres to capture dirty water. It was said that:
  32. "The proposed covered handling area and covered yard will ensure that surface water will not be contaminated with increased phosphates and silts and therefore ensure that negative impacts on water quality are avoided. This is likely to be a betterment to the existing situation (an uncovered handing area with a permeable surface)."
  33. The conclusion in each of the assessments was that "Adverse Effects on the Integrity of the Site (the River Wye SAC) as a result of approving planning application…can be avoided by the application of planning conditions". The specific planning conditions that were required were set out in each assessment.
  34. Natural Resources Wales ("NRW") was consulted on and did not object to the grant of planning permission provided suitable conditions were attached to the planning permissions.
  35. On 31 March 2021, planning permission for the developments was granted. On 31 July 2021, the planning permissions were quashed for reasons unconnected with the present appeal. The applications for planning permission therefore had to be redetermined. Assessments (the May 2022 assessments) were carried out under the 2017 Regulations. Those assessment and the conclusions were in materially identical terms to the April 2021 assessments. Planning permission for the developments was granted on 22 September 2022. Those permissions were again quashed for reasons unconnected with the appeal on 31 January 2023. The two applications for planning permission therefore had to be determined again.
  36. The NRW Advice

  37. In July 2022, NRW adopted revised advice for local planning authorities affecting on developments phosphorous-sensitive rivers within an SAC. That advised that various developments could be "screened-out" - that is, not made the subject of an assessment under the 2017 Regulations - as they were not likely to have a significant effect on an SAC. Those developments included:
  38. "any development that reduces the frequency, or volume, of irregular phosphorus discharges within a SAC river catchment such as the erection of agricultural structures and drainage schemes to separate rainwater from manures and slurries by covering yards and existing manure/slurry stores. Note that any such development must not be linked to an increase in livestock numbers or the capacity for an increase in livestock numbers through provision of additional infrastructure."

    Consideration of the applications

  39. A planning ecologist employed by the respondent began the process of carrying out revised assessments under the 2017 Regulations. On 3 March 2023, draft assessments were submitted to NRW for comment. They were largely in similar terms to the April 2021 and May 2022 assessments.
  40. On 14 March 2023, an officer provided reports on each of the two applications for planning permission. They are in materially similar terms. It is only necessary to refer to one of the reports. The report summarised the background and noted that:
  41. "Concern had been raised by third parties regarding the farm operating an intensive livestock unit and how the proposals will facilitate or intensify that use. The Authority has sought an independent appraisal of the existing operations at the farm which the proposal does not intend to intensify but to improve for both animal husbandry and environmental reasons."
  42. The report then described the operations at the farm and said that:
  43. "The independent appraisal concludes, after consideration of the information supplied in the application for the two buildings and investigations undertaken during a site visit, that the farm justifies the proposed buildings, not only as an environment protection measure but also for ease and convenience of livestock handling and improved welfare. This is not an unusual operation and sheep numbers are not exceptional particularly in an area where there are flocks in excess of 3,000."
  44. The report summarised the objections and responses of those consulted including NRW. A response received from NRW dated 10 February 2021 was set out in full. That noted, amongst other things, that the arrangement for the management of surface water from the roof appeared suitable and that the drainage statement provided that a 3,800 litre concrete effluent tank would be installed underneath the proposed buildings to capture any dirty water. The response said that that approach:
  45. "…is more likely to reduce the risk of nutrients including phosphorus entering the close by water course, and if fully implemented is more likely to result in a positive effect on the River Wye SAC as dirty water will have been captured and stored appropriately.
    No assessment of likely significant effect under [the 2017 Regulations] has been undertaken or it has not been forwarded to NRW for consideration. Should you conclude that the proposed development is likely to have a significant effect on the European site, we look forward to being re-consulted. In the absence of this assessment, NRW cannot offer assurances that the proposals would not result in an adverse effect upon the SAC".
  46. The NRW response noted that the applicant's agent had stated that the buildings would not be used for housing livestock, but would cover the existing areas, and had stated that the buildings were not proposed to increase the size of the enterprise. It said "Based on the above, we understand that there will be no increase in livestock numbers."
  47. At section 9.2, the report considered water issues. It said that any development which might increase the amount of phosphate within the Special Area of Conservation catchments could lead to additional damaging effects to the SAC and had to be screened through an assessment under the 2017 Regulations to determine if they were likely to have a significant effect on the SAC. It set out the terms of the revised July 2022 NRW advice. It noted that the drainage statement indicated that there would be a 3,800 litre concrete effluent tank under the buildings and referred to the advice in February 2021 set out above. The report then referred to the earlier May 2022 assessments and said that updated assessments have been sent to NRW for review. The relevant paragraphs said this:
  48. "9.3.1.4.5 An HRA Screening and Appropriate Assessment have been carried out. NRW has reviewed the AA (response 11 May 2022) and our conclusions that as a result of the proposal there would be no adverse effects on the integrity of the River Wye SAC. NRW expect the planning condition as listed in the AA be attached to any planning permission granted in order to protect the integrity of the SAC. Following the issue of updated NRW guidance the AA has been updated and sent to NRW for review. At the time of drafting the agenda the response is awaited.
    9.3.1.4.6 The proposed buildings are to cover the existing areas to provide a dry area to work with the stock and it is stated that they will not be used for housing livestock. The applicants also state that the proposed buildings are not proposed to increase the size of the enterprise. NRW are therefore satisfied that a change to the existing levels of ammonia emissions is unlikely provided that there is no increase in stock numbers.
    The building is for the handling of livestock and is not linked to an increase in livestock numbers in accordance with NRW advice."
  49. The report recommended that the application be permitted subject to conditions. Those conditions were set out. They included:
  50. (1) condition 2, that the development be carried out strictly in accordance with the approved plans including the "Drainage Plan" received on 28 January 2021;

    (2) condition 4, that the development "be used for the handling of livestock only and at no time shall be used for the housing of livestock"; and

    (3) condition 9, that the development shall be implemented and operated strictly in accordance with the Drainage Statement and the Drainage Plan.

