Town and country planning – Planning permission – Appellant appealing against decision of court upholding grant of planning permission by respondent local authority for construction of holiday village – Whether respondent failing to give adequate reasons for decision – Whether failure to carry out appropriate assessment causing prejudice to public – Appeal dismissed
The appellant was the chairman of the Berkshire branch of the Campaign to Protect Rural England. The respondent was the local planning authority and the interested parties were the owners and operators of the Legoland Windsor Resort which was within the green belt. It was bordered on three sides by a site of special scientific interest (SSSI) and special area of conservation (SAC), containing a large number of veteran trees.
The first interested party applied for planning permission to construct a holiday village at the resort. The officer’s report recommended that planning permission be refused because the proposal constituted inappropriate development in the green belt which could not be achieved without causing harm to significant trees. However, the planning committee development management panel approved the proposed development in principle. On 10 April 2019, the respondent granted permission, subject to conditions providing for the protection of the trees and an agreement under section 106 of the Town and Country Planning Act 1990, whereby the first interested party undertook to prepare plans for approval before works started.
The appellant applied for judicial review of that decision. The judge rejected the challenge based on the respondent’s alleged failure to give adequate reasons for its decision on the impact on the trees. She also concluded that, although an appropriate assessment (AA) should have been carried out under the Habitats Directive and the Habitats Regulations 2017, no relief would be granted because, under section 31(2A) of the Senior Courts Act 1981, the court was satisfied that it was highly likely that the outcome would not have been substantially different if an AA had been undertaken: [2019] EWC 3505 (Admin). The appellant appealed.
Held: The appeal was dismissed.
(1) The court rejected the appellant’s argument that the judge erred in concluding that it was permissible to rely on the conditions and the section 106 agreement when considering whether the respondent gave adequate reasons for its decision. There was no authority for the proposition that, when seeking to understand the reasons for a decision to grant planning permission, an interested member of the public was entitled to look only at a part of that decision, and need not look at other component parts such as, in this case, the planning conditions or the section 106 agreement, which was expressly to be read in conjunction with the planning decision. Planning conditions were part of the decision itself, and planning conditions and any section 106 agreement were automatically placed on the planning register, along with the decision itself.
A decision to grant planning permission could often, as here, be the culmination of a great deal of preparatory work, assessments, reports, advice, and consultation. In order to understand the decision of 10 April 2019, and the reasons for it, it was therefore necessary to consider that decision as a whole. There was no justification for treating one part of the decision differently to another. Understanding a decision to grant planning permission, and the reasons for it, inevitably required a consideration of all the documents which made up the decision itself. All the relevant material forming part of the decision was publicly available and the judge was entitled, and obliged, to have regard to the conditions and the section 106 agreement when considering whether, in respect of veteran trees, proper reasons were given for the decision to grant planning permission: Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71; [2017] EGLR 22 distinguished.
(2) It was unfairly legalistic for the appellant to suggest that there was any substantial change in policy in 2018, to be derived from the use of the phrase “loss or deterioration” of veteran trees in para 175 of the National Planning Policy Framework (NPPF) when, at the time of the panel meeting, the superseded para 118 had referred to “loss”. Both the paragraphs were intended to prevent harm, whether described as “loss” or “deterioration”, to veteran trees. It was the balancing factor, which changed from “clearly outweighing” the harm, to requiring “wholly exceptional reasons” for permitting such harm, which represented the policy shift in 2018. Beyond that change, which did not apply here, those paragraphs appeared to be very similar in effect.
(3) The appellant argued that section 31(2A) was inapplicable and the test was not whether it was “highly likely” that the outcome would not have been substantially different; instead, because the failure in respect of the AA arose from obligations imposed by European law, the test formulated in Gemeinde Altrip v Land Rheinland-Pfalz (C-72/12) [2014] PTSR 311 was whether the respondent could show that, if there had been an AA, the decision would have been the same.
However, whichever test was applied, the same factors would need to be examined. What mattered in each case was the seriousness of the failure or breach, and whether or not that failure deprived the public of a proper opportunity to comment upon and object to the proposals, and thereby caused prejudice. In the real world, it would be a very unusual case in practice in which the court’s consideration of the seriousness of the breach and any prejudice caused was sufficient to establish that it was highly likely that the outcome would not have been substantially different, but insufficient to establish that the result would have been the same: Altrip and Canterbury City Council v Secretary of State for Communities and Local Government [2019] EWHC 1211 (Admin); [2018] PLSCS 115 applied. Walton v Scottish Ministers [2012] UKSC 44; [2013] PTSR 51 and R (Champion) v North Norfolk District Council & Another [2015] UKSC 52; [2015] EGLR 59 followed.
(4) There was no argument about the seriousness of the breach. The focus was on the extent to which the public had been deprived of the opportunity to comment and object. Lengthy and extensive public consultations had taken place and the public had not been deprived of the opportunity to comment and object. Even if an appropriate assessment had been carried out, the outcome of the planning application would not have been any different.
Marc Willers QC (instructed by Richard Buxton Solicitors) appeared for the appellant; Cain Ormondroyd (instructed by the Royal Borough of Windsor and Maidenhead) appeared for the respondent; John Litton QC (instructed by DLA Piper UK LLP) for the interested parties.
Eileen O’Grady, barrister
