Permission to bring a legal challenge over a grant of planning permission near the Epping Forest Special Area of Conservation has been rejected. Ashley Bowes explains why.
In R(Jones) v London Borough of Redbridge (CO/3366/2019), Mr Jones challenged the council's decision to grant planning permission for residential development within 3km of the Epping Forest SAC.
After the grant of planning permission but before the permission was implemented, the council required the developer to pay a fee to contribute towards measures to avoid recreational pressure on the SAC, which had been drawn-up by the Epping Forest Conservators and endorsed by Natural England.
The fee was calculated by taking the total financial contribution required to be made by the council towards the cost of implementing avoidance measures, divided by the number of new homes projected to be permitted to 2033. Mr Jones contended that approach was not lawful.
The Judge found that whilst the council were in error not to have conducted an appropriate assessment prior to the grant of planning permission, the challenge was both academic and that the outcome would not have been substantially different for the claimant had it done so. Accordingly, the Judge refused permission to bring judicial review proceedings. That was because the council had sought a contribution towards measures which Natural England had endorsed as avoiding the impact on the SAC and the funding formulae adopted by the council was rational.
Whilst the SAC was designated in 2005, it was not until further research in 2018 revealed that visitors travelled from up to 6.2km to visit the Forest that the scope for additional pressure on the SAC by new residential development was understood. This evidence led a neighbouring authority to Redbridge, Epping Forest Council, to adopt a 'temporary moratorium' on granting planning permission for development likely to have significant effects on the SAC.
Whilst the Judge's decision is only a permission decision, it is likely to give comfort to developers promoting housing within the area affected by the Epping Forest SAC, that councils may lawfully grant planning permission for new residential development, subject to an appropriately calculated financial payment to fund the approved avoidance measures.