2023 Feb 07
Tewkesbury and its surrounding area was awarded Garden Town status for a potential development including up to 10,195 new homes, based on a Draft Concept Masterplan Report which set out potential largescale development. The defendant local authority, as developer, sought planning permission for the development of a road bridge over a mainline railway, the sole purpose of which was to enable the delivery of the proposed housing development. The application was made and granted for the bridge alone because the local authority wished to avail itself of government funding which was only available for a limited period. No permission was sought for the roads which would inevitably serve as a connection to the existing highway network, nor for any development arising from Phase 1 of the Masterplan. Prior to making the application for planning permission, the local authority had commissioned an Environmental Impact Assessment Screening Report, for the purpose of determining whether an Environmental Impact Assessment (“EIA”) was required under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (“the EIA Regulations”). The screening report treated the bridge as a stand-alone “project”, to be considered independently from any environmental assessment of the highway and residential elements of the development that it was envisaged the bridge would facilitate. It noted that an assessment of those elements would be carried out in future, as and when it was envisaged that any development would be implemented. The screening report recognised that the bridge was Schedule 2 development under the EIA Regulations, but concluded that, looked at in isolation, it was not likely to have significant effects on the environment and it was therefore unnecessary to carry out an EIA. The local authority issued its screening opinion to that effect, adopting the conclusions of the screening report. Planning permission was subsequently grated. The claimant brought a claim for judicial review of that decision, submitting that the planning committee had acted irrationally by taking into account the benefits of the wider development that the bridge would facilitate, but not considering the harms, because the benefits could not be realised without the harms. The judge dismissed the claim, holding, inter alia, that on the basis of an appropriately benevolent reading of the planning officer’s report to the committee, the benefits that were being considered were not the benefits of any future development that the bridge was enabling, but rather, the benefits of granting permission for the construction of the bridge at that time, instead of waiting for proposals for the wider development to be brought forward. The claimant appealed on the grounds that the judge (1) erred in his interpretation of the planning officer’s report to the planning committee which informed its decision, which advised the planning committee to take into account as material the public benefits of the development facilitated by the bridge but directed them to leave out of account the concomitant harms; and (2) erred in his consideration of whether the defendant local authority unlawfully considered that the “project” for the purposes of the EIA Regulations was the subject-matter of the planning application, ie the bridge, looked at in isolation and in finding that the development of the bridge and its supporting infrastructure for which permission was sought and granted was a single project for the purpose of the EIA Regulations, given that the bridge had no purpose of its own but was to be built solely to serve future development.
On the appeal—
Held, appeal allowed. (1) The judge had misinterpreted the officer’s report when finding that the benefits that were being considered were not those of any future development that the bridge was enabling, but rather, the benefits of granting permission for the construction of the bridge at that time. The public benefits identified in the planning officer’s report were not confined to the benefits of allowing the bridge to be built at that current time in advance of the rest of the development so as to allow potential future development to be planned and delivered in a timely way, or, keeping the planning options open. They included the benefits to be achieved by constructing the bridge at all. The benefits (i) of a form of development and (ii) of enabling or facilitating such development were inextricably linked. It could not rationally be concluded that it was beneficial to facilitate or enable a development to be carried out in future (especially when the means of facilitation served no useful purpose in itself) without forming the view that the putative development was in principle desirable. That in turn involved considering, even at a very high level, whether the benefits of the envisaged development outweighed the harms it was likely to cause. The planning officer placed substantial weight on the contingent benefits that, in his assessment, would accrue from the development in Phase 1, and he invited the committee to do the same. His overall approach was to invite the Committee to attribute substantial or significant weight to the prospective benefits of the wider development whilst directing them that they must leave out of account entirely any possible harms. Whilst it was open to the decision maker to treat the prospective benefits of the wider development as material factors, it was irrational to do so without taking account of any adverse impact that the envisaged development might have, to the extent that it was possible to do so, which it was, albeit at a high level. The two went hand in hand. The planning officer in substance had directed the members of the planning committee that they could not or must not take account of the harms of the proposed development that the bridge would facilitate. That went beyond mere advice or the expression of a personal view about relevance. Those harms were at least potentially relevant: materiality was a matter for the committee to determine, and they were told that they must not consider something to be material which they might otherwise have regarded as material. The decision-maker could not rationally treat the benefits of the development facilitated by the bridge as material without also treating the harms of the development as material (paras 44, 52–58, 63–64, 67–69, 106, 107).
(2) Where the specific development for which permission had been sought clearly formed an integral part of an envisaged wider future development, without which the original development would never take place, it could not be said that there could only be a single “project” for the purposes of the EIA Regulations if the contemplated wider development had reached the stage where an application had been made or could be made for planning permission. The question of whether the application was part of a larger project could still be answered even if planning permission had not yet been sought for the larger project or the details of the larger project had not been finalised. Insofar as the author of the screening opinion, and the development manager, had decided that the relevant “project” had to be confined to the bridge because any future contemplated development could not be robustly assessed at the time of the screening decision, they had fallen into error by conflating two separate inquiries, namely, “what was the project?” and “what were the environmental impacts of that project?”. The difficulty of carrying out any assessment of the impacts of a larger project which was lacking in detail, was a matter which was separate from and irrelevant to the question whether the application under consideration formed an integral part of that larger project. The local authority had not concluded that it was impossible to carry out any assessment and it was possible to provide some high level estimate of the likely effects on traffic. There were cogent justifications provided for hiving off and accelerating the application for the bridge, which had nothing to do with a wish to avoid the impacts of a full EIA assessment. But it did not follow from the fact that the application for the bridge was hived off in that way that its relationship to Phase 1 of the Masterplan, which provided the sole underlying justification for its existence, could be lawfully ignored when deciding on the identity of the “project”. The question was whether, on an objective analysis of the facts, the “project” for the purpose of the EIA Regulations would be too narrowly confined if the screening authority looked at the subject of the application in isolation, with the upshot that the environmental impact of the wider project would be looked at piecemeal instead of as a whole. There could be no Phase 1 development without the bridge, and the bridge served no purpose in the absence of the Phase 1 development, none of that information was taken into consideration when determining the identity of the “project” for screening purposes. The judge never addressed those objections, which were well-founded. The defendant local authority did not take a legally correct approach to the decision whether an EIA assessment was required and they did not ask themselves the right questions. Accordingly, the decision of the planning committee would be quashed and the application remitted for reconsideration (paras 88–99, 104–105, 106, 107).
Paul Brown KC and Leon Glenister (instructed by Richard Buxton Solicitors, Cambridge) for the claimant.
James Pereira KC and Horatio Waller (instructed by One Legal) for the local planning authority.