Ashchurch Rural Parish Council, R (on the application of) v Tewksbury Borough Council

A planning authority acts irrationally if it gives substantial weight to the benefits of development facilitated by proposed infrastructure while excluding the reasonably assessable harms of that development. The benefits of enabling development cannot rationally be divorced from its likely adverse effects.

For environmental impact assessment, the project is not necessarily confined to the development described in the planning application. The authority must ask whether that development is objectively an integral part of a wider project. An absence of detailed proposals, formal planning status or deliberate salami-slicing does not answer that question. Difficulty in assessing the wider project’s effects concerns the later assessment of impacts, not the anterior identification of the project.

The parish council challenged the grant of planning permission for a railway bridge intended solely to facilitate a proposed garden town development. Permission covered the bridge and temporary construction works, but not the connecting highway or housing. The officer’s report treated the wider development’s delivery as a substantial public benefit while directing the planning committee to disregard its possible harms.

Lane J dismissed the judicial review claim in [2022] EWHC 16 (Admin). The parish council appealed, contending that the benefits-and-harms assessment was irrational, that the committee had been legally misdirected about material considerations, and that the bridge had wrongly been treated as a stand-alone project under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017.

The central environmental issue was whether the authority had lawfully considered whether the bridge was an integral part of the wider development which it existed to facilitate.

1. Appeal allowed on all three grounds. The planning permission and associated decisions were quashed, and the matters were remitted to the borough council for reconsideration. Andrews LJ delivered the judgment, with which Elisabeth Laing LJ and Warby LJ agreed.

2. A planning officer’s report must be read fairly, as a whole and with reasonable benevolence. On that reading, the report attributed substantial weight to the prospective benefits of the wider development, including housing and infrastructure, rather than merely to the timing advantage of constructing the bridge early. The bridge had no independent function. Its enabling benefits were therefore inextricably connected with the desirability of the development it was intended to unlock.

3. The authority could regard the prospective benefits as material. It was irrational, however, to give them substantial weight while excluding every adverse effect of the facilitated development that could reasonably be assessed, even at a high level. The report’s approach produced a skewed planning balance. The benefits and harms went hand in hand.

4. The officer had also misdirected the committee that it could not consider the wider harms. The principle in Samuel Smith, concerning a decision-maker’s discretion to determine materiality, did not apply where that discretion had been fettered by a legal direction. The committee had not itself exercised an unfettered judgment that the harms were immaterial.

5. Under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, the project is not necessarily confined by the boundaries of the planning application. The authority had to consider whether the bridge was objectively an integral part of a larger project. That inquiry was not performed. The bridge’s sole purpose, its dependence on a functioning link road, and the wider development’s dependence on the bridge strongly supported integration, although the ultimate planning judgment remained for the authority.

6. The authority erred insofar as it treated incomplete details, the masterplan’s lack of formal planning status, difficulties in making a robust impact assessment, the prospect of later assessments, or the absence of deliberate salami-slicing as reasons for confining the project to the bridge. Identifying the project and assessing its environmental effects are separate inquiries. A defective failure to require assessment at the appropriate stage cannot be cured merely by assessment at a later stage.

The court expressed no view on whether permission should ultimately be granted or whether the lawfully identified project would have effects sufficient to require an environmental impact assessment.

1. Court of Appeal (Civil Division): In [2023] EWCA Civ 101, the court unanimously allowed the appeal on all grounds, quashed the decisions and remitted the matters to the borough council.
2. High Court, Planning Court: Lane J dismissed the claim for judicial review in [2022] EWHC 16 (Admin).