Bentley Pauncefoot Parish Council v Redditch Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 02 March 2023 |
| Neutral Citation | [2023] EWHC 456 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/821/2022 |
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[2023] EWHC 456 (Admin)
THE HONOURABLE Mr Justice Dove
Case No: CO/821/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Horatio Waller (instructed by Richard Buxton Solicitors) for the Claimant
John Litton KC (instructed by Anthony Collins Solicitors) for Defendant 1 and 2
Peter Goatley KC and Sioned Davies (instructed by Gateley Legal) for Interested Parties 1 and 2
Hearing dates: Tuesday 6 th December 2022
Approved Judgment
This judgment was handed down remotely at 12pm on 2 nd March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HONOURABLE Mr Justice Dove
The claimant brings an application for judicial review in relation to the grant of planning permission by the first and second defendants on 21 st January 2022. Both of the defendants were engaged because the scale of the application involved land comprised in both of their administrative areas. The planning permission under challenge is a hybrid application containing both outline and detailed matters. The permission grants outline planning permission for the demolition of existing buildings and the erection of up to 2,560 dwellings, a local centre including retail floor space, health and community facilities and a three-form entry first school with associated playing area and parking, together with all necessary enabling ancillary works in respect of these features. The detailed element of the application was for the creation of a means of access off Birchfield Road, Cur Lane, Foxlydiate Lane and emergency pedestrian and cycle access to Pump House Lane. The application was subject to numerous conditions along with an obligation under section 106 of the Town and Country Planning Act 1990.
The case is advanced by the claimant on three grounds. The first two grounds relate to contentions that the committee were misled and that they did not have before them the necessary information to reach a lawful decision, in particular in relation to the implications of the development for impacts created by vehicular traffic. The details of these contentions are set out below. The claimant has the benefit of permission in relation to both of these grounds. Ground 3 relates to the claimant's concerns about the failure to require a contribution towards educational transport. Permission to apply for judicial review in relation to this ground was refused, and thus ground 3 is before the court as an application for renewal of permission in the first instance; if permission is granted then a substantive determination of this ground is required.
As at the hearing, I wish to record my thanks to all of the legal teams engaged on all sides of this case who have greatly assisted the court, both with their focused written and oral submissions, and also in the provision of helpful documentation to assist both in the preparation for the hearing and in the preparation of this judgment. I am particularly grateful for the preparation of an extremely helpful and well edited core bundle which contained the vast majority of the documents required for the purposes of this case within 250 pages, a size which facilitated efficient use at the hearing.
Although there are two defendants and two interested parties, they were each jointly represented. In the judgment hereafter when either defendant or interested party are used it is shorthand for both unless there is a specific need to identify a particular defendant or interested party.
The Facts.
The application with which this case is concerned was originally made in 2016. As set out above, it straddles the administrative area of the first and second defendants who both needed to reach decisions in relation to it. The application site is also within the administrative area of the claimant. It was allocated as a mixed-use urban extension in the second defendant's Local Plan and referenced as such in an appendix of the first defendant's Local Plan. Both of these plans were adopted with the site allocated in January 2017.
The application was supported by an environmental statement dated March 2016. The environmental statement contained, at chapter 14, an assessment of the impact of the development on Traffic and Transport. This assessment included an analysis of the approach to the phasing of access to the site. At the north eastern boundary of the site there is a principal distributor road, the A448, which was intended to form the primary access for the development. At paragraph 14.6.15 the environmental assessment provided as follows:
“14.6.15 However, it is likely that access for an initial phase of the Proposed Development would have to be gained via Foxlydiate Lane, and also potentially via the existing bridleway track at the A448 Overbridge. It is anticipated that this would be for a short-term duration of 12–18 months whilst the main access and necessary internal highway infrastructure is completed.”
The environmental statement went on to calculate that the increase in construction vehicles on Foxlydiate Lane compared with its base traffic amounted to a 59% increase for the initial phase of construction prior to completion of the main access to the A448. As a result of the analysis of the various impacts on the road links considered by the environmental statement it concluded that all other highway links could be screened out of any further assessment, with the exception of Foxlydiate Lane which was analysed further. Ultimately, when considering the cumulative impact upon residential amenity on local roads, the assessment concluded that the proposed development would be likely to have “a direct, permanent, long-term effect of moderate adverse significance.”
In September 2018 the interested party submitted a Transport Assessment to the defendant in support of the application. At section 4.3 this document contained an indication of phasing of the development which included as phase 1 the completion of 1,080 houses to be split into a north and a south section centred around 3 access points at Birchfield Road (the A448), Cur Lane and Foxlydiate Lane and it included the school and the local centre. Subsequent phases would comprise the balance of the housing proposed. An accompanying plan illustrates that the Foxlydiate Lane access would be immediately adjacent to proposed housing development as part of phase 1 north. A further plan contained within the Transport Assessment sets out the access strategy, namely that the principal site access would be the Birchfield Road or A448 access, with the Foxlydiate Lane and Cur Lane accesses being secondary access points.
The application was referred to the first defendant's planning committee on 13 th November 2019. The phasing of the access strategy was referred to, and it was explained that the site would initially rely upon an access from Foxlydiate Lane prior to the construction of the principal access off Birchfield Road. The difference in levels between the proposed Birchfield Road access and the site required substantial engineering works and earth moving and this was the reason for the need for that phasing. The committee report noted that there was no objection from Worcestershire Highways, a department of Worcestershire County Council and the highway authority for the application. The committee report noted the contributions required in respect of transport issues and the acceptance that these contributions met with the approval of the highway authority.
The committee report recorded a response from Worcestershire Highways to the comments lodged by the claimant in respect of the timing of the access. The response reiterated the recognition of the significant engineering works required to create the site access which justified the phasing approach. The second defendant had commissioned an independent engineering consultancy to scrutinise the transport aspects of the application, and those consultants had reached the conclusion that there was no transportation reason why permission should not be granted.
The officers' conclusions in relation to transport and accessibility issues were that, accompanied by the package of measures proposed, the application was acceptable, and that there were no transport related reasons for permission to be refused. In an update to the committee report officers noted that there had been an additional representation from a member of the public expressing concern about the proposal to use Foxlydiate Lane for access to the site for the purposes of the construction of the first 200 houses of the development, which it seems then prompted further discussion at the committee meeting in respect of this issue.
In the minutes of the planning committee meeting it is noted that amongst the highways issues raised was the concern that Foxlydiate Lane would not be suitable to be used as the initial access for the site for the purposes of construction traffic up to the completion of the first 200 dwellings. Members were noted as expressing the concern that Foxlydiate Lane was too narrow to accommodate construction traffic alongside the extra vehicles arising from the first phase of 200 dwellings, and that the extent of the traffic use gave rise to safety concerns and would lead to traffic congestion. A relevant extract from the minutes is quoted below. Highways officers responded to this concern by advising that a construction traffic management plan had been drawn up and Foxlydiate Lane had been assessed as suitable and sufficiently wide for the...
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