Contributors
The judgement against Exeter City Council (ECC) provides a useful reminder to Local Planning Authorities (LPAs) of their duties when granting planning permission. Notably, LPAs are reminded of their duty, known as the Tameside duty, to take reasonable steps to ensure that they have made sufficient enquiry before making a decision to grant planning permission. Further, it reminds LPAs of the importance of taking into account all material considerations, rather than just relying on the information presented by a developer in a planning application.
Facts of the case
Outline planning permission for a phased development of up to 350 dwellings as part of the Newcourt Strategic Allocation was granted by planning committee on 31 July 2023. All matters were reserved apart from access. Access was permitted along Old Rydon Lane, including its partial closure and the introduction of a one way system and new cycle lane. The permitted access along Old Rydon Lane was a departure from the Newcourt Masterplan, which proposed a new spine road for the Newcourt allocation that linked the A379 with Topsham Road. The new spine road was to be constructed over the land known as 'Wynards and Poultons'.
The developer proposed the use of Old Rydon Lane due to the need to otherwise acquire third party land for the spine road, potentially creating a 'ransom' at significant cost. In support of this approach, the developer's Transport Assessment concluded that the proposed development would not have a severe impact on the local highway network. However, there was no assessment of the impact of the changes proposed on the existing residents of Old Rydon Lane.
The Officer's report did not discuss the impact on the amenity of the residents of Old Rydon Lane. The Officer also referred to the developer's letter to the Planning Committee, which, in summary, stated that the use of third party land would not be possible given the cost. Further, the Officer incorrectly stated in his report that a condition could not be imposed requiring the use of third party land outside the developer's ownership. As a result of this, the Old Rydon Lane access was considered acceptable and the committee resolved to grant permission accordingly.
Grounds of challenge
Judicial review proceedings were issued against ECC on a number of grounds but only two made it to the hearing:
- Ground 1: ECC failed to assess the impact of the proposed access scheme on the existing residents of Old Rydon Lane, which was a matter which ECC needed to have regard to under the development plan, and an obviously material consideration. ECC should have discharged its Tameside duty by investigating the likely impacts of the Site before making its decision but failed to do so.
- Ground 2: The planning officer gave materially misleading advice to ECC's Planning Committee on the feasibility of implementing the Masterplan access scheme, and failed to discharge its Tameside duty to investigate whether the Wynards and Poultons land was available for sale, and if so, on what terms. Under the Tameside duty, public bodies, including local planning authorities, have a duty to carry out a sufficient inquiry prior to making their decisions.
The judge's findings
Ground 1 succeeded
The LPA was required under Section 70(2) of the Town and Country planning Act 1990 to have regard to the provisions of the development plan, which expressly required the defendant to have regard to detriment to local amenity. Whilst the loss of amenity for residents of Old Rydon Lane had not been included in the developer's transport assessment, the objections from residents had been made clear, such that ECC should have had regard to these matters. In failing to investigate the impact on the residents of Old Rydon Lane, ECC failed to discharge their Tameside duty.
Ground 2 succeeded
As the initial access scheme had been identified as an appropriate access route, the Newcourt Masterplan was evidently a material consideration. The decision to depart from this route, and instead use Old Rydon Lane as an access route constituted both a significant material change and failure to give proper regard to the substance of the Newcourt Masterplan.
The Officer's report relied on implementation of the Masterplan access scheme being unfeasible and incorrectly advised that 'it is not possible to place conditions requiring use of third party land outside their ownership'. Whilst conditions containing third party land can fail the test of reasonableness and enforceability, a similar result could have been achieved through the use of a Grampian condition which prohibits development until a specified action has been taken.
Further, the Officer's report stated that the cost of the land for the alternative Masterplan access, was 'noted as being a third of the development value of the land'. However, there was no evidence to support this and, in fact, the landowners had confirmed their willingness to negotiate its sale. As such, the judge held that the advice the Officer had given to the Planning Committee was 'seriously misleading' and the outline planning permission was quashed.
Three takeaways
1. LPAs need to be mindful of their Tameside Duty
Where a public body has a decision making function, it needs to carry out sufficient enquiry prior to making its decision. Whilst the decision maker need only take reasonable steps, and what constitutes sufficient enquiry will vary depending on the facts, LPAs must ensure they have equipped themselves with sufficient information to enable them to make their decision correctly.
2. LPAs are able to use Grampian Conditions
Whilst conditions requiring work on third party land can fail tests of reasonableness and enforceability, LPAs should remember that it is possible to achieve this result through the use of a Grampian condition stating that development cannot commence until use of the third party land becomes available.
3. LPAs must not over-rely on application documents at the expense of considering other considerations raised by third parties
LPAs have a duty to have regard to both the development plan and any other material considerations. As such, when a decision maker determines an application, they must have regard not just to the information presented to them, for example, within the transport assessment, but also to wider considerations which are material to the outcome of the application.
