Parish loses legal challenge over decision by borough council to grant planning permission for road bridge to housing developments

Ashchurch Rural Parish Council has lost a judicial review challenge it brought over construction of a bridge to access large planned housing developments.

The parish took the case to the High Court against Tewkesbury Borough Council, but in Ashchurch Rural Parish Council, R (On the Application Of) v Tewkesbury Borough Council [2022] EWHC 16 (Admin) Mr Justice Lane rejected all three of the grounds argued.

Tewkesbury last year gave planning permission for a road bridge over the Bristol to Birmingham railway, north of Ashchurch.

The parish challenged this on grounds that Tewkesbury’s planning committee was wrongly informed by the planning officer's report that it could take into account the benefits of the bridge - such as access to the planned development - but not any harms that might arise from that development. 

Ashchurch Rural also argued that Tewkesbury failed to comply with the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 when it concluded the bridge would not be likely to have significant effects on the environment and so unlawfully decided that an Environmental Impact Assessment was not required.

The third ground was that the involvement of certain councillors and officers in the development and implementation of a proposed Tewkesbury Garden Town, which the bridge will help to facilitate, would lead a fair-minded observer to conclude that there was a real possibility of bias.

A joint core strategy adopted by Tewkesbury, Gloucester City Council and Cheltenham Borough Council identified the Ministry of Defence's Ashchurch site for 8,000 homes and 120 hectares of employment land, coming forward in four phases.

Although the bridge would not be needed until late phases of development, Tewkesbury wanted to take advantage of the Government’s limited term £2.3bn Housing Infrastructure Fund, and submitted a bid of £8.1m to deliver the bridge. This was successful and the planning application was made in 2020.

Objections were received from Ashchurch Rural while nearby Bredon Parish Council voiced concern that there was “a danger that the housing will not be delivered, and the project will end up being a 'bridge to nowhere' if improvements to the strategic road network particularly the A46 are not delivered”.

On the first ground, Ashchurch Rural said the planning committee was told harms arising from the development which the bridge facilitated “could not be considered as part of the application before the committee today” and that this was incorrect and so the resulting decision was necessarily unlawful.

Lane J said the parish “cannot make good the charge that, if harms arising from future development were capable of being a material consideration in deciding the application for the bridge, the advice to the committee that they were not permitted to consider those harms rendered the resulting decision unlawful”.

He went on: “Any challenge based on the contention that a matter was ‘so obviously material’ or ‘necessarily relevant’ as to demand consideration in deciding an application for planning permission must identify a public law error in order to succeed.

“Since I have found that the report to the committee and the advice of the development officer at the meeting were not irrational and no other public law error is identified, it follows that the claimant cannot make good this element of the Ground 1 challenge. The advice that any consideration of such harms must await a future application (or, I would add, the relevant point in the development plan process) was rational.”

On ground two he said Tewkesbury had not sought to ‘salami-slice’ elements within the masterplan to evade environmental scrutiny under the 2017 Regulations. These would apply when the first phase of development was brought forward.

Lane J found it could not be argued that councillors on the Tewkesbury Garden Town Member Reference Panel, who were also on the planning committee, were biased in support of the bridge.

He said: “The fact that membership of the reference panel cannot reasonably be said to have predisposed its members towards support for the planning application for the bridge (let alone to have a closed mind on the subject) is strikingly demonstrated by the fact that several members of the reference panel voted against the application in the planning committee.”

The judge also rejected the claim that members on council executive were improperly involved in the planning decisions.

Mark Smulian