Take it to the bridge

The High Court recently dismissed a wide-ranging judicial review challenge to the proposed Oxpens Bridge in Oxford. Meyric Lewis KC explains why.

The challenge to the grant of planning permission for Oxpens Bridge by Oxford City Council has been dismissed. Oxpens Bridge is a pedestrian and cycle bridge designed to enhance connectivity throughout and beyond the designated Oxford West End and Osney Mead “Areas of Change” including along and across the River Thames.

The court’s decision is noteworthy for its consideration of the approach to be taken when new matters are alleged to have arisen following a negative EIA screening opinion in the light of authorities such as Swire v Ashford BC [2021] EWHC 702 (Admin); the Tewkesbury/Wingfield line of cases on alleged “integrality” and “salami slicing”; the revival of the “separation of functions” argument based on reg. 64 of the EIA Regs, last addressed in the Holocaust Memorial decision making arrangements challenge, R (London Historic Parks and Gardens Trust) v. SSHCLG [2022] JPL 1196; and its comments on post-decision evidence, roundly disapproved of in Kenyon v SSHCLG [2021] Env LR 8 at para 28.

The planning permission was challenged by the Friends of Grandpont Nature Reserve which is where the bridge will land on the south side of the river. The Nature Reserve does not have any specific protected planning designation but is valued locally. The City Council screened the bridge proposal for environmental impact assessment and concluded that the bridge would not have any significant effects on the environment.

The grant of planning permission was challenged on five grounds:

1. That the Council made a material mistake of fact in stating in committee and the officers’ report to it that the Bridge was “in the Local Plan”;
2. That officers unlawfully advised members that there was no basis for revisiting the EIA screening decision;
3. That the Council erred in law (a) by regarding the proposed development as being a “standalone” project rather than being “integral to” wider development projects and/or (b) by adopting a flawed approach to the question of whether an EIA was required, in that the screening decision “relied” on a future EIA for a separate planning application being made later;
4. That officers unlawfully advised members that they should not allow themselves to be lobbied on the planning application and there was inadequate “separation of powers” under reg. 64 of the EIA Regulations in the decision made by the Council in granting planning permission to itself and/or there was an appearance of bias having regard to the involvement of a former Cabinet Councillor who had voted to approve funding for the bridge some years before (but did not in fact remember his involvement);
5. That the Council erred in law by failing to take account of a material consideration, namely, a 2016 report said to indicate that using the nearby Gasworks Bridge would have represented a viable alternative.

The Council resisted the challenge (in summary) as follows:

1. Policy AOC1 of the Oxford Local Plan does designate “the area in which the bridge is proposed” as an ‘Area of Change’. The area of change is on the north side of the river and the majority of the bridge is in that area – and has to “land” somewhere on the south of river.  It was well-known to members and the public both on the basis of the Local Plan and Supplementary Planning Documents that the bridge was to be built in the location proposed and that that accorded with the policies and aspirations of the Local Plan. Therefore no one was “misled” and there was no “material error of fact”.  On the contrary, no one raised the alleged “error” as part of their objections and it first appeared only in the Claimant’s second pre-action letter;
2. While the authorities show that a screening opinion should be reviewed if there is a material change of circumstances, there was none here. It was therefore open to officers to advise that there was no basis on which to reconsider the screening opinion. The proposed bridge was not EIA development both because it was not considered to require EIA and because it did not in reality form an “integral part” of a wider scheme (see below);
3. (a) Following representations to the committee by objectors asserting that the bridge was an “integral part” of wider development projects, the Council’s solicitor advised the committee (referring to R (Ashchurch Rural Parish Council) v. Tewkesbury BC [2023] EWCA Civ 101 and R (Wingfield) v. Canterbury CC [2019] EWHC 1975 (Admin)) that the bridge was not contingent on the other developments and those developments were not contingent on it. That advice was correct so there was no error of law and nothing further to consider. (b) The screening opinion (for unexceptionable reasons) concluded that the proposed development would not be likely to have significant effects on the environment.  It mentioned the fact (which was true and also unexceptionable) “in addition” that the EIA for the wider Oxpens development would consider that development “as well as the proposed Oxpens Bridge and Osney Pathworks”. But the screening opinion did not “rely” on that future EIA being done instead.  It stood on its own for the reasons given in it and no error of law arose;
4. There was no error of law in the Council seeking to resist lobbying by the Claimant alone on a site visit. The Council’s solicitor advised members against allowing “one-sided” lobbying which might give rise to an appearance of unfair influence on them before their decision. In the event, the objectors, including the Claimant, had ample opportunity to make representations to the Council and to address the committee in accordance with standard procedures. A site visit accompanied by objectors was not necessary given members’ inevitable familiarity with their own area, informed by the specific objections made which they took into account. In any event, even if there was any “unlawful” preclusion of lobbying (which the Council denied) no prejudice arose. Where “separation of powers” was concerned, the position was distinguishable from R (London Historic Parks and Gardens Trust) v. SSHCLG [2022] JPL 1196 (the challenge to the decision making arrangements for the Holocaust Memorial and Learning Centre, an application by the Secretary of State to the Secretary of State) and was in any event expressly provided for in the Town and Country Planning General Regulations 1992. There was no ground for perceiving an appearance of bias on the basis of the test whether “a fair-minded observer” having knowledge of the relevant facts would have concluded that there was a real possibility that the decision maker was impermissibly biased;
5. The Council again denied that its decision was vitiated by an error of law for alleged failure to take account of the 2016 report.  In fact, both the March and April 2024 committee reports address expressly “the requirement for a new bridge when there is the existing Gasworks Bridge in the vicinity” and so the substance of the issue whether there was an alternative to the proposals under consideration was a matter which the Council was well aware of – even assuming it was relevant at all which was debatable given that the bridge which the Council resolved to grant planning permission for was acceptable on its own merits. In any event, the 2016 report which was some years out of date and had not been taken forward was not a matter which was “so obviously material” that it had to be dealt with any more fully.

Dan Kolinsky KC sitting as a Deputy High Court Judge dismissed the claim on all grounds. His judgment can be found here. 

Meyric Lewis KC is a barrister at Francis Taylor Building. He appeared for Oxford City Council, instructed by Ross Chambers and supported by Andrew Murdoch.