The King (on the application of Ashchurch Rural Parish Council) v Tewksbury Borough Council
| Jurisdiction | England & Wales |
| Judge | Lady Justice Andrews,Lady Justice Elisabeth Laing,Lord Justice Warby |
| Judgment Date | 07 February 2023 |
| Neutral Citation | [2023] EWCA Civ 101 |
| Docket Number | Case No: CA-2022-000371 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 101
Lady Justice Andrews
Lady Justice Elisabeth Laing
and
Lord Justice Warby
Case No: CA-2022-000371
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
MR JUSTICE LANE
Royal Courts of Justice
Strand, London, WC2A 2LL
Paul Brown KC and Leon Glenister (instructed by Richard Buxton Solicitors) for the Appellant
James Pereira KC and Horatio Waller (instructed by One Legal) for the Respondent
Hearing date: 13 December 2022
Approved Judgment
INTRODUCTION
This is an appeal against the decision of Lane J [2022] EWHC 16 (Admin) (“the Judge”) dismissing the claim by the Appellant (“ARPC”) for judicial review of the decision of the Respondent's (“TBC”) Planning Committee on 22 April 2021 to grant planning permission for:
“Development of a road bridge over the Bristol to Birmingham mainline railway north of Ashchurch, Tewkesbury. The proposal includes temporary haul roads for construction vehicles, site compounds, security fencing, surface water drainage channels and attenuation points.”
The development was referred to in the application as “Ashchurch Bridge over Rail” or “ABoR” but I shall refer to it simply as “the bridge”.
ARPC has raised three grounds of appeal, although, as will become apparent, there is a degree of overlap between Grounds 1 and 2. These both relate to the Planning Officer's Report to the Planning Committee which informed its decision (“the OR”). Ground 1 is that the Judge erred in his interpretation of the OR, which on ARPC's case 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 the concomitant harms. Ground 2 is that the Judge fell into error in his application of the principle in R (Samuel Smith Old Brewery) v North Yorkshire CC [2020] UKSC 3, [2020] PTSR 221 (“ Samuel Smith”).
Ground 3 is that the Judge erred in his consideration of whether TBC unlawfully considered that the “project” for the purposes of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (“the EIA Regulations”) was the subject-matter of the planning application, i.e. the bridge, looked at in isolation. It is contended that the Judge (1) failed to address ARPC's argument that TBC applied the incorrect legal test and (2) erred in finding that the development of the bridge and its supporting infrastructure for which permission was sought and granted was a single project for the purpose of the EIA Regulations, given that the bridge had no purpose of its own but was to be built solely to serve future development.
The Court was greatly assisted by the able and succinct submissions of counsel, Paul Brown KC and Leon Glenister on behalf of ARPC, and James Pereira KC and Horatio Waller on behalf of TBC.
For the reasons set out in this judgment, I would allow the appeal on all three grounds, quash the decision of the Planning Committee, and remit the application for reconsideration.
BACKGROUND
In March 2019, Tewkesbury and its surrounding area was awarded Garden Town status for a potential development of up to 10,195 new homes, around 100 ha of employment land, and related infrastructure. This was based on the Tewkesbury Area Draft Concept Masterplan Report (“the Masterplan”), which sets out potential largescale development over an area described as the “North Ashchurch Development Area”. TBC is the “lead authority” for the Garden Town.
The Masterplan is not a development plan document, but it provides a foundation for the formulation of such a plan in due course. The proposals for the Garden Town are not, as yet, supported by any allocation or policies in the Joint Core Strategy (“JCS”) adopted in 2017 by TBC and two other local planning authorities, Gloucester City Council and Cheltenham Borough Council, working in partnership.
By the time the JCS was adopted, Tewkesbury Borough had an identified shortfall of 2,455 dwellings measured against the housing needs identified in the JCS. The challenge of meeting that shortfall was exacerbated by the decision of the Ministry of Defence (“MOD”) to retain for operational purposes the whole of a site which had been expected to be released for development and to deliver most of the requisite housing.
