Factual and Procedural Background
The applicant, Parish Council, challenged planning permission granted by District Council for a hydropower turbine development at a local weir, applied for by Community Energy Company. Planning permission was granted on 9 March 2016. The Parish Council sought judicial review, heard by Judge Cranston on 9 November 2016, who declared the District Council had failed duties under the Planning (Listed Buildings and Conservation Areas) Act 1990 and the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, but refused further relief. The Parish Council's application for permission to appeal was refused by Judge Cranston and subsequently by Lady Justice Rafferty on paper on 10 February 2017. The Parish Council then applied to re-open Rafferty L.J.'s refusal decision under CPR 52.30, which was set for oral hearing after written representations by District Council and Community Energy Company.
Legal Issues Presented
- Whether Lady Justice Rafferty failed to address the Parish Council's principal ground of appeal concerning the application of section 31(2A) of the Senior Courts Act 1981 by Judge Cranston in assessing the likely outcome had the District Council properly applied its duties under section 72 of the Listed Buildings Act.
- Whether Rafferty L.J.'s refusal decision disclosed fundamental legal errors undermining its integrity, specifically regarding the interpretation of duties under section 72 of the Listed Buildings Act and section 85 of the Countryside and Rights of Way Act 2000.
Arguments of the Parties
Appellant's Arguments
- The refusal decision failed to grapple with the principal ground of appeal and contained fundamental legal errors.
- The court did not properly consider or comprehend the appellant's skeleton argument, amounting to a corruption of the judicial process invoking the exceptional jurisdiction under Taylor v Lawrence.
- The appellant was denied the right to make oral submissions, a central right in the English legal system, resulting in injustice.
- The application of section 31(2A) of the Senior Courts Act by Judge Cranston was incorrect, as it was argued not to apply to substantive errors of law.
- Judge Cranston impermissibly ventured into planning merits when concluding that factors in favour of the development were "weighty".
- The statutory presumption against planning permission under section 72 of the Listed Buildings Act was not properly applied, especially regarding less than substantial harm to conservation areas.
- Rafferty L.J. failed to address these arguments sufficiently in refusing permission to appeal, causing real injustice.
- There were fundamental legal errors in Rafferty L.J.'s understanding of the statutory duties relating to conservation areas and Areas of Outstanding Natural Beauty (AONBs).
Respondent's Arguments
- Rafferty L.J. understood and addressed the Parish Council's principal ground of appeal and the section 31(2A) duty.
- There was no failure to grapple with the grounds of appeal; the reasons given made clear why permission to appeal was refused.
- The application to re-open was unwarranted as there was no real injustice or fundamental error undermining the integrity of the decision.
- The planning judgment and statutory duties were properly considered by both Judge Cranston and Rafferty L.J.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Taylor v Lawrence [2002] EWCA Civ 90 |
Exceptional jurisdiction to re-open appeals to avoid real injustice when the integrity of the process is critically undermined or corrupted. |
Confirmed the high threshold for reopening appeals; the court applied these principles strictly to refuse reopening absent corruption or critical undermining of process. |
| In re Uddin (A Child) [2005] 1 WLR 2398 |
Higher hurdle for reopening appeals compared to admitting fresh evidence; requires demonstration of critical undermining of litigation integrity. |
Reiterated the need for a powerful probability of injustice and absence of alternative remedies in reopening applications. |
| Barclays Bank plc v Guy (No.2) [2011] 1 WLR 681 |
Failure to understand a clearly articulated point by a judge may justify reopening; mere inept argument or failure to advance a point does not. |
Applied to reject claim that refusal decision failed to address principal grounds sufficiently. |
| Lawal v Circle 33 Housing Trust [2014] EWCA Civ 1514 |
Summarized principles for reopening appeals under CPR 52.30, emphasizing the need for exceptional circumstances and grave injustice outweighing finality. |
Guided the court’s analysis of whether the refusal decision was flawed and whether reopening was justified. |
| R. (on the application of Williams) v Powys County Council [2017] EWCA Civ 427 |
Application of section 31(2A) of the Senior Courts Act to substantive decision-making including planning. |
Supported the court’s view that section 31(2A) applies broadly and not limited to procedural errors only. |
| Simplex GE (Holdings) Ltd. v Secretary of State for the Environment (1989) 57 P. & C.R. 306 |
Discretionary relief in judicial review claims where there is a realistic possibility the decision would have been different but for the error. |
Referenced in assessing the effect of any error and the likelihood of different outcomes absent the error. |
| Walton v Scottish Ministers [2012] UKSC 44 |
Consideration of realistic possibility of different outcome in judicial review relief. |
