Town and country planning – Environment – Area of outstanding natural beauty – Conservation area – Applicant applying for judicial review of respondent’s decision to grant planning permission for hydropower generation scheme – High Court dismissing application and refusing permission to appeal – Single appeal judge refusing application for permission to appeal on papers – Applicant applying to re-open decision to refuse permission – Whether judge failing to deal with principal ground of appeal – Whether decision incorporating fundamental legal errors – Application dismissed
The respondent local authority granted planning permission for a scheme to generate hydropower at Goring Weir for local usage, at full capacity some 107kw. The proposed scheme was to be located within the Goring-on-Thames Conservation Area and the Streatley Conservation Area. The respondent’s planning officer found that there would be some harm to the character of the river and the contribution it made to the conservation area but he concluded that the impact of the scheme on the historic merits of the conservation area and its effect on the visual amenity constituted less than substantial harm, which was outweighed by the public benefit of the scheme.
The applicant parish council applied for judicial review of the decision to grant planning permission. Its challenge focused on the harm caused to the AONB and the impact of noise upon its tranquillity; the impact on listed buildings and the defendant’s failure to adopt a reasoned environmental impact assessment (EIA) screening opinion. The application was dismissed. The judge concluded that, although the respondent had failed to comply with its duty to pay special attention to the desirability of preserving the character of a conservation area, it was highly likely that the outcome would not have been substantially different if the conduct complained of had not occurred, He refused the relief sought pursuant to section 31(2A) of the Senior Courts Act 1981: [2016] EWHC 2898 (Admin); [2016] PLSCS 324. The applicant’s application for permission to appeal was considered on the papers by a Court of Appeal judge and dismissed.
The applicant applied to re-open that decision by notice under CPR 52.30 on the basis that the permission decision had failed to deal with its main ground of appeal that the High Court had erred in its duty under s.31(2A), which had no application where the conduct complained of was a substantial error of law rather than a minor procedural technicality. Further, the Court of Appeal judge had made fundamental errors by failing to comprehend the full force of the statutory presumption in relation to listed buildings and the obligations to conserve AONBs.
Held: The application was dismissed.
(1) The hurdle to be surmounted in an application to re-open under CPR 52.30 was much greater than the normal test for admitting fresh evidence on appeal. Apart from the requirement of no alternative remedy, the effect of reopening the appeal on others and the extent to which the complaining party was the author of his own misfortune would also be important considerations. The broad principle was that, for an appeal to be re-opened, the injustice that would be perpetrated if the appeal was not reopened had to be so grave as to overbear the pressing claim of finality in litigation. It followed that the fact that a wrong result was reached earlier, or that there was fresh evidence, or that the amounts in issue were very large, or that the point in issue was very important to one or more of the parties or was of general importance, was not of itself sufficient to displace the fundamental public importance of the need for finality. There had to be a powerful probability that the decision in question would have been different if the integrity of the earlier proceedings had not been critically undermined. The court’s jurisdiction under CPR 52.30 was tightly constrained and exceptional in the sense that it would be engaged only where some obvious and egregious error had occurred in the underlying proceedings and that error had vitiated or corrupted the very process itself. The CPR 52.30 jurisdiction would never be engaged simply because it might plausibly or even cogently be suggested that the decision of the court in the underlying proceedings, whether it be a decision on a substantive appeal or a decision on an application for permission to appeal, was wrong: Taylor v Lawrence [2003] QB 528, In re Uddin (A Child) [2005] 1 WLR. 2398, Barclays Bank plc v Guy (No.2) [2011] 1 WLR 681 and Lawal v Circle 33 Housing Trust [2014] EWCA Civ 1514 applied.
(2) The principles governing the CPR 52.30 jurisdiction had not been modified or relaxed in response to the change in the procedure for the determination of applications for permission to appeal in CPR 52.5, with effect from 3 October 2016. The effect of CPR 52.5(1) and (2) was that an application for permission to appeal to the Court of Appeal would be determined on paper without an oral hearing, except where the judge considering the application on paper directed that the application was to be dealt with at an oral hearing. It was for the judge to decide whether the application could not be fairly determined on paper without an oral hearing. Under the new procedure it remained the judge’s duty, if permission was refused, to address in their reasons the essential issues raised in the grounds of appeal. Each ground of appeal ought to be drafted crisply and clearly as a properly formulated ground of appeal. Where each main issue had not been succinctly identified as a separate ground, it was likely to be more difficult for an applicant to complain that a particular point had not been addressed by the judge. In planning cases, the straightforward approach to drafting grounds of claim urged by the Court of Appeal applied also to the drafting of grounds of appeal.
(3) Had it been necessary to decide the point, the concept of conduct in section 31(2A) was broad and apt to include both the making of substantive decisions and the procedural steps taken in the course of decision-making. The Court of Appeal judge had dealt sufficiently and clearly with the main ground of appeal. Significantly, she had used the language of section 31(2A) when concluding that the judge’s reasoning, that the outcome was highly unlikely to have been substantially different, had not been flawed. She had implicitly rejected the argument that section 31(2A) did not apply and properly focused on the ground as it had been pleaded. She had clearly not been persuaded that the High Court had trespassed into the forbidden territory of planning judgment. The court had to undertake its own objective assessment of the decision-making process and what the result would have been if the decision-maker had not erred in law.
(4) Contrary to the applicant’s submissions, there were no fundamental legal errors in the appeal judge’s treatment of the issues raised in the grounds of appeal.
Charles Streeten (instructed by Richard Buxton Solicitors, of Cambridge) appeared for the applicant; Jeremy Pike (instructed by South Oxfordshire District Council) appeared for the respondent.
Eileen O’Grady, barrister