    Further representations

  51. On 17 March 2023, Fish Legal, a not-for-profit organisation concerned with the protection of the aquatic environment, wrote to the respondent. The letter stated that the applications were "for structures which will inevitably intensify the numbers of sheep farmed at this location with consequential pollution of the nearby watercourse". It expressed concerns arising from a document referred to as a cross-compliance report. It referred to the revised advice issued by NRW in July 2022. It stated that the May 2022 assessment had not considered the impact of grazing in addition to or in combination with hardstanding. It expressed the view that either the development would introduce higher stocking which would lead to further stripping of the surface area towards the water courses and increased amounts of nutrient rich manure and/or the hardstanding would be an additional source of run off pollution to be measured alongside the existing pollution sources. It said that what it called this "glaring omission" made the May 2022 assessment "so defective it cannot be relied upon". It stated that the revised NRW guidance had not been considered and NRW "only appears to have commented on the site in isolation without further consideration of livestock increases and intensity". It also said that NRW had not commented on the in-combination effect of increased grazing, damaged field surface, run off erosion of silt and manure pollution in addition to the provision of drainage on the site. It concluded by expressing the view that the existing assessment was defective and said "NRW must be re-consulted and asked to look at the application in relation to on-going cross-compliance and pollution issues from the site".
  52. On 20 March 2023, one of the respondent's officers sent an e-mail to NRW attaching the Fish Legal letter and the cross-compliance report and asked (1) whether the report was a NRW report and (2) whether NRW had any comments in relation to the in-combination effects referred to in the Fish Legal letter or the assessment. The response is set out below.
  53. On 19 March 2023, Marches Planning, acting on behalf of the Friends of the Black Mountain (a group which included the appellant) sent an e-mail to a number of the members of the respondent's planning committee stating, amongst other things, that:
  54. "BBNPA officers could have done so much more to prevent this environmental and welfare disaster. They could have asked why the farmer wanted a succession of big new buildings over recent years and checked what they were being used for. They could – and could still – carry out Environmental Impact and Habitats Regulations Assessment of the whole farm project. But officers have refused to do this, claiming that the shipping of thousands of lambs onto this tiny hill farm for fattening over a handful of weeks does not amount to intensive livestock production.
    …..
    Can I ask that members refuse this application and invite the applicant to submit a proposal for a more modest structure that would achieve the aim of covering a handling area without either the visual impact of the proposed development or the ability to house more livestock. As this is a development to facilitate a project that has never been subject to environmental habitats or regulations assessment, BBNPA could then scrutinise the Dan y Bwlch operation as a whole and exercise proper control and mitigation over it."

    The planning committee meeting on 21 March 2023

  55. The respondent's planning committee met on the 21 March 2023 to consider the two applications for planning permission. Members had undertaken a site visit earlier that day. The members had the officer's reports. They did not have the earlier assessments under the 2017 Regulations (although those would have been in the public domain). They were not provided with the March 2023 versions of the assessments which, at that stage, were still in draft and had not been finalised.
  56. During the meeting NRW sent its response on the Fish Legal letter. That response was either read out or summarised by one of the respondent's officers to the meeting. It said:
  57. "Having had a look and discussion with others, the report is a farm cross compliance breach report which was compiled by an Environment Team Adviser in NRW which was to be supplied to RPW as evidence of a cross compliance breach following a farm inspection by the ET officer. … This is not a planning matter and is dealt with separate to the planning system or any planning application. We have no further planning comments to make on this.
    In reference to the [Fish Legal] letter and 'in combination effects' they suggest are being caused by 'the impact of grazing in addition to or in combination with the hardstanding. Either the development will introduce a higher stocking which will lead to further stripping of the surface area towards the watercourses and increased amounts of nutrient rich manure and/or the hardstanding will be an additional source of run off pollution to be measured alongside the existing pollution sources'. We have provided comments on both applications and in response to both AA's on the basis and understanding that the proposals were for 'Erection of a steel portal frame, standard agricultural building to cover the sheep handling system (20/18928/FUL) and Steel portal frame roofing to form covered yard in-between two buildings (20/18931/FUL) in which there was to be no increase in stock. We understand that these measures were to be as a betterment to the existing situation to help reduce surface soil erosion and surface water run-off which could contain nutrient rich manure. The plans submitted included a drainage plan to contain dirty water effluent in an underground dirty water storage tank and separate surface water French drain system to replace the existing soakaway."
  58. Submissions were made orally (or read) at the meeting on behalf of two members of the public who opposed the applications. The agent for the applicant made submissions in support.
  59. The planning committee resolved, in relation to each application, that:
  60. "The Officer recommendation minded to permit subject to the conditions set out in the officer's report, was agreed."

    Events after the meeting of the planning committee

  61. Later on 21 March 2023, after the planning committee had resolved to grant planning permission, the relevant planning officer authorised the assessments for each of the two applications. In each case, the assessment considered that likely significant effects on the River Wye SAC could not be ruled out without the imposition of planning conditions and the carrying out of a full assessment. In each case, the assessment was in materially identical terms to the assessments carried out in April 2021 and March 2022 described at paragraphs 19 to 20 above. They stated that planning conditions were required to avoid any adverse impacts and set out the conditions that were required. They were in identical terms to the conditions identified in the earlier assessments. The three conditions that are material for the purposes of this appeal were the following:
  62. (1) condition 1. The development shall be carried out strictly in accordance with the approved plans including the "Drainage Plan received 28 January 2021";
    (2) condition 3, that the development "be used for the handling of livestock only and at no time shall be used for the housing of livestock"; and
    (3) condition 4, that the development shall be implemented and operated strictly in accordance with the Drainage Statement and the Drainage Plan.
  63. On 22 March 2023, the Director of Planning, Mr Gareth Jones, sent a notice of decision in relation to each application stating that the respondent "hereby grants permission for the following development", then describing the development, and then setting out the planning conditions to which the planning permission was subject.
  64. On 23 March 2023, the assessments under the Regulations were uploaded on to the respondent's website and became publicly available.
  65. THE CLAIM FOR JUDICIAL REVIEW AND THE JUDGMENT OF THE JUDGE

