Town and country planning – Planning permission – Material factors – Respondent local authority granting planning permission for road bridge over railway line – High Court dismissing appellant’s claim for judicial review – Appellant appealing – Whether judge erring in law – Appeal allowed
In 2019, Tewkesbury was awarded Garden Town status for potential development for up to 10,195 homes, 100 ha of employment land and related infrastructure. A masterplan contemplated that the development of the garden town would be delivered in phases. Phase 1 concerned an area to the north of Ashchurch, Tewkesbury, which straddled the Bristol to Birmingham railway line.
The appellant parish council appealed against a decision of the High Court dismissing its claim for judicial review of the decision of the respondent local planning authority to grant planning permission for development of a road bridge over the Bristol to Birmingham mainline railway, as part of phase 1: [2022] EWHC 16 (Admin).
The construction of the bridge was an essential prerequisite to the delivery of any housing development in the phase 1 area and the sole purpose of its construction was to facilitate such development.
The appellant contended that the judge erred: (i) in his interpretation of the officer’s report which advised the planning committee to take into account the public benefits of the development facilitated by the bridge but directed them to leave out of account concomitant harms; (ii) in his application of the principle in R (Samuel Smith Old Brewery) v North Yorkshire County Council [2020] UKSC 3, [2020] EGLR 13; and (iii) in his consideration of whether the respondent unlawfully considered that the “project” for the purposes of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 was the subject-matter of the planning application, ie, the bridge, looked at in isolation.
Held: The appeal was allowed.
(1) A planning officer’s report served two main purposes: providing information to the decision maker and making a recommendation as to how they should deal with the planning application. It was not to be construed as if it were a statute, but approached from the perspective of how it would be understood by those for whose benefit it was prepared, and read with reasonable benevolence. The planning officer was likely to express personal opinions but the decision maker was not bound to agree with those views. They were free to accept or reject the recommendation made; but if they accepted it, without expressing any further reasons, they would be taken to have adopted the reasoning in the officer’s report: R (Mansell) v Tonbridge & Malling Borough Council [2017] EWCA Civ 1314; [2019] PTSR 1452 considered.
It was clear from reading the officer’s report as a whole that its author worked on the premise that the construction of a bridge facilitating phase 1 of the masterplan was a good thing, because achieving phase 1 was a desirable objective. The officer’s report rightly recognised that the public benefit to be gained by building the bridge was something different from the benefit(s) flowing from building it now. The judge was wrong to conclude otherwise.
(2) On a fair reading of the officer’s report, the planning officer placed substantial weight on the contingent benefits that, in his assessment, would accrue from the development in phase 1 and 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 had to leave out of account entirely any possible harms.
On an appropriately benevolent reading of the report as a whole, the planning officer in substance 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.
The judge erred in considering that the principle in Samuel Smith (that whether a factor was material or not was for the decision maker) was applicable, because that principle arose when the decision-maker had itself determined whether a factor was material or not, and thereby exercised an unfettered discretion to leave something out of consideration. In the present case, the committee’s discretion had been fettered. The decision maker could not rationally treat the benefits of the development facilitated by the bridge as material without also treating the harms as material. The direction by the planning officer could equally be characterised as a misdirection in law.
(3) As a general principle, if an environment impact assessment (EIA) was required it should be carried out as early as possible. “Project” was defined in article 1 of the EIA Directive as “the execution of construction works or of other installations or schemes” and “other interventions in the natural surroundings and landscapes”. The term had to be understood “broadly, and realistically”: R (Larkfleet) v South Kesteven District Council [2015] EWCA Civ 887; [2015] PLSCS 248; [2016] Env LR 4 and R (Finch) v Surrey County Council [2022] EWCA Civ 187; [2022] EGLR 18 considered.
The identification of the “project” was based on a fact-specific inquiry. If a particular kind of project was, by its very nature, not fixed at the outset, but was expected to evolve over a number of years, there was no reason why a “description of the project” for the purposes of the Directive should not recognise that reality. The Directive was not intended to prevent the development of some projects because, by their very nature, full knowledge was not available at the outset: R (Wingfield) v Canterbury City Council and another [2019] EWHC 1975 (Admin), [2020] JPL 154 and R v Rochdale Metropolitan Borough Council ex parte Milne [2001] Env LR 22 considered.
(4) In the present case, the respondent’s committee did not take a legally correct approach to the decision whether an EIA assessment was required. They never asked themselves the right questions. If and insofar as they justified treating the bridge as a stand-alone project by reference to: (i) the difficulty of assessing the environmental impacts of the wider project; (ii) the fact that the masterplan had no formal planning status; or (iii) the fact that EIA assessments would be carried out in future as and when phase 1, or other aspects of it, become the subject of planning applications, they fell into error.
Paul Brown KC and Leon Glenister (instructed by Richard Buxton Solicitors) appeared for the appellant; James Pereira KC and Horatio Waller (instructed by One Legal) appeared for the respondent.
Eileen O’Grady, barrister