R (on the application of Goring-on-Thames Parish Council) v South Oxfordshire District Council

JurisdictionEngland & Wales
JudgeSir Terence Etherton M.R.,Lord Justice McCombe,Lord Justice Lindblom
Judgment Date25 April 2018
Neutral Citation[2018] EWCA Civ 860
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C1/2016/4538
Date25 April 2018
Between:
R. (on the application of Goring-on-Thames Parish Council)
Applicant
and
South Oxfordshire District Council
Respondent

and

Goring and Streatley Community Energy Ltd.
Interested Party

[2018] EWCA Civ 860

Before:

Sir Terence Etherton M.R.

Lord Justice McCombe

and

Lord Justice Lindblom

Case No: C1/2016/4538

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

PLANNING COURT

MR JUSTICE CRANSTON

[2016] EWHC 2898 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Charles Streeten (instructed by Richard Buxton Environmental and Public Law) 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

Lord Justice Lindblom

Sir Terence Etherton M.R., Lord Justice McCombeand

Introduction

1

This is the judgment of the court.

2

The application before us is an application under CPR 52.30 to re-open a decision of this court refusing permission to appeal on the papers.

3

The applicant is Goring-on-Thames Parish Council. In a claim for judicial review it challenged a planning permission granted by the respondent, South Oxfordshire District Council, for a development of turbines at Goring Weir on the River Thames, to generate hydropower for local use. The application for planning permission was made by the interested party, Goring and Streatley Community Energy Ltd. Planning permission was granted on 9 March 2016. The claim for judicial review came before Cranston J. at a hearing on 9 November 2016. In an order dated 29 November 2016 the judge made a declaration that the district council's decision “did not comply with the duty in section 72 of [the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Buildings Act”)], and did not comply with the duty in regulation 7 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011”. No other relief was granted. The judge refused the parish council's application for permission to appeal. An application for permission to appeal was subsequently made by the parish council to this court. It was dealt with by Rafferty L.J. on paper. In an order dated 10 February 2017 she refused it.

4

The application to re-open Rafferty L.J.'s decision was made by an application notice issued on 27 March 2017. The district council and Goring and Streatley Community Energy Ltd. were given the opportunity to make representations in writing on the application, and the court subsequently ordered that the application would be dealt with at an oral hearing.

The issues on the application to re-open

5

The parish council's grievance is stated in this way, under the heading “Application in a Nutshell”, in the grounds of its application to re-open Rafferty L.J.'s decision:

“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 [2002] 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] [2002] 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.”

6

The first and main issue in the application is whether Rafferty L.J. failed to address the parish council's “principal ground of appeal”, namely ground 1 in the appellant's notice. That ground asserted that, in performing the duty under section 31(2A) of the Senior Courts Act 1981 (“the Senior Courts Act”), Cranston J. was wrong to find it was highly likely that the outcome of the district council's decision-making would not have been substantially different if it had followed the correct approach to proposals for development in a conservation area under section 72 of the Listed Buildings Act.

7

The second issue is whether Rafferty L.J.'s decision “discloses fundamental legal errors which critically undermine the integrity of the decision taken”. The essential complaints here are that Rafferty L.J. misunderstood the duty in section 72 of the Listed Buildings Act and Cranston J.'s relevant conclusions, and that she also misunderstood the duty of a local planning authority, under section 85 of the Countryside and Rights of Way Act 2000 (“the Countryside and Rights of Way Act”), to have regard to the purpose of conserving and enhancing the natural beauty of an Area of Outstanding Natural Beauty.

The court's jurisdiction under CPR 52.30

8

Under the heading “Reopening of Final Appeals”, CPR 52.30 states:

“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.”

9

This rule enshrines the residual jurisdiction, confirmed by a five-judge constitution of the Court of Appeal in Taylor v Lawrence, to re-open an appeal so as to avoid real injustice in circumstances that are exceptional. In confirming the existence of this jurisdiction, the court emphasized (in paragraph 55) “… the greatest importance … that it should be clearly established that a significant injustice has probably occurred and that there is no alternative remedy”.

10

The note in the White Book Service 2018 describing the scope of the rule states, at paragraph 52.30.2:

“… 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. ….”

11

We would endorse those observations, which are justified by ample authority in this court. The relevant jurisprudence is familiar, but the salient principles bear repeating here.

12

Giving the judgment of the court in In re Uddin (A Child) [2005] 1 W.L.R. 2398, Dame Elizabeth Butler-Sloss, the President of the Family Division, observed that the hurdle to be surmounted in an application to re-open under CPR 52.17 (now CPR 52.30) was much greater than the normal test for admitting fresh evidence on appeal. She observed (in paragraph 18 of her judgment) that the Taylor v Lawrence jurisdiction “can in our judgment 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”. And she added this (in paragraph 22):

“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 [2003] 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.”

13

In Barclays Bank plc v Guy (No.2) [2011] 1 W.L.R. 681 Lord Neuberger M.R. said (in paragraph 36 of his judgment):

“36. … If a party fails to advance a point, or argues a point ineptly, that would not,...

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