    The Claim

  66. The appellant brought a claim for judicial review of the decision of the respondent to grant planning permission in respect of the two applications. Permission was, ultimately, granted on two grounds. The only one of those two grounds of claim which is material for the purposes of the present appeal was ground 2. That was set out in paragraph 4 of the statement of facts and grounds in the following way:
  67. "(2) Failure to Publish/Provide Appropriate Assessment
    a. The [respondent] acted in breach of the [1972 Act] by failing to publish the updated HRA Screening Matrix & Appropriate Assessments ("AAs") with three clear days prior to the planning committee meeting held on 21 March 2023;
    b. further and/or alternatively, the Decisions were procedurally unfair in that:
    i. the failure to publish the AAS of the proposed developments deprived interested parties to comment in circumstances where the nature and scope of the HRA/AAs assessments were highly controversial; and
    ii. officers failed to place the AAs before the committee depriving members of highly material evidence upon which their decision to grant planning permission necessarily depended."
  68. It is right to note that the appellant was refused permission on ground 1, namely that the respondent had failed to have regard to a material consideration, namely the potential for the proposed development to intensify livestock numbers on the site through the provision of additional infrastructure. The logical corollary is that the courts which considered this matter were satisfied that the respondent did consider this issue when granting planning permission.
  69. The Judgment

  70. The judgment of the judge refers to a number of issues only some of which it was necessary for the judge to decide in order to deal with the claim for judicial review. I concentrate, therefore, on those issues. Other issues can be considered and resolved in a case where it is necessary to decide them.
  71. First, the judge considered that the key issue was whether the officers had failed to place appropriate assessments before the planning committee, depriving members of highly material evidence upon which their decision to grant planning permission necessarily depended. This is ground 2(b)(ii) as set out in the statement of facts and grounds. The judge referred to it as ground 2b in his summary of the grounds (see paragraph 5 of his judgment).
  72. The judge analysed the decision-making process under regulation 63 of the 2017 Regulations as involving three stages. The first, that in regulation 63(1), involved determining whether an assessment was required. If so, the second stage involved obtaining an appropriate assessment. At paragraph 50, he said:
  73. "50. At the third stage the "competent authority" makes a decision under regulation 63(5). Who makes that decision and what is its nature? In my judgment, a number of conclusions may be drawn from the language of the sub-regulation:
    (1) the regulation 63(5) decision is based on the conclusions of the appropriate assessment but is separate from it.
    (2) the regulation 63(5) decision is made in the context of deciding whether or not to grant planning permission. In practice, therefore, this decision will usually be made by a planning committee but that is not a strict requirement.
    (3) planning permission cannot be granted unless the planning committee has ascertained, i.e. determined or decided, that the proposal has no adverse effects on the integrity of the SAC."
  74. At paragraphs 56 and 57, he said this:
  75. "56. What happened here must therefore be analysed in the following way:
    (1) The AAs, then only in draft, were not provided to the planning committee.
    (2) The officer's reports referred to the AAs in very general terms and stated that NRW advice was awaited.
    (3) The only fair reading of paras 6 and 7 of Ms Hughes' first witness statement, and these in any event represent the law, is that had the AAs been in final form in good time their substance would have summarised in the officer's reports and they would have been published online. This was because they were relevant to the planning committee's decision-making process.
    (4) Although members were aware that the AAs would, once finalised, not be adverse, they were blindsided as to the detail.
    (5) The planning committee resolved to grant permission without being able to exercise an evaluative judgment on the AAs.
    (6) The planning committee did not delegate the regulation 63(5) decision on the AAs to an officer. It was not suggested to them that they needed to.
    (7) Mr Jones, who signed the formal decision letters on 22 March, did not apply his mind to the AAs.
    57. Ms Graham Paul did seek to persuade me that step (6) above was not the position. First, she sought to rely on para 2.18 of section C2 to the Scheme of Delegation. However, that provision is concerned only with the signing off of the appropriate assessments (my stage 2). It has nothing to do with the exercise of the regulation 63(5) function (my stage 3). Secondly, she relied on the wording "within the requirements of the law" within the first bullet under section A.2.2. But that is far too general to assist. There was no delegation in this case, and none was ever intended."
  76. It is not necessary to consider what is meant by the reference in paragraph 56(5) of the judgment to the ability of the planning committee "to exercise an evaluative judgement". The precise nature of the exercise called for by regulation 63(5) of the 2017 Regulations does not arise for decision in this case and we did not hear full argument on the issue.
  77. In the light of his analysis, the judge concluded at paragraph 59 that:
  78. "59. For all these reasons, the Claimant has demonstrated a technical breach of regulation 63(5) and what I am calling limb 2b of Ground 2 is well-founded."
  79. The judge also expressed the view that what he called limb 1 (i.e ground 2.a of the claim form) had been made out. He said that either the draft assessments should have been so summarised in the officer's reports and been treated as background papers and published pursuant to section 100D of the 1972 Act or they were papers which should have been ignored and the meeting adjourned. I am not sure that that the first part of that conclusion is correct. The assessments carried out in April 2021 and May 2022 were being revised and were not relied upon by the officer who prepared the report. It is not clear that the failure to publish them again (they were already in the public domain) involved a breach of section 100D. Nor did the judge consider whether a breach of section 100D would, of itself, amount to an error which resulted in the decision of the planning committee being invalid. There are dicta to the effect that a breach of section 100D would not automatically render the subsequent decision of the Council or a relevant committee unlawful (see per Holgate J., as he then was, in R (Worcestershire Acute Hospitals Trust v Malvern Hills District Council and others [2023] EWHC 1995 (Admin) at paragraphs 137 to 146). There are two separate questions. The first question is whether the failure to comply with the relevant procedural requirement results in the decision being unlawful, applying the approach in R v Soneji [2005] UKHL 49, [2006 1 AC 340, and A1 Properties Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27, [2024] 3 WLR 601. If so, the second question that may arise is whether a remedy should be refused pursuant to section 31(2A) of the 1981 Act or as a matter of discretion on the part of the court. The two questions are analytically distinct and should be considered separately. The questions here should have been analysed in that way but were not. In the event, it is not necessary to resolve those issues in order to deal with the present appeal. When considering whether to refuse a remedy by virtue of section 31(2A), the judge took account, amongst other factors, of what representations might have been made when considering whether he ought to refuse to quash the decision to grant planning permission. We can consider whether the judge's conclusions on section 31(2A) were right on that basis. In other cases, it may be appropriate, or necessary, to adopt a more structured approach to whether an error has occurred and, if so, whether it results in the decision being invalid.
  80. The judge then went on to consider whether he should refuse to grant a remedy on the basis that the respondent was able to show that it was highly likely that the decision would not have been substantially different had the conduct complained of not occurred. He said this:
  81. "65. Taking all of this on board, it seems to me that a modicum of reality needs to enter this discourse. This case has a lengthy history with two previous AAs which entered the public domain. The issues were always quite straightforward, viz: (1) stock levels; (2) whether the hardstanding would magnify the pollution levels; (3) the cross-compliance report; and (4) the need for a more wide-ranging HRA covering the entirety of this farming operation. No one has suggested that there are other issues, and the Claimant has known since October 2023 that the Defendant was relying on section 31(2A). Had the relevant conduct not occurred, is it very likely that the outcome would not have been substantially different?
    66. In my judgment, it is necessary to consider this question on two ways. First of all, and ignoring any further representations from the public, would the planning committee's decision have been the same? The answer to that question is obviously, yes. We know that this was a unanimous decision and we also know that the committee at the time of making it knew that NRW was giving positive advice. This was an entirely technical breach. Further, for the reasons set out in the next paragraph, the representations from Fish Legal added nothing. Even on the old Simplex test, the outcome would inevitably have been the same.
    67. Secondly, one needs to ask what the position would have been had the section 100D breach not occurred. Here, one predicates the giving of an opportunity for the public to make representations on the AAs and more generally. There might have been more voices adding to the chorus but it is impossible to imagine that anything new or different might have emerged. The concerns about increased stocking levels had always been at the forefront of local residents' concerns. The arguments had been volubly made and then rejected. There were, and are, sound reasons for rejecting them. The decisions of three judges are entirely clear, even if each has placed a slightly different emphasis on particular points. The concerns about the hardstanding were, in my opinion, without foundation. Both the Defendant and NRW considered that the proposals would bring about some improvement, and it is frankly impossible to disagree. The cross-compliance report does make concerning reading, and I am left wondering what has been done about what appears to be a woeful state of affairs. However, it has nothing to do with these particular applications; the report relates to the farming operation as a whole. Finally, the argument that a more wide-ranging HRA should be undertaken does not impact on the assessment carried out in the context of these particular AAs. True it is that the Defendant had to consider in-combination effects, but if the impact of this particular proposal would be neutral (and on one view be slightly beneficial in terms of the integrity of the SAC), this turns into a zero sum game. X plus 0 always equals X. The Defendant has to focus on the 0; there is nothing to be done in the context of the Habitats Regulations that could alter what has already occurred. Mr Stedman Jones' submissions under this rubric were predicated on the second part of the equation being above 0.
    68. All that Mr Thorold could do was to submit that the court must not speculate as to what further representations might have been made. However, the Claimant has had seven months in which to assemble her case on this issue. If there were some new point which everyone to date has missed, it would surely have come to light by now.
    69. Despite the very high bar that the Defendant needs to surpass, I am persuaded by Ms Graham Paul's submissions that I should refuse relief in relation to Ground 2 on the basis that it is highly likely that the outcome would not have been substantially different if the conduct complained of had not taken place."
  82. The order of the judge dated 23 May 2024 therefore provided that:
  83. "1. The claim is dismissed."

