Town and country planning – Planning permission – Access scheme – Defendant local authority granting outline planning permission for development – All matters reserved apart from access – Claimants applying for judicial review – Whether defendant failing to assess impact of access scheme on existing residents – Whether planning officer giving materially misleading advice to planning committee – Application granted
The defendant local authority granted to the first interested party outline planning permission for the demolition of existing buildings and structures, and the phased development of up to 350 dwellings at St Bridget Nursery, Old Rydon Lane, Exeter, Devon. All matters were reserved, apart from access.
The first claimant jointly owned and resided at Newcourt Lodge, Old Rydon Lane. The second claimant partnership conducted its property management and farming business from Sandy Park Farm, Old Rydon Lane. The partnership had beneficial ownership of land to the northeast of the site. It would potentially form part of the alternative access to and from the site as envisaged in the defendant’s masterplan.
In granting planning permission, the defendant approved the first interested party’s proposed access scheme which included restrictions on vehicular use of the lane and prevented the first claimant from turning left out of her drive and traffic to the proposed development from travelling along the lane.
The defendant relied on the consultation response from the second interested party highways authority, which assessed the access scheme and did not object.
The claimants applied for judicial review contending, amongst other things, that: (i) the defendant failed to assess the impact of the access scheme on existing residents; and (ii) the planning officer gave materially misleading advice to the planning committee on the feasibility of the access scheme; and (iii) failed to discharge its Tameside duty to investigate whether the northeast land was available for sale, and on what terms.
Held: The application was granted.
(1) The effect of the access scheme on existing residents was a matter to which the defendant had to have regard under the development plan, and it was an obviously material consideration. The defendant ought to have appraised and assessed the likely impacts of the access scheme on the first claimant and other residents in the lane and weighed them in the planning balance, but it failed to do so: R (Friends of the Earth Ltd and others) v Heathrow Airport Ltd [2020] UKSC 52; [2021] EGLR 5 considered.
The second interested party failed to discharge its statutory duty under section 122 of the Road Traffic Regulation Act 1984 to have regard to the desirability of securing and maintaining reasonable access to premises and expeditious and convenient movement of traffic. That statutory duty prompted questions as to the amenity of those whose accesses were affected, particularly as to the convenience of such use of the remaining public highway. It also prompted questions as to the effects on locational sustainability.
The first interested party’s transport assessment was inadequate because it did not assess the effects of its access scheme on existing residents. Given the absence of advice on its impact, the defendant ought to have discharged its Tameside duty to investigate the likely impacts of the access scheme on the first claimant and other residents in the lane before making its decision.
(2) The officer’s report failed to grapple with the impacts of the proposed access scheme, and failed to give any adequate reasons as to why such impacts were acceptable. The officer’s report was, therefore, materially misleading by omission.
Although this was an application for outline planning permission, the first interested party also applied for the highway access scheme for the proposed development to be determined at this stage. It was not a reserved matter to be determined at a later date. The defendant was required by section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004, to have regard to the provisions of the development plan which expressly required the defendant to have regard to detriment to local amenity and the safety and convenience of the local and trunk road network.
Furthermore, the availability of highway access to and from the homes of existing residents, particularly any loss of amenity, was obviously a material consideration, applying the principles in Friends of the Earth Ltd. However, the planning officer failed to assess those matters in the officer’s report or weigh them in the planning balance.
(3) In the event, neither of the two officer’s reports to the planning committee addressed the impact of the proposed access scheme on those who presently used the lane for access to and from their homes. The first claimant’s concerns and objections were not addressed in the officer’s advice and assessment of the planning merits.
Those matters should have been assessed and weighed in the planning balance, as part of the decision-making process, not after the decision had been made. Once the defendant had decided to grant planning permission, the highway authority could not lawfully stand in the way of that decision, even if it disagreed with it: see R v Warwickshire County Council, ex parte Powergen plc [1998] 75 P&CR 89; [1997] 3 PLR 62 considered.
The claimants’ legal challenge was to the defendant’s failure properly to investigate and assess the adverse impacts of the access scheme on existing residents, in the absence of any advice from the interested parties. It was not a legal challenge to the acts or omissions of the second interested party: R (Noble Organisation Ltd) v Thanet District Council [2005] EWCA Civ 782; [2006] 1 P&CR 13 distinguished.
(4) The defendant had, for many years, proposed and planned for access to the site from the north. A new spine road had since been constructed, together with a roundabout. It was designed, at the request of the defendant and the second interested party, specifically to accommodate the future traffic from allocated sites in the area including the site.
The two local authorities had, exceptionally, already identified an appropriate access scheme for the site, the access plan was obviously a material consideration when the defendant was considering the application. The officer’s report acknowledged it as a material consideration and it could not be said that there was no legal obligation to consider it. The planning officer’s advice to the planning committee was seriously misleading.
The defendant irrationally failed to ask whether the northeast land was available, and if so, the asking price. No reasonable planning authority could have been satisfied that it possessed the information necessary to make its decision: R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (Admin) considered.
Richard Kimblin KC (instructed by DLA Piper UK LLP) appeared for the claimants; Charles Banner KC (instructed by Ashfords LLP) appeared for the first interested party; The defendant and the second interested party did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Pratt and another) v Exeter City Council