Supported the court’s approach to backward-looking assessment of outcome likelihood under section 31(2A). |
| R. (on the application of Champion) v North Norfolk District Council [2015] UKSC 52 |
Further guidance on judicial review relief and assessment of outcome likelihood. |
Reinforced principles applied in evaluating the impact of the District Council’s error. |
| South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141 |
Statutory presumption against granting planning permission where harm to conservation areas occurs. |
Considered in arguments but court found no failure to apply this presumption fatally affecting outcome. |
| Barnwell Manor Wind Energy Limited v East Northamptonshire District Council [2014] EWCA Civ 137 |
Approach to less than substantial harm in planning decisions and statutory duties. |
Referenced in assessing whether the planning judgment properly considered harm to conservation areas. |
| Mordue v Secretary of State for Communities and Local Government [2015] EWCA Civ 1243 |
Requirement to give considerable importance and weight to harm to conservation areas under section 72 of the Listed Buildings Act. |
Relied upon by Judge Cranston and accepted by Rafferty L.J. as correctly understood and applied. |
| Tesco Stores Ltd. v Secretary of State for the Environment [1995] 1 WLR 759 |
Planning judgment lies within the planning authority’s competence with limited court intervention. |
Applied in rejecting argument that Judge Cranston impermissibly ventured into planning merits. |
| Pepper v Hart [1993] AC 593 |
Use of parliamentary materials in statutory interpretation. |
Referenced in submissions but not determinative in court’s reasoning. |
| Flannery v Halifax Estate Agencies Ltd. [2000] 1 WLR 377 |
Importance of clarity in reasons for decisions to ensure parties understand outcome. |
Supported the principle that refusal decisions on paper must address main issues sufficiently. |
| English v Emery Reimbold and Strick Ltd. [2002] 1 WLR 2409 |
Justice requires clarity in explaining why one party prevails over another. |
Supported the requirement that refusal reasons must show grounds addressed. |
| Wasif v Secretary of State for the Home Department [2016] EWCA Civ 82 |
Refusal reasons for permission to appeal should adequately explain refusal on each ground. |
Applied in assessing sufficiency of Rafferty L.J.'s refusal reasons. |
| Barwood Strategic Land II LLP v East Staffordshire Borough Council [2017] EWCA Civ 893 |
Advocacy for straightforward drafting of grounds in judicial review and appeals. |
Referenced to emphasize need for clear grounds of appeal. |
Court's Reasoning and Analysis
The court carefully examined the stringent criteria under CPR 52.30 for reopening a final appeal determination, emphasizing that reopening requires exceptional circumstances demonstrating real injustice and critical undermining of the integrity of the earlier proceedings. The court applied the principles from Taylor v Lawrence and related authorities, underlining that mere error or disagreement with a decision does not suffice; the process itself must have been corrupted or critically undermined.
Regarding the Parish Council's principal ground of appeal, the court found that Lady Justice Rafferty had sufficiently addressed the key issues, including the application of section 31(2A) of the Senior Courts Act. Rafferty L.J. acknowledged the District Council’s failure to comply with the duty under section 72 of the Listed Buildings Act but concluded, consistent with Judge Cranston, that it was highly likely the outcome would not have been substantially different absent that failure. The court rejected the Parish Council's contention that the section 31(2A) duty applies only to procedural or technical errors, affirming that it encompasses substantive decision-making errors.
The court also rejected arguments that Judge Cranston improperly ventured into planning merits or failed to apply the statutory presumption against planning permission where harm occurs to conservation areas. Rafferty L.J.'s reasons were found to be clear, coherent, and consistent with the underlying judgment.
Allegations of fundamental legal errors in Rafferty L.J.'s treatment of the statutory duties, including those under section 72 of the Listed Buildings Act and section 85 of the Countryside and Rights of Way Act, were dismissed. The court held that Rafferty L.J. properly understood and applied the relevant legal principles and that there was no critical misunderstanding or misapplication undermining the decision.
Finally, the court noted that the procedural changes introduced by CPR 52.5, limiting oral hearings for permission to appeal applications, did not modify the strict principles governing CPR 52.30 applications. The refusal to grant permission to appeal on paper must still address the main grounds adequately, which was done here.
Holding and Implications
The court DISMISSED the application to re-open the refusal of permission to appeal under CPR 52.30.
The direct effect is that the refusal decision by Lady Justice Rafferty stands, and the Parish Council’s appeal will not proceed. The court found no real injustice or fundamental error warranting reopening. No new precedent was established beyond reaffirming the strict and exceptional nature of the CPR 52.30 jurisdiction and confirming its consistent application in the context of permission to appeal decisions made on paper.