R John Hudson v Royal Borough of Windsor and Maidenhead
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 19 December 2019 |
| Neutral Citation | [2019] EWHC 3505 (Admin) |
| Date | 19 December 2019 |
| Docket Number | Case No: CO/2118/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3505 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/2118/2019
Marc Willers QC (instructed by Richard Buxton Solicitors) for the Claimant
Cain Ormondroyd (instructed by Legal Solutions) for the Defendant
John Litton QC (instructed by DLA Piper UK LLP) for the Interested Parties
Hearing dates: 29 & 30 October 2019
Approved Judgment
The Claimant seeks judicial review of the decision of the Defendant (“the Council”), dated 10 April 2019, granting planning permission to the First Interested Party (“IP1”) for the construction of a holiday village and other works at the Legoland Windsor Resort, Winkfield Road, Windsor SL4 4AY (“the Resort”).
The Council's Planning Committee Development Management Panel (“the Panel”) resolved, on 10 May 2018, to grant planning permission, subject to conditions and an agreement under section 106 of the Town and Country Planning Act 1990 (“TCPA 1990”), the terms of which were delegated to the Head of Planning, in consultation with four Panel Members.
The Claimant is the Chairman of the Berkshire branch of the Campaign to Protect Rural England (“CPRE-Berkshire”) and he brings this claim in that capacity.
The Council is the local planning authority and the Interested Parties are the owners and operators of Legoland.
On 8 July 2019, Lieven J granted the Claimant permission to judicially review the Defendant's decision to grant IP1 planning permission on grounds 2(b), 3 and 4 of the grounds of challenge pleaded in the Claimant's Statement of Facts and Grounds.
Grounds of challenge
The Claimant submitted that the Defendant's decision to grant planning permission was unlawful on the following grounds:
i) Ground 2: Failure to give adequate reasons as to why the Panel departed from the recommendation in the Officer's Report (“OR”), in particular in regard to the impacts upon significant, including veteran, trees.
ii) Ground 3: Failure to reconsider the decision in light of the publication of new planning policy in the July 2018 edition of the National Planning Policy Framework (“the Framework”), and in particular, the requirement in paragraph 175 that there be “wholly exceptional reasons” to warrant the grant of planning permission for development which would harm veteran trees.
iii) Ground 4: Breach of the requirement in Council Directive 92/43/EEC (“the Habitats Directive”), and the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations 2017”), that an Appropriate Assessment be prepared to consider the impacts on the European designated Special Area of Conservation (“SAC”).
In response, the Council and IP1 submitted that:
i) Ground 2. The reasons given for the decision to grant planning permission on 10 May 2018 met the required standard, when read together with the transcript of the Panel's meeting, and the conditions and section 106 agreement.
ii) Ground 3. Since the proposed development, properly implemented in accordance with the planning conditions and the section 106 TCPA 1990 agreement, would avoid harm to aged and veteran trees, neither paragraph 118 of the 2012 edition of the Framework, nor paragraph 175 of the July 2018 edition of the Framework applied, and so were not material considerations for the Council to consider.
iii) If, contrary to this submission, the Council did conclude that the proposed development could harm aged and veteran trees, Mr Ormondroyd accepted at the hearing that, in light of the relevant authorities, the Council ought to have re-considered its decision, after the more stringent policy on the protection of trees was introduced in the July 2018 edition of the Framework, before granting planning permission in April 2019.
iv) Mr Litton QC submitted that, even if the July 2018 edition of the Framework was a material consideration, section 31(2A) of the Senior Courts Act 1981 applied, and relief should be refused because it was highly likely that the outcome would not have been substantially different if the conduct complained of had not occurred.
v) Ground 4. Both the Council and IP1 conceded that an Appropriate Assessment was required, pursuant to the Habitats Directive and the Habitat Regulations 2017. Mr Ormondroyd submitted that, in substance, the OR amounted to an Appropriate Assessment. Both counsel submitted that section 31(2A) of the Senior Courts Act 1981 applied, and relief should be refused because it was highly likely that the outcome would not have been substantially different if the conduct complained of had not occurred.
