Dr Rosalind Bradbury, R (on the application of) v Awdurdod Parc Cenedlaethol Bannau Brycheiniog (Brecon Beacons National Park Authority)

Under regulation 63 of the Conservation of Habitats and Species Regulations 2017, an appropriate assessment is distinct from the competent authority’s decision whether a project will adversely affect a protected site. The planning committee must exercise an evaluative judgment informed by the assessment; it is not required simply to accept a favourable assessment as a condition precedent or rubber stamp. Relevant assessment documents must be available to the committee in time for that judgment. Where such documents materially underpin the officer’s report, they may also be background papers requiring publication under the Local Government Act 1972. Relief may nevertheless be refused under section 31(2A) of the Senior Courts Act 1981 where it is highly likely that the outcome would not have been substantially different.

The claimant sought judicial review of two planning permissions granted by the Brecon Beacons National Park Authority for agricultural buildings and associated works at a farm within the River Wye Special Conservation Area catchment.

Permission had previously been granted and quashed by consent. Permission to proceed was granted on two grounds. Ground 2 alleged failures concerning updated habitats assessments: failure to place them before the planning committee and failure to publish them as background papers. Ground 4 alleged unlawful or irrational conclusions concerning a public footpath and local planning policy.

The central issues were whether the committee had lawfully discharged its function under regulation 63(5), whether the assessment documents should have been available and published before the meeting, whether relief should be refused under section 31(2A), and whether the conclusions concerning the footpath were irrational.

1. Ground 2 succeeded in substance but relief was refused. Regulation 63 involves distinct stages. The competent authority first decides whether an appropriate assessment is required. It then carries out the assessment, with the mandatory consultation required by regulation 63(3). Finally, under regulation 63(5), it must ascertain whether the proposal will adversely affect the integrity of the protected site.
2. The regulation 63(5) decision is separate from the assessment and is ordinarily made in the context of deciding whether to grant planning permission. The committee must make an evaluative planning judgment. Regulation 63(6) requires consideration of the manner in which the works will be carried out and of relevant conditions or restrictions. A favourable assessment is not automatically binding and does not remove the committee’s independent decision-making function. The court did not need finally to determine the circumstances in which a committee could disagree with an assessment.
3. The committee had not been given even a draft of the assessments. It resolved to grant permission without being able to evaluate their detail. The relevant function had not been delegated to an officer, and the officer who signed the formal decision notices had not applied his mind to the assessments.
4. The assessments were also background papers for section 100D purposes because they materially related to, and underpinned, the decision-making process. They should have been published in good time. A practice of delegating consideration until the assessments were finalised could not circumvent that obligation. At minimum, draft assessments would need to be placed in the public domain in time for representations to be made and considered.
5. Despite those breaches, section 31(2A) required refusal of relief. It was highly likely that the outcome would not have been substantially different. The committee’s decision was unanimous, the principal issues had already been fully aired, and no new material point was identified. The claim based on Ground 2 was therefore refused on that basis.
6. Ground 4 failed. The authority applied the correct legal test by considering the public footpath as used along its legal line and free from obstructions. The development did not itself obstruct or alter the line of the path. The conclusions concerning vehicles, sight lines, odour and livestock numbers were planning judgments which could not be characterised as irrational.
7. The claim for judicial review was dismissed.