Dukeminster Ltd, R (On the Application Of) v Exeter City Council [2014] EWHC 664 (Admin)

[2014] EWHC 664 (Admin)Case No CO/17151/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BRISTOL
Venue Bristol Civil Justice Centre,, 2 Redcliff Street, Bristol, BS1 6GRDate 13/03/14
Before
MR JUSTICE HICKINBOTTOM
Between
THE QUEEN ON THE APPLICATION OFClaimantDUKEMINSTER LIMITEDClaimantEXETER CITY COUNCILDefendantDART PROPERTIES LIMITEDInterested Party
Nathalie Lieven QC (instructed by Jones Day) for ClaimantRichard Langham (instructed by Exeter City Council Legal Services) for DefendantIan Dove QC and Nina Pindham (instructed by Ashfords LLP) for Interested PartyHearing Hearing date: 10 March 2014
Judgment

Introduction

[1]The Claimant Dukeminster Limited seeks to challenge a decision of the Defendant local planning authority (“the Council”), on the application of the Interested Party Dart Properties Limited (“Dart”), to grant planning permission for land at Seabrook Orchards, Topsham, Exeter (“the Dart Site”). Permission was granted on 15 October 2013, for development comprising up to 700 dwellings (of which 25% were to be affordable), and supporting infrastructure including a primary school, community building, doctor’s surgery and primary healthcare facilities, local store, care home, sports fields and a sports pavilion, roads including two access junctions onto Topsham Road, and associated works.[2]This claim was issued on 26 November 2013. On 13 February 2014, Lewis J refused permission to proceed on the papers. The Claimant renewed the application, which I heard on 10 March. At the end of that hearing, I indicated that I would refuse the application on all grounds, and I said I would hand down my reasons at a later date. In this judgment, I give those reasons.

