Ashchurch “Bridge to Nowhere” Appeal

We represented Ashchurch Rural Parish Council in a challenge to a grant of planning permission for a bridge over a railway line to enable housing development in a new “garden town” being planned by the Borough Council. Whilst the Parish Council lost at first instance, the Court of Appeal overturned this decision, quashing the planning permission and clarifying two important points of law of general applicability. 

The appeal successfully argued that the principle in R (Samuel Smith Old Brewery) v North Yorkshire County Council (i.e. that materiality of a consideration in a planning decision is for the decision-maker alone, subject to rationality review) does not apply where the Council’s planning Committee had its discretion limited and/or was misdirected in law that a factor was irrelevant, rather than deciding itself not to take a factor into account. In addition, the Court of Appeal gave helpful guidance about the question of what constitutes a “project” for the purposes of Environmental Impact Assessment (“EIA”).

The claim related to whether the Borough Council had unlawfully taken into account the benefits of the future development while ignoring potential future harms.  Tewkesbury Borough Council granted permission for the “Ashchurch Bridge over Rail” on 22 April 2021. The bridge over the Bristol to Birmingham railway, north of Ashchurch, was required to access land on which the Borough Council has plans to deliver a new “garden town.” The bridge was funded by a £8.1 million grant from the Housing Infrastructure Fund. As a condition of the funding, the Borough Council agreed to use best endeavours to deliver at least 826 homes. Notably, the application did not involve building the road connections to the bridge, but simply involved constructing the road over the railway in the middle of a field; the future road connections would be brought forward once future housing requiring the roads was built.  For this reason it was labelled the “bridge to nowhere” by local residents.

The first ground of appeal related to the Planning Officer’s advice to the Planning Committee that members were not permitted to take into account any harms that would arise from housing that the bridge would facilitate. Committee members were told that they should consider the benefits of the housing that would be facilitated by the bridge but they were also told that any harms arising from the use of the bridge must be considered when future planning applications came forward. The Judge below had concluded that the Committee had not taken account of the benefits of the future housing, but rather the benefits of granting permission at that time to keep the Borough Council’s Masterplan for the area “on track.” The Court of Appeal disagreed, finding that the Officer’s Report clearly emphasised the benefits of the housing which the Masterplan was anticipated to provide, and noting that there would be no benefit in keeping the Masterplan on track unless it was itself beneficial (i.e. that it was considered beneficial, on net, to deliver the housing in this area).

The second ground of appeal was that the Planning Committee was told by the Officer they “could not” take into account harms from future development. The lower Court concluded that, despite this clear direction, this case fell within the principle in R (Samuel Smith Old Brewery) v North Yorkshire County Council [2020] PTSR 221, namely that whether to consider such harms was a matter for the Committee’s discretion, which could only be challenged on the basis that a factor was legally required to be taken into account or “so obviously material” that no reasonable decision-maker could have failed to consider it. However, the Court agreed with the Parish Council that this principle was not applicable in this case. Where the Committee had been directed not to take a factor into account, the decision maker itself (i.e. the Committee) had not exercised its discretion, and instead had been misdirected in law that the harms from the bridge were not material.

The third ground of appeal related to the Borough Council’s determination that the “project” was only the bridge itself, without any road connections or the associated housing development. The Borough Council had relied on this narrow view of what the project was when producing a decision that Environmental Impact Assessment was not required (the “screening decision”). The Parish Council argued on appeal that the Judge below had not addressed its argument that the Borough Council had applied the incorrect legal test, and in any event – given the bridge had no purpose of its own but to facilitate future development, the Council should have considered other aspects such as the eventual road connection and 826 houses which the Borough Council had contractually committed to building as part of the ‘project’ for EIA purposes.

The Borough Council argued that there was no defined wider project and that the draft concept masterplan was far too nebulous to be considered a salami-sliced project.  The Court of Appeal disagreed, noting that the Screening Report had described the bridge as “essentially enabling works for future development of sites proposed for new residential and community development” and that the Bridge did not serve a purpose other than “unlocking” future development sites to the east of the railway. The Bridge has no use at all without a functioning highway running across it. The Judge below had placed weight on the fact that there had not been an intention to avoid EIA via “salami slicing” the project, that there were potential difficulties in assessing the environmental impacts of the wider project, and that the EIA Regulations would apply to future applications for the road and housing.  However, these factors did not form part of the correct legal test.  The Court of Appeal therefore found that the Borough Council did not take a legally correct approach to the decision whether an EIA assessment was required.

The decision to grant planning permission for the Bridge was therefore quashed.

Paul Brown KC and Leon Glenister were instructed as counsel for the Parish Council.