AC-2024-CDF-00018 - [2025] EWHC 2249 (Admin)

Fecha: 05-Sep-2025

Relief and the Operation of Section 31(2A) of the Senior Courts Act 1981

Relief and the Operation of Section 31(2A) of the Senior Courts Act 1981.

119.

Ground 1 has succeeded in respect of the Defendant’s failure to publish the NRW Draft Report and ground 2 has succeeded on the basis that there was a failure to have regard to a mandatory relevant consideration. Is relief 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?

120.

In Bradbury at [71] – [75] Lewis LJ explained the approach to be taken when considering the application of section 31(2A). 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.”

ii)

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.”

121.

Each of the two grounds which the Claimant has established relates to significant failings. The failure to disclose the NRW Draft Report meant that in proceeding on the basis that the assessment of the position by NRW was a factor in favour of the grant of permission the Defendant was doing so in the absence of the arguments which the Claimant could have made and which went to the reliance which could be placed on the report. The error in relation to the ACW SSSI meant that the Defendant approached the application for permission without having regard to a mandatory relevant consideration and without members being alerted to the presumption against harmful development and the need for careful assessment in relation to the impact on that SSSI.

122.

In neither case can it be said that the refusal of permission would be an inevitable consequence of applying the correct approach. Nonetheless, each failing was significant and each was capable of causing the Defendant to take a different approach and for there a different outcome. There may well not have been a different ultimate outcome in terms of the grant or refusal of permission but there is, at the lowest, a real possibility that there would have been a different outcome in terms of the approach taken to the conditions to be imposed. In those circumstances the high hurdle necessary for the court to be satisfied that it is highly likely that the outcome would not have been substantially different has not been surmounted and relief is not precluded by reason of section 31(2A). That would have been the position if either of the grounds had stood alone and it is even more so given the presence of the two significant failings.