Goring-On-Thames Parish Council, R (on the application of) v South Oxfordshire District Council & Anor

The jurisdiction to reopen a final appeal or refusal of permission under CPR 52.30 is exceptional. It requires real injustice, exceptional circumstances and no alternative effective remedy. The earlier process must have been critically undermined, and it must be powerfully probable that the earlier decision would otherwise have been different.

A refusal of permission on the papers must address the essential issues raised by the grounds of appeal. Concise reasons are sufficient if they enable the applicant to understand why permission was refused. The abolition of an oral renewal hearing does not relax the CPR 52.30 test or create a further means of challenging a refusal of permission.

A parish council sought judicial review of planning permission for a hydropower turbine development. Cranston J held that the district council had failed to comply with section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990, but granted only a declaration because it was highly likely that the outcome would not have been substantially different. His decision is reported at [2016] EWHC 2898 (Admin).

After Cranston J and Rafferty LJ refused permission to appeal, the parish council applied under CPR 52.30 to reopen Rafferty LJ’s paper refusal. It alleged that she had not addressed its principal arguments, including the scope of section 31(2A) of the Senior Courts Act 1981, the prohibition on judicial planning merits assessment, and the statutory duties concerning conservation areas, listed buildings and Areas of Outstanding Natural Beauty.

1. Application dismissed. The court held that the application fell well short of CPR 52.30(1). That jurisdiction exists only to avoid real injustice in exceptional circumstances where there is no alternative effective remedy. It is engaged only where an obvious and egregious error has vitiated the earlier process, not because the earlier decision may have been wrong. Even then, the applicant must show a powerful probability that the decision would have been different.

2. For a paper refusal of permission to appeal, the initial question is whether the judge sufficiently confronted and dealt with the grounds of appeal. If the process was critically undermined, the court must then consider whether permission would probably have been granted. The absence, under CPR 52.5, of an ordinary oral renewal hearing does not weaken those requirements. Short reasons may suffice, but they must explain the refusal of each essential ground.

3. Rafferty LJ had adequately addressed the parish council’s grounds. Her reasons recognised Cranston J’s finding of breach of section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 and upheld his conclusion under section 31(2A) of the Senior Courts Act 1981. She implicitly rejected the suggestion that section 31(2A) was inapplicable. The court added, though it was unnecessary to decide the point, that “conduct” in section 31(2A) is naturally broad enough to include substantive decision-making as well as procedure.

4. In applying section 31(2A), a court must not substitute its own planning judgment. It must nevertheless make an objective counterfactual assessment of the decision-making process and its likely lawful outcome. Cranston J had done so. If section 31(2A) had not applied, the same conclusion would have followed under the discretion as to relief: there was no realistic possibility that the planning decision would have differed.

5. The court also rejected allegations of fundamental legal error concerning the section 72 duty, the AONB duty under section 85 of the Countryside and Rights of Way Act 2000, and section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990. On the facts, the relevant statutory and policy considerations had been sufficiently addressed, and there was no need for the officer’s report to identify every listed building where no material impact required consideration.

• Court of Appeal (Civil Division): The application to reopen Rafferty LJ’s refusal of permission to appeal under CPR 52.30 was dismissed: [2018] EWCA Civ 860.
• Court of Appeal (Civil Division): Rafferty LJ refused permission to appeal on the papers on 10 February 2017.
• High Court, Administrative Court, Planning Court: Cranston J declared that the planning decision did not comply with section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 and regulation 7 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, but granted no further relief and refused permission to appeal: [2016] EWHC 2898 (Admin).