On 26 April 2021, in the case of R (Hudson) v Royal Borough of Windsor and Maidenhead and others [2021] EWHC 698 (Admin), the Court of Appeal considered the correct approach to determining a challenge to a Local Planning Authority’s (LPA) decision to grant planning permission without carrying out an appropriate assessment under the Conservation of Habitats and Species Regulations 2017, also known as a Habitats Regulations Assessment (HRA).
Facts
The appellant, Mr Hudson, appealed against the High Court’s decision to uphold the grant of planning permission by the respondent LPA, the Royal Borough of Windsor and Maidenhead, to the first interested party, Legoland Windsor Park Ltd, for the construction of a holiday village at the Legoland Windsor Resort. The resort is situated within the green belt and the development site is bordered on three sides by a Special Area of Conservation (SAC) and site of Special Scientific Interest (SSSI), principally due to old oak wood habitat with the largest number of veteran oaks in Britain.
The LPA officer’s report recommended that planning permission be refused as inappropriate development in the green belt, and because Legoland had not adequately shown that the development could be achieved without causing harm to veteran trees. However, in 2018, the LPA approved the proposal in principle and, in 2019, granted full planning permission subject to detailed conditions that made detailed provision for the protection of significant and veteran trees. The planning notice issued by the LPA in 2019 expressly said that it should be read in conjunction with an agreement under section 106 of the Town and Country Planning Act 1990 (section 106 agreement) between the LPA and Legoland, requiring Legoland to prepare various plans that had to be approved before any works could start.
The appellant unsuccessfully challenged the LPA’s 2019 decision to grant planning permission in the High Court and appealed to the Court of Appeal.
Decision
The appellant argued that the High Court had erred in concluding that it was allowed to rely on the planning conditions included in the decision notice and the section 106 agreement when considering whether the LPA had given adequate reasons for its decision. The Court of Appeal considered that, when seeking to understand the reasons for a decision to grant planning permission, an interested member of the public could look at component parts of the decision, such as the planning conditions or the section 106 agreement, which were expressly to be read in conjunction with the planning decision. The Court of Appeal further considered that 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.
The Court of Appeal held that understanding the reasons for a decision to grant planning permission inevitably required a consideration of a good deal of material. It added that this can be distinguished from the sort of “paperchase” referred to in Oakley v South Cambridgeshire DC [2017] EWCA Civ 71, in which an attempt was made to fill the hole created by the failure to explain a decision in principle by referring to documents that had not been made publicly available. In this case, all of the relevant material forming part of the planning decision in 2019 was publicly available and it contained everything that an informed member of the public needed to know about why the LPA had concluded that the mitigating measures would prevent any harm to veteran trees.
The appellant submitted that no reasons had been provided to explain why the LPA decided that it was possible to avoid harm to veteran trees and there was nothing in the transcript of the LPA’s panel meeting to show that a majority of the panel members were of the view that such harm would be avoided and the reasons appeared to relate to the panel meeting in 2018. The Court of Appeal noted it had to be cautious when considering an attack on a decision to grant planning permission by reference to a much earlier decision that was not the subject of judicial review. The Court of Appeal held that the only fair reading of the 2019 decision was that the panel had concluded that there would be no harm to veteran trees provided that the relevant conditions were complied with and the planning permission expressly said that.
Absence of an appropriate assessment
The LPA had failed to carry out an HRA of the effect of the development on the SAC. Applying the test under section 31(2A) of the Senior Courts Act 1981, the High Court found that the outcome would not have been “substantially different” if an HRA had been undertaken. The appellant argued that section 31(2A) did not apply because the failure arose from obligations imposed by EU law. The test under EU law, in Gemeinde Altrip v Land Rheinland-Pfalz (Case C-72/12) was whether the decision would not have been different. The EU court in Altrip stressed that it was ultimately a matter for national law.
The Court of Appeal concluded that the test for whether judicial review under section 31(2A) of the Senior Courts Act 1981 was not different in practice from that formulated for appropriate assessments in Gemeinde Altrip v Land Rheinland-Pfalz (Case C-72/12). The former test is whether the outcome would have been substantially different if the HRA had been undertaken. The latter test is whether the planning decision would not have been different. What mattered in each case was the seriousness of the breach and whether the failure deprived the public of a proper opportunity to comment upon, and object to, the proposals and thereby caused prejudice.
