Commentary:
This was an unsuccessful claim for judicial review brought on behalf of Friends of Grandpont Nature Park (the “Claimant”) against the decision of Oxford City Council (the “Defendant”) dated 8 July 2024 to grant itself planning permission for the construction of a pedestrian and cycle bridge across the River Thames from Grandpont Nature Park (“GNP”) to Oxpens Meadows (“Oxpens Bridge”).
Permission to bring the claim was granted by Lang J on 3 October 2024 and the claim was brought on five grounds, namely:
- that the Defendant erred in law by making a material mistake of fact in relation to statements made in the committee report and/or by officers in committee;
- that the Defendant was given unlawful advice that they could not revisit its Council’s Environmental Impact Assessment (“EIA”) screening decision;
- that the Defendant erred in law (i) by regarding the proposed development as being a “standalone” project rather than being “integral to” a wider development project (and whether that was irrational in the Wednesbury sense) and/or (ii) by adopting a flawed approach to the question of whether an EIA was required, in that (as alleged) it relies on a future EIA for a different planning application being done later;
- that it was unlawful of officers to advise members that they should not allow themselves to be lobbied on the planning application and/or (ii) there was inadequate ‘separation of powers’ in the decision made by the Defendant; and
- that the Defendant erred in law by failing to take account of a material consideration, namely, a 2016 report produced for Oxfordshire County Council entitled ‘Riverside Routes to City Centre: Existing Route Improvements – Gasworks Railway: Feasibility Report’ (the “2016 Report”).
Background
GNP is a nature park close to Oxford city centre with no specific protected planning designation. It is, however, valued locally as a nature reserve. To the north of GNP, across the Thames, is the Oxpens area, and to the west of GNP is Osney Mead. Oxpens and Osney Mead are both allocated for development in the Oxford Local Plan 2036 (the “Local Plan”). And existing bridge approximately 100m to the east of the proposed Oxpens Bridge connects GNP into Oxpens Meadows in a location which has been susceptible to flooding (the “Gasworks Bridge”).
A screening decision was requested from the Defendant in December 2021, and the Defendant returned a negative screening opinion in January 2022 confirming that no EIA was necessary. The planning application was subsequently submitted in October 2023 and was considered by the Defendant’s planning committee in March 2024.
A resolution to grant planning permission was passed, however the Defendant’s planning review committee called the application in for redetermination, suggesting that the proposal was contrary to policies in the Local Plan concerned with sustainable design and construction and the efficient use of land. Following consideration by the Defendant’s planning review committee a resolution to grant planning permission was narrowly passed by five votes to four and the planning permission was granted in July 2024.
Grounds and judgment
Ground 1
In respect of the first ground, the Claimant submitted that, contrary to statements made in the officers reports for both the planning committee and the planning review committee, GNP is not within an identified ‘Area of Change’ in the Local Plan, nor is it a site for development, and therefore the Local Plan does not support a bridge in the proposed location. The Defendant, however, stressed the importance placed in the policy on “enahnc[ing] connectivity throughout the area, including along and across riverways” and that the Oxpens Bridge was therefore “an aspiration throughout the local plan”.
Dan Kolinsky KC (sitting as a Deputy Judge of the High Court) found that, as a matter of geography, a bridge from Oxpens Meadows, which was supported in policy, would have to land in GNP, and there was therefore no error of fact.
Grounds 2 and 3
On the EIA issues, the proposed development was considered by the Defendant not to require an EIA as it was an infrastructure project falling below the five-hectare threshold in Schedule 2 of The Town and Country Planning (Environmental Impact Assessment) Regulations 2017. The Claimant contended that the advice given to the Defendant’s planning committee and planning review committee that the Oxpens Bridge was a “standalone application… [which could] come forward with or without the allocated sites [at Oxpens and Osney Mead, and vice versa]” was incorrect and that to treat the Oxpens Bridge as a separate project was irrational.
The judge agreed with the Defendant, however, that despite the use of words such as “integral” and “key” being used in reference to the Oxpens Bridge and the allocations, as well as the Oxpens Bridge’s inclusion in the “pathworks project”, the wider development of the area was not contingent on the Oxpens Bridge due to the existence of the Gasworks Bridge.
The judge also agreed with the Defendant’s submission that a reference to a future EIA being prepared in respect of the Oxpens development which mentioned the Oxpens Bridge “did not amount to reliance upon an as yet unassessed exercise as the basis for decision that the [Oxpens Bridge] was not EIA development”.
Finally on the EIA grounds, the judge disagreed with the Claimant’s proposition that unlawful advice was given to the Defendant’s planning committee in respect of not being able to revisit the EIA screening decision as the legal duty to ensure planning permission for EIA development was not issued without an EIA fell to officers and not members, and that duty had been discharged.
Ground 4
In respect of the penultimate ground, the Claimant submitted that advice given to members that they should not allow themselves to be “lobbied” on the application was unlawful. The advice was given in response to an invitation to a site visit sent to members by the Claimant, and advised that the invitation should not be accepted unless an officer was present.
The judge found that the advice was consistent with the Defendant’s code of practice in relation to lobbying, that the code of practice “reflect[s] an appropriate level of caution as to the danger that influential discussions could take place outside of the public meeting and in circumstances where not all affected stakeholders are present” and that ultimately there was no prejudice as the Claimant was able to address the meeting and make their objections there.
The Claimant also alleged that there was inadequate ‘separation of powers’ in respect of a councillor who had sat on the Defendant’s cabinet when funding for the design of the Oxpens Bridge was approved, however the judge considered that whilst the proper separation of powers may preclude someone with “particular responsibility for promoting the project from participating in the planning decision”, that did not “disqualify a past member of the cabinet who has simply dealt with part of the decision making in respect of funding and played no role in the formulation of the planning proposal”.
Ground 5
Under ground 5, the Claimant alleged that the Defendant erred by failing to take account of a material consideration, namely the 2016 Report, which discussed the feasibility of improving the Gasworks Bridge and concluded that “the proposed improvements offer a lower cost option to a new foot/cycle bridge crossing the Thames south of the new Oxpens West End development site”. The judge found, however, that the 2016 Report formed part of the background material and “was not so obviously material that it required explicit reference in the determination of the planning application” since, among other reasons, it was remote in time and was commissioned by Oxfordshire County Council and not the Defendant.
Conclusion
For the reasons outline above, all of the Claimant’s grounds of challenge were rejected and the claim was accordingly dismissed.