Christine Pratt v Exeter City Council

Hearing date: 16 January 2024

Approved Judgment

This judgment was handed down remotely at 10.30 am on 2 February 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

The Claimants seek judicial review of the Defendant's decision, dated 31 July 2023, to grant the First Interested Party (“IP1”) outline planning permission for the demolition of existing buildings and structures, and the phased development of up to 350 dwellings, associated infrastructure and open space at St Bridget Nursery, Old Rydon Lane, Exeter, Devon EX2 7JY (“the Site”). All matters were reserved, apart from access.

The First Claimant (“Mrs Pratt”) jointly owns and resides at Newcourt Lodge, Old Rydon Lane, Exeter, Devon EC2 7JU. The Second Claimant (“the Partnership”), conducts its property management and farming business from Sandy Park Farm, Old Rydon Lane, Exeter. Mrs Pratt is not involved in the Partnership, but she is related to some of the partners. The Partnership has beneficial ownership of land known as ‘Wynards and Poultons’, which is to the north east of the Site. Potentially it would form part of the alternative access to and from the Site, as envisaged by the Council's Newcourt Masterplan, via an existing spur to the Ikea roundabout on Newcourt Way.

In granting planning permission, the Defendant approved IP1's proposed access scheme which included restrictions on the vehicular use of Old Rydon Lane (partial closure and introduction of a one way street heading east which prevents Mrs Pratt from turning left out of her drive) and for traffic to and from the proposed development to travel along Old Rydon Lane.

The Second Interested Party (“Devon CC”) is the highways authority for the area. The Defendant placed reliance upon Devon CC's consultation response, which assessed IP1's access scheme, and did not raise any objections to it.

The grounds of challenge in this claim may be summarised as follows:

i) Ground 1. The Defendant failed to assess the impacts of IP1's access scheme on the existing residents of Old Rydon Lane.

ii) Ground 2. The planning officer gave materially misleading advice to the Defendant's Planning Committee on the feasibility of implementing the Masterplan access scheme, and failed to discharge its Tameside duty to investigate whether the Wynards and Poultons land was available for sale, and if so, on what terms.

iii) Ground 3. The planning officer correctly advised that a Traffic Regulation Order (“TRO”) “would be required for all the proposed works on Old Rydon Lane, and a condition would be required to ensure for these to be secured prior to commencement on site”. However the Defendant failed to secure the essential underpinning to secure this, either in the planning conditions or the section 106 Town and Country Planning Act 1990 (“TCPA 1990”) agreement.

iv) Ground 4. In the alternative, if it is found that a TRO was not necessary prior to commencement of development, then the payment of £15,000 by IP1 to Devon CC, as agreed in the section 106 TCPA 1990 agreement, was not for a planning purpose and did not relate fairly and reasonably to the development.

The Defendant filed an Acknowledgment of Service stating that it did not intend to contest the claim. In a subsequent consent order, it accepted that “the decision under challenge was unlawful on Grounds 2 and 3 for the reasons set out in the Claimants' Statement of Facts and Grounds …. and consents to judgment on that basis”. It did not concede Grounds 1 and 4. It accepted that the grant of planning permission should be quashed.

IP1 contests the claim on Grounds 1 and 2. IP1 has cured the defect identified in Ground 3 by entering into a unilateral undertaking by deed, under section 106 TCPA 1990, in which it covenants with the County Council and the City Council not to commence development, or permit the commencement of development until a TRO, in the terms defined, has been made.

Devon CC has stated by letter that it does not wish to participate in the judicial review proceedings.

The effect of the concessions made by the Defendant and IP1 is that Grounds 3 and 4 have fallen away, and only Grounds 1 and 2 need to be determined by this Court.

I granted permission to apply for judicial review on the papers on 27 October 2023. Mr Justice Holgate designated the claim as significant.

Planning history

The Site is a 13.2 ha parcel of land in the Newcourt area of Exeter. It has been used for horticulture and as a garden centre.

