Depedestrianisation and EIA development

Daniel Stedman Jones and Christopher Moss analyse a successful judicial review challenge to a major transport scheme in Bradford.

Well Street, Bradford, was pedestrianised in 2015. In July 2023 Bradford Metropolitan Borough Council began works to reverse that pedestrianisation as part of the Transforming Cities Fund Bradford City Centre Walking and Cycling Improvements Scheme. The Claimant, Pennine House Limited, owners of a property divided into several hundred apartments on Well Street. The Claimant challenged the decision to depedestrianise Well Street on three grounds:

1. That the consultations leading to the decision had been procedurally unfair;
2. That the decision had been taken without proper lawful authority and without providing reasons as required by the Openness of Local Government Bodies Regulations 2014; and
3. That the decision was taken in reliance on improper powers and by unlawfully relying on permitted development rights.

An expedited rolled-up hearing was ordered by Mrs Justice Lang who designated the case as ‘significant’.

The second limb of Ground 3 was successful following a two-day hearing before Mr Justice Eyre.

The Council had commenced the works by relying on powers under the Highways Act 1980 and on the basis that they were permitted development under Schedule 2(A) of the Town and Country Planning (General Permitted Development) (England) Order 2015. Under the Town and County Planning (Environmental Impact Assessment) Regulations 2017, as an urban planning project a screening opinion was required to determine if the works were likely to have significant adverse effects on the environment and hence whether a full environmental impact assessment was required. Adoption of a screening opinion that concluded the works were not likely to have significant adverse effects on the environment was a pre-requisite to rely on permitted development rights.

The Council adopted a screening opinion on 31 July 2023 that concluded that the proposed development was not likely to have significant effects on the environment. This conclusion was reached, in part, on the basis of repeated reference to “planning conditions” being used to control the impacts of development that would otherwise present adverse environmental impact. Under the permitted development rights relied upon by the Council, no planning conditions could be imposed. Mr Justice Eyre found that owing to the repeated reference to planning conditions, alongside language and structural errors in the document, the screening opinion had been reached on the basis of taking account of “irrelevant and incorrect considerations” [108]-[115].

It was accordingly irrational for the Council to conclude that the works were not EIA development and that they could rely on permitted development rights for the works on Well Street. A declaration was issued to this effect.

On ground one, Mr Justice Eyre held that the decision to commence the works following the consultations had been taken by the Council’s executive in September 2022 and was accordingly out of time [37]-[71]. On ground two, the judge held that the executive’s decision had authorised the scope of the works and that the subsequent decision to commence the works was about the “implementation or timing of operations” which did not fall within the scope of the 2014 regulations [72]-[77].

The full decision is available here.

Daniel Stedman Jones and Christopher Moss are barristers at 39 Essex Chambers. They represented the successful claimant Pennine House Ltd, instructed by Baker McKenzie LLP. Paul Stinchcombe KC acted for Bradford Metropolitan Council.