Bridge ruling a warning against ‘salami-slicing’ English planning applications

The Tewksbury Borough Council planning committee originally granted planning permission for the development of a road bridge over the Bristol to Birmingham mainline railway, near the village of Ashchurch in March 2021. That decision was upheld in the following year by the High Court after a judicial review challenge by Ashchurch Rural Parish Council (ARPC). Earlier this month, however, the Court of Appeal ruled in favour of ARPC after it appealed the High Court decision in December 2022.

The ARPC’s case centred on a report which informed the planning committee’s decision to approve the bridge development. Written by a planning officer, the report advised the committee to take into account the public benefits that the bridge would create, such as road, cycle and pedestrian access to a proposed development for at least 826 homes in an empty field on the eastern side of the railway line.

At the same time, however, the report directed the committee not to take into consideration the potential harms associated with the housing development when considering the bridge’s planning application. It said that “significant concerns” raised by the local community over “potential future development in the area, enabled by the proposed bridge” were “not material” to the application.

In addition, a screening report into whether the bridge application required an Environmental Impact Assessment (EIA) treated it as a stand-alone project that should be considered independently from the housing development that it was intended to facilitate. The report said that, in isolation, the bridge was not likely to have significant effects on the environment and that an EIA was not necessary. This conclusion was adopted by the borough council in June 2020.

Before the Court of Appeal, the ARPC successfully argued that the planning committee acted irrationally by taking into account the benefits of the wider development that the bridge would facilitate, without considering the harms, because the benefits and harms would both be realised if the bridge was constructed. It cited the screening report, which noted that the bridge would not be used until the housing development was completed.

The ARPC also quoted from the borough council’s ‘masterplan’, which acknowledged that the housing development relied on “a northern link over the main rail line”. A planning statement submitted in support of the bridge’s application also stated that the bridge was “critical…to unlock parcels of land to the east of the railway”. The Court of Appeal ruling means that the application for the bridge must be resubmitted to the planning committee for consideration.

Matthew Fox of Pinsent Masons said: “The question of how a project should be defined for EIA purposes has vexed English and European judges since the introduction of EIAs, with most judgments focusing on the screening and scoping stage. This case was no different. The ruling re-establishes the importance of ensuring that, in screening the project and carrying out the EIA process, consideration is given as to the extent to which the works in question form part of a larger project.”

He said developers and LPAs had to consider to what extent the application works and any associated wider development are in common ownership, whether the two sets of development are functionally interdependent and whether the application works can be considered to be justified on their own merit. “It is vital that these considerations are undertaken by the LPA to avoid challenge,” Fox added.

Handing down the court’s judgment, Lady Justice Andrews warned that the objectives of the EIA Directive and the Regulations “cannot be circumvented…by dividing what is in reality a single project into separate parts” – a process known colloquially as ‘salami-slicing’. Fox said that the result of a number of ‘salami-slicing’ cases have made clear that courts will “work to ensure that the full extent of development is caught in some way by the EIA process, so that impacts do not fall ‘through the cracks’. However, this can be done by ensuring that any wider development that is ‘enabled’ by the works in question are cumulatively assessed, rather than necessarily forming part of ‘the project’ that is being assessed.”

He added: “This is the approach that has been taken on project such as Hinckley Point and Sizewell C enabling works. The key is to show that the impacts of the wider development, alongside your project, however nebulous they may be, have been dealt with in some way, rather than not at all. In this way, a decision maker will properly be able to weigh up the impacts of a project against its benefits.”