The King (on the application of Friends of the West Oxfordshire Cotswolds) v West Oxfordshire District Council

Hearing dates: 16 and 18 January 2024

Approved Judgment

Introduction

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”.

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.

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

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.

The context for the challenge to the Section 73 Permission is the following sequence of events since January 2020.

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.

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”).

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.

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.

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

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.

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).

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 importance of the Standing Advice was re-iterated by Natural England in its consultation response to the Original Application.

Officer Report for Original Application: 22 November 2017

The Officer Report for the Original Application dated 22 November 2017 prepared by Mr Philip Shaw, development manager for the Defendant, states as follows:

“1. ORIGINAL/PREVOUSLY REPORTED CONSULTATION

…

1.3 Cotswolds Conservation Board

The Board has considered the amended new application but maintain their objection to this development on the basis it is considered to be beyond the settlement and harmful to the landscape/AONB.

…

5. PLANNING ASSESSMENT

…

5.29 Having regard to paragraph 115 of the NPPF it is considered that there would be undue harm to the landscape and scenic beauty of the AONB. If Members consider that the proposals are major development paragraph 116 of the NPPF requires that planning permission for major development in the AONB is refused except in exceptional circumstances and where it can be demonstrated that they are in the public interest. The test has three components which are assessed as follows:

…

3) Any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated.

…

Officers acknowledge that some harm would arise in landscape terms, but this harm is in the context of the site being effectively contained by established development, landform and woodland. The harm can to a large extent be mitigated and moderated by the proposed design and effective landscaping. The residual harm will need to be considered against the benefits of the scheme to see whether ‘exceptional circumstances’ have been established such that the scheme is in the public interest despite the great weight given to the residual harm. This question is addressed in the conclusion.”

( emphasis added)

The Planning Sub-Committee meeting: 4 December 2017

At the meeting of 4 December 2017 the Defendant's Uplands Area Planning Sub-Committee considered the Original Application. The minutes of the meeting record, inter alia, as follows:

“The Development Manager [Mr Shaw] noted that the objections submitted by the Cotswolds Conservation Board had been available in full on the Council's website and had been received by Members from elsewhere.

…

Mr Haine [Councillor and Chairman of the Sub-Committee] noted that, whilst there was significant support for the application, there had also been a lot of local opposition. He was concerned that the grant of consent could set an unwelcome precedent for further development that would be harmful to the Area of Outstanding Natural Beauty, nearby listed buildings and the surrounding landscape.

…

Mr Beaney [Councillor] believed that the security of the buffer zone should be strengthened, perhaps by way of land ownership and, whilst recognising the need to construct the housing prior to the dementia care facility, wish to see greater certainty that the proposed dementia care unit would be delivered rather than a general care home.

…

Mr Cotterill [Councillor and Vice-Chairman] expressed his support for the application, suggesting that condition 12 should be...