    THE APPEAL AND THE RESPONDENT'S NOTICE

  84. The appellant has permission to appeal against the order on the following grounds:
  85. "The learned judge erred by:
    (a) impermissibly stepping into the shoes of the statutory decisionmaker;
    (b) an application of section 31(2A) SCA 1981 which frustrates the purpose of LGA 1972;
    (c) taking into account immaterial consideration(s) and/or placing undue weight on factors including the failure to adduce post-decision evidence ; and
    (d) failing to consider alternative "substantially different" outcomes, in particular the possibility that conditions may have been imposed."
  86. There is a respondent's notice which seeks to uphold the order of the judge for different or additional reasons namely that the judge:
  87. "… erred in finding that the Respondent had breached Regulation 63(5) of the [Regulations] and section 100D of the Local Government Act 1972 … Consequently, there should have been no issue of the Court exercising its discretion not to quash the planning permission as there was no illegality in the first place."
  88. The appellant contends that the point raised in the respondent's notice amounts to a cross-appeal for which permission is required. At the hearing, the court decided that the respondent was not seeking to cross-appeal and no permission was required for the respondent to raise the point raised in the respondent's notice. The court said it would give its reasons in its judgment. These are my reasons for joining in that decision.
  89. The reasons can be stated shortly in the light of the decision of this Court in Braceurself Ltd v NHS England [2023] EWCA Civ 837, [2024] 1 WLR 669. A respondent seeking to appeal against an order, or seeking a variation of the order, is bringing a cross-appeal and requires permission: see paragraph 35 of Braceurself. The order in the present case is that the "claim is dismissed". That reflects the fact that the judge found that the respondent had acted unlawfully but that a remedy should not be granted by reason of section 31(2A) and so he dismissed the claim. The respondent is not seeking to appeal against, or vary, the order that the claim be dismissed. It is seeking to uphold it on additional grounds, namely that the respondent had not acted unlawfully. The respondent's notice is not a cross appeal and no permission is required.
  90. The appellant relied upon the decision in Trinity Logistics USA Inc v Wolff [2018] EWCA Civ 2765, [2019 1 WLR 3997. There, however, the court allowed a claim for procurement of a breach of contract but dismissed other private law claims. In response to an appeal brought by the defendant in relation to the procurement claim, the claimant contended that he was able to seek to challenge the dismissal of the other claims by a respondent's notice and without the need to obtain permission to cross-appeal. Sir Timothy Lloyd held that where a court has dismissed one or more of a party's claims, but has given judgment in favour of that party on another claim, and the party wishes to contend that the court was wrong to dismiss the other claims, that was not a case of upholding the judgment on other grounds and permission to cross-appeal was required (see paragraph 85). The Court of Appeal in Braceurself expressly considered the decision in Wolff and concluded that there was a distinction between different claims or causes of action and different issues arising on the determination of one claim. This case does not involve different claims or causes of action. It involves a claim for judicial review of the decisions to grant planning permission. That claim was dismissed. The respondent is seeking to argue that the order of the court dismissing the claim should be upheld for different reasons. It is not seeking to challenge or vary the order. For those reasons, the decision in Wolff does not assist the appellant.
  91. It is logical to deal with the issues raised in the respondent's notice first and then to deal with the ground of appeal.
  92. THE RESPONDENT'S NOTICE

