A recent Court of Appeal decision has underlined the importance of ensuring that a development has not been “salami sliced” for the screening report.
In R (on the application of Ashchurch Rural Parish Council) v Tewkesbury Borough Council [2023] EWCA Civ 101; [2023] PLSCS 30, the court ruled to quash a planning permission because the council failed to take a legally correct approach to the decision on whether an environmental impact assessment was required.
The case concerned a planning permission granted for developing a road bridge in Tewkesbury. Prior to making the application, Tewkesbury Borough Council, as the developer, submitted a screening report for the bridge. This report considered the bridge as a stand-alone project and, based on it, the local planning authority concluded no environmental impact assessment was required.
At the time of the application, there was expectation the bridge would support a link road and serve phase 1 of the housing development identified in the draft concept masterplan for the Tewkesbury area. Albeit the application did not comprise any element of the wider project.
The claimant made a judicial review claim against the decision, raising three grounds of appeal. The claim was dismissed by the High Court and this decision was subsequently appealed.
Grounds 1 and 2 provided that the officer’s report advised the committee members that the bridge would benefit the housing development but did not advise them on the adverse effects of the housing development. The Court of Appeal considered that both grounds succeeded.
Ground 3 provided that the council had incorrectly characterised the project for EIA purposes as being only the bridge. Looked at in isolation, the bridge was not likely to have significant effects on the environment. However, the claimant argued that the only purpose of the bridge was to provide support to the housing development and the highway envisaged to run across it in the future, so separating this project would constitute “salami slicing”.
The Court of Appeal concluded there was no evidence of a deliberate attempt to “salami slice” the project. However, it also concluded the local planning authority did not take a legally correct approach when reviewing the screening opinion, because it did not evaluate: (i) the functional interdependency of the bridge and the wider development; (ii) did not question whether building a “bridge to nowhere” was justified as a stand-alone project; and (iii) did not question whether the development would have been pursued in the absence of the phase 1 of the masterplan.
The Court of Appeal quashed the decision and remitted matters for reconsideration.
Stefano D’Ambrosio is a solicitor in the planning & environmental team at Irwin Mitchell
