ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE CRANSTON
Strand, London, WC2A 2LL
B e f o r e :
Lord Justice McCombe
Lord Justice Lindblom
| R. (on the application of Goring-on-Thames Parish Council)
|- and -
South Oxfordshire District Council
- and –
Goring and Streatley Community Energy Ltd.
for the Applicant
Mr Jeremy Pike (instructed by South Oxfordshire District Council) for the Respondent
The interested party did not appear and was not represented.
Hearing date: 20 March 2018
Crown Copyright ©
Sir Terence Etherton M.R., Lord Justice McCombe and Lord Justice Lindblom:
The issues on the application to re-open
"4. The Permission Decision failed to grapple with the Appellant's principal ground of appeal and incorporated fundamental legal errors. It appears that the court did not have the opportunity properly to consider the Appellant's skeleton argument, or, if it did, to comprehend the submissions contained within it. This is precisely the sort of "corruption" of the judicial process with which the … jurisdiction [under Taylor v Lawrence  EWCA Civ 90] was intended to grapple.
5. Unlike any of the other cases concerning the principle decided in [Taylor v Lawrence], this is the first such case in which the Appellant has not had the opportunity to appear and make oral arguments to the court. That right, which was lost on 3 October 2016, would have avoided any need for this application. Without that opportunity, described by Laws LJ in [Sengupta v Holmes]  EWCA Civ 1104 as "central" to the English legal system, the Appellant has been denied justice.
6. The single Lady Justice's failure to address the Appellant's principal ground of appeal and the basic legal errors in the Permission Decision, combined with the fact that the Appellant has had no opportunity to appear before the court make this case where the Appellant has suffered exceptional injustice such that the application pursuant to CPR 52.30 and should be granted. Failure to do so would undermine the integrity of and confidence in the English legal system."
The court's jurisdiction under CPR 52.30
"52.30 – (1) The Court of Appeal or the High Court will not reopen a final determination of any appeal unless –
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(c) there is no alternative effective remedy.
(2) In paragraphs (1), (3), (4) and (6), "appeal" includes an application for permission to appeal.
(5) There is no right to an oral hearing of an application for permission unless, exceptionally, the judge so directs.
(6) The judge must not grant permission without directing the application to be served on the other party to the original appeal and giving that party an opportunity to make representations.
(7) There is no right of appeal or review from the decision of the judge on the application for permission, which is final.
(8) The procedure for making an application for permission is set out in Practice Direction 52A."
"… Rule 52.30 is drafted in highly restrictive terms. The circumstances described in r.52.30(1) are truly exceptional. Both practitioners and litigants should note the high hurdle to be surmounted and should refrain from applying to reopen the general run of appellate decisions, about which (inevitably) one or other party is likely to be aggrieved. The jurisdiction can only be properly invoked where it is demonstrated that the integrity of the earlier proceedings … has been critically undermined. … ."
"22. … In our judgment it must at least be shown, not merely that the fresh evidence demonstrates a real possibility that an erroneous result was arrived at in the earlier proceedings (first instance or appellate), but that there exists a powerful probability that such a result has in fact been perpetrated. That, in our view, is a necessary but by no means a sufficient condition for a successful application under CPR r.52.17(1). It is to be remembered that apart from the requirement of no alternative remedy, "The effect of reopening the appeal on others and the extent to which the complaining party is the author of his own misfortune will also be important considerations": Taylor v Lawrence  QB 528, para 55. Earlier we stated that the Taylor v Lawrence jurisdiction can only be properly invoked where it is demonstrated that the integrity of the earlier litigation process, whether at trial or at the first appeal, has been critically undermined. That test will generally be met where the process has been corrupted. It may be met where it is shown that a wrong result was earlier arrived at. It will not be met where it is shown only that a wrong result may have been arrived at."
"36. … If a party fails to advance a point, or argues a point ineptly, that would not, at least without more, justify reopening a court decision. If it could be shown that the judge had completely failed to understand a clearly articulated point, it is possible that his decision might be susceptible to being reopened (particularly if the facts were as extreme in their nature as a judge failing to read the right papers for the case and never realising it). … ."