    Submissions

  93. Ms Graham Paul for the respondent submitted that the competent authority in the present case was the respondent. She submitted that the respondent as the competent authority granted planning permission when the notice of decision was served by the director of planning, Mr Jones, on 22 March 2023. By that date the director of planning had already authorised or signed off the assessments for the proposed developments. She submitted that those assessments concluded that the proposed developments would have no adverse effect. Ms Graham Paul submitted, variously, that the power of the director to sign off authorisations, or to comply with assessments (as set out in paragraph 2.18 of the scheme of delegation) gave the director power to decide to agree to the proposed development. Alternatively, the director was authorised to send the notice of decision. That enabled him to refuse to send the notice of decision if he considered that the proposed developments would have an adverse effect on the integrity of the River Wye SAC.
  94. Mr Stedman Jones and Mr Thorold, for the appellant, submitted that the body with power to agree to the proposed development was the planning committee. They resolved to grant permission on 21 March 2023 and the committee members were not provided with appropriate assessments as required under regulation 63 of the Regulations nor were any assessments published before the planning committee meeting.
  95. Discussion

  96. The respondent is a corporate body. It can only act through its committees and officers. It has adopted a scheme of delegation authorising particular committees and officers to discharge particular functions. The proper approach in the present case is to consider the function that is being exercised and to determine which committee or officer has been allocated the power to exercise that function and take the relevant decision.
  97. The function that is being exercised here is the determination of applications for planning permission. Regulation 70(1)(a) of the 2017 Regulations provides that the assessment provisions, i.e., regulations 63 and 64, apply in relation to the granting of planning permission. Regulation 63(1) provides that the competent authority must have an appropriate assessment before deciding to grant any consent, permission or authorisation for a plan or project which is likely to have a significant effect on a European site. Regulations 63(2) to (4) deal with the process for making that assessment. Regulations 63(5) provides that the competent authority may agree to the plan or project only after having ascertained, in the light of the conclusions of the assessment, that it will not adversely affect the integrity of the site. Regulation 63(6) provides that, in considering whether a plan or project will adversely affect the integrity of the site, the competent authority must have regard, amongst other things, to "any conditions" to which it proposes to make the development subject.
  98. The question in this case is which is the committee or officer authorised to exercise the functions referred to in regulations 63(5) and (6)? To my mind, it is clear that those functions are to be discharged by the planning committee. Paragraph A.2.2 of the scheme of delegation provides that the responsibility for development management matters are to be undertaken by the planning committee. That is defined to include the determination of planning applications. The function here concerned the consideration of whether to grant two applications for planning permission. In carrying out that function, the provisions of regulations 63 and 64 applied. The planning committee had to ascertain whether the proposed development would have an adverse effect on the River Wye SAC. It would reach that decision in the light of the conclusions of the assessment of the implications of the proposed development. Furthermore, it was the planning committee who had responsibility for deciding what conditions to attach to the planning permission as part of its delegated functions. It is clear from the wording of regulation 63(5) that it is the body with the responsibility for deciding on the conditions which is the body which has to ascertain whether the proposed developments will adversely affect the integrity of the site.
  99. The submissions of Ms Graham Paul that the discharge of the relevant functions had been delegated to the director of planning are not tenable. Paragraph 2.18 of the scheme of delegation provides that the director of planning is authorised "to sign-off and comply with appropriate assessments" under the 2017 Regulations. The phrase "sign-off" is imprecise but, in context, means to authorise or approve the assessments. The director, therefore, is authorised to approve ("sign off") the assessments under the 2017 Regulations. He is not authorised to decide, in light of the conclusions in the assessments, whether or not to agree to the proposed developments under regulation 63(5). The reference in paragraph 2.18 to the director being authorised to "comply with" the assessments is not apt to encompass the function of deciding whether or not to agree to the grant of planning permission, or to attach conditions to ensure that there will be no adverse effect on the River Wye SAC. Similarly, the fact that the director of planning is (or may be) authorised to send the notice of the decision that planning permission has been granted does not authorise the director to decide whether to grant planning permission.
  100. Applying that analysis to the facts of the present case, the conclusions in the March 2023 assessments were that adverse effects on the integrity of the River Wye SAC as a result of approving the developments could be avoided by the imposition of planning conditions. The director of planning did not have authority to determine what planning conditions should be imposed in the planning permission in order to avoid any adverse effects. He did not have authority to ascertain whether there would be adverse effects on the River Wyre SAC in the light of the conclusions in the assessments or the planning conditions that would be attached to the planning permission. He did not have authority to agree to the grant of planning permission.
  101. In the circumstances, therefore, the planning committee was required to ascertain whether the proposed developments would adversely affect the River Wye SAC in "the light of the conclusions of the assessment" carried out under regulation 63 before it resolved to grant planning permission. It did not have available to it the conclusions of such an assessment when it resolved to grant permission as required by regulation 63(5).
  102. For the reasons given above, it is not necessary separately to decide whether or not the fact that assessments were not available, and were not published as a background paper, before the meeting of the planning committee meant that there was a breach of section 100D of the 1972 Act. Given the illegality that has occurred, namely the breach of regulation 63(5), any arguments as to whether representations might have been made on the assessments if they had been published and members of the public given the opportunity to comment on them, and there might have been a different decision, can be considered, in this case, in the context of whether the judge's conclusion to refuse a remedy by reason of section 31(2A) of the 1981 Act was correct. I would therefore not uphold the order of the judge for the additional reasons given in the respondent's notice.
  103. THE APPEAL