Factual Background

[3]The claim is made against the backdrop of national policy, now found in paragraphs 47-49 of the National Planning Policy Framework, of requiring local planning authorities to identify a five year bank of sites for housing development; and an identified immediate local housing need in Exeter. The Exeter Core Strategy Proposed Submission (July 2010) makes provision for 12,000 new dwellings in the city by 2026. The Dart Site is in an area of Exeter known as Newcourt, within the Newcourt Strategic Allocation boundary of land for which the Council support residential development. The area is also the subject of the Newcourt Masterplan (November 2010), part of the Exeter Local Development Framework, under which 3,500 dwellings are intended to be built in Newcourt by 2026. In the Officer’s Report in this case, it is said:
“[T]he development of this land is seen as one of the critical elements in meeting the Council’s plan for new housing delivery over the next 5 years.”
[4]In 1999, the Claimant acquired the Royal Navy Stores Depot (“RNSD”), which is immediately adjacent to the Dart Site. The depot is divided into three parts: Upper, Middle and Lower. In 2004, the Claimant obtained planning permission for housing development on the Upper and Middle RNSD land, subject to a section 106 undertaking to use reasonable endeavours to construct a new link road between Topsham Road and the A379 to service the development (“the Link Road”), which is identified in the Newcourt Masterplan as “the primary highway access to the Newcourt Masterplan area”. That site was sold to Persimmon Homes in 2005. The sale contract imposed an obligation on Persimmon to construct part of the Link Road. In 2006, a detailed highway planning application was submitted for the Link Road, followed by an application for nearly 800 dwellings on a site comprising the Lower RNSD land, other adjacent land which the Claimant had acquired (“the SEF land”) and land owned by a third party. Permissions were granted in 2010. The Claimant sold the Lower RNSD and SEF land to Persimmon in September 2011. In its sales to Persimmon, the Claimant retained a 1m strip of land along the boundary with the Dart Site.[5]The Link Road was completed shortly before, in July 2011. In respect of the part constructed by the Claimant, the costs were about £7m. The Claimant considers that the price of the site sold to Persimmon in 2005 was reduced by about £3m in return for Persimmon agreeing to construct the other part of that road; so that the total cost of the Link Road to the Claimant was about £10m. The Link Road is a private road, owned by the Claimant (90%) and Persimmon (10%). Since the September 2011 sale to Persimmon, the Claimant’s only remaining legal interests in the Newcourt area are(i) the 1m wide strip of land between the land sold to Persimmon and the Dart Site, retained by the Claimant, and(ii) its interest in the Link Road. By virtue of the latter, the Claimant’s consent is required to connect into or use the Link Road. Because of the former, its consent is also required for any connections (e.g. roads) between the two. These interests in the hands of the Claimant are therefore of obvious and substantial commercial value.[6]Following pre-application discussions, on 22 July 2011 Dart applied for planning permission for the Dart Site for 700 houses and other development, accessed by two routes off Topsham Road. During the earlier discussions, the relevant local highway authority, Devon County Council (“the Highway Authority”) indicated to the Council that, although it had apparently been ruled out by Dart on “ransom” grounds, what was needed to make the proposal work was a vehicular connection to the Link Road and the Highway Authority’s Development Manager (Mr Brian Hensley) said that he thought the Highway Authority needed to take a “hard line with folk such as this requiring them to build a link up to their boundary”. Mr Andy Robbins of the Council responded saying that it seemed inconceivable to him that the development could go ahead without a connection to the Link Road and, in the early pre-application negotiations, he had assumed that this was a given. The Council informed the transport consultants retained by Dart, Peter Brett Associates LLP (“PBA”), that such a vehicular link would likely resolve a number of the problems associated with the proposal, and, “regardless of ransom issues”, Dart should be giving such a link serious consideration. However, at a meeting between Dart and the Council on 6 May 2011, those representing Dart are recorded as saying:
“For this just to be an approach to the connection with the [Link Road] could jeopardise the viability and deliverability of the overall scheme. This is a key issue in terms of overall feasibility. Whilst the intention is to do everything that the developer can to promote the link, the development cannot be held to ransom by this.”
In the event, there was no discussion between Dart and the Claimant about the sum that might be demanded for such a link. Indeed, there was no discussion between them about connecting the development to the Link Road at all.[7]There were further discussions between Dart, the Council and the Highway Authority; but, when the application was eventually made, it was based on the premise that access from the Link Road was unnecessary. It was no part of the application that the proposed development would ever be accessed thus. The application was accompanied by a Transport Assessment based on 790 houses prepared for Dart by PBA, which concluded that the two proposed junctions at which Topsham Road would be accessed “were found to operate within capacity in the base situations and the addition of the development traffic would have a low impact on the operation of these junctions”. The assessment relied heavily on alternative (i.e. non-car) transport alternatives, including main and community bus services, and a new rail station. Particularly, it said (at paragraph 8.2.1): “Bus stops are located within a 400 metre walk of all new buildings on the site on Topsham Road”.[8]As no direct vehicular access to the Link Road was proposed, to go from the Dart Site to the Link Road, it would be necessary to leave the site by one of the two egress points, turning right onto Topsham Road; and then, at a junction about 350m along, turning right from Topsham Road onto the Link Road (“the Link Road Junction”).[9]The Claimant objected to the application, on the basis of the effect that development traffic would have on the highway network, particularly (although not exclusively) at the Link Road Junction. Relying upon a report dated 27 September 2011 by Bellamy Roberts LLP (transport consultants instructed by the Claimant, “Bellamy Roberts”), the Claimant contended that there were also fundamental flaws in the PBA assessment, in both the underlying data and the analysis.[10]On 28 October 2011, Dart submitted an addendum Transport Assessment based on 700 houses, rather than the larger number in the application.[11]The Highway Authority’s initial formal response was by email on 15 November. It said that the Transport Assessment “includes challenging traffic generation figures…”, but the figure for reduction of car borne trips as a result of alternative transport, though “relatively challenging”, was “not thought to be one that is unachievable, given the right level of commitment, funding and planning.” However, despite that, it said:
