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Court of Appeal rejects challenge to Legoland planning permission over impact on 'veteran' trees

The Court of Appeal has rejected all five grounds argued by an objector to a holiday village project at the Legoland theme park.

The challenge in Hudson, R (On the Application Of) v Royal Borough of Windsor and Maidenhead & Ors [2021] EWCA Civ 592 was brought by a Mr Hudson, former chairman of the Berkshire branch of the Campaign to Protect Rural England,

He argued that the Royal Borough of Windsor and Maidenhead should not have given permission for the project to Legoland Windsor Park and to Merlin Attractions Operations and Merlin Entertainments.

Lang J rejected Mr Hudson’s application for judicial review, and he advanced five grounds of appeal, four of which concerned ‘veteran’ trees and the extent to which policy relating to such trees was taken into account.

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The fifth ground concerned what was agreed to be a failure by the council to carry out an ‘appropriate assessment’ under the Habitats Directive and the Habitats Regulations 2017 and whether a different decision might have been reached had this occurred.

Lord Justice Coulson, with whom Lady Justice Carr and Lady Justice King agreed, said this ground was complicated by a new legal argument raised by Mr Hudson about the size of the buffer zone around the proposed development to protect the adjoining Windsor Forest and Windsor Great Park.

Lang J had rejected the point about an appropriate assessment concluding that applying s.31(2A) of the Senior Courts Act 1981, it was highly likely that the outcome would not have been substantially different.

“Her reasons for that conclusion were not the subject of any sustained challenge at the appeal hearing,” Coulson LJ said.

“Instead, a new point arose (or more properly, a point rejected by the judge arose again in a different context), argued by reference to emails that were not disclosed until after the judge had given judgment, concerned with the width of the buffer zone.”

This was based on a claim that Natural England had required a buffer zone of 20m during construction, but the permission was for a 15m zone which in turn meant Lang J had been wrong to conclude an assessment would have made no difference to the outcome.

Coulson LJ rejected all four grounds related to trees. On the fifth ground he disagreed with Lang J’s conclusion that the planning permission envisaged the buffer zone would be reduced to 15m during the resort’s operation.

“Having different widths for the two phases makes no sense:,” he said. “If a buffer zone is required…it should be the same size both during construction, and once the construction is completed.

“When taken in the round, therefore, I consider that the documents making up the planning permission indicate a 20m buffer zone for both phases. It therefore follows that I accept [Mr Hudson’s] argument that the planning permission was granted on the basis of a 20m buffer for the operational phase.”

He added that despite vague indications that measurements were unclear, “I am not persuaded that the accuracy of the measurements has anything to do with the absence of an ‘appropriate assessment', or the possible outcome of the planning application if there had been an ‘appropriate assessment’”.

Mark Smulian

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