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 requires exceptional circumstances, real injustice and no alternative effective remedy. The earlier process must have been critically undermined. There must also be a powerful probability that, without that defect, the decision would have been different. An arguably wrong decision is insufficient.

The same stringent principles govern refusals of permission on paper. Removal of an entitlement to oral renewal has not relaxed them. Reasons for refusal must adequately address the essential issues on each ground, but may be short and may resolve supporting arguments implicitly.

When assessing whether an unlawful planning decision would probably have produced substantially the same outcome, the court must assess the decision-making process objectively while respecting the planning authority’s responsibility for planning judgment.

Goring-on-Thames Parish Council sought judicial review of planning permission granted by South Oxfordshire District Council to Goring and Streatley Community Energy Ltd for hydropower turbines at Goring Weir. The parish council challenged the treatment of conservation areas, listed buildings and Areas of Outstanding Natural Beauty.

Cranston J, in [2016] EWHC 2898 (Admin), declared that the planning decision breached 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. He granted no other relief. Applying section 31(2A) of the Senior Courts Act 1981, he considered it highly likely that compliance with the conservation-area duty would not have produced a substantially different outcome.

Rafferty LJ refused permission to appeal on paper. The parish council applied under CPR 52.30 to reopen that refusal. It alleged that she had failed to address its principal ground concerning section 31(2A) and had made fundamental errors concerning the conservation-area and natural-beauty duties. The central issue was whether her consideration of the application had been critically undermined so as to justify reopening it.

The application was dismissed. The court delivered a single judgment.

1. CPR 52.30 confers a tightly constrained jurisdiction. An obvious and egregious error must have vitiated the earlier process. An argument that the decision was wrong, however cogent, is insufficient. Even where the process was critically undermined, reopening requires a powerful probability that the decision would otherwise have been different. These principles derive from Taylor v Lawrence, In re Uddin (A Child) and Lawal v Circle 33 Housing Trust (paras 9–15, 29–31).

2. The principles apply equally to substantive appeals and refusals of permission on paper. The procedural change under CPR 52.5 did not expand the reopening jurisdiction. CPR 52.30 provides no default means of challenging a refusal of permission. Reasons must address the essential issues raised by each ground, but an adequate explanation will seldom require lengthy reasons. Grounds should identify each main issue clearly and separately (paras 30–37).

3. Read fairly and in context, Rafferty LJ’s reasons sufficiently addressed the principal ground. She recognised the conservation-area breach and accepted the judge’s application of section 31(2A). Rejection of the argument that the provision was inapplicable was necessarily implicit. She also sufficiently addressed the allegations that the judge had exercised planning judgment and had misunderstood the conservation-area presumption (paras 45–58).

4. Even assuming section 31(2A) did not apply, the established discretionary approach in Simplex GE (Holdings) Ltd. v Secretary of State for the Environment required consideration of whether there was any realistic possibility of a different decision. The judge’s finding that there was no prospect of any difference satisfied that approach. The parish council therefore suffered no injustice on that alternative basis (para 53).

5. A court applying section 31(2A), or exercising its discretion concerning relief, must respect the planning authority’s responsibility for planning judgment. It must nevertheless make its own objective assessment of the decision-making process and its likely result without the legal error. The conservation-area presumption supplied no basis for displacing section 31(2A) (paras 55–57).

6. The remaining reasons disclosed no fundamental legal error. Some impact on a conservation area was compatible with no impact on an Area of Outstanding Natural Beauty. In context, the reasons recognised substantial compliance with section 85 of the Countryside and Rights of Way Act 2000 and the relevant national policy. An officer’s report need not identify every listed building merely to confirm an absence of material impact (paras 60–69).

7. Obiter, section 31(2A) appeared to encompass substantive decision-making as well as procedural conduct. Full argument had not been heard, and that construction was unnecessary to the result. The court also left open whether declaratory relief required reliance on the exceptional-public-interest provisions in subsections (2B) and (2C). The application fell well short of CPR 52.30(1), and no real injustice had occurred (paras 47, 59, 70).

1. Court of Appeal: In [2018] EWCA Civ 860 , dismissed the application under CPR 52.30 to reopen the refusal of permission to appeal.
2. Court of Appeal: Rafferty LJ refused permission to appeal on paper by order dated 10 February 2017.
3. High Court, Administrative Court, Planning Court: Cranston J, in [2016] EWHC 2898 (Admin) , declared breaches of 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. By order dated 29 November 2016, he granted no other relief and refused permission to appeal.