Court of Appeal rejects appeal over planning committee breach, with outcome highly likely to be the same even if conduct had not occurred

An objector to a planning decision by Brecon Beacons National Park Authority has lost her case in the Court of Appeal even though a regulation was breached by its planning committee.

Lord Justice Lewis said in his judgment that it was highly likely the committee’s decision to grant planning consent would have been the same had this breach not occurred.

The case was brought by Rosalind Bradbury after Jay J dismissed her claim for judicial review of the authority’s grant of planning permission for two developments at Dan y Bwlch Farm.

These were for a steel roof over an existing concrete yard, and a steel frame and roof to cover an existing livestock handling yard, together with rainwater storage tanks.

Dr Bradbury argued there was a failure to provide appropriate assessments under the Conservation of Habitats and Species Regulations 2017 to the planning committee and a failure to publish those assessments prior to the meeting in breach of section 100D of the Local Government Act 1972.

She said this meant committee members lacked highly material evidence and interested parties were prevented from commenting on the assessments.

Jay J found a breach of regulation 63(5) of the 2017 Regulations as the planning committee did not consider the assessments prior to its decision, and a breach of section 100D of the 1972 Act.

But he found it was highly likely the outcome would not have been substantially different and refused a remedy in accordance with section 31(2A) of the Senior Courts Act 1981.

Dan y Bwlch Farm is a sheep and cattle farm that has some 600 to 800 lambs present at any one time. There are also 800 breeding ewes and 70 cattle.

It falls within the River Wye River Special Conservation Area and a spring rises approximately 60 metres to the south-east of the site and ultimately joins the River Wye at Monmouth.

The River Wye at the time suffered pollution from phosphates caused in part by organic manures and slurries, with sheep as one source.

Advice to the authority found the proposed developments “are effectively covered areas under which sheep can be handled, rather than additional housing for increased numbers of sheep”.

It concluded the “erection of the buildings does not intensify the agricultural operations of the farm as livestock numbers will remain the same.”

An officer’s report to the authority said the independent appraisal of the farm’s operations found the development did not intend to intensify these but would improve animal husbandry and environmental performance.

But environmental group Fish Legal told the authority the applications were “for structures which will inevitably intensify the numbers of sheep farmed at this location with consequential pollution of the nearby watercourse".

Dr Bradbury argued at her appeal that Jay J erred by: impermissibly stepping into the shoes of the statutory decision maker; application of section 31(2A) SCA 1981 which frustrates the purpose of LGA 1972; taking into account immaterial consideration(s) and/or placing undue weight on factors including the failure to adduce post-decision evidence; failing to consider alternative ‘substantially different’ outcomes, in particular the possibility that conditions may have been imposed.

Lewis LJ said: “The conclusions [Jay J] reached on the facts of this case did not involve him stepping into the shoes of the statutory decision-maker.

“The planning committee resolved to grant planning permission subject to conditions. That decision…would not have been substantially different even if it had had the assessments when it resolved to grant planning permission. There was no frustration of the statutory purpose of the 1972 Act.”

He went on to say that the failure to obtain or publish updated assessments “did not cause, or contribute to, any inability on the part of the appellant or any other member of the public to make representations on an issue that they considered the planning committee ought to address.

“The judge did not take into account immaterial considerations or place undue weight on other factors.”

Lewis LJ said this meant: "There is no substance in the claim that the judge erred by failing to consider alternative substantially different outcomes, and in particular the possibility that different conditions might have been imposed.

"The planning committee considered what conditions to impose. The ones they imposed were materially identical to the ones that the assessments concluded were necessary to avoid adverse effects on the River Wye SAC. It is highly likely that the outcome would not have been substantially different. It is pure speculation to suggest that other conditions would have been imposed.”

He dismissed the appeal and said Jay J had been right to refuse a remedy.

Lord Justice Holgate and Lady Justice Nicola Davies both agreed.

Mark Smulian