Glenn Kinnersley, R (on the application of) v Maidstone Borough Council
[2023] EWCA Civ 172
Ashchurch Rural Parish Council, R (on the application of) v Tewksbury Borough Council
7 February 2023
[2023] EWCA Civ 101
Court of Appeal
A bridge was approved without considering the negative effects of the larger housing development it was supposed to support. The court said that was wrong and sent it back for a proper review that accounts for all the positives and negatives.
Key Facts
- •Appeal against dismissal of judicial review claim concerning planning permission for a road bridge ('the bridge') over a railway line.
- •Bridge intended to facilitate a larger Garden Town development (Phase 1), including 826 homes.
- •Planning permission granted for the bridge alone, in advance of the wider development, due to time-limited government funding.
- •Appellant (ARPC) argued the Planning Officer's Report (OR) considered benefits of the wider development but ignored concomitant harms.
- •Appellant argued the Respondent (TBC) incorrectly identified the 'project' for Environmental Impact Assessment (EIA) purposes as the bridge alone.
- •Bridge considered locally as a 'bridge to nowhere' as it serves no purpose without the connected road and housing development.
Legal Principles
A Planning Officer's Report (OR) should be read with reasonable benevolence but must not misdirect the decision-maker.
R (Mansell) v Tonbridge & Malling Borough Council [2017] EWCA Civ 1314
Materiality of factors in planning decisions is for the decision-maker; a factor can only be challenged on irrationality grounds if it was 'so obviously material' that no reasonable decision-maker could ignore it.
R (Samuel Smith Old Brewery) v North Yorkshire CC [2020] UKSC 3
For EIA purposes, the 'project' must be interpreted broadly and realistically, considering the connection between development and its effects.
R(Finch) v Surrey County Council [2022] EWCA Civ 187
The 'project' for EIA purposes is not necessarily limited to the specific planning application; 'salami-slicing' (dividing a single project into parts to avoid EIA) is prohibited.
Ecologistas en Accion-CODA v Ayuntamento de Madrid [2008] ECR 1-6097
Determining what constitutes a 'project' for EIA is a matter of planning judgment, subject to review for public law error.
R(Wingfield) v Canterbury City Council [2019] EWHC 1975 (Admin)
Outcomes
Appeal allowed on all three grounds.
The OR misdirected the Planning Committee by considering benefits of future development without considering potential harms; the correct legal test for determining the EIA 'project' was not applied; the bridge was improperly considered in isolation.
Planning Committee's decision quashed.
The Committee's decision was irrational and based on a flawed interpretation of the OR and misapplication of EIA regulations.
Application remitted for reconsideration.
TBC must reconsider the planning permission and EIA requirements, applying the correct legal principles.
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