    Submissions

  104. Mr Stedman Jones submitted that the judge was wrong to conclude that the requirements in section 31(2A) of the 1981 Act were satisfied and to refuse relief accordingly. He submitted that had assessments been carried out, and made available to the public, the appellant, or other members of the public would have raised issues which might have led the planning committee not to grant permission or to grant permission subject to different conditions. These issues included the question of whether or not the availability of the additional infrastructure would lead to the potential for intensification of livestock farming. Further, representations could have been made about the inadequacy of the conditions dealing with this matter and the absence of any condition imposing a limit on the number of sheep that could be on the farm. Those matters were particularly important in the light of the NRW revised guidance of July 2022 which indicated that developments excluded from assessments "must not be linked to an increase in livestock numbers or the capacity for an increase in livestock numbers through the provision of additional infrastructure". There was also the issue of the cross-compliance report. Further, there may well have been arguments that the proposed developments had to be assessed in combination with other developments for which planning permission had been granted, or on the basis of the operations of the farm as a whole, not simply on the basis of the effect of the two proposed developments. He submitted that the appellant, or members of the public, might have wished to make representations that the assessments, although not unlawful, were nonetheless deficient in a way falling short of being unlawful.
  105. Mr Stedman Jones submitted in relation to ground 1 of the appeal that the judge had impermissibly placed himself in the shoes of the statutory decision-maker, in this case the respondent. He submitted that this error was exemplified by the judge observing at paragraph 67 of his judgment that there "might have been more voices adding to the chorus but it is impossible to imagine that anything new or different might have emerged". Mr Stedman Jones submitted that the judge could not have known what else might have emerged or how the planning committee would have reacted to it. In relation to grounds 2 and 3, Mr Stedman Jones relies on the observations of Cranston J. at paragraph 47 of his judgment in R (Joicey) v Northumberland Borough Council [2014] EWHC 3657 (Admin), [2015] PTSR 622 that the "very purpose of a legal obligation conferring a right to know is to put members of the public in a position where they can make sensible contributions to democratic decision-making". He relied upon observations to like effect of Dove J. in R (Holborn Studios Limited) v London Borough of Hackney and others [2020] EWHC 1509 (Admin). He submitted that had members of the public been provided with the March 2023 assessments made under the 2017 Regulations, that could well have led members of the public to decide to address the planning committee on matters referred to in those documents. Further, it was wrong of the judge to treat as an answer to that criticism the fact that the appellant had had seven months to assemble her case and if something had arisen which everyone else had missed, it would have come to light by the time of the hearing. Finally, in relation to ground 4, that there might have been a substantially different outcome such as, for example, planning permission subject to different conditions, if the conduct complained of had not occurred.
  106. Ms Graham Paul submitted that the judge was right to reach the conclusions that he did on section 31(2A) of the 1981 Act. If the finalised assessments had been available, planning permission would have been granted and would have included the same conditions.
  107. Discussion

    The approach of the courts to section 31(2A)

  108. Section 31(2A) of the 1981 Act provides that a court must refuse to grant a remedy on a claim for judicial review if it appears to the court that (1) it is highly likely (2) that the outcome for the claimant would not be substantially different (3) if the conduct complained of had not occurred. The outcome for the claimant is, usually, the decision or other measure that the public authority has taken. The "conduct complained of" is defined in section 31(8) as the conduct, or the alleged conduct, of the public body defendant which it is said justifies the grant of a remedy. In other words, the "conduct complained of" is the legal error or flaw which would justify the grant of a remedy in judicial review (unless a remedy was refused by reason of section 31(2A) or for some other discretionary reason).
  109. In relation to section 31(2A), the court is concerned with evaluating the significance of the error on the decision-making process. It is considering the decision that the public body has reached, and assessing the impact of the error on that decision in order to ascertain if it is highly likely that the outcome (the decision) would not have been substantially different even if the decision-maker had not made that error. It is not for the court to try and predict what the public authority might have done if it had not made the error. If the court cannot tell how the decision-maker would have approached matters, or what decision it would have reached, if it had not made the error in question, the requirements of section 31(2A) are unlikely to be satisfied.
  110. There is limited guidance from this Court as to the operation of section 31(2A). The judgment of Coulson LJ, with whom Floyd and Asplin LJJ agreed, in R (Gathercole) v Suffolk County Council [2020] EWCA Civ 1179 at paragraphs 35 to 45 sets out the purpose underlying the statutory provision and how it operated on the facts of that particular case. There is a helpful academic review of the case law in an article by Lia Lawton entitled "Section 31(2A) of the Senior Courts Act in the Courts" in [2025] Public Law 239. Further, the Court of Appeal considered the section in R (Plan B Earth) v Secretary of State for Transport (WWF-UK Intervening) [2020] EWCA Civ 214, [2020] PTSR 1446 (the decision was overturned on appeal to the Supreme Court but these observations were not the subject of comment in the Supreme Court and remain an accurate and helpful description of the position). It said this:
  111. "272. The new statutory test modifies the Simplex test in three ways. First, the matter is not simply one of discretion, but rather becomes one of duty provided the statutory criteria are satisfied. This is subject to a discretion vested in the court nevertheless to grant a remedy on grounds of "exceptional public interest". Secondly, the outcome does not inevitably have to be the same; it will suffice if it is merely "highly likely". And thirdly, it does not have to be shown that the outcome would have been exactly the same; it will suffice that it is highly likely that the outcome would not have been "substantially different" for the claimant.
    273. It would not be appropriate to give any exhaustive guidance on how these provisions should be applied. Much will depend on the particular facts of the case before the court. Nevertheless, it seems to us that the court should still bear in mind that Parliament has not altered the fundamental relationship between the courts and the executive. In particular, courts should still be cautious about straying, even subconsciously, into the forbidden territory of assessing the merits of a public decision under challenge by way of judicial review. If there has been an error of law, for example in the approach the executive has taken to its decision-making process, it will often be difficult or impossible for a court to conclude that it is "highly likely" that the outcome would not have been "substantially different" if the executive had gone about the decision-making process in accordance with the law. Courts should also not lose sight of their fundamental function, which is to maintain the rule of law. Furthermore, although there is undoubtedly a difference between the old Simplex test and the new statutory test, "the threshold remains a high one" (see the judgment of Sales LJ, as he then was, in R (Public and Commercial Services Union) v Minister for the Cabinet Office [2018] ICR 269, para 89)."
  112. The parties referred to the decision of a deputy High Court judge in R (Cava Bien Limited) v Milton Keynes Council [2012] EWHC 3003 (Admin). The deputy High Court judge sought to distil 14 principles from a series of decisions, often first-instance decisions, of the courts. Whilst the parties invited us to approach the application on that basis by applying those 14 principles, it is unhelpful, and capable of leading to error, to apply those principles as if they were some form of checklist. First, the 14 principles are short statements of principle abstracted from the case law and devoid of any factual or legal context. In particular, it is not possible to determine what the facts of the cases were and what the courts decided or why. Rather than rely on the summary of principles set out in Cava-Bien, it is far better to refer to the judgment of a particular case if it is said to be relevant to an issue in the case under consideration. That will enable the court to decide what was decided and to assesses the factual and legal context in which statements were made in order to determine their applicability to the case that is being decided.
  113. Secondly, I do not consider that a number of the principles set out in Cava-Bien, certainly stated starkly and devoid of context, accurately reflect what the cases decided. There is also a danger of the language being taken out of context and being used in an inadvertently misleading way. By way of example, the question for the court is whether it is highly likely that there would be no substantial difference in the outcome if the legal error had not occurred. That is a high test to surmount. I doubt that it is correct or helpful to express the test as expressing a standard somewhere between the civil and criminal burden of proof (as suggested in principle 3 in Cava-Bien). To give another example, principle 4 states that "the court is required to undertake an evaluation of the hypothetical or counterfactual world in which the identified unlawful conduct by the public authority is assumed not to have occurred" quoting one sentence (without context) from a judgment in the Divisional Court. Stated in those stark terms, the "principle" is open to misinterpretation or misapplication. The section emphatically does not require the court to embark on an exercise where the error is left out of account and the court tries to predict what the public body would have done if the error had not been made. Approaching section 31(2A) in that way would run the risk of the court forming a view on the merits and deciding if it thinks the public body would reach that view if it had not made the error. Rather, the focus should be on the impact of the error on the decision-making process that the decision-maker undertook to ascertain whether it is highly likely that the decision that the public body took would not have been substantially different if the error had not occurred.
  114. For those reasons, it is likely to be unhelpful, and could lead to error, to adopt the list of principles set out in paragraph 52 of Cava-Bien and to treat them as an accurate, or meaningful, checklist when considering whether the requirements of section 31(2A) are met. For completeness, I do not suggest that the decision in Cava-Bien was incorrect on its facts. However, its decision is based on its analysis of the facts. There, the decision-maker had rejected applications for business rates relief because it believed, erroneously, that the properties were not occupied. The court could not be sure how the public body would have approached the applications, or whether it would have reached the same decision, if it had not made that error. The court, therefore, considered that the requirements of section 31(2A) had not been met (see paragraphs 55 to 68 of the judgment in Cava-Bien).
  115. The application of section 31(2A) to the present case.

