R (on the application of Goring-on-Thames Parish Council) v South Oxfordshire District Council & Goring & Streatley Community Energy Ltd (2018)

Why is it important?

Deals with s.31 Senior Courts Act 1981 (application for judicial review) and the duty in s.31(2A) where the High Court must refuse to grant relief, on an application for judicial review. s.31(2A) bites when it is highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

What happened?

Goring-on-Thames Parish Council (GTPC) applied to re-open a decision refusing permission to appeal against South Oxfordshire District Council’s grant of planning permission to Goring & Streatley Community Energy Ltd for the development of hydroelectric turbines.

Pursuant to s.31(2A), the High Court judge refused to grant relief and held that, although the local authority failed to comply with its duty to pay special attention to the desirability of preserving the character of a conservation area, it was highly likely that the outcome would not have been substantially different if this failure had not occurred.

GTPC’s application for permission to appeal was considered on the papers by a Court of Appeal judge and refused. GTPC argued that the permission decision had failed to deal with its main ground of appeal, that the High Court judge erred in applying the s.31(2A) duty and that s.31(2A) was not applicable where the conduct complained of constituted a substantial error of law rather than a minor procedural technicality.

What did the court say?

The Court of Appeal said that ‘conduct’ in s.31(2A) is not limited to procedural conduct. It includes substantive decision-making across the whole spectrum of administrative action, and the procedural steps taken in the course of decision-making.

Take away

‘Conduct’ under s.31(2A), includes substantive errors of law.