“At this moment in time, the County Council, as Local Highway Authority has no option but to recommend refusal of the application on highway grounds. There is no objection in principle to the development proposed per se, but an issue arises with the potential late delivery of the connection of the internal roads within the site to the [Link Road] which runs through the adjacent former [RNSD] site to the west. Should this issue be satisfactorily resolved I would be content to remove my objection. I understand that it has been provisionally agreed that this connection need not be made until, effectively, the final phase of development of the [Dart Site] for viability reasons. This is unfortunate and means that, in practical terms, traffic emerging from the site in the morning peak traffic period and wishing to head north towards the A379 and beyond will opt to turn right from the site and then right again into the RNSD [i.e. into the Link Road], a distance of approximately 350 metres. The level of traffic likely to make this movement is, in turn, likely to result in unacceptable levels of queuing on Topsham Road and this is likely to continue for a significant period of time, until the internal connection to the [Link Road] is finally made.”
(emphasis in the original).[12]Insofar as this suggests that there would at some stage in the future be a direct connection between the Dart Site and the Link Road, as I have said, that was not part of Dart’s proposal – and, particularly given the discussions about when a condition might require such a connection (i.e. at a late stage), such connection might never be made. But, in any event, it is clear that the Highway Authority was concerned about the ability of the proposed highway configuration to cope with the likely development traffic, especially at the Link Road Junction; and preferred a direct connection into the Link Road.[13]On 21 November, importantly, PBA submitted a revised analysis of the traffic flows at the Link Road Junction, on the basis of “the worst case scenario”, i.e. without a connection to the Link Road. This was clearly prepared and submitted to counter the concerns expressed by the Highway Authority about the traffic flows at the Link Road Junction. That new analysis indicated that traffic from 650 houses could be accommodated in the sense that, although it resulted in an impact on the Link Road Junction, that junction would still operate “within its theoretical capacity”.[14]The Highway Authority met PBA that day, 21 November. Two days later, on 23 November, the Highway Authority wrote to the Council again, having considered the revised traffic flow analysis, saying:
“Having considered the revised traffic flows based upon 650 dwellings being constructed prior to the northern connection within the site being made to the [Link Road] there are no capacity concerns about the [junctions of the Dart Site and Topsham Road]. However, the [Link Road Junction] is at capacity and sensitive to the right turn from Topsham Road towards Newcourt. There is some disparity between our view of the saturation flow and those of the applicant. Whilst the situation at the [Link Road Junction] is not ideal and could be significantly improved if the northern RNSD link were to be provided, it is not feasible to mount an argument against the development on capacity grounds as this could not be defended at appeal. Following the revised information and discussions, I am now prepared to remove my objection to the development provided that the matters outlined below are taken into consideration of the application. The planning agreement must clearly state the need to construct the Link Road at the appropriate time. The number of houses that can be built before the connection to the link road is made should preferably be limited to 600 to have due regard to the capacity issues at the [Link Road Junction]…”
The email goes on to set out other steps which the Highway Authority considered ought to be considered, e.g. in terms of bus stops positions, and pedestrian crossings.[15]Dart asked that that email should not be put into the public domain, because of its reference to 600 houses rather than 650. In an email to the Council dated 30 November, the Highway Authority reiterated that it considered 600 preferable, but, indicating that 650 would nevertheless be acceptable from a highways perspective, whether the Council considered 600 or 650 the right trigger was a matter for them as the planning authority. Dart continued to press for the threshold figure to be kept confidential, and for a clear letter from the Highway Authority “without caveats or other remarks, in order to facilitate the granting of a robust consent” (email to the Council, 1 December 2011).[16]On 13 December, there was a further meeting between the Claimant, the Council and the Highway Authority. Dart was not represented. At this meeting, the Council indicated that viability of the proposal had only arisen with regard to affordable housing; but the Claimant, through Counsel who represented them at the meeting (Mr Wald), made the realistic point, as recorded in the minutes of the meeting, “that [Dart’s] ability to secure a link [to the Link Road] influences the deliverability of the scheme and therefore its planning merits at this stage”; which the Council acknowledged (paragraphs 23 and 26 of the minutes). The Claimant said that, in all the circumstances (including the fact that Dart had not contacted them to seek agreement over directly connecting to the Link Road), “both [the Council] and [the Highway Authority] had no alternative other than to assume that connections to the Link Road would not be permitted bearing in mind that these requires access across private land to a private road in [the Claimant’s] ownership”.[17]At that meeting, the Council handed the PBA revised analysis to Bellamy Roberts who, on 22 December, submitted their own further analysis of the Link Road Junction, contending that this showed it would not cope with the development traffic.[18]On 3 January 2012, the Highway Authority submitted its final considered response to the development proposal. Miss Lieven relies heavily upon this letter. It briefly sets out the history of the Highway Authority’s involvement, including its initial recommendation to refuse the application. It continues:
