ANTONY STRATTON (R on the application of) v THE LONDON BOROUGH OF ENFIELD

Section 31(2A) of the Senior Courts Act 1981 imposes a duty to withhold relief where it is highly likely that the claimant’s outcome would not have been substantially different without the unlawful conduct. The court must assess the counterfactual objectively, by reference to the circumstances existing when the decision was made. The burden is on the defendant and the threshold is high.

In planning cases the court must not assume the role of the planning decision-maker or undertake its planning judgment. A fall-back position may be relevant, but its likely weight cannot ordinarily be assessed without contemporaneous evidence. Separately, the court retains a general discretion to withhold relief where later events make quashing academic.

The claimant challenged planning permission granted by the defendant for an extension at a neighbouring property. The defendant accepted that the permission was unlawful because the officer had made a material error of fact and had given inadequate reasons.

The sole substantive issue was relief. The defendant relied primarily on section 31(2A) of the Senior Courts Act 1981, arguing that the permission would probably have been granted in any event because of permitted development rights, a later planning permission and hypothetical enforcement considerations. It also relied on the court’s general discretion to withhold relief. A later permission had superseded the permission under challenge and remained unchallenged.

1. Section 31(2A). The defendant bore the burden of establishing that it was highly likely that the claimant’s outcome would not have been substantially different if the admitted factual error had not occurred. The court had to examine the hypothetical position objectively, looking backwards to the facts known at the date of the challenged decision. The statutory duty was distinct from an ordinary discretion, although it formed part of the court’s wider powers concerning relief.
2. The error was pivotal. The officer had assumed that the claimant’s property already had a substantial rear extension and relied on that assumption when concluding that the proposal would have no adverse effect on outlook, light or privacy. Once the error was removed, there was no sufficient untainted reasoning from which the same outcome could confidently be predicted.
3. The court could not rely on the later planning permission when applying section 31(2A), because it did not exist when the first permission was granted. Nor could it treat permitted development rights as establishing the counterfactual outcome. They were absent from the contemporaneous officer’s report and planning application. Even if they could have been considered, determining their weight would require the exercise of planning judgment. That was forbidden territory for judicial review.
4. The hypothetical enforcement argument did not assist. It raised essentially the same planning considerations and lacked evidence that the issue had been in the officer’s mind when the decision was made.
5. The court rejected the section 31(2A) case. However, it retained a general discretion to withhold substantive relief where subsequent events made the claim academic. The later permission had superseded the first permission, was being relied upon instead, and stood unchallenged. Quashing the first permission would therefore serve no worthwhile purpose.

A declaration was made that the first permission had been granted unlawfully, but the court declined to quash it. Costs and ancillary matters were left for separate directions.

First-instance judicial review. The defendant conceded that the planning permission was unlawful. The court declared it unlawful but declined to quash it in the exercise of its general discretion, having rejected the section 31(2A) argument.