The judgment is of wider importance in:

• Establishing that AAs must be finalised before a Planning Committee meeting (not merely before the planning decision notice is issued) (unless there is some clear delegation to the contrary)
• Providing guidance on the application of s. 31(2A) SCA 1981.

Brief background:

The substantive illegality (which the CA upheld) concerned the Council’s failure to complete, sign off and publish Appropriate Assessments under the Habitats Regulations before a Planning Committee meeting. The Planning Committee were told the Appropriate Assessments were still in draft and were subject to review by Natural Resources Wales when they resolved to grant planning permission subject to conditions. Subsequent to the meeting, officers finalised and signed off the AAs including recommended conditions which were in identical terms to those the Committee had resolved to grant. Officers then granted the planning permission under delegated authority.

Lewis LJ held:

• This was a breach of Reg 65(5) of the Conservation of Habitats and Species Regulations 2017 which provides that an authority may agree to a project only after having ascertained that it will not adversely affect the integrity of a European site.
• It was the Planning Committee which was granting planning permission and deciding which conditions to impose, even though the decision notice was issued later, and there had been no delegation of carrying out the Reg 65(5) duty to officers.

So, a procedural error had occurred. But, Lewis LJ then went on to consider whether to refuse to grant a remedy under s. 31(2A) of the Senior Courts Act 1981 – that is, (1) if it is highly likely (2) that the outcome for the claimant would not have been substantially different (3) if the conduct complained of had not occurred.

Lewis LJ noted that there is limited guidance from the Court as to the operation of s. 31(2A) ([72]). He held that:

• It was unhelpful and capable of leading to error to apply the 14 principles set out in Cava Bien v. Milton Keynes Council [2012] EWHC 3003 (Admin) summarised from other decisions as if they were some form of checklist.
• Instead, the focus should be on the impact of the error on the decision-making process that the decision-maker undertook.

The Court upheld the High Court’s decision not to quash the planning permission. This was because the planning conditions which Members resolved to impose were identical to those recommended in the Appropriate Assessments and their conclusions. He rejected the suggestion that there were representations that the public could have made that would have made a difference. Those representations could already have been made in the context of the planning merits.

Annabel Graham Paul acted for the successful Respondent: Awdurdod Parc Cenedlaethol Bannau Brycheiniog (Brecon Beacons National Park Authority instructed by Charles Felgate of Geldards LLP.

A link to the judgement is here.