“The relative late delivery of the connection, which had been discussed at meetings between the Highway Authority, your Council and the applicant, is related to the deliverability of the site for residential development and, at those meetings, that issue was explained and discussed in some detail. It was subsequently agreed that the applicant need not make the connection until the occupation of the 650th dwelling in recognition of maximising the potential for the scheme to be delivered early. … As stated, the Transport Assessment is based upon the scenario that the connection to the [Link Road] is not made, in order to test the worst case scenario and it does indicate that the development can operate in such a case, subject to the very substantial Residential Travel Plan provisions being approved and implemented. … A third party [i.e. of course, the Claimant] has raised the issue what he considers to be the unacceptable impact of traffic generation from the site on the local road network as a direct consequence of the later delivery of the connection of internal roads within the application site to the [Link Road] or, indeed, the non-delivery of same. Full account has been taken of the objector’s case and, as previously stated, the Transport Assessment provided in support of the application has been based upon the worst case scenario of the connection not being in existence. Balanced against the proposed sustainable transport initiatives and contributions, and the deliverability issues of the site for substantial additional housing provision in the city, it is considered an objection on highway grounds could not reasonably be pursued or substantiated. In conclusion, having taken all relevant matters into consideration the [Highway Authority] raises no objection to the application subject to a Section 106 agreement requiring the following…”
The Highway Authority then set out a number of matters it wished to see covered by a section 106 agreement.[19]The application was considered at the Council’s Planning Committee meeting on 13 January 2012. The Committee of course had all of the relevant documents, including the Traffic Assessments, the Claimant’s objections including its own traffic analysis in the form of the Bellamy Roberts correspondence and report, and an Officer’s Report which contained an analysis of the traffic issues. That report set out the whole of the substantive part of the 3 January 2012 letter I have quoted above. The report made clear that the Highway Authority’s initial response was the application should not be approved. But it went on to say: “The HA [which, it is common ground before me, was a reference to the Highway Agency] have since confirmed that, whilst they still have some concerns regarding the assumed reductions in traffic generation associated with the development (based upon implementation of sustainable transport measures/contributions set out in the Travel Plan), having considered the total impact of the development on the [Strategic Road Network], they accept the proposed traffic generation figures and have replaced their direction of non-approval with one of requiring a condition to be imposed regarding a comprehensive Travel Plan. The… Highway Authority have considered very carefully the impact of the development on the local highway network and in particular the flows along Topsham Road pending connection to the [Link Road]. They are mindful however of the applicant’s significant and substantial commitment to public transport initiatives and consider that the applicant’s assertions on trip generation, although challenging, are achievable and that subject to a suite of Section 106 commitments… the impact of the development is acceptable. The two new junctions onto Topsham Road are considered acceptable in principle in terms of their position and capacity…”.[20]The Claimant’s representatives attended the meeting, and, amongst other things, pointed out that the Traffic Assessment was wrong in that not all homes in the development would be no more than 400 metres from a bus stop. There was a discussion about the traffic data, and why the Claimant said that the data used in the Traffic Assessment were incorrect; to which Mr Hensley of the Highway Authority responded saying that, although an assessment necessarily had to be made on assumptions which were to an extent subjective “and it is inevitable that opinions will differ”, the Highway Authority’s analysis was “that what is said on behalf of the applicant is broadly correct”. He went on to say: “I am not going to say that in an ideal world I wouldn’t like to see the link in place from day one, I am a highway engineer, I would like to see all the infrastructure provided at day one. Having made the mistake of deciding to being a highway engineer in the planning world I also have to be a realist and a pragmatist and accept that sometimes there are viability considerations that come into play and those viability considerations have been a big feature of discussions that I have had with your officers in a number of meetings in this building but also as the applicants have said in their analysis does actually demonstrate that the link is not actually essential. It maybe desirable, but it is not actually essential”.[21]The Committee unanimously decided that planning permission should be granted, subject to various conditions and to section 106 obligations. The conditions included the following:
“35. A road (to an agreed specification) to be built to the Dukeminster boundary north of the school site (at a point to be agreed within the 50m corridor specified in the Dukeminster approval) before the occupation of the 301st house or opening of the school, whichever is the earlier. Reason: to ensure that the facility to connect the proposed development to adjacent development is made available and not negated by the development. 36. Not more than 650 dwellings to be occupied prior to the construction and opening of the northern road connection within the site to the [Link Road].”
[22]Following completion of the Section 106 agreement on 11 October 2013 and pursuant to the Committee’s decision on 13 January 2012, planning permission was granted on 15 October 2013. It is of course that grant that the Claimant now seeks to challenge.

