Friends Of The West Oxfordshire Cotswolds, R (on the application of) v West Oxfordshire District Council
| Court | King's Bench Division (Administrative Court) |
| Neutral Citation | [2024] EWHC 2291 (Admin) |
| Date | 06 September 2024 |
| Year | 2024 |
| Counsel | Ben Fullbrook,Kate Olley,Constanze Bell |
Neutral Citation Number: [2024] EWHC 2291 (Admin)
Case No: AC-2023-LON-001361
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 6 September 2024
THE HONOURABLE MR JUSTICE MORRIS
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Between :
THE KING
(on the application of
FRIENDS OF THE WEST OXFORDSHIRE
COTSWOLDS)
Claimant
- and –
WEST OXFORDSHIRE DISTRICT COUNCIL Defendant
- and –
HARPERCREWE LIMITED Interested
Party
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Ben Fullbrook (instructed by Leigh Day) for the Claimant
Kate Olley (instructed by West Oxfordshire District Council Legal Services) for the
Defendant
Constanze Bell (instructed by Gowling UK) for the Interested Party
Hearing dates: 16 and 18 January 2024
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Approved Judgment
Mr Justice Morris:
Introduction
1. By this application for judicial review, Friends of the West Oxfordshire Cotswolds
(“the Claimant”) seeks an order quashing the decision dated 22 March 2023 of West
Oxfordshire District Council (“the Defendant”) to grant Harpercrew Limited (“the
Interested Party”) planning permission pursuant to section 73 Town and Country
Planning Act 1990 (“TCPA”) (“the Section 73 Permission”) “varying” conditions 2,
3, 5, 7, 8 and 12 in respect of an earlier planning permission (“the Decision”). That
earlier planning permission, granted on 20 January 2020 (“the Original Permission”),
was for a residential development and a supported living facility, south of Forest
Road, Charlbury, Oxfordshire (“the Site”). The Section 73 Permission varies a
number of conditions of the Original Permission “to adequately address land level
changes and to ensure that a suitable ecological buffer is provided around the edge of
the development”.
2. The Claimant contends that the Section 73 Permission was unlawful on the following
grounds:
Ground 1: The Defendant had no power to grant the Section 73 Permission in
circumstances where the Original Permission had expired without lawful
commencement.
Ground 2: The Defendant failed to have regard to a material consideration in failing to
reach a judgment on whether the Original Permission had been lawfully
commenced and/or failed to defer its decision until after the conclusion of
earlier judicial review proceedings.
Ground 3:The Defendant adopted an unlawful approach to the Original Permission as
a “fallback” position, in failing to consider that it was incapable of
completion and in failing to grapple with the evidence from a statutory
body that the Section 73 Permission may be more harmful to the Ancient
Woodland than the Original Permission.
Ground 4:The Decision was vitiated by predetermination and/or apparent bias.
3. In summary I find that Grounds 1 and 3A succeed. The remaining grounds fail. My
conclusion is set out at paragraph 176 below.
The facts in summary
4. The Claimant is a charitable incorporated organisation, established to promote the
conservation of the Cotswolds Area of Outstanding Natural Beauty (“the AONB”) in
West Oxfordshire. The Site is within the AONB and its western boundary is adjacent
to an area of Ancient Woodland (Rushy Bank). The Cotswolds Conservation Board
(“the CCB”) is an expert statutory body with the purpose of conserving and enhancing
the natural beauty of the AONB.
5. The context for the challenge to the Section 73 Permission is the following sequence
of events since January 2020.
6. On 20 January 2020 the Defendant granted planning permission, ref.15/03099/FUL
(the Original Permission) addressed to the Interested Party for “Residential
development of 25 dwellings comprising self/custom build, market housing and
affordable housing (use class C 3) and a 12 bed supported living (sui generis) facility
with the associated access, parking and landscaping” (“the Development”). In order to
mitigate the harm which the Original Permission could cause to the Ancient
Woodland and the AONB, it was subjected to, inter alia, three pre-commencement
conditions (8, 12 and 13) requiring the approval of details showing, inter alia, where a
5 metre (5m) buffer would be provided along the woodland boundary, and a tree
protection plan. Moreover by condition 1 the Development was required to be started
within three years, namely by 20 January 2023.
7. On 27 January 2022 the Interested Party applied to the Defendant to discharge a
number of conditions in the Original Permission. On 10 August 2022 the Defendant
approved the discharge, inter alia, of conditions 8, 12 and 13 (“the Approval”). On 20
September 2022 the Claimant applied for judicial review of the Approval (“the
Approval JR”).
8. On 23 September 2022 the Interested Party carried out material operations in reliance
upon the Approval in order to commence the development approved by the Original
Permission prior to its expiry.
9. On 22 November 2022 the Interested Party applied for the Section 73 Permission
(“the Section 73 Application”). On 22 March 2023 the Defendant granted the Section
73 Permission.
10. On 30 March 2023 HH Judge Jarman KC heard the Approval JR and, by judgment
dated 20 April 2023 (“the Approval Judgment”), he quashed the Approval and
remitted it to the Defendant for re-determination.
Detailed factual background
The Original Application for planning permission: 2015 to 2020
11. In 2015 the Interested Party applied for planning permission for the development
(“the Original Application”). This application was supported by 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. A landscape masterplan showing such a buffer was also submitted.
12. In an ecology report dated 23 September 2015, from Willder Ecology, acting for the
Defendant, Ms Willder stated:
“If all the recommendations and suggestions within the report
[i.e. Biodiversity Management Plan Final Wychwood
Biodiversity Aug 15] and as illustrated on the landscape master
plan are fully implemented then as part of this development
biodiversity enhancements can be secured.
… If all the recommended enhancements and mitigation are the
incorporated & implemented, the policy and guidance
requirements of Policies in the West Oxfordshire Local Plan,
the NPPF (including section 11) and the habitat NPPF
regulations & NPPG are all met.” (emphasis added)
In order to secure this, Ms Willder recommended the imposition of a condition, which
was subsequently imposed as condition 8 (see paragraph 18 below).
13. Natural England and Forestry Commission standing advice (“the Standing Advice”)
and the Defendant’s adopted local plan both require that a buffer of a minimum of
15m be provided between a development and an Ancient Woodland boundary. The
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1 cases
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The King (on the application of Friends of the West Oxfordshire Cotswolds) v West Oxfordshire District Council
...paragraph 67 of the judgment (below) is omitted from the P & CR report. 4 All references are to the paragraph number in the JPL[2024] EWHC 2291 (Admin) THE HONOURABLE Mr Justice Case No: AC-2023-LON-001361 IN THE HIGH COURT OF JUSTICE KING'S BENCH DIVISION ADMINISTRATIVE COURT PLANNING ......
