Friends of the West Oxfordshire Cotswolds, R (on the application of) v West Oxfordshire District Council

A local planning authority cannot use an application to discharge conditions to vary a requirement imposed by the planning permission. Planning conditions must be construed objectively in the context of the permission as a whole. Where approved plans require a specified buffer or protective measure, the authority must require compliance with that requirement unless the condition permits variation. Substantial compliance is insufficient where the condition requires compliance. A decision founded on a material misunderstanding of a statutory consultee’s response is unlawful. In judicial review, post-decision witness evidence may be admitted, but it must be treated with caution where it contradicts contemporaneous records or fills a reasoning vacuum.

The claimant challenged the defendant local planning authority’s approval of plans discharging conditions attached to permission for residential and supported-living development near ancient woodland. The permission and approved plans required a five-metre woodland buffer and tree-protection measures. The later plans showed that the buffer could not be achieved at three points, and the tree-protection plan was based on inaccurate boundary information.

The claimant alleged that the authority had unlawfully varied the conditions, misunderstood Natural England’s consultation response, acted irrationally, and approved a non-compliant tree-protection scheme. The authority maintained that the discrepancies were minor matters of planning judgment.

1. Post-decision evidence. The court admitted witness statements from the authority’s officers, but treated them with considerable caution. The principles summarised in R (United Trade Action Group) v TfL [2021] EWCA Civ 1197 require caution where later evidence adds to or contradicts the contemporaneous reasons, particularly where it fills a reasoning vacuum.
2. Construction of condition 8. Applying the objective approach stated in DB Symmetry Ltd v Swindon Borough Council [2022] UKSC 33, condition 8 required the approved works and maintenance to provide the five-metre buffer shown in the approved plans. It gave officers no power to reduce the buffer on an application to discharge the condition. The approval was therefore inconsistent with the planning permission. Finney v Welsh Ministers [2019] EWCA Civ 1868 concerned a different statutory power, but supported the principle that a condition cannot lawfully alter what the permission authorises.
3. Natural England’s advice. The authority materially misunderstood Natural England’s response by treating it as an absence of objection. Natural England had advised the authority to obtain sufficient information to assess the impact on ancient woodland. The authority failed to obtain further information after two additional encroachments were identified, including one involving loss of the entire buffer width. Ground 3A succeeded.
4. Condition 13. The tree-protection scheme was based on plans predating the boundary discrepancies. Condition 13 required compliance with the relevant BS5837:2012 requirements, not substantial compliance. Ground 4 succeeded.
5. Relief. The claim was not academic, despite a later section 73 application. The court was not required to refuse relief under section 31(2A) of the Senior Courts Act 1981, since it was not highly likely that the outcome would have been substantially the same. The challenged decisions were quashed and remitted for redetermination.