"65. … The following principles relevant to [the] application [of CPR 52.17, as the relevant rule then was] to this appeal appear from Re Uddin (A Child) … and Guy v Barclays Bank plc … . First, the same approach applies whether the application is to re-open a refusal of permission to appeal or to re-open a final judgment reached after full argument. Second, CPR 52.17(1) sets out the essential pre-requisites for invoking the jurisdiction to re-open an appeal or a refusal of permission to appeal. More generally, it is to be interpreted and applied in accordance with the principles laid down in Taylor v Lawrence … . Accordingly, third, the jurisdiction under CPR 52.17 can only be invoked where it is demonstrated that the integrity of the earlier litigation process has been critically undermined. The paradigm case is where the litigation process has been corrupted, such as by fraud or bias or where the judge read the wrong papers. Those are not, however, the only instances for the application of CPR 52.17. The broad principle is that, for an appeal to be re-opened, the injustice that would be perpetrated if the appeal is not reopened must be so grave as to overbear the pressing claim of finality in litigation. Fourth, it also follows that the fact that a wrong result was reached earlier, or that there is fresh evidence, or that the amounts in issue are very large, or that the point in issue is very important to one or more of the parties or is of general importance is not of itself sufficient to displace the fundamental public importance of the need for finality."
Sir Terence Etherton C went on to say (in paragraph 69):
"69. … [The] appellants' reasons for re-opening the application for permission to appeal Judge May's possession order amount, on one view, to no more than a criticism that Arden LJ's decision to refuse permission to appeal was wrong. That is not enough to invoke the Taylor v Lawrence jurisdiction."
The judgment of Cranston J.
"50. In my judgment the Council's assessment in paragraph 6.5iii of the officer's report that there might be a degree of impact upon the Goring conservation area is not inherently incompatible with the assessment in paragraph 6.3vi that there might be no impact upon the AONB. That is despite Mr Streeten's submission, which I have said I accept, that heritage enters a planning assessment with an AONB."
and (in paragraph 54):
"54. The important point is that there is no suggestion that the Council wrongly applied planning policies. The boards of the AONBs made no submissions on the proposal when invited to do so. The line of attack by those opposing the development was on the visual, not the heritage, impacts of the proposal. This was a classic matter of planning judgment, and the Council's assessment that there was no harm to the AONB cannot be said to be Wednesbury unreasonable."
"58. Again the nature of the legal challenge, Wednesbury unreasonableness, is determinative. That challenge is not that the Council failed to take into account a material consideration. What the Council did was to apply its policy on noise, EP2, concerning residents, as it was obliged to do. The AONBs' management plans are not statutory planning policies. No one pointed to tranquillity in relation to the AONBs. The Swan Hotel was to be specially notified of the planning application. Nothing said by any of the specialist consultees could be characterized as a concern with loss of tranquillity. Even if a couple of the public responses to the planning application can be interpreted as raising noise in a broader sense than its impact on residents, it was not in terms of tranquillity or "mucking about in boats" in the AONBs.59. The Council was entitled to reach the planning judgment it did in paragraph 6.3iv that there was no harm to the AONB from the scheme. There was nothing for it to have regard to under section 85 of the Countryside and Rights of Way Act 2000 or paragraph 115 of the [National Planning Policy Framework ("the NPPF")]. It was not irrational for it to reach the conclusions it did."
"63. Apart from the Swan Hotel, the setting of listed buildings was never a main issue of the application. Therefore it was not necessary for the officer's report to identify each one simply to confirm that there would be no material impact upon it. As Evans LJ put it in MJT Securities v. Secretary of State for the Environment (1998) 75 P & CR 188, there is no need to refer to insignificant issues, only the main issues. Since there was no harm to any listed building which the Council was required to take into account, the duty in section 66 of [the Listed Buildings Act] did not arise."
"66. The difficulty I have with this is that what the Council needed to do under section 72 was to give considerable importance and weight to harm to the conservation area: see Sales LJ (with whom Richards and Floyd LJJ agreed) in Mordue v. Secretary of State for Communities and Local Government  EWCA Civ 1243,  1 WLR 2682. … .67. Nothing in the officer's report suggests that special priority was given to harm to the conservation area in accordance with the Council's duty. Rather, reflecting the officer's report, the planning permission simply concluded that the impact on the historic merits of the conservation area and visual effect on amenity constituted less than substantial harm, which was outweighed by the public benefit of renewable energy generation through use of the Thames."
"68. If the Council did fall down in fulfilling its section 72 duty, as I conclude it did, there is the separate question of whether "it appears … to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred": Senior Courts Act 1981, s. 31(2A). This, on the authorities, is a backward-looking provision: Bokrosova v. London Borough of Lambeth  EWHC 3386 (Admin), , per Elizabeth Laing J; R (Williams) v. Powys County Council  EWHC 480 (Admin), , per CMG Ockelton, sitting as a deputy High Court Judge; R (Mark Logan) v. London Borough of Havering  EWHC 3193 (Admin), , per Blake J. If so satisfied, the court must refuse relief.69. In my view it is highly likely that the outcome would not have been substantially different if the Council had applied the correct test. If there was any harm to heritage assets the response of both conservation officers, from the Council and West Berkshire Council, was that it was, at most, minor harm. That approach then became part of the officer's report. More importantly, the factors weighing in favour of the grant of planning permission were weighty, the opportunity of generating renewable energy from an existing water source. In my view there is simply no prospect that this issue would make any difference to the overall planning balance if the decision had been taken in accordance with section 72."
