Summary
A planning authority must assess and weigh the effects of a proposed access scheme on existing residents where access, amenity and highway convenience are material considerations. It cannot defer those matters to a later traffic regulation order process.
Where objections identify a material gap in the evidence, the authority must make reasonable further inquiries before deciding the application. A planning officer’s report is unlawful if it materially misleads the committee, including by misstating the availability or legal feasibility of alternative access arrangements. A Grampian condition may provide a lawful alternative to a condition requiring works on third-party land.
Factual background
The claimants sought judicial review of Exeter City Council’s grant of outline planning permission for up to 350 dwellings at St Bridget Nursery, Exeter. The approved access scheme involved partial closure and a one-way system on Old Rydon Lane.
The claimants argued that the Council had failed to assess the scheme’s effects on existing residents and had failed to investigate whether an alternative access route through third-party land was available. The Council conceded those errors and accepted that the permission should be quashed. The interested party contested Grounds 1 and 2. Grounds 3 and 4 fell away.
Held
- Ground 1 succeeded. The Council was required by section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act to have regard to the development plan. The relevant policies required consideration of local amenity and the safety and convenience of the road network. The availability of access to existing homes, including loss of amenity, was also an obviously material consideration.
- The Council had to assess and weigh matters including increased or circuitous journeys, inconvenience to residents, mitigation, and access for public and emergency services. The officer’s reports failed to address those matters. The Council could not leave them to Devon County Council’s later traffic regulation order process, because they had to be considered before planning permission was granted.
- The Council breached its Tameside duty. The objections put it on notice of a material evidential gap, and no reasonable planning authority could have been satisfied that it possessed the information necessary to decide the application without further inquiries of the applicant and highways authority.
- Ground 2 succeeded. The Newcourt Masterplan was an obviously material consideration because it identified and helped deliver an access strategy for the site. The officer’s reports failed to explain the weight to be given to the significant departure from that strategy.
- The advice that conditions requiring use of third-party land could not be imposed was materially misleading because a Grampian condition could prohibit development until specified access works had been completed, subject to the relevant prospects of performance. The advice that the alternative land would cost one third of the development value lacked evidential support. The Council also failed to investigate whether the land was available and, if so, its asking price.
- Section 31(2A) of the Senior Courts Act 1981 did not apply. The Council had to reconsider the application lawfully and exercise its planning judgment afresh. The planning permission was quashed.
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Key cases cited
25 authorities cited.
- R v Heathrow Airport Ltd [2020] UKSC 52
- Morge (FC) v Hampshire County Council [2011] UKSC 2
- Boddington v British Transport Police [1998] UKHL 13
- R v Secretary of State for the Home Department, Ex p Venables (R v Secretary of State for the Home Department, Ex parte Thompson, Thompson, Ex parte, Venables, Ex parte) [1998] AC 407
- Mansell vTonbridge And Malling Borough Council [2017] EWCA Civ 1314
- Williams, R (On the Application Of) v Powys County Council (Rev 1) [2017] EWCA Civ 427
- Watermead Parish Council v Aylesbury Vale District Council [2017] EWCA Civ 152
- Palmer v Herefordshire Council & Anor [2016] EWCA Civ 1061
- Loader, R (On the Application Of) v Rother District Council & Anor [2016] EWCA Civ 795
- Siraj, R (on the application of) v Kirklees metropolitan Council & Anor [2010] EWCA Civ 1286
- Noble Organisation Ltd, R (on the application of) v Thanet District Council & Ors [2005] EWCA Civ 782
- London Borough of Newham v Khatun & Ors [2004] EWCA Civ 55
- Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1947] EWCA Civ 1
- Substation Action Save East Suffolk Limited, R (on the application of) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 3177 (Admin)
- Swainsthorpe Parish Council, R (On the Application Of) v Norfolk County Council [2021] EWHC 1014 (Admin)
- The Law Society, R (On the Application Of) v The Lord Chancellor [2018] EWHC 2094 (Admin)
- R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (Admin)
- Zurich Assurance Ltd (t/a Threadneedle Property Investments), R (on the application of) v North Lincolnshire Council & Anor [2012] EWHC 3708 (Admin)
- Newsmith Stainless Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74 (Admin)
- R v Mendip District Council, Ex p Fabre (2000) 80 P & CR 500
- R v Warwickshire CC ex parte Powergen plc [1998] 75 P & CR 89
- R. v Selby District Council, ex parte Oxton Farms [1997] E.G.C.S. 60
- R v Royal Borough of Kensington and Chelsea ex p. Bayani (1990) 22 HLR 406
- Ex p. Costello (1989) 21 HLR 301
- Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26
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