Planning Committees’ Non-Delegable Duty Under Regulation 63(5) and the High Threshold for Refusing Remedies under Section 31(2A) SCA 1981

Introduction

The appeal in Bradbury v Brecon Beacons National Park Authority ([2025] EWCA Civ 489) arose from two planning permissions granted by the Brecon Beacons National Park Authority (“the Authority”) for steel-framed roofs over existing livestock and handling yards at Dan y Bwlch Farm within the River Wye Special Conservation Area (“the SAC”). Dr Bradbury challenged the process on two procedural grounds: first, that the Authority’s planning committee considered the applications without having before it the final “appropriate assessments” required by Regulation 63 of the Conservation of Habitats and Species Regulations 2017 (“the 2017 Regulations”); and second, that those draft assessments were not published in accordance with section 100D of the Local Government Act 1972. Jay J found both breaches but refused relief under section 31(2A) of the Senior Courts Act 1981, on the ground that it was “highly likely” the outcome would have been the same. This led to the Court of Appeal’s detailed consideration of (a) who must make the Regulation 63(5) decision; and (b) the proper application of section 31(2A).

Summary of the Judgment

The Court held that under Regulation 63 the “competent authority” must, before granting consent, have an appropriate assessment and then “ascertain” under reg 63(5) that the project will not adversely affect site integrity. That function could not lawfully be delegated away from the planning committee (paras 45–47).
Although Jay J was correct to find a procedural breach of Regulation 63(5) (and, in principle, of section 100D), the Authority’s planning committee had in fact granted permission subject to precisely the conditions the final assessments recommended. It was “highly likely” the outcome would not have been substantially different (paras 66–69).
The Court affirmed that when an Appellate Court applies section 31(2A) it must focus on the factual impact of the error on the decision-maker’s process, not speculate on alternative merits (paras 72–74, 76–82).
The appeal was dismissed and the judge’s order refusing relief upheld (paras 89–91).

Analysis

Precedents Cited

R (Soneji) v Secretary of State for the Home Department [2005] UKHL 49, [2006] AC 340 — principles on procedural errors.
A1 Properties Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27 — disentangling error and remedy.
R (Worcestershire Acute Hospitals Trust) v Malvern Hills DC [2023] EWHC 1995 (Admin) — section 100D breaches and invalidity.
R (Gathercole) v Suffolk CC [2020] EWCA Civ 1179 — interpreting section 31(2A).
R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 — statutory test under section 31(2A).
R (Public and Commercial Services Union) v Minister for the Cabinet Office [2018] ICR 269 — threshold of section 31(2A).
R (Joicey) v Northumberland BC [2014] EWHC 3657 (Admin) and R (Holborn Studios Ltd) v LB Hackney [2020] EWHC 1509 (Admin) — importance of timely publication.

Legal Reasoning

The Court distilled the Regulation 63 process into three distinct stages:

Screening to decide whether an assessment is required (reg 63(1)).
Preparation of an appropriate assessment (reg 63(2)–(4)).
The reg 63(5) decision by the competent authority, “in the light of the conclusions of the assessment,” as part of the planning permission decision (reg 63(5)–(6)).

On delegation, the Authority’s scheme empowered the planning committee to determine applications and attach conditions; the director could “sign-off” assessments but had no power to determine in light of them whether planning permission should issue or on what conditions. Regulation 63(5) was therefore non-delegable (paras 60–65).

On section 31(2A), the Court reiterated that the judicial task is to assess whether the error had an impact on the decision in fact. Here the committee’s actual resolution and the director’s decision notice imposed the same conditions identified in the later-signed-off assessments. It was “highly likely” the outcome would not have been substantially different. The judge did not stray into merits or speculation (paras 70–77, 81–82).

Impact

This decision clarifies two key points:

Planning committees themselves must make the reg 63(5) decision on appropriate assessments before granting permission; the procedural duty is non-delegable to officers.
Section 31(2A) SCA 1981 imposes a stringent duty on courts to refuse relief if it is highly likely the procedural error made no real difference to the outcome—a court must focus on the factual causation and avoid merits speculation.

Authorities and local planning bodies must ensure that the final appropriate assessment is before the decision-making body. At the same time, judicial review claimants face a high bar to obtain remedies where the improperly omitted material would in any event have led to the same decision.

Complex Concepts Simplified

Appropriate assessment (Reg 63): A focused environmental appraisal required before permitting developments likely to affect a protected site.
Competent authority: The public body (here, the planning committee) entrusted to carry out the assessment and decide whether to grant consent.
Section 31(2A) Senior Courts Act 1981: A statutory rule requiring courts to refuse judicial review relief if it is highly likely the outcome would not have been substantially different absent the error.
Section 100D Local Government Act 1972: Requires publication of background papers (such as assessments) at least three clear days before a committee meeting.

Conclusion

The Court of Appeal in Bradbury v Bannau Brycheiniog NPA reaffirms that procedural safeguards under the Habitats Regulations and the Local Government Act are vital, but breach alone does not automatically yield relief. Critically, it establishes that planning committees cannot delegate away their reg 63(5) decision-making duty. At the same time, it underscores the high threshold in section 31(2A) for refusing relief—where procedural errors make no substantive difference to the outcome, judicial review remedies must be withheld. This balanced approach preserves both environmental safeguards and the efficient administration of planning decisions.