Appeal against upheld planning permission for holiday village dismissed

28th May 2021

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Martin Kerlogue

In R. (on the application of Hudson) v Windsor and Maidenhead RBC, the appellant appealed against a decision to uphold the local authority’s grant of planning permission for the construction of a holiday village at the Legoland Windsor Resort.

The resort was situated within the green belt, and the development site was bordered on three sides by a site of special scientific interest and special area of conservation (SAC), which was home to the largest number of veteran oaks in Britain.

The officer’s report for the authority’s panel, recommended that planning permission be refused because the proposal constituted inappropriate development in the green belt, and it had not been adequately shown that the development could be achieved without causing harm to significant trees. Despite this, in 2018 the panel voted to approve the proposal in principle.

In 2019 the authority granted full planning permission subject to conditions for protection of significant/veteran trees, which should be read in conjunction with an agreement under the Town and Country Planning Act 1990 between the authority and interested party. The interested party prepared various plans that had to be approved before work could begin. It was this decision that the appellant had unsuccessfully challenged.

The appellant argued that the judge had erred in concluding that it was permissible to rely on the planning conditions included in the decision notice and the agreement when considering whether the authority gave adequate reasons for its decision; they stated there was no authority for the proposition that, when seeking to understand the reasons for a decision to grant planning permission, an interested member of the public could not look at components of the decision, such as the planning conditions or agreement.

On the contrary, planning conditions were part of the decision itself, and the conditions and agreement were automatically placed on the planning register along with the decision. All relevant material forming part of the 2019 decision was publicly available and contained all an informed member of the public needed to know about why the authority had concluded that the mitigating measures would prevent harm to veteran trees.

The appellant claimed that no reasons had been provided to explain why the panel decided it was possible to avoid harm to veteran trees, and that there was nothing in the transcript of the meeting to show that a majority of the panel members agreed that such harm would be avoided. This argument was regarding the initial 2018 meeting, which was not part of the judicial review. In the 2019 meeting, the panel had concluded that there would be no harm to veteran trees provided that the relevant conditions were complied with. This was expressly stated in the planning permission.

Another argument for the appeal was that the authority had failed to carry out an appropriate assessment of the development’s effect on the SAC under the Conservation of Habitats and Species Regulations 2017. Nevertheless, the judge found that the outcome would not have been substantially different if an appropriate assessment had been undertaken: “In my view, a fair reading of the documents as a whole confirms that the judge’s conclusion was correct.”

There was no argument about the seriousness of the breach, but the public had not been deprived of the opportunity to comment and object. The authority and interested party had discharged the burden of showing that, even if an appropriate assessment had been carried out, the planning application’s outcome would not have been any different. The appeal was dismissed.

Image credit: Shutterstock

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