  116. First, the outcome in this case was that the respondent resolved to grant planning permission for the two developments subject to certain conditions. The real legal error that occurred was the fact that it did not have appropriate assessments under the 2017 Regulations when it resolved to grant permission. However, the assessments, when finalised, concluded that adverse effects on the River Wye SAC could be avoided if certain specified planning conditions were imposed. Those conditions were materially identical to the ones that had, in fact, been imposed by the planning committee when it resolved to grant planning permission.
  117. Analysing it in the terms of section 31(2A), if the conduct complained of had not occurred, the planning committee would have had assessments telling it that adverse effects could be avoided by the imposition of specific conditions. It would have had to consider the conclusions of the assessment (as required by regulation 63(5)) and consider any conditions that it intended to impose on the grant of planning permission in assessing whether the proposed developments would adversely affect the integrity of the River Wye SAC (as required by regulation 63(6)). The decision it actually reached was to resolve to grant planning permission subject to conditions. Those conditions were identical to the ones that the assessments said needed to be included in the planning permission to avoid any adverse effects on the integrity of the River Wye SAC. It is highly likely, therefore, that the outcome would not have been substantially different even if the planning committee had had the assessments before it when it took its decision - because what it had actually decided to do was, in fact, what the assessments concluded it needed to do. The error did not have any effect on the decision that the planning committee took. Put simply, in this case, the outcome (the grant of planning permission subject to specific conditions) would not have been any different if the planning committee had had the assessments available to it when it resolved to grant planning permission. That is the conclusion that, essentially, the judge reached at paragraph 66 of his judgment.
  118. Mr Stedman Jones for the appellant submitted that representations might have been made if the assessments had been published before the planning committee meeting and those representations might have caused the planning committee to reach a different conclusion. However, the additional matters on which it is said that representations might have been made were not matters that arose out of the assessments made under the 2017 Regulations. Rather, those matters involved other planning issues and, indeed, were matters which were known about and where representations were, or could have been, made to the planning committee. The conduct complained of (the fact that the assessments were not finalised or published prior to the planning committee meeting) did not affect the ability of the appellant or any member of the public to make representations on such matters. The issues that the assessments did raise, when they were finalised, related to the planning conditions necessary to avoid any adverse effect on the River Wye SAC. The need for those conditions was considered in the officer's report and the planning committee resolved to impose those conditions. Representations could have been made about those conditions and the absence of the assessments did not alter that.
  119. It is possible, therefore, to deal relatively briefly with the issues that the appellant says might have been the subject of representations. The question of whether the proposed developments were capable of leading to an intensification of livestock farming was a material issue from the beginning of the planning process. The respondent took independent advice on that issue. The conclusion reached was that the developments did not involve such intensification. The NRW guidance came in July 2022, and dealt with developments which were not linked to an increase in livestock or to the capacity for an increase in livestock numbers through the provision of additional infrastructure. Here, of course, the respondent did consider that issue and concluded that the developments would not intensify the use. The officer's reports dealt with conditions and proposed a condition that the development "shall be used for the handling of livestock only and at no time shall be used for the housing of livestock". If the appellant or others considered that condition to be inadequate and wanted a condition to be attached specifically limiting the numbers of livestock that could be handled at the farm, they could have raised that issue. None of those issues arose out of the assessments and the conduct complained of (the absence of the assessments) did not affect the ability to make representations on those issues.
  120. Similarly, the non-compliance report concerned the failure to comply with requirements for claiming subsidies and was not a matter arising out of or connected to the assessments. The absence of assessments under the 2017 Regulations did not affect the ability of the appellant or anyone else to raise this issue. Indeed Fish Legal did raise the matter with the respondent prior to the planning committee meeting and advice was taken from NRW on that point and relayed to the planning committee.
  121. So far as the suggestion that there should have been a whole farm assessment, or that the effects of the proposed development should have been considered in combination with earlier developments, it is not suggested that the appropriate assessments had to include such in-combination effects in order to meet the requirements of regulation 63(1). There has never been a claim that the assessments that were carried out were unlawful. When, therefore, the appellant says that she or members of the public might have made representations about such matters, that is, on analysis, a claim that they might have wished to argue that it would be desirable for the planning committee to look at such matters. It was not a complaint about the unlawfulness of the assessments. But if the appellant or others wished to raise such matters with the planning committee, they could have done so. The relevance of such matters, again, did not arise from the assessments and the conduct complained of (the absence of assessments) did not affect the ability of the appellant or others to make representations about such issues if they wished to. Those issues were known about at the material time. Indeed, the Marches letter raising those issues was sent to a number of members of the planning committee prior to the meeting.
  122. In short, therefore, nothing has been identified which suggests that an issue arose which the appellant or others could not have addressed because of the failure to prepare or publish the assessments prior to the planning meeting. The fact that assessments were not made or published did not, therefore, affect the decision-making process. For those reasons, the judge's conclusions in paragraph 66 and 67 of his judgment were correct.
  123. Dealing with the grounds of appeal, the conclusions the judge reached on the facts of this case did not involve him stepping into the shoes of the statutory decision-maker (ground 1 of the appeal). The planning committee resolved to grant planning permission subject to conditions. That decision of the planning committee would not have been substantially different even if it had had the assessments when it resolved to grant planning permission. There was no frustration of the statutory purpose of the 1972 Act (ground 2 of the grounds of appeal). The reliance on the observations of Cranston J. in Joicey does not assist. The facts there were different. A key issue in relation to the decision in that case was the question of the noise from the proposed development, namely the erection of wind turbines. A 74 page technical report was published on the local authority's website the day before the meeting. On the facts, the claimant did not have the time to deal with that report, or to get his own expert to consider it. The observations on the importance of timely publication of material to enable the public to make sensible contributions to decision-making need to be seen in that context. Similarly, in Holborn Studios, the material provided to the public was described as incomplete, inconsistent, and opaque for the reasons set out at paragraph 71 of the judgment. It was in that context that Dove J. considered that the requirements of section 31(2A) were not made out. The present case is far removed from the facts of those two cases. Here the issues were, or could have been, identified well before the relevant meeting of the planning committee. The failure to obtain or publish updated assessments did not cause, or contribute to, any inability on the part of the appellant or any other member of the public to make representations on an issue that they considered the planning committee ought to address. The judge did not take into account immaterial considerations or place undue weight on other factors (ground 3 of the grounds of appeal). The judge correctly stated that no other issues than those discussed in the judgment had been identified (and his comments that the appellant had not raised any new issue is to be seen in that light).
  124. There is no substance in the claim that the judge erred by failing to consider alternative substantially different outcomes, and in particular the possibility that different conditions might have been imposed (ground 4 of the grounds of appeal). The planning committee considered what conditions to impose. The ones they imposed were materially identical to the ones that the assessments concluded were necessary to avoid adverse effects on the River Wye SAC. It is highly likely that the outcome would not have been substantially different. It is pure speculation to suggest that other conditions would have been imposed.
  125. For those reasons, the judge was correct to conclude that the requirements of section 31(2A) of the 1981 Act were satisfied and to refuse a remedy.
  126. ANCILLARY MATTERS

