Town and country planning – Planning permission – Conditions – Defendant local authority granting planning permission for residential development subject to 5m buffer zone between proposed development and ancient woodland – Claimant applying for judicial review – Whether condition accounting for impossibility of achieving 5m buffer – Whether defendant misunderstanding Natural England consultation response – Whether approved tree protection plan inaccurate – Application granted
The defendant local planning authority granted planning permission for residential development of 25 dwellings comprising self/custom build, market housing and affordable housing (use class C3) and a 12-bed supported living (sui generis) facility with associated access, parking and landscaping in respect of land south of Forest Road, Charlbury, Oxfordshire, on an application made by the interested party developer.
To the west of that land was an ancient woodland known as Rushy Bank. Together with the application, the interested party submitted ecological assessments and biodiversity management plans showing a proposed 5m buffer zone between the proposed development and the ancient woodland to protect it and the wildlife habitats, including those of endangered species, particularly those contained in the understorey.
The permission was subject to conditions, including condition 8 which required the approval of plans and schemes to protect those habitats and the trees and understorey.
The interested party sought approval of the plans, which the defendant gave. It also approved the application to discharge the condition, even though the plans approved showed that the 5m buffer could not be achieved at three points along the boundary.
The claimant applied for judicial review of that decision, contending that, by approving the plans under condition 8 and approving the discharge of the condition on basis of the landscape master plans, the defendant imposed two mutually inconsistent obligations and a planning permission which imposed such mutually inconsistent obligations would be unlawful.
The defendant argued that the loss of the buffers zone at those points was very small and it was a matter of planning judgment of its officers to discharge the conditions on that basis.
Held: The application was granted.
(1) Condition 8 had two requirements. The first requirement was that the plans should be submitted for approval before the commencement of development to ensure the success of the proposed buffer zones.
The plans submitted in support of the original planning permission showed that the proposed buffer zones were 5m wide and the authority’s ecological consultant indicated that the proposals were acceptable if fully implemented.
The second requirement was that all works had to be carried out and maintained as per the approved plans, ie with a five-meter buffer zone.
The meaning of a condition was a matter of construction for the courts and had to be read in the context of the planning permission as a whole and given a sensible meaning where possible.
There were no special rules for the interpretation of planning conditions which had to be interpreted in a manner similar to the interpretation of other public documents. The court asked itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole.
That was an objective exercise in which the court would have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words and common sense: DB Symmetry Ltd v Swindon Borough Council [2022] UKSC 33; [2022] PLSCS 201 considered.
Condition 8, as worded, permitted no room for officers subsequently to vary the width of the buffer zone on an application to discharge. It could have been worded in that way, but it was not.
It required the works and maintenance to be carried out as per the approved plans, which provided for a 5m buffer zone. The decision under challenge was inconsistent with what was required under condition 8: Finney v Welsh Ministers [2019] EWCA Civ 1868; [2019] EGLR 56 distinguished.
(2) The Standing Advice on Ancient Woodland 2012 of Natural England suggested a buffer zone of at least 15m from the boundary of the woodland to avoid root damage.
It said that where assessment showed other impacts were likely to extend beyond that distance, the proposal was likely to need a larger buffer zone. However, the advice made it clear that specific advice on particular applications would not usually be given and that it was for local planning authorities to apply the relevant policies, except in given cases or exceptional circumstances, which did not apply here.
In requiring a buffer, the defendant’s adopted local plan purported to follow that advice but the fact that the buffer zone in the permission was only one third of the distance set out in policy and guidance served to underline the importance of the buffer zone which was required in the permission.
To state that NE had no objection involved a failure fully or accurately to set out its response. Although the defendant consulted ecology advice, it did so at a time when only one encroachment in the buffer zone had been identified and did not do so again when two further points had been identified, one of which involved the loss of the whole width.
NE advice was that it was for the authority to seek information to assess the impact on the ancient woodland and simply to say that NE had no objection displayed a material and significant misunderstanding of that advice.
(3) Condition 13 required an approval of a scheme to protect retained trees before commencement of works, and for the measures to be kept in place during work. The scheme, which was approved, was based on plans before the redline discrepancies were discovered.
There was admitted non-compliance. What condition 13 required was compliance, not substantial compliance. The tree protection plan approved under condition 13 was inaccurate.
(4) The court was not required to refuse relief under section 31(2A) of the Senior Courts Act 1981.
Given the express importance of the buffer zone (which was only one third of what policy required) and the tree protection measures, the decisions complained of had to be quashed and resubmitted for determination.
Ben Fullbrook (instructed by Leigh Day) appeared for the claimant; Kate Olley (instructed by West Oxfordshire District Council Legal Services) appeared for the defendant; The interested party did not appear and was not represented.
Eileen O’Grady, barrister