Category: Opinions | April 13, 2023
Why infrastructure applications will now have to be assessed according to the impact of the housing schemes they would support
A Court of Appeal judgment has reminded planning officers considering applications for infrastructure projects to take account of the wider impacts of the future housing developments such schemes are intended to support.
In February, the Court of Appeal quashed Tewkesbury Borough Council's planning permission for what has been described as a "bridge to nowhere" to support plans for an 826-home scheme. In an emphatic judgment, the three judges found that the wider impacts of the future housing development served by the bridge in question should have been taken into account when the planning application was considered.
The bridge over the Bristol-to-Birmingham railway line, north of the village of Ashchurch, was to pave the way for the first phase of a new "garden town", comprising more than 10,000 homes. The housing proposals are yet to be supported in the council’s local plan or subject to planning permission.
In granting planning permission for the bridge in April 2021, the council's planning committee treated the proposal as a "stand-alone" project. The same approach was taken when the council decided that an environmental impact assessment (EIA) - which is needed when a project is considered likely to have a significant effect on the environment - was not required from the developer.
The High Court last year rejected a judicial review challenge to the planning permission brought by Ashchurch Parish Council. Reversing that decision, three Court of Appeal judges accepted the parish council’s grounds for appeal and directed the council to consider the application afresh. The borough council is not taking the case to the Supreme Court.
The Court of Appeal judge Lady Justice Andrews, who wrote the judgment, took issue with the High Court judge, Lord Lane, in relation to his emphasis on the benefits of the bridge in maintaining the delivery timescale of the masterplan for the new garden town and meeting the terms of an £8.2 million grant allocation from Homes England’s Housing Infrastructure Fund. Lord Lane “fails to grapple with the point that there would be no benefit in keeping the masterplan ‘on track’, nor in hiving off and accelerating the delivery of part of a wider project, unless it was envisaged that the wider project was in principle desirable…,” she said.
The parish council argued that the local authority’s approval for the bridge was not rational because the planning officer advised the planning committee that it could not take into account any harm from the housing that the bridge would facilitate. The Court of Appeal ruled that the officer had misled the committee. The judge said the council “could not rationally treat the benefits of the development facilitated by the bridge as material without also treating the harms of the development as material”.
In a statement, Tewkesbury Borough Council’s chief executive, Alistair Cunningham, said: “While it is arguable whether or not the officer report precluded members of the planning committee from themselves deciding on the materiality of harms arising from future development, this issue will be addressed upon redetermination.
“It will be important to ensure that the language used in any officer report is chosen carefully to pre-empt any perception of restricting the planning committee’s discretion. This would seem to be wise counsel for any planning authority.”
“This judgment clearly shows the importance of planners and planning committees balancing up the benefits against the harm caused by planning proposals before coming to any decisions,” said Charlotte Dyer, counsel at law firm Herbert Smith Freehills.
“Planning officers need to be particularly careful to ensure that they do not tell committee members things that cannot be taken into account, when they are giving advice on matters of discretion,” said Bernadette Hillman, a partner at law firm Sharpe Pritchard. “There clearly is a problem in defining the harm in this case because details of the scheme had not been worked up, but the judges are saying that the lack of detail should not preclude discussion of the negative impact.”
“The Court of Appeal is pointing out to planning officers that their advice – whether given in a report or orally – can have the effect of fettering the discretion of a planning committee, so planners have to be careful when providing that sort of advice,” said Martha Grekos, partner at law firm DAC Beachcroft.
The parish council also argued that the borough had relied on a narrow definition of the project when deciding that an EIA was not required. It pointed out that the bridge served no function but to facilitate the housing development.
In considering the need for an EIA, the judge ruled that the wider project should have been taken into account and that it did not matter that no planning application for the garden town had yet been made. Lady Andrews rejected arguments by the local authority that the housing development served by the bridge was yet undefined and therefore could not be taken into account when considering the need for an EIA.
She said: “The difficulty of carrying out any assessment of the impacts of a larger project which is lacking in detail is a matter which is separate from and irrelevant to the question whether the application under consideration forms an integral part of that larger project.”
“This is a clear example of how, when trying to deliver infrastructure ahead of housing growth, a local authority can face real challenges given the complexity of the planning system,” said Cunningham. “A screening opinion for the council concluded that the environmental impact of the bridge in isolation was not likely to have significant effects on the environment and that it was therefore unnecessary to carry out an EIA.”
He added: “The wider area is currently not allocated for development but is likely to be considered as a potential future sustainable location for development within the emerging Joint Strategic Plan being drawn up with Gloucester City Council and Cheltenham Borough Council.”
Matthew McFeeley, partner at law firm Richard Buxton Solicitors, which represented the parish council, said a masterplan had been drawn up for the larger site. “The parish council brought the action because it felt it was being ignored in the planning process as the housing scheme was being worked up in its area,” he added.
“There were some details of the larger scheme which could be factored into an assessment, even if there wasn’t a planning application,” he suggested, adding that the EIA could have looked at the impact of a range of development options for the area.
“This judgment is an emphatic statement that consideration of the need for an EIA should not stop at the red line boundary of a planning application site if there is a functional relationship with the surrounding area,” said Claire Dutch, head of the planning team at law firm Ashurst. “Developers of power stations and other infrastructure providers need to read it. The judges are saying that not just the main facility but all related connections beyond its boundary need to be taken into account.”
Peter Geraghty, development management spokesperson for local authority body the Planning Officers Society, said: “Tewkesbury Borough Council had to consider whether an environmental impact assessment of the whole scheme would be reliable because of the lack of detail for the housing development.” He pointed out that drawing up an EIA was time consuming, involving consultation with a wide number of agencies.
Peter Ford, principal consultant at the Planning Advisory Service, said: “This judgment highlights the need for planning officers to be trained in deciding whether an EIA is necessary and its scope. It is quite a challenging job for planning officers to define the extent of a project and its likely impact. The decision about whether a project required an EIA should not be left to one single officer.”
Ian Ginbey, a partner at law firm Clyde & Co, said Tewkesbury Council planned to consider an EIA for the subsequent housing development once more details were certain. He suggested that the initial assessment of the bridge including the housing development could reduce the need for a completely new EIA of the housing scheme as it came forward. “When plans for the housing development were more defined, the environmental assessment could then be supplemented,” he said.
