Hudson, R (On the Application Of) v Royal Borough of Windsor and Maidenhead & Ors

A planning permission must be read as a whole. The decision notice, conditions and any agreement expressly incorporated into it may jointly disclose adequate reasons; an interested person cannot isolate the notice from those documents. A court assessing reasons should distinguish an unexplained in-principle approval from a later permission supported by detailed mitigation conditions. A later policy change is material only if it could affect the decision. Where an environmental assessment was omitted, relief may be withheld under the Senior Courts Act 1981, section 31(2A), if the outcome was highly likely not substantially different. The court should examine the seriousness of the breach, public participation and prejudice. The same evidence may satisfy the stricter formulation that the decision would not have been different.

The Council granted planning permission to Legoland for a holiday village and related works. A judicial review challenge alleging inadequate reasons, failure to address veteran trees, failure to account for revised NPPF policy, and failure to undertake an Appropriate Assessment was dismissed by Lang J in the Administrative Court: [2019] EWHC 3505 (Admin). On appeal, the appellant challenged the treatment of conditions and the section 106 agreement, the interpretation of the Panel’s earlier in-principle decision, and the effect of the missing assessment and buffer-zone documents. The central issues were whether the reasons were legally adequate and whether relief should be refused because the planning outcome would have been the same.

Appeal dismissed. Coulson LJ gave the judgment, with King and Carr LJJ agreeing.

1. A planning permission must be considered as a whole. Its conditions and any section 106 agreement expressly incorporated into it are part of the decision and may explain why permission was granted subject to mitigation. Article 35(1)(a) and article 40(4) of the Town and Country Planning (Development Management Procedure) (England) Order 2015/595 supported that approach. The case was distinguishable from Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71, where an unavailable document had been used to fill a reasoning gap in an unexplained in-principle decision.
2. The operative decision was the grant of permission in April 2019, not the earlier unchallenged Panel resolution. The reasons were intelligible and adequate. The documents showed that the Council had reached the binary conclusion that veteran trees would not be harmed if the mitigation conditions were complied with. It was impermissible to invent an alternative conclusion that tree harm had been accepted but balanced against economic benefits. The approach was consistent with South Bucks District Council v Porter [2004] 1 WLR 1953.
3. Ground 4 failed because the revised NPPF policy could not affect a decision based on there being no harm to veteran trees. In any event, the revised paragraph 175 had been expressly addressed in condition 11.
4. The failure to undertake an Appropriate Assessment was accepted. Under section 31(2A) of the Senior Courts Act 1981, relief could be refused if the outcome was highly likely not substantially different. Walton v Scottish Ministers [2012] UKSC 44 and R (Champion) v North Norfolk District Council & Anr [2015] UKSC 52 required consideration of the seriousness of the breach, public participation and prejudice. Altrip [2014] PTSR 311 did not establish an inevitably-same-result test overriding national law. Extensive consultation, Natural England’s involvement and the mitigation evidence showed that the planning outcome would have been unchanged.
5. The planning documents, read constructively, required a 20m buffer from the SSSI/SAC boundary during both construction and operation. The 15m drawing did not displace the Environmental Statement, conditions and CEMP/LEMP requirements. Any indicative encroachment by the SUDS pond had to be redesigned. Ground 5 was therefore rejected.

• Court of Appeal (Civil Division) The appeal against the Administrative Court judgment was dismissed.
• High Court of Justice, Planning Division Lang J dismissed the judicial review claim challenging the planning permission: [2019] EWHC 3505 (Admin).