  127. There were applications by the respondent to adduce new evidence. First, in the respondent's notice, the respondent sought to adduce a witness statement of Gareth Jones, the director of planning, dated 17 September 2024. The purpose of that statement was to exhibit a document said to demonstrate that the director of planning had further delegated the power to "sign-off" the assessments to Davina Powell. In fact, the relevant text was not exhibited to the witness statement and at the hearing the respondent applied to adduce two further statements, one from Mr Jones exhibiting the relevant text and one from the respondent's solicitor explaining how it was that the text was not exhibited to the first witness statement. We said at the hearing that we would consider the statements de bene esse.
  128. In fact, the statements do not go to any issue that is relevant to this appeal. The issue on the respondent's notice was whether the discharge of the relevant functions under regulation 63 was for the planning committee or the director of planning under the terms of the scheme of delegation. It was only if the director of planning had power to discharge the functions that there would need to be further evidence to demonstrate that he had delegated those functions to Davina Powell. The assessments bear her signature and, we understand, were authorised by her. As I consider that the relevant functions were to be discharged by the planning committee, not the director of planning, the question of a further delegation from the director of planning does not arise. In any event, there is, as we understand it, no dispute that the authority to "sign-off" the assessments was delegated to Ms Powell and she did in fact authorise them and they were then published on the respondent's website. In those circumstances, it is not necessary to adduce this evidence and I would refuse the application. If there had been an issue about the further delegation, I would have been minded to grant the application but it is not necessary to do so.
  129. Secondly, by an application notice dated 21 March 2025, the respondent sought to adduce a witness statement dated 21 March 2025, together with lengthy exhibits. The material was said to go to the state of the River Wye SAC as at March 2025, i.e. two years after the decisions under challenge in this case were taken and almost a year after the judgment of the judge. We refused that application at the hearing. As Ms Graham Paul accepted, the material did not go to any issues on the appeal or raised in the respondent's notice. The material might, she submitted, be relevant if the appeal were allowed and the matter remitted to the judge to reconsider. As the material was not relevant to an issue before this Court, the application was refused.
  130. CONCLUSION

  131. I would dismiss the appeal. The respondent did act in breach of regulation 63 as the planning committee did not have assessments made in accordance with regulation 63 of the 2017 Regulations when it resolved to grant planning permission on 21 March 2023. The assessments were only authorised later that day and published the next day. The judge was correct, however, on the facts of this case to conclude that it was is highly likely that the outcome (the grant of planning permission) would not have been substantially different if the conduct complained of had not occurred.
  132. LORD JUSTICE HOLGATE

  133. I agree.
  134. LADY JUSTICE NICOLA DAVIES

  135. I also agree.


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