R (oao) Friends of the West Oxfordshire Cotswolds v West Oxfordshire District Council
| Jurisdiction | England & Wales |
| Judge | Jarman |
| Judgment Date | 20 April 2023 |
| Neutral Citation | [2023] EWHC 901 (Admin) |
| Docket Number | Case No: CO/3427/2022 |
| Court | King's Bench Division (Administrative Court) |
and
[2023] EWHC 901 (Admin)
HIS HONOUR JUDGE Jarman KC
Sitting as a judge of the High Court
Case No: CO/3427/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Ben Fullbrook (instructed by Leigh Day) for the claimant
Ms Kate Olley (instructed by Legal Services of the defendant)
The interested party did not appear and was not represented
Hearing dates: 30 March 2023
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and released to the National Archives for publication. The date and time for hand-down is deemed to be 10:30am on the 20 April 2023.
HHJ Jarman KC:
Introduction
By a decision dated 20 January 2020, the defendant as local planning authority (the 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 (the developer). To the west of that land is an ancient woodland known as Rushy Bank. With the application was submitted ecological assessments and biodiversity management plans showing a proposed 5 meter 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 a number of conditions including those requiring the approval of plans and schemes to protect these habitats and the trees and understorey.
The developer then sought approval of such plans, which the authority gave on 10 August 2022 and discharged such conditions. This was despite that fact that the plans approved showed that the 5 meter buffer could not be achieved at three points along the boundary. The claimant seeks to challenge that decision on four grounds, but the essence of each relates to the approval of plans without the full 5 meter buffer zone in places, notwithstanding that being originally required by condition. The essence of the authority's case in resisting the challenge is that the loss of the buffers zone at these points is very small and that it was a matter of planning judgment of its officers to discharge the conditions on this basis.
The process of how that change came about is not well documented. The authority seeks to elucidate on the documents by relying on witness statements of two of its officers: Philip Shaw, its business manager for development and sustainability who was the case officer in the application for planning permission; and Abbey Fettes, its development manager, who was the case officer in the application to discharge conditions. The claimant submits that these contradict the contemporaneous documents or seek to fill a vacuum in them, and so the statements should not be admitted, or if they are, should be accorded little weight. I shall have to return to that issue.
Policy background
What I propose to do first is to set out the uncontentious background. The importance of ancient woodland and its habitats are well recognised in policy and guidance. The National Planning Policy Framework (NPPF) provides at paragraph 180 c) states:
“… development resulting in the loss or deterioration of irreplaceable habitats such as ancient woodland and ancient or veteran trees should be refused unless there are wholly exceptional reasons and a suitable compensation strategy exists.”
In a footnote to that sub paragraph examples of such exceptional reasons are given as infrastructure programme projects, including nationally significant infrastructure projects where the public benefits would clearly outweigh the loss or deterioration of habitat.
The authority's adopted local plan, The West Oxfordshire Local Plan 2013, at paragraph 8.9 seeks to protect such woodlands as follows;
“As an example of irreplaceable habitat, ancient woodland, in particular, need special care with buffers of additional planting of native trees of at least 15 metres between woodland and development.”
In requiring such a buffer the local plan follows Standing Advice on Ancient Woodland 2012 of Natural England (NE). The Forestry Commission has similar standing guidance. The former states:
“For ancient woodlands, the proposal should have a buffer zone of at least 15 metres from the boundary of the woodland to avoid root damage (known as the root protection area). Where assessment shows other impacts are likely to extend beyond this distance, the proposal is likely to need a larger buffer zone”
However, the advice makes it clear, as set out below, that specific advice on particular applications will not usually be given and that it is for local planning authorities to apply the relevant policies, except in given cases or exceptional circumstances, which do not apply here:
“You should take this advice into account when making planning decisions that affect ancient woodland, ancient trees or veteran trees. Natural England and the Forestry Commission will only provide specific advice on planning applications as set out in the ‘when to contact’ sections, or in exceptional circumstances.”
Factual background
The application for permission was supported by an ecological assessment and biodiversity management plan which stated that a 5 meter buffer must be provided between the proposed development and the ancient woodland. A landscape masterplan showing such a buffer was also submitted. The authority consulted its ecological consultant on the application, who advised that if all the recommendations contained in those documents could be fully implemented then the proposed development would be acceptable in ecological terms. In order to secure this, the consultant recommended the imposition of a condition, which was subsequently imposed on the permission as condition 8.
The authority also consulted NE as a statutory consultee. In relation to statutory nature conservation sites, and the ancient woodland in question does not fall within such as site, NE stated that it had no objection. In relation to other sites, NE's response said this, in line with its standing advice:
“Other advice
We would expect the Local Planning Authority ( LPA) to assess and consider the other possible impacts resulting from this proposal on the following when determining this application: ..
local sites (biodiversity and geodiversity)
local landscape character
local or national biodiversity priority habitats and species.
Natural England does not hold locally specific information relating to the above. These remain material considerations in the determination of this planning application and we recommend that you seek further information from the appropriate bodies (which may include the local records centre, your local wildlife trust, local geoconservation group or other recording society and a local landscape characterisation document in order to ensure the LPA has sufficient information to fully understand the impact of the proposal before it determines the application.”
The ancient woodland comes within the category of local priority habitats, and accordingly the advice from NE was that the authority should seek further information to ensure that it had sufficient information to understand fully the impact of the proposal before it determined the application. Mr Shaw in his report to the planning sub-committee did not relay this part of the advice, but simply stated that NE had no objection. However, as stated above, the authority did engage ecological consultants.
There was and is no challenge in the present case as to why those policies and that advice was not followed in this case, and it is not clear why they were not. Mr Shaw made no mention of it in his report to the planning sub-committee which considered the application for planning permission. The minutes of the meeting show that there was some discussion about the buffer zone, but not about why it was 5 meters instead of 15 meters wide. Although there is no challenge in this respect, in my judgment, the fact that the buffer zone in the permission is only one third of the distance set out in policy and guidance serves to underline the importance of the buffer zone which was required in the permission.
The application was approved and permission granted, subject to conditions. The first condition was the usual one that the development must be commenced within three years, that is by 20 January 2023.
Condition 8 provides as follows;
“Before any works begin on site a construction management plan must be submitted for approval as per the recommendations in the submitted Phase 2: Great Crested Newts Report (Earth Ecology), Ecological Assessment Final & Biodiversity Management Plan Final (Wychwood Biodiversity Aug 15) as well as a ten year Ecological Management plan based on the Biodiversity Management Plan Final (August 15) which provides further detail to show who will be responsible for carrying out the proposed works including all monitoring work, details and the mechanisms to ensure the success of the proposed buffer zones and enhancements must be submitted for approval to the LPA. Once approved all the works must be carried out as per approved Construction Management Plan and the Ecological Management Plan and thereafter permanently maintained.”
Composite plans were submitted to the council pursuant to that condition and approved. These expressly referred to the buffer zone of 5 meters along the western...
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