The parish council's grounds of appeal
"Ground 1: The learned judge erred in finding that it was highly likely that the outcome would not have been substantially different if [the district council] had applied the correct test under section 72 of [the Listed Buildings Act]."
That ground was amplified as follows:
"4. In light of his finding at  –  that the Council had breached the statutory duty imposed under section 72 of [the Listed Buildings Act] by failing to give considerable importance and weight to the harm the Development would cause to the Goring and Streatley Conservation Areas, the learned judge was wrong to hold at  that it is highly likely that the outcome would not have been substantially different if the Council had applied the correct test:
(a) Firstly, a breach of the statutory duty under section 72 of [the Listed Buildings Act] is not the type of breach to which section 31(2A) was intended to or does apply. [Section] 31(2A) was introduced to filter out claims brought on technicalities highly unlikely to have made a substantial difference. Failure to give considerable importance and weight to harm to a conservation area under [section] 72 cannot be regarded as such a technical failure.
(b) Secondly, as Cranston J accepts at , section 31(2A) is a backward looking provision[;] it requires consideration of what the Council would have done. The judge is not being asked to second-guess the decision of the administrative body. Neither the Officer's Report to Committee nor the other evidence put forward by the Respondent suggests that the Council gave any special weight to the benefits of renewable energy. Absent such an indication, Cranston J's finding that "importantly, the factors weighing in favour of granting planning permission were weighty" constitutes the impermissible exercise of planning judgement by the court.
(c) Thirdly, the learned judge failed to apply the strong statutory presumption against granting planning permission which arises when section 72(1) is engaged, even where harm is less than substantial (per Lord Bridge in [South Lakeland v Secretary of State for the Environment]  2 AC 141 at 146E-G). His reliance on the fact that the harm was 'minor' (his gloss) is indicative of treating less than substantial harm as a less than substantial objection contrary to [the] approach set out by Sullivan LJ in [Barnwell Manor Wind Energy Limited v East Northamptonshire District Council]  EWCA Civ 137 at .
5. For these reasons the learned judge's finding that it was highly likely that the outcome would not have been substantially different if the Council had applied the correct test was wrong."
Further elaboration of ground 1 was provided in Mr Streeten's skeleton argument in support of the application for permission to appeal.
Rafferty L.J.'s decision on the application for permission to appeal
"I can identify no flaw in the reason of Cranston J which imperils the decision he made. It depended on an application of the legal framework to the facts and his analysis was clear and is unassailable. At paragraph 50 he explained that a degree of impact identified by the officer is not inherently incompatible with an assessment that there might not be an impact on the AONB and at para 54 identified the important point that there was no suggestion of the Council applying the wrong policies. He was justified in concluding, at paragraph 59, that the Council was entitled to reach the decision it did, having rehearsed why that was his view, and for the avoidance of doubt also excluding any need for regard to have been had to S85 CRWA 2000 or to the NPPF. There was as he said nothing irrational in the decision and there is thus nothing irrational in his conclusion.
As to listed buildings he at para 63 excluded the requirement that each should be identified for nothing other than an exercise in particularity. At para 67 he excluded special priority to harm, rather there was a conclusion that harm consequent upon the impact was less than substantial which in any event was outweighed by the public benefit. Having found a failure by the Council in its S72 duty he went on to find the outcome highly unlikely to have been substantially different even if it had not failed. This is not flawed reasoning.
His conclusion, having stood back, that a reconsideration even on the terms most favourable to you in the context of his findings, was thus inevitable and is unimpugnable."
How may the court's jurisdiction under CPR 52.30 be engaged by a refusal of permission to appeal?
The parish council's "principal ground of appeal" – section 31(2A) of the Senior Courts Act
"(2A) The High Court –
(a) must refuse to grant relief on an application for judicial review …
if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred."
The forms of relief referred to in section 31(1)(1) include "(a) a mandatory, prohibiting or quashing order" and "(b) a declaration or injunction under subsection (2)". Subsections (2B) and (2C) state:
"(2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.(2C) If the court grants relief … in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied."
Fundamental legal errors?