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

The court considered judicial review challenges to the grant of planning permission for two agricultural roofed structures at Dan y Bwlch Farm within the River Wye Special Area of Conservation, focusing on obligations under the Conservation of Habitats and Species Regulations 2017 (in particular regulation 63(1), (5) and (6)) and publication duties under the Local Government Act 1972 (section 100D). The High Court had found a breach of regulation 63(5) and of section 100D but refused relief under section 31(2A) of the Senior Courts Act 1981 as it considered it highly likely the outcome would not have been substantially different. On appeal the Court of Appeal agreed that regulation 63(5) had been breached because the planning committee resolved to grant permission without having before it the final appropriate assessments, and it held that the scheme of delegation did not transfer the regulation 63(5) decision-making function to the director of planning. However, the court accepted the judge’s conclusion that relief should be refused under section 31(2A) because the finalised appropriate assessments recommended the same planning conditions that the committee imposed and therefore it was highly likely the outcome would not have been substantially different.

Background and parties: The appellant, Dr Bradbury, sought judicial review of the Brecon Beacons National Park Authority’s grant of planning permission for two structures at Dan y Bwlch Farm. The site lay within the River Wye Special Area of Conservation, which suffered from phosphate pollution. The interested party was the applicant for the permissions; Natural Resources Wales and third parties were consulted during the planning process. The High Court (Jay J) dismissed the claim; the appellant appealed.

Nature of the claim and relief sought: The appellant sought quashing of the planning permissions (and related relief) on a primary procedural ground: that final appropriate assessments under the Conservation of Habitats and Species Regulations 2017 were not provided to the planning committee before it resolved to grant permission (breach of regulation 63(5)), and that the assessments were not published as background papers at least three clear days before the meeting in breach of section 100D of the Local Government Act 1972. It was contended that members were deprived of material evidence and interested parties were prevented from commenting.

Procedural history: The appeal came from the judgment of Jay J reported at [2024] EWHC 1242 (Admin). This Court heard the appeal and a respondent’s notice in April 2025 and delivered judgment on 16 April 2025.

Issues framed: (i) whether the planning committee had before it the appropriate assessments required by regulation 63(5) when it decided to grant permission; (ii) whether the assessments should have been published as background papers under section 100D; (iii) whether the scheme of delegation authorised the director of planning to discharge the regulation 63(5) function; and (iv) whether the court should nonetheless refuse relief under section 31(2A) of the Senior Courts Act 1981 because it was highly likely that the outcome would not have been substantially different.

Facts and reasoning: Draft appropriate assessments were prepared and finalised only after the planning committee resolved to grant the permissions on 21 March 2023; they were authorised later that day and published on the authority’s website on 23 March 2023. The assessments concluded that adverse effects on the River Wye SAC could be avoided by the imposition of specific planning conditions. The planning committee had before it officer reports which referred in general terms to the assessments and to Natural Resources Wales' advice, and the committee imposed conditions materially identical to those identified by the finalised assessments. The Court of Appeal held (i) that the regulation 63(5) decision‑making function rested with the planning committee (the scheme of delegation authorised the director to "sign off" or approve assessments but did not authorise the director to "ascertain" under regulation 63(5) whether the integrity of the site would be adversely affected or to decide which conditions to impose), and therefore the committee should have had the assessments before it; (ii) it was unnecessary for the court, for the purposes of this appeal, to decide separately whether there had also been a breach of section 100D; and (iii) applying section 31(2A) the court must refuse relief if it is highly likely the outcome would not have been substantially different. Given that the final assessments recommended the same conditions the committee had imposed, the court concluded it was highly likely that the decision would not have been substantially different and therefore dismissed the appeal.

Wider context: The court reiterated the high threshold in section 31(2A) and warned against courts substituting their own merits assessment for that of the decision-maker; it emphasised careful analysis of delegation and the separation of (a) whether an error of law occurred and (b) whether relief must be refused because the error had no material effect on outcome.

Appeal dismissed. The Court of Appeal held that the planning committee breached regulation 63(5) of the Conservation of Habitats and Species Regulations 2017 by resolving to grant planning permission without having before it the final appropriate assessments, and the committee (not the director of planning) was the decision-maker for the purposes of regulation 63(5). Nonetheless, applying section 31(2A) of the Senior Courts Act 1981, the court agreed with the judge that it was highly likely the outcome would not have been substantially different because the finalised assessments recommended the same conditions which the committee in fact imposed; accordingly relief was refused and the claim dismissed.

Appeal from the High Court (Administrative Court), Jay J, [2024] EWHC 1242 (Admin); appealed to the Court of Appeal (Civil Division) resulting in judgment [2025] EWCA Civ 489 (this judgment).