Planning history
The application for planning permission
The Resort is situated within the Green Belt, and it is surrounded by undeveloped land, including woodland and parkland.
On 6 June 2017, IP1 applied for planning permission for the proposed development. In a hybrid application, IP1 applied for full planning permission for four projects (projects 1–4) and outline planning permission for an additional four projects (projects 5–8). The projects of direct relevance to this claim are:
i) Project 1: the erection of 65 permanent semi-detached lodges (130 units) and 20 ‘barrels’ with associated amenity facilities block to provide visitor accommodation, a central facilities ‘hub’ building, sustainable drainage system (“SUDS”) ponds, landscaping works (including equipped play areas) and associated infrastructure works (‘Phase 1’ of the holiday village);
ii) Project 2: Reconfiguration of car parking and internal accesses and associated engineering/infrastructure works;
iii) Project 8: Erection of up to 300 units of visitor accommodation (Phases 2 and 3 of the holiday village) with two associated central facilities ‘hub’ buildings, SUDS ponds, landscaping, infrastructure works and car parking area.
The development site for the holiday village extends beyond the existing Resort, into an area currently occupied by St Leonard's Farm, and open countryside. The development site includes significant and veteran trees.
The development site is bordered on three sides by the Windsor Forest and Great Park Site of Special Scientific Interest (“SSSI”) and SAC. The primary habitat reason for the SAC designation is the old acidophilous oak woods. It has the largest number of veteran oaks in Britain and probably in Europe. The High Standinghill Woods Ancient Woodland SSSI lies to the south of the development site, and the Holliday's Plain Ancient Woodland SSSI lies on the north side.
Prior to the application being submitted, IP1 submitted a scoping request to the Defendant and, on 5 April 2017, the Defendant adopted a scoping opinion. In relation to ecology and nature conservation, the Scoping Opinion stated:
“The proposed development is adjacent to Windsor Forest and Great Park Special Area of Conservation (SAC) and Site of Special Scientific Interest (SSSI). The EIA should assess the direct and indirect impacts on this internationally designated site during the construction and operational phases of development. This should include the effects of air, water and soil pollution, increased water run off into the site, increased recreational pressure and light pollution. The EIA should address the impacts of the proposed development on the qualifying features of the SAC/SSSI including but not limited to the habitats, invertebrate assemblage, birds and populations of violet click beetle.
…
The EIA should include mitigation measures to prevent and/or reduce the adverse effects on these designated sites and where possible provide measures.”
The Defendant consulted Natural England (“NE”) as statutory consultees concerning the need to undertake an appropriate assessment under the Conservation of Habitats and Species Regulations 2010 (“the Habitat Regulations”). In its response dated 23 February 2017, NE said:
“Statutory nature conservation sites – no objection
Natural England has assessed this application using the Impact Risk Zones data (IRZs). Natural England advises your authority that the proposal, if undertaken in strict accordance with the details submitted, it is not likely to have a significant effect on the interest features for which Windsor Forest & Great Park SAC has been classified. Natural England therefore advises that your Authority is not required to undertake an Appropriate Assessment to assess the implications of this proposal on the site's conservation objectives.”
As the proposed development came within the scope of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, IP1 submitted an Environmental Statement (“ES”) with the application for planning permission.
The ES addressed the potential impact of the proposed development on nature conservation and biodiversity, and proposed mitigation measures to reduce or avoid adverse impacts, both during construction and operation.
Chapter C: Site & Scheme Description described the Legoland Resort as being:
“C2.2 … surrounded to the north (in part), the south, the east and west by undeveloped land including woodland and parkland. The LEGOLAND Resort is surrounded by the Windsor Forest and Great Park (SAC) and the Windsor Forest and Great Park (SSSI) to the west, south and east of the site.”
Table E5.1 Chapter E: Ecology and Nature Conservation, identified the potential effects during construction on a variety of receptors before mitigation. As regards the SAC, it assessed the potential impact prior to mitigation as an “Adverse impact at UK level”. Paragraph E5.2 stated:
“The designated sites, being so...
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