Factual and Procedural Background
This opinion concerns an application under section 288 of the Town and Country Planning Act 1990 to quash the Defendant's decision dated 7 February 2008 to grant planning permission, subject to conditions, for the construction of a major link road. The application for planning permission was made by Company A on 14 December 2005. The Defendant called in the application for her determination and appointed an Inspector to hold a public inquiry. The inquiry was conducted over five weeks from 10 July to 10 August 2007. The Inspector reported on 21 November 2007, recommending that planning permission be granted subject to conditions, with which the Defendant largely agreed.
The Appellant is a member of a group opposing the proposed link road, which presented a joint case at the inquiry and instructed the same counsel who appeared in these proceedings. The Inspector’s report was extensive, summarising that the proposed scheme aligned with development plan policy and that alternative measures to the road scheme had not been shown to be viable. The Inspector acknowledged some adverse impacts but concluded that these were outweighed by special circumstances justifying the development, recommending conditional planning permission.
Legal Issues Presented
- Whether the Defendant failed to have regard to a material consideration by not following the Department of Transport's Transport Analysis Guidance (TAG) in assessing alternatives to the proposed road scheme, or failed to give adequate reasons for not following it.
- Whether the Defendant failed to have regard to a material consideration by not applying Planning Policy Statement 25 (PPS25) on development and flood risk, or failed to give adequate reasons for not applying it.
- Whether the Defendant erred in rejecting the Appellant’s contention that the Environmental Statement was inadequate in several respects, rendering the grant of planning permission unlawful.
Arguments of the Parties
Appellant's Arguments
- The Defendant and interested party failed to properly apply the Department of Transport's TAG by not assessing a wide range of alternatives to the proposed road scheme, instead relying on a preferred modal solution that had existed for decades.
- The Defendant failed to apply or give adequate reasons for not applying PPS25, the current policy on flood risk, instead relying on the earlier PPG25, which the Appellant argued was outdated.
- The Environmental Statement was deficient in several respects, including inadequate assessment of noise impacts, landscape mitigation, ecological impacts, and failure to assess the Park and Ride site as an integral part of the scheme, rendering the planning permission unlawful.
- The additional environmental information submitted during the inquiry should not have been considered without further public consultation.
- The Park and Ride scheme should have been treated as an integral part of the link road scheme for environmental impact assessment purposes.
Defendant and Interested Party's Arguments
- The assessment of alternatives was thorough and consistent with relevant guidance, including recognition that TAG is primarily relevant to funding applications rather than planning decisions.
- The difference between PPS25 and PPG25 was immaterial in this case, and the flood risk assessment was adequate, with no significant increase in flood risk from the proposed bridge.
- The Environmental Statement was fit for purpose, and it is normal for further details and mitigation measures to be developed during the inquiry process and imposed by condition.
- The additional environmental information provided at the inquiry was properly considered as part of the inquiry process, which is held in public and allows for cross-examination and debate.
- The Park and Ride scheme was a separate development and not an integral part of the link road scheme, and thus its environmental assessment should be considered separately.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953 |
Requirement for decision-makers to address the principal important controversial issues in planning challenges. |
The court held that the Inspector and Defendant were not required to respond to every point but only the principal important issues, supporting dismissal of the ground concerning full application of TAG. |
| Berkeley v Secretary of State for the Environment [2001] 2 AC 603 |
An Environmental Statement (ES) must be fit for purpose, containing sufficient information to assess environmental effects, or planning permission is unlawful. |
The court accepted the ES in the present case was fit for purpose despite some deficiencies, distinguishing it from Berkeley where no ES was produced. |
| Jones v Mansfield DC [2003] EWCA 1408 |
The environmental assessment process is not intended as an obstacle course; mitigation details can be left to post-decision conditions. |
The court agreed with the view that detailed mitigation can be developed after the ES and that the ES need only identify likely significant effects. |
| R (on the application of Blewett) v Derbyshire County Council [2003] EWHC Admin 2775; [2004] Env LR 29 |
An ES may be considered compliant if it contains sufficient information at the time of submission, even if incomplete; further information may emerge during inquiry. |
The court accepted that the ES was not so deficient as to preclude the Defendant's conclusion that it complied with regulations. |
| R v Swale Borough Council ex parte RSPB [1991] 1 PLR 6 |
Whether multiple applications constitute a single development for EIA purposes; piecemeal applications should not defeat the purpose of EIA. |
The court upheld the Inspector and Defendant’s judgment that the Park and Ride scheme was not an integral part of the link road scheme, rejecting the Appellant’s challenge. |
| BAA Plc v Secretary of State for Transport, Local Government and the Regions [2003] JPL 610 |
Application of the principle regarding multiple applications and EIA, including rationality of decisions on whether developments form a single scheme. |
The court found no irrationality in the decision that the Park and Ride scheme and link road were separate developments. |
Court's Reasoning and Analysis
The court addressed each ground of challenge in turn, applying established legal principles and assessing the evidence and reasoning of the Inspector and Defendant.
Regarding the first ground, the court acknowledged the Appellant’s contention that the interested party failed to follow the Department of Transport's TAG fully. However, the Inspector had considered all alternatives suggested, setting a reasonable evidential threshold given the Appellant’s limited resources. Finding no credible evidence that alternative measures could replace the road, the court held that the Defendant was not required to follow TAG rigidly in all respects or to give detailed reasons for not doing so. The focus was on whether there was evidence to support alternative measures, which was absent.
On the second ground, concerning flood risk policy, the court found that although PPS25 replaced PPG25 with some marked differences, the particular circumstances of this development meant no significant policy change affected the assessment. The Defendant’s conclusion that the bridge would not materially increase flood risk and that the development was essential infrastructure was reasonable. The court emphasized that policy guidance must be applied with commonsense and that the exception test in PPS25 was met.
For the third ground, the court analysed the adequacy of the Environmental Statement. It accepted the Inspector’s view that the ES, supplemented by further information during the inquiry, was fit for purpose. The court rejected the Appellant’s argument that additional environmental evidence should not have been considered without further publicity, noting the public nature of the inquiry and procedural safeguards ensuring fairness. The court also upheld the factual judgment that the Park and Ride scheme was a separate development, not an integral part of the link road scheme, and thus its environmental assessment was properly considered independently.
Overall, the court found no substantive merit in the Appellant’s challenges, endorsing the reasonableness and legality of the Defendant’s decision and the Inspector’s report.
Holding and Implications
The court DISMISSED the application to quash the Defendant’s decision granting planning permission for the link road scheme.
The direct effect is that the planning permission remains valid and the development may proceed subject to conditions. The court noted no new precedent was established, but expressed support for legislative reform to introduce a permission filter for section 288 challenges, similar to that existing for appeals under section 289, to reduce unmeritorious challenges and associated delays and costs.