Court of Appeal finds for parish council in "bridge to nowhere" dispute

Ashchurch Rural Parish Council has succeeded in the Court of Appeal on all three grounds of a planning dispute with Tewkesbury Borough Council over a bridge needed for a wider development.

In Ashchurch Rural Parish Council, R (On the Application Of) v Tewksbury Borough Council [2023] EWCA Civ 101 Lady Justice Andrews allowed the parish’s appeal against the High Court’s dismissal of its application for judicial review and sent the case back to Tewkesbury for reconsideration.

Tewkesbury’s planning committee had agreed an application for a road bridge over the Bristol to Birmingham railway north of Ashchurch.

The parish appealed on the grounds that the High Court erred in its interpretation of the planning officer’s report, which Ashchurch argued advised the Planning Committee to take into account the public benefits of the development facilitated by the bridge but directed them to leave out any harms.

It also argued that Tewkesbury unlawfully considered that the ‘project’ for the purposes of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 was the bridge alone rather than the future development with which it would connect.

In March 2019, Tewkesbury was awarded garden town status for up to 10,195 new homes, around 100 hectares of employment land, and related infrastructure.

A later masterplan designated the first phase of the garden town to land north of Ashchurch which straddles the railway line, which would require a new link road and bridge.

Construction of the bridge was described in the planning statement as: "Critical to the success of the overall development plan in the area to unlock parcels of land to the east of the railway through improving east-west access”.

Tewkesbury applied for planning consent for the bridge alone - rather than as part of the wider development - and the court was told it was known locally as "the bridge to nowhere”, because after construction there will be no connecting roads, just a fenced-off bridge in the middle of a field.

Andrews LJ said: “This unusual state of affairs has arisen because [Tewkesbury] wished to avail itself of funding from the Government which was only available for a limited period.”

This was the £2.3bn Housing Infrastructure Fund to which Tewkesbury made a successful £8.1m bid for the bridge on the basis that it would facilitate the wider development strategy.

By the time the planning application was made the bridge was expected to permit access to 826 homes.

Tewkesbury applied for permission for the bridge but not for roads to connect it to the highway network, nor for any housing.

Andres LJ said: “Ground 1 is founded upon a rationality challenge to the approach adopted in the officer’s report which, on [Ashchurch’s] case, treated certain identified benefits as material, but left out of consideration the concomitant harms.”

She said the report took no account of any adverse impact that any development would have and “indeed, the committee was told in no uncertain terms that the assessment of harm was to be confined to the bridge structure”.

The High Court had rejected Ashchurch’s case because “on an appropriately benevolent reading of the officer’s report, the benefits that were being considered were not the benefits of any future development that the bridge was enabling, but rather, the benefits of granting permission for the construction of the bridge at that time, instead of waiting for proposals for the wider development to be brought forward”, Andrews LJ said.

She explained: “In my judgment, in so finding, the judge misinterpreted the officer’s report…the public benefits to which the planning officer referred were not confined to the benefits of allowing the bridge to be built in advance of the rest of Phase 1 [of the development].”

If phase 1 were never built the bridge would serve no purpose and “when addressing the pros and cons of dealing with the application for the bridge, no account is taken in the officer’s report of the prospect that the wider development envisaged by the masterplan would not be permitted, leaving a useless bridge standing in the middle of a field”.

The officer’s report was plainly based on the premise that the bridge was to facilitate the development and “rightly recognised that the public benefit to be gained by building the bridge was something different from the benefit(s) flowing from building it now. The judge was wrong to conclude otherwise”.

But Andrews LJ went on to say the officer’s approach “was to invite the committee to attribute substantial or significant weight to the prospective benefits of the wider development whilst directing them that they must leave out of account entirely any possible harms”.

It had been irrational to treat the prospective benefits of the wider development as material factors without taking account of any adverse impact as “the two go hand in hand; you cannot have one without the other”, the judge said.

Andrews LJ also found that Tewkesbury did not take a legally correct approach to whether an environmental impact assessment was required as “they never asked themselves the right questions” as treating the bridge as a stand-alone ‘project' meant the council fell into error.

Lady Justice Elisabeth Laing and Lord Justice Warby agreed with Andrews LJ.

Mark Smulian