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

Under Senior Courts Act 1981, section 31(2A), the court must assess the actual effect of the legal error on the decision-making process and the decision made. It must not reconstruct a hypothetical lawful decision or determine the merits itself. The statutory threshold remains high.

A failure to provide an appropriate assessment before a planning committee decides an application breaches the Conservation of Habitats and Species Regulations 2017 where the committee, rather than an officer, holds the delegated function of deciding the application and its conditions. Relief must nevertheless be refused if it is highly likely that the outcome would not have been substantially different. That conclusion may be available where the omitted assessment required the same conditions as those the committee actually imposed.

Dr Bradbury sought judicial review of two grants of planning permission for agricultural structures at Dan y Bwlch Farm, within the River Wye Special Area of Conservation catchment. The planning committee resolved to grant permission subject to conditions on 21 March 2023. Appropriate assessments were authorised later that day and published the following day.

Jay J held that the committee had breached regulation 63(5) of the Conservation of Habitats and Species Regulations 2017 and section 100D of the Local Government Act 1972, but dismissed the claim under section 31(2A) of the Senior Courts Act 1981: [2024] EWHC 1242 (Admin). The claimant appealed the refusal of relief. The authority, by respondent’s notice, contended that there had been no breach.

The central issues were whether the committee or an officer had to perform the regulation 63(5) function, and whether the statutory no-substantial-difference test required relief to be refused.

1. Appeal dismissed. Lewis LJ gave the court’s judgment, with which Holgate and Nicola Davies LJJ agreed. The planning authority acted unlawfully because the planning committee did not have an appropriate assessment when it resolved to grant the permissions. The judge was nevertheless right to refuse relief under section 31(2A) of the Senior Courts Act 1981.

2. The authority was a corporate body acting through committees and officers under its scheme of delegation. The delegated function was the determination of planning applications, including the conditions to be imposed. Accordingly, the planning committee had to perform the functions in regulation 63(5) and (6) of the Conservation of Habitats and Species Regulations 2017. An officer’s authority to sign off appropriate assessments did not authorise the officer to decide whether to agree to the development, whether conditions were sufficient, or whether the development would adversely affect the integrity of the River Wye SAC.

3. The committee therefore had to consider the assessment’s conclusions before resolving to grant permission. It did not do so. The court did not need separately to determine whether there had also been a breach of section 100D of the Local Government Act 1972. It observed that procedural invalidity and the subsequent refusal of relief are analytically distinct questions.

4. Section 31(2A) required an assessment of the error’s impact on the actual decision-making process. The court should not predict what a public authority might have done in a reconstructed counterfactual world. Here, however, the final assessments concluded that adverse effects on the SAC could be avoided by specified conditions. Those conditions were materially identical to those imposed by the committee. It was therefore highly likely that the outcome would not have been substantially different had the assessments been available.

5. The asserted further representations did not alter that conclusion. Concerns about livestock intensification, the cross-compliance report, whole-farm assessment and other developments did not arise from the absent assessments and could already have been raised. The conditions necessary to protect the SAC were addressed in the officer’s reports and adopted by the committee. Different conditions were speculative.

6. The respondent’s notice was not a cross-appeal. The authority did not seek to vary the order dismissing the claim; it merely advanced an additional basis for upholding it.

• Court of Appeal (Civil Division): Appeal dismissed. The court confirmed a breach of regulation 63(5) of the Conservation of Habitats and Species Regulations 2017, but upheld the refusal of relief under section 31(2A) of the Senior Courts Act 1981: [2025] EWCA Civ 489.
• High Court (Administrative Court): Jay J found breaches of regulation 63(5) and section 100D of the Local Government Act 1972, but refused relief under section 31(2A) and dismissed the claim: [2024] EWHC 1242 (Admin).