Bradbury, R (On the Application Of) v Awdurdod Parc Cenedlaethol Bannau Brycheiniog (Brecon Beacons National Park Authority)

Factual and Procedural Background

This appeal concerns a judicial review claim brought by the Appellant challenging two planning permission decisions made by the Respondent, the National Park Authority, for developments at a farm located within a national park. The developments involved covering existing livestock handling yards with steel structures and installing rainwater storage tanks. The Appellant alleged procedural breaches relating to the failure to provide and publish appropriate environmental assessments under the Conservation of Habitats and Species Regulations 2017 ("the 2017 Regulations") prior to the planning committee meeting, in breach of section 100D of the Local Government Act 1972 ("the 1972 Act").

The planning committee granted permission on 21 March 2023 without having the finalised assessments before them. The assessments were authorised later that day and published the following day. The Appellant claimed that this breach deprived the planning committee of material evidence and prevented public comment. The judge found breaches of regulation 63(5) of the 2017 Regulations and section 100D of the 1972 Act but refused a remedy under section 31(2A) of the Senior Courts Act 1981 ("the 1981 Act"), concluding the outcome would likely have been the same. The Appellant appealed the refusal of relief, and the Respondent filed a respondent’s notice challenging the finding of breach.

Legal Issues Presented

1. Whether the planning committee breached regulation 63(5) of the 2017 Regulations by granting planning permission without having the appropriate assessments before it.
2. Whether the Respondent breached section 100D of the 1972 Act by failing to publish the assessments as background papers prior to the planning committee meeting.
3. Whether the judge erred in refusing to grant a remedy under section 31(2A) of the 1981 Act despite the breaches.
4. Whether the functions under regulation 63(5) and (6) were exercisable by the planning committee or delegated to an officer (the Director of Planning).
5. Whether the Respondent’s notice challenging the breaches should be upheld, negating the need to consider remedy.

Arguments of the Parties

Appellant's Arguments

• The planning committee did not have the finalised appropriate assessments before it when granting planning permission, breaching regulation 63(5).
• The assessments were not published at least three clear days before the meeting, breaching section 100D of the 1972 Act, denying the public the opportunity to comment.
• The judge erred in refusing relief under section 31(2A) by speculating on the outcome and effectively stepping into the shoes of the decision-maker.
• The absence of the assessments hindered meaningful public participation and prevented the planning committee from making an informed evaluative judgment.
• Had the assessments been available and published, additional representations might have led to refusal or different conditions, particularly regarding potential intensification of livestock farming and environmental impacts.

Respondent's Arguments

• The competent authority for the relevant decision-making under regulation 63(5) was the planning committee, not the Director of Planning; the Director’s role was limited to authorising ("signing off") the assessments.
• The planning committee resolved to grant permission subject to conditions identical to those required by the assessments, so the absence of the assessments did not affect the outcome.
• The breach was technical and did not cause any prejudice or materially affect the decision-making process.
• The failure to publish the assessments prior to the meeting did not prevent representations on the substantive planning issues, which were already known and addressed.
• The Respondent’s notice argued that there was no breach of regulation 63(5) or section 100D, so no illegality arose to justify quashing the permissions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Soneji [2005] UKHL 49, [2006] 1 AC 340	Framework for assessing whether procedural breaches render decisions unlawful.	Referenced to distinguish between illegality and remedy refusal under section 31(2A).
A1 Properties Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27, [2024] 3 WLR 601	Clarification on the approach to legality and remedies in judicial review.	Used to explain the analytical distinction between error and remedy.
R (Gathercole) v Suffolk County Council [2020] EWCA Civ 1179	Interpretation and application of section 31(2A) of the Senior Courts Act 1981.	Provided guiding principles on the statutory test for refusing relief where outcome unlikely to differ.
R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214, [2020] PTSR 1446	Guidance on applying section 31(2A) and the court’s role in judicial review remedies.	Quoted to emphasize the high threshold for refusing relief and caution against merits assessment.
Braceurself Ltd v NHS England [2023] EWCA Civ 837, [2024] 1 WLR 669	Distinction between cross-appeals and respondent’s notices upholding orders on different grounds.	Applied to determine that the Respondent’s notice was not a cross-appeal requiring permission.
R (Joicey) v Northumberland Borough Council [2014] EWHC 3657 (Admin), [2015] PTSR 622	Importance of public access to documents and participation in democratic decision-making.	Referenced by the Appellant to support arguments on the need for timely publication of assessments.
R (Holborn Studios Limited) v London Borough of Hackney [2020] EWHC 1509 (Admin)	Requirement for completeness and transparency of information to the public in planning decisions.	Referenced by the Appellant to argue the significance of accessible and comprehensible assessments.
R (Cava Bien Limited) v Milton Keynes Council [2012] EWHC 3003 (Admin)	Principles for assessing whether error affected decision outcome under section 31(2A).	Discussed but not applied as a checklist; court cautioned against mechanistic use of principles.
Trinity Logistics USA Inc v Wolff [2018] EWCA Civ 2765, [2019] 1 WLR 3997	Distinction between cross-appeals and respondent’s notices in multi-claim judgments.	Distinguished from the present case to reject Appellant’s argument that Respondent’s notice was a cross-appeal.
R (Worcestershire Acute Hospitals Trust v Malvern Hills District Council and others) [2023] EWHC 1995 (Admin)	Effect of breach of section 100D of the 1972 Act on lawfulness of decisions.	Considered in relation to whether breach of publication requirements automatically invalidates decisions.

Court's Reasoning and Analysis

The court analysed the statutory framework governing planning permission and environmental assessments, focusing on the 2017 Regulations and the Local Government Act 1972. It identified that the planning committee, as the competent authority, was responsible for the regulation 63(5) decision to agree to the developments, including ascertaining no adverse effect on the protected site in light of the assessments.

The Director of Planning was authorised only to "sign off" or authorise the assessments but not to decide whether to grant planning permission or impose conditions. The planning committee did not have the finalised assessments before it when it resolved to grant permission, constituting a breach of regulation 63(5). The assessments were only authorised after the committee's decision and published the following day.

Regarding section 100D of the 1972 Act, the court noted that the failure to publish the assessments prior to the meeting deprived interested parties of the opportunity to comment but did not definitively conclude on the legal effect of this breach, as it was analytically distinct from the question of remedy.

Applying section 31(2A) of the 1981 Act, the court considered whether it was highly likely the outcome would have been the same absent the breaches. The assessments concluded that adverse effects could be avoided by imposing specific conditions, which were in fact imposed by the planning committee. The court found it highly likely the outcome would not have been substantially different.

The court rejected the Appellant’s argument that additional or different representations would have changed the outcome, noting those issues were either already known and considered or unrelated to the assessments. The court emphasized the high threshold for refusing relief under section 31(2A) and cautioned against speculative merits assessment.

Finally, the court determined that the Respondent’s notice was not a cross-appeal but a submission to uphold the order on additional grounds, which was permissible without permission.

Holding and Implications

The court's final decision was to DISMISS THE APPEAL.

The court held that although the Respondent breached regulation 63(5) of the 2017 Regulations by granting planning permission without the appropriate assessments before the planning committee, it was highly likely that the outcome would not have been substantially different if the breach had not occurred. Consequently, the judge was correct to refuse a remedy under section 31(2A) of the 1981 Act and dismiss the claim for judicial review.

The Respondent’s notice challenging the finding of breach was not upheld because the breach was established, but the refusal of remedy was appropriate. No new precedent was set beyond the application of established principles regarding procedural breaches and remedy refusal under section 31(2A).