Key planning judgments in February

The start to 2023 has certainly been eventful in the Courts for key planning judgments. There are two cases worth noting which have been handed down in February, which consider issues of general relevance. 

Court of Appeal judgment relating to the “bridge to nowhere” 

• In R (Ashchurch Rural Parish Council) v Tewksbury Borough Council [2023] EWCA Civ 101, the Court of Appeal held that Tewkesbury Borough Council had acted irrationally when granting planning permission for a road bridge which was part of a wider, residential development for which planning permission had not yet been sought, as the Committee had taken account of the benefits that would accrue from the wider development but had disregarded its possible harms. The judgment confirms that advice from an officer can fetter the discretion of a Committee so officers should approach statements directing the Committee not to take considerations into account with caution.
•  The Council had also erred in treating the bridge as a standalone project and disregarded the potential impact of the wider development when deciding whether an EIA should be carried out. The Court emphasised that a decision maker can take into account uncertainties in its analysis of wider projects and that there was no requirement for such projects to have formal planning status. 

 High Court judgment in respect of planning contributions sought by NHS Trusts

• In R (University Hospitals of Leicester NHS Trusts) v Harborough District Council [2023] EWHC 263 (Admin), the Court addressed the question of whether it is lawful for s.106 contributions to be used to fund the provision of NHS services, rather than infrastructure. This judgment has been eagerly awaited as the question is more readily asked in the development industry. The University Hospitals of Leicester NHS Trust had asked Harborough District Council to secure a s.106 contribution of approximately £914,000 to fund the delivery of health care services to mitigate the "the harmful effects of additional demands upon its services from that proportion of the people moving to the site who would be new to the Trust's area". The Council refused the request and granted planning permission on the basis of a s.106 Agreement that did not include the contribution requested.
• The Trust challenged the Council's decision. It alleged that a 'funding gap' existed during the first year that new residents moved into the Trust's area which the contribution was required to cover. The Council argued that the Trust had not established that a funding gap existed on the facts, and the Court agreed.  The judgment grapples with the 'wider issues' raised by the challenge and whether it can ever be lawful to use s.106 contributions to fund NHS services. The relevant excerpts are worth a read in full but, in summary, Holgate J casts doubt over the use of a s106 Agreement for this purpose, although doesn't explicitly preclude it.  

Finally,  this month also brings the first application by the Office for Environmental Protection (OEP) to the Supreme Court for permission to intervene in the appeal against the Court of Appeal's decision in R (Finch) v Surrey County Council CA (Civ Div) [2022] EWCA Civ 187. The Supreme Court is due to consider whether Surrey County Council acted lawfully by not requiring an EIA to assess the impact of greenhouse gas emissions resulting from the future combustion of oil produced by the proposed new oil wells. The OEP's application highlights the importance of the issues raised in this appeal - certainly one to watch out for later this year.