Campaigners file legal challenge over development near ancient woodland

Campaigners have filed a legal challenge in the High Court over the discharge of conditions to a development near an ancient woodland in the Cotswolds Area of Outstanding Natural Beauty.

Rushy Bank in Charlbury. Photo from: Friends of West Oxfordshire Cotswolds (Taken November 2021)

The development, which was approved subject to a legal agreement in January 2020, involves an application for 37 homes at Rushy Bank in Charlbury.

The final plans stated that a five metre buffer area would be put in place between the houses and the forest to avoid damage to the ancient woodland. This is far less than the 15 metre nature buffer that is specified by Natural England as being the minimum needed to avoid root damage in ancient woodlands, this is mirrored in West Oxfordshire’s own Local Plan for 2011 to 2031.

After Friends of the West Oxfordshire Cotswolds (FOWOC) dug into the plans they discovered that the boundaries were not accurate and in reality no buffer, or just a 1.5 metre buffer, would be put in place in some areas.

FOWOC say they received no response to their findings at first, but the inconsistency was recognised by the developer in a revised planning document, submitted to the council in July 2022. The document was not made public until after FOWOC submitted a pre-action letter to the council on 1 September.

The revised plans were then published and received by the group on 15 September, giving them only five days to issue their claim for a judicial review. This legal challenge was made possible after the group raised £30,000 with support from local and district residents.

According to FOWOC, on the same day as its legal challenge was made, the developer “moved to get a spade in the ground” and started work on the project. 

A FOWOC spokesperson told ENDS: “The start on site should not be deemed an implementation of the planning application if the court rules that the condition was discharged unlawfully. The developer is undertaking work at its own risk at the moment.

“This site does not neighbour any residential development but affects the entire western edge of the town.This is a clear attempt by the landowner and developer to get a foothold on the west of the Evenlode Valley.”

This is not the first time that this planning application has faced obstacles. The plans were first submitted and approved in 2015 but a judge quashed the planning consent after a successful judicial review in 2017. The grounds for this were that the adopted local plan was out of date at the time and the planning team had breached national guidelines by approving the development despite the land being protected as an Area of National Beauty. 

Despite the plans being reapproved in 2020, the approval of certain conditions were refused - such as the design, demolition and construction of trees due to “discrepancies and omissions on the submitted plans and information”, as reported by the Oxford Mail.

A spokesperson from FOWOC described this process as “long and painful”.

Prior to the latest application a clear felling of the woodland was carried out. According to the landowner’s notice: “The poplar trees in this woodland have reached the end of their growing cycle. This area will be replanted with native trees and thorns”.

The protection of ancient woodland comes under the National Planning Policy Framework (last revised in 2021). This states that: “development resulting in the loss or deterioration of irreplaceable habitats (such as ancient woodland and ancient or veteran trees) should be refused, unless there are wholly exceptional reasons and a suitable compensation strategy exists”. The exceptional reasons include “where the public benefit would clearly outweigh the loss or deterioration of habitat”.

Woodland Trust lead campaigner Jack Taylor said: "We are pleased to see local campaigners standing up for their precious local woods and wildlife and would encourage the council to ensure that government guidance and national policy is applied correctly to keep these important habitats safe from harm.

 “A 15 metre buffer is advised through the National Planning Policy Framework to protect roots (which can extend far beyond a tree’s canopy), but also to alleviate the effects of indirect impacts such as disturbance and pollution. It is highly concerning to see that Government guidance has not been followed. This not only puts this ancient woodland at risk but threatens to set a harmful precedent for all of the UK's ancient woods.

“Ancient woodland covers just over 2% of the UK yet is home to more species than any other habitat. It is irreplaceable and any harm must be avoided at all costs. All effort must be made to ensure it thrives as we battle the nature and climates crises.”

A West Oxfordshire District Council spokesperson told ENDS: “With this case going to judicial review it would be inappropriate for us to comment until the conclusion of the review”.