Hudson, R (On the Application Of) v Legoland Windsor Park Ltd & Ors

In judicial review of a planning permission, the court reviews legality rather than planning merits. A planning committee which grants permission against officers’ recommendation may owe a common-law duty to give express, intelligible reasons, particularly where the proposal involves Green Belt development and significant environmental harm. A later change in national policy requires reconsideration only if it might materially have affected the authority’s deliberations. An appropriate assessment under article 6(3) of the Habitats Directive must be undertaken by the competent authority before consent is granted. Developer reports and consultee advice do not, without more, constitute that assessment. Nevertheless, relief may be withheld under section 31(2A) of the Senior Courts Act 1981 where it is highly likely that the outcome would not have been substantially different.

The claimant sought judicial review of the Council’s grant of full and outline planning permission for a holiday village and associated works at the Legoland Windsor Resort. The site was in the Green Belt and included significant and veteran trees. It bordered the Windsor Forest and Great Park Special Area of Conservation and Site of Special Scientific Interest.

The challenge alleged inadequate reasons, failure to reconsider the application after the July 2018 National Planning Policy Framework strengthened protection for veteran trees, and failure to undertake an appropriate assessment of effects on the SAC. The Council and interested parties relied on the officer’s report, consultation material, proposed mitigation, planning conditions and a section 106 agreement.

1. Reasons. The Council was under a common-law duty to give express reasons. The Panel had departed from the officers’ recommendation on a major Green Belt proposal involving veteran trees and protected sites. The resolution, read with the meeting transcript, conditions and section 106 agreement, adequately explained the decision. The Panel’s majority had concluded that the proposed mitigation would avoid harm to significant and veteran trees. Ground 2 therefore failed. As good practice, reasons should ordinarily be set out in the minutes rather than left to a lengthy transcript.
2. Revised tree policy. The July 2018 Framework policy was materially stronger than the 2012 policy. However, reconsideration was required only if the change might have materially affected the Panel’s deliberations. The Council had concluded that the mitigation would avoid harm to veteran trees. Consequently, neither policy applied to the proposal as determined, and the later policy could not have changed the outcome. Ground 3 failed.
3. Appropriate assessment. The proposed development was likely to have a significant effect on the SAC, so an assessment under article 6(3) of the Habitats Directive and regulation 63 of the Habitats Regulations 2017 was required. Regulation 70(3) expressly prohibited the grant of outline planning permission unless the authority was satisfied that no development likely adversely to affect the SAC’s integrity could be carried out. The officer’s report was too brief to constitute an appropriate assessment. The assessment had to be undertaken by the competent authority, not merely by the developer.
4. Ground 4 therefore succeeded. However, applying section 31(2A) of the Senior Courts Act 1981, relief was withheld. The extensive environmental material, Natural England’s eventual acceptance of the mitigation, consultation, and the Panel’s apparent acceptance of the officers’ advice made it highly likely that the outcome would not have been substantially different.

The claim for judicial review was dismissed.