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The Court of Appeal has considered the appeal concerning the “bridge to nowhere”, a challenge to planning permission granted by Tewkesbury Borough Council for a bridge solely to enable further development as part of the Tewkesbury Garden Town, but which itself had no transport links to or over it and served no current development (R (Ashchurch Rural Parish Council) v Tewkesbury Borough Council [2023] EWCA 101). The case has wider significance in respect of how Officer Reports are interpreted, and how decision makers should consider EIA screening where development forms part of a wider project.
Factual overview
In March 2019, Tewkesbury was awarded Garden Town status for potential development for up to 10,195 homes, 100 ha of employment land and related infrastructure. This was based on a ‘Masterplan’. The bridge was proposed to ‘unlock’ land for Phase 1 of the Masterplan.
Permission was sought for the bridge on its own due to immediate funding available from Homes England, in respect of which Tewkesbury BC had agreed a ‘best endeavours’ clause to provide 826 homes.
The grant of permission was challenged by Ashchurch RPC. A theme of the challenge was the unlawful lack of consideration of the harms occasioned by the wider development which the bridge was to unlock.
The Officer Report
The Officer’s Report had advised that even the bridge on its own would have an adverse impact on the setting of nearby listed buildings. It was therefore common ground that permission should only be granted if that harm was outweighed by the benefits.
In advising members that this test was satisfied, the Officer’s Report made repeated reference to the benefits of the Masterplan, but at the same time told Members that they could not take into account the harms of the wider Masterplan development (including any additional harm to the setting of the listed buildings which would inevitably be caused by the road which would be needed to connect the bridge to the wider highway network). Ashchurch RPC argued that this was irrational. While there was no dispute that the Committee had not taken into account the harms occasioned by any wider development (including for example, consideration of the road which would go over the bridge), Tewkesbury BC argued the benefits which Members were advised to take into account related solely to timing and the ability to secure funding for the bridge, rather than the wider development itself.
The Court rejected Tewkesbury BC’s argument. It found the bridge had no function other than to facilitate Phase 1 development. Its only purpose was to later serve a link road and at least 826 new homes; otherwise it would have no purpose. Indeed, on its own the bridge was considered to harm the setting of two Grade II heritage assets, and the only justification for that harm must be the benefits of the wider development. As such, the Court found the public benefits that were taken into account were not confined only to timing. It was unlawful to take into account those benefits, but to ignore the harms which would also arise.
Relatedly, and of wider significance, Ashchurch RPC argued that the Officer had “fettered the discretion” of the Committee because, amongst other things, the Officer had responded to a question in the Committee meeting relating to wider development by stating “[f]uture development and the impacts of it were not relevant currently and could not be considered as part of the application before committee today”. The Court accepted there was a distinction between the principle in Samuel Smith (that whether a factor is material or not is for the decision maker) and where a decision maker has had its discretion fettered. In the present case, the Committee’s discretion had been fettered.
EIA screening
It was agreed that the bridge was ‘Schedule 2 development’ for the purposes of the Town and Country Planning (EIA) Regulations 2017. When determining for the purposes of screening the “project” to determine whether this would ‘likely have a significant effect on the environment’, Tewkesbury BC had disregarded any future development and considered the bridge on its own.
On the facts of the case, the Court accepted Ashchurch RPC’s argument that Tewkesbury BC had not asked itself the right question. In the decision making documents, there was no reference to the case law, nor any discussion of whether the bridge was “functionally interdependent” or an “integral part” of the wider Masterplan. .
The Court notably rejected Tewkesbury BC’s argument based on the fact the wider development was insufficiently certain. The Court found it was open to it to still carry out an assessment, recognising that some elements were not yet certain (relying on R v Rochdale Metropolitan Borough Council ex parte Milne [2001] Env LR 22). The Court was concerned that an alternative approach would leave it open to a developer to conceal its plans for far larger development and bring them forward in piecemeal sections, defeating the purpose of the EIA Regulations.
Wider significance
The case is of wider significance in two key respects.
First, it confirms that advice from an Officer, either in a report or orally at a Committee meeting, can have the effect of fettering the discretion of a Planning Committee. In determining whether it has had such an effect, the advice will be approached with “reasonable benevolence”: R (Mansell) v Tonbridge & Malling Borough Council [2017] EWCA Civ 1314. However, Officers should be careful to ensure that they do not tell decision makers things cannot be taken into account, in circumstances where they are providing advice on particular matters of discretion.
Second, the case provides further guidance on the correct approach to EIA screening where a particular proposal forms part of wider development. In particular, it emphasises that where parts of a wider project are uncertain, that does not mean there is no wider project at all. Rather a decision maker can take account of the wider project, but account for inherent uncertainties in the analysis. The Court also considered it irrelevant that the wider project had no formal planning status, and that parts of it may be the subject of EIA assessment in future.
The judgment is available here.
Paul Brown KC and Leon Glenister acted for Ashchurch RPC, instructed by Matthew McFeeley of Richard Buxton Solicitors.
