Dukeminster Ltd, R (On the Application Of) v Exeter City Council

At the permission stage of a judicial review, the claimant must show that the proposed ground is arguable. A planning authority is entitled to exercise planning judgment when deciding whether the information before it is sufficient and whether additional traffic generated by proposed facilities is significant. An error in a transport assessment will not justify judicial review where the decision-maker knew the true position and there is no arguable basis for concluding that the error affected the decision. A highway authority may assess highway acceptability separately from wider planning issues such as viability and deliverability.

Dukeminster Limited sought judicial review of Exeter City Council’s decision to grant Dart Properties Limited planning permission for up to 700 dwellings and associated facilities at Seabrook Orchards, Topsham, Exeter.

The challenge concerned the Council’s treatment of highway capacity, traffic and transport assessments, the effect of alternative transport measures, and the meaning of a condition requiring construction of a road towards the claimant’s boundary. Lewis J refused permission on the papers. The claimant renewed the application before Hickinbottom J, who considered whether any of the grounds was arguable.

1. Permission refused. The claimant had to establish that at least one ground of challenge was arguable. None of the grounds met that threshold.
2. The Highway Authority’s initial objection was based on highway capacity. Its later removal followed revised traffic-flow analysis addressing the Authority’s concern about the Link Road junction. References to viability and deliverability reflected the wider planning context and did not show that the highway assessment had been unlawfully compromised. The Planning Committee was entitled to rely on the conclusion that the proposal was acceptable on highway grounds.
3. The omission of separately calculated traffic trips for the surgery, sports facilities, local store and community building did not disclose an arguable error of law. The Council and the Highway Authority knew that those trips had not been separately included. Whether the available information was sufficient, and whether the additional trips were significant, were matters of planning judgment.
4. The transport assessment’s statement that all dwellings would be within 400 metres of a main bus stop was erroneous. However, the officers, Highway Authority and Committee knew the true position, and the Officer’s Report did not rely on the erroneous proposition. Whether further analysis was required was a matter for planning judgment. The error was therefore not arguably material to the decision.
5. Condition 35 required a road to be constructed to the claimant’s boundary so as to preserve the practicability of a future connection. The Committee knew that connection to the private Link Road required the claimant’s consent. Any uncertainty about physical permeability between the developments was immaterial because the traffic analysis assumed that traffic would leave through the proposed junctions onto Topsham Road.

The remaining written grounds were abandoned or not pursued, and none was arguable. The renewed application for permission to proceed was refused.

1. High Court (Administrative Court): Lewis J refused permission to proceed on the papers on 13 February 2014.
2. High Court (Administrative Court): Hickinbottom J heard the renewed application and refused permission on all grounds.