The Queen on the application of (Ashchurch Rural Parish Council) v Tewkesbury Borough Council

In determining an application for planning permission, a planning authority is not required to consider environmental or other harms arising from separate future development merely because the proposed development may facilitate it. A matter must be expressly or impliedly required by legislation or policy, or be so obviously material that failure to consider it constitutes a public law error.

For EIA screening, the authority must assess the proposed project. An aspirational future scheme lacking formal planning status is not necessarily part of that project. The Rochdale envelope principle does not require future development to be assessed where the application concerns only a distinct enabling structure.

Functional separation and objectivity obligations under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 apply while the authority is performing duties under those Regulations. Planning committee members are not required to be impartial in the quasi-judicial sense, but must approach the planning merits with an open mind.

The defendant granted planning permission for a road bridge over the Bristol to Birmingham railway north of Ashchurch. The permission covered the bridge and associated construction works, but not the future road, housing or wider development contemplated by the Tewkesbury Area Concept Masterplan.

The claimant sought judicial review on three grounds. First, it argued that the planning committee had been told to take account of benefits associated with future development while excluding its harms. Secondly, it challenged the conclusion that an EIA was unnecessary because the screening report did not assess the environmental effects of the wider development. Thirdly, it alleged breaches of objectivity and functional separation under the EIA Regulations and apparent bias arising from councillors’ and officers’ involvement in the proposed Garden Town.

1. Ground 1 failed. Officers’ reports must be read with reasonable benevolence, applying the approach in R (Mansell) v Tonbridge & Malling BC. The report did not advise the committee to accept the benefits of 826 homes while ignoring their harms. The benefits identified concerned time-limited infrastructure funding, the long lead-in time for railway works, and keeping the Masterplan and JCS review aspirations on track. They did not assume that the future housing scheme would be approved. Any future application would have to be considered on its merits and with regard to all material harms.
2. Under section 70(2) of the Town and Country Planning Act 1990, a matter is not necessarily legally required to be considered merely because it is potentially relevant. Following R (Samuel Smith Old Brewery) v North Yorkshire CC, failure to consider a matter is unlawful only where legislation or policy requires it, or where the matter is so obviously material that it must be considered. The claimant identified no such error. Venables did not alter that planning-law analysis.
3. Ground 2 failed. The bridge was a Schedule 2 project under the 2017 Regulations. The screening question was whether that project was likely to have significant environmental effects. The future Phase 1 development was aspirational and lacked formal planning status. It was therefore not a project for the purposes of the screening exercise. The Rochdale envelope principle was inapplicable because the permission sought was only for the bridge, not the totality of the future development. There was no impermissible salami-slicing. If Phase 1 were brought forward, the EIA Regulations would apply to the relevant applications.
4. Ground 3 failed. The defendant was no longer performing a duty under the EIA Regulations when the planning committee determined the application; the relevant EIA duty ended with the negative screening opinion. In any event, the evidence did not show that the Development Manager had promoted the bridge or that Garden Town briefings were other than formal information channels.
5. Applying R (Lewis) v Redcar and Cleveland Borough Council, councillors determining planning applications need not be impartial in the traditional quasi-judicial sense. The question was whether they had a closed mind on the planning merits. Membership of an advisory, non-decision-making reference panel, Executive Committee membership, and the Lead Member role did not establish apparent bias. The application for judicial review was dismissed.