Although in 2017 TBC considered it had identified sufficient sites to deliver housing in the short to medium term, it regarded it as critical to address the shortfall over the period of the JCS (to 2031). The three JCS authorities intended to do so in a strategic and plan-led way. They therefore decided to undertake a review of Tewkesbury's housing supply immediately after the adoption of the JCS. The aim of the review was to identify and allocate sites that would deliver housing and employment growth.
The Masterplan was drawn up in January 2018 to inform the JCS review. It provides a spatial growth strategy in order to meet the shortfall in the JCS requirements to 2031 and beyond. However, at the time that planning permission was granted for the bridge, the JCS review was not expected to be completed and submitted until the Spring of 2023, and no action would be taken on it until, at the earliest, later that year.
The Masterplan contemplates that the development of the Garden Town would be delivered in phases. Phase 1 concerns an area to the north of MOD Ashchurch which straddles the Bristol to Birmingham railway line, though the largest part of that area is to the east of the railway line (“the Phase 1 area”). The Phase 1 area is bounded to the north by a brook known as Carrant Brook, and to the south by existing development on the edge of the town. Phase 1 envisages that by 2031 around 3,180 new homes would be built in that area, as well as the delivery of 46 ha of new employment land, a local centre with retail services, a new primary school and a new Green Infrastructure corridor. The Masterplan states that: “Road transport upgrades would be required to deliver this growth in capacity terms.”
In the section of the Masterplan entitled “phasing principles” it is explained that the Masterplan concentrates on developing land to the eastern side of the railway tracks first, with the aim of creating a compact community with walkable neighbourhoods that eliminate fragmentation. However, in order to achieve any of the identified objectives it would be necessary to build a new link road across the railway line to which existing roads would be connected, thereby relieving pressure on the A46 corridor. This in turn required the construction of a new railway bridge.
The Masterplan expressly recognises that delivery of the northern development plots for Phase 1 development relies on “the provision of a northern link over the main rail line, overcoming severance and completing the link between existing local roads”. It identifies the bridge as one of the “short-term enabling interventions”. The bridge is therefore an essential prerequisite to the delivery of any housing development in the Phase 1 area. It is common ground that the sole purpose of its construction is to facilitate such development.
The construction of the bridge was described in the Planning Statement submitted in support of the application for planning permission as:
“Critical to the success of the overall development plan in the area to unlock parcels of land to the east of the railway through improving east-west access”.
In the normal course of events, one might have expected any application for planning permission to be made only after the JCS review and the adoption of a local plan, and for TBC to seek permission for the Phase 1 development of which the bridge would form an integral part, including the link road and any other vital transport infrastructure. Instead, the application was made, and granted, for the bridge alone.
Mr Brown told the Court that the bridge is known locally as “the bridge to nowhere,” because after it has been constructed, the temporary haul roads will be removed and there will be no connecting roads on either side, just a bridge in the middle of a field, which will be fenced off. Without a functioning highway unlocking the land within the Phase 1 area on the eastern side of the railway, the bridge will serve no useful purpose.
This unusual state of affairs has arisen because TBC wished to avail itself of funding from the Government which was only available for a limited period. In July 2017, the Government launched a £2.3 billion Housing Infrastructure Fund (“HIF”) in order to support housing delivery through the funding of vital physical infrastructure, such as roads and bridges, with the opportunity to facilitate the development of some 100,000 homes in England. The fund was split into two key areas, namely, forward funding (for larger schemes up to £250 million) and marginal funding (for schemes up to £10 million). The deadline for applications was September 2017.
TBC made a marginal funding bid for just over £8.1 million to deliver the bridge on the basis that this, in turn, would facilitate the development strategy of the wider Ashchurch area. In February 2018, TBC was informed that its bid had been successful. TBC subsequently entered into discussions with Homes England regarding the terms of the funding agreement. The Deputy Chief Executive of TBC, in a Report to the Executive Committee recommending approval of the proposed terms, said that the funding would “unlock a number of sites and forms an early phase of the development strategy to realise the Garden Town”.
TBC approved the funding conditions and authorised entry into a formal...
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