The Site is part of the Newcourt Strategic Allocation. It was allocated under Policy KP8 in the Local Plan First Review (2005) and Policy CP19 of the Core Strategy. The history is set out in the witness statement of Mr Rupert Pratt on behalf of the Partnership, which demonstrates that for about 30 years the Defendant's approach has consistently been that development of the Newcourt area was to be accessed from the A379 and Topsham Road, to the north of the Site.

The Newcourt Masterplan, dated November 2010, was adopted by the Defendant as a development management document to guide the development of 3,500 dwellings, and 16 hectares of employment land. The Masterplan stated:

“The primary highway access to the Newcourt Masterplan area will be the new spine road that links the A379 with Topsham Road …. Old Rydon Road will be managed with the aim of avoiding additional traffic using this route to access the Masterplan area and to ensure that it does not become attractive as a through route for private vehicle traffic …”

The Partnership agreed with a developer, Dukeminster, to develop part of the land known as Wynards and Poultons, together with another stakeholder's land which would generate approximately 750 dwellings. It was also agreed that the spine road (i.e. Newcourt Way) would be constructed over Wynards and Poultons land, together with a roundabout (now known as the Ikea roundabout). An application for planning permission for the highway development was approved in October 2007. It was designed, at the request of the Defendant and Devon CC, specifically to accommodate the future traffic from allocated sites in the Newcourt area (including this Site) by widening Newcourt Way from the Ikea roundabout to the A379 junction, and providing a spur for future access to the Ikea roundabout for development from the west, including this Site. The Partnership retained ownership of a portion of Wynards and Poultons land over which the access to the Site would be built. The highway development was funded and constructed by Dukeminster, the Partnership and the other stakeholder.

On 25 May 2021, IP1 submitted a scoping report to Devon CC which referred to the Masterplan and its intention that traffic would be routed via Newcourt Way. It asserted that there had been significant changes since then, and due to third party land (i.e. the Wynards and Poultons land), the connection to the Ikea roundabout was not available. Evidence of the exchanges between IP1 and Devon CC indicates that an access route via Old Rydon Road was preferred because it would “remove any ransom” (i.e. a sum payable for the Wynards and Poultons land).

On 7 April 2022, IP1's application for planning permission was registered by the Defendant. It was accompanied by a Transport Assessment (“TA”) dated 31 January 2022. It addressed existing conditions, policy, travel demand, impact on the network and mitigation measures. It concluded that the proposed development would not have a severe impact on the local highway network. The access scheme was via Old Rydon Lane, and included closure of the highway and introduction of a one way system, as well as a cycle lane. The TA did not address the impact of these significant changes on the existing residents of Old Rydon Lane. Currently, the only restriction in Old Rydon Lane is at the eastern end, where there is no entry from Newcourt Way and two way traffic is prohibited over a short distance.

The Claimants objected to IP1's proposed access scheme, through their planning agent, McMurdo Land Planning & Development Ltd (“McMurdo”). On behalf of Mrs Pratt, it was submitted that there would be unacceptable adverse impacts on her amenity. She would no longer be able to turn left out of her drive and travel west along Old Rydon Lane and there would be significant increases in vehicles, pedestrians and cyclists passing her driveway.

On behalf of both Claimants, McMurdo pointed out that IP1's statement in the scoping report was incorrect as significant changes had not taken place. The Masterplan had been implemented by delivery of the spine road connecting Topsham Road to the A379. Furthermore, no contact had been made by IP1 or the landowners of the Site to the Partnership to discuss the availability of the Wynards and Poultons land. McMurdo set out numerous reasons why the Masterplan access scheme was preferable to IP1's access scheme.

Devon CC was a statutory consultee, in its capacity as highways authority, and its consultation response was dated 2 November 2022. It assessed “Trip Generation”, “Vehicular Access” and “Traffic Regulation Orders”. Its focus was on the questions posed in paragraph 111 of the...