AC-2024-CDF-000147 - [2025] EWHC 2395 (Admin)

The Defendant contends that even if the members of the Cabinet were materially misled relief is precluded by the requirement in section 31(2A) that relief is to be refused if it appears that the outcome for the Claimant would not have been substantially different if the conduct complained of had not occurred. Mr Hunter submitted that even though the article 4 direction did not give the Defendant control over all changes of use between classes C3 and C5 and C6 it gave the Defendant greater control over such changes than it would otherwise have had. It meant that those changes which were material could not be effected without planning permission. Mr Hunter submitted that the court could be satisfied that the Defendant would have regarded this enhanced degree of control as a benefit justifying making the article 4 direction and would still have proceeded to make it.

Lewis LJ explained the approach to be taken when considering the application of section 31(2A) in R (Bradbury) v Brecon Beacons NPA [2025] EWCA Civ 489 at [71] – [75]. The following aspects of that guidance are of particular relevance here.

At [71] Lewis LJ said:

“In relation to section 31(2A), the court is concerned with evaluating the significance of the error on the decision-making process. It is considering the decision that the public body has reached, and assessing the impact of the error on that decision in order to ascertain if it is highly likely that the outcome (the decision) would not have been substantially different even if the decision-maker had not made that error. It is not for the court to try and predict what the public authority might have done if it had not made the error. If the court cannot tell how the decision-maker would have approached matters, or what decision it would have reached, if it had not made the error in question, the requirements of section 31(2A) are unlikely to be satisfied.”

At [74] he explained that the requirement that it is highly likely that there would have been no substantial difference is “a high test to surmount” adding:

“The section emphatically does not require the court to embark on an exercise where the error is left out of account and the court tries to predict what the public body would have done if the error had not been made. Approaching section 31(2A) in that way would run the risk of the court forming a view on the merits and deciding if it thinks the public body would reach that view if it had not made the error. Rather, the focus should be on the impact of the error on the decision-making process that the decision-maker undertook to ascertain whether it is highly likely that the decision that the public body took would not have been substantially different if the error had not occurred.”

There is force in the argument advanced by Mr Hunter that even if the Cabinet had known that the effect of the direction was only to bring material changes of use under planning control that would still have been regarded as a real benefit. It could have been seen as going some way to addressing the problem with which the Cabinet was concerned namely the impact on the housing stock of a high number of second homes and holiday lettings. I also note that Pepperall J said that he “just persuaded” that he could not be satisfied for the purposes of section 31(2A) at the permission stage.

However, I also note that Pepperall J characterized the error as being one going to the “very heart of the efficacy of the policy” and I agree with that assessment.

It would to some extent be inconsistent to hold that relief was precluded by section 31(2A) in circumstances where I have held that the Cabinet was misled in a material matter. That is because, as explained above, a mater is only material if the decision might have been different but for the flawed advice. The tests for deciding that a report was materially misleading and for the operation of section 31(2A) are different. Nonetheless, a degree of mental gymnastics would be required for the court to be satisfied on the balance of probabilities that the error was material such that but for the error the decision might have been different but then to be satisfied that it is highly likely that the outcome would not have been substantially different if the conduct had not occurred.

However, even without that logical difficulty the requirements of section 31(2A) are not made out here and I cannot be satisfied that it is highly likely that the outcome for the Claimant would not have been substantially different. The Cabinet had to consider the proportionality of making the article 4 direction and to determine whether the benefit to be achieved warranted the interference with the Article 1 Protocol 1 rights of property owners in Gwynedd. The effectiveness of the direction in achieving its objectives was, at least potentially, a very significant factor in that balancing exercise. It will be a matter for the judgement of the Cabinet but it is at least possible that the view could be taken that where the direction could not bring all changes of use under control the resulting benefit would not justify the effect on property owners. It may be that the Cabinet would wish to make an assessment of the extent to which controlling only material changes of use will alter the position.

Relief is, therefore, not precluded by section 31(2A).