The Grounds

[23]At the hearing, Miss Nathalie Lieven QC for the Claimant focused on three areas. She submitted that: i) The Planning Committee took into account the important fact that the Highway Authority had found that the development proposal acceptable; but the Highway Authority erred in law in making that finding (Grounds 7 and 8 in the original Statement of Grounds). ii) The Planning Committee took into account the Traffic Assessment; but that Assessment contained material errors (Grounds 2 and 6). iii) Condition 35 misled the Planning Committee into believing that the road Dart was required to construct to the site boundary north of the school would link up to a road Persimmon was required to construct on its land as part of its planning permission, such that traffic would be able to pass from the Dart Site to the Persimmon development (Ground 3).[24]I will deal with these in turn, reminding myself that, at this stage, the hurdle the Claimant must overcome is low. If a ground is arguable, the Claimant is entitled to proceed.

Grounds 7 and 8

[25]Miss Lieven submitted that, in the light of Dart’s untested assertion that it would be held to ransom by the Claimant over vehicular access to the Link Road, the Highway Authority improperly compromised on the issue of access to the Link Road – which it considered important – due to fears that the scheme to develop the Dart Site would otherwise not be viable and thus not deliverable. It is clear, she says, that the only reason why the Highway Authority decided not to object to the proposal “on highway grounds” was because of Dart’s assertion as to the non-viability of the scheme if it was required to pay the Claimant for direct access to the Link Road from the Dart Site. Dart’s assertion is untested because Dart failed to engage with the Claimant about connecting to the Link Road; and there is no evidence that the Dart proposal would not be viable if a connection with the Link Road was required. As a matter of law, that, she submits, meant that(i) the Council failed to have regard to a material consideration, namely that it was likely that the connection with the Link Road could be achieved at an early stage without rendering the Dart proposal unviable;(ii) the Council failed to take into account the fact that it would be illogical for the Claimant to render the Dart proposal unviable; and(iii) the Council acted unlawfully in deciding the application on the factual basis that the Dart proposal was not viable if a connection with the Link Road was required, in the absence of evidence to that effect.[26]However, I am entirely unpersuaded by the proposition that underlies these grounds, namely that the Highway Authority took into account the viability or deliverability of the Dart proposal when determining that it was acceptable on highway grounds. That is clearly not the case. To the contrary, it is clear that the Highway Authority’s final position, as identified to the Planning Committee, was that, from a highway perspective, a vehicular link to the Link Road would be preferable; but, nevertheless, the Dart proposal, which posited no such link at any time, was acceptable from a highway point of view, and an objection to the development proposal on highway grounds was unsustainable.[27]In coming to that conclusion, I have particularly taken into account the following: i) The Highway Authority’s initial formal response to the development proposal, made on 15 November 2011, was to recommend refusal on highways grounds (see paragraph 11 above). It is apparent from that email that(a) the Highway Authority knew that the Council considered that, if a direct connection to the Link Road were required, the viability and deliverability of the proposal was at risk, but(b) the Highway Authority nevertheless concluded that the proposal was not acceptable on highway grounds. Miss Lieven – rightly – accepted that the Highway Authority’s approach here was correct: it considered whether the proposal was acceptable from a highway perspective, and determined, on entirely proper highway grounds, that it was not. ii) The Highway Authority changed its stance, and found the proposal acceptable, in its email of 23 November (see paragraph 14 above). Miss Lieven submitted that the change of mind was not as a result of highway considerations, but because of pressure brought to bear by Dart and in particular Dart’s assertion that the scheme was not viable (and hence not deliverable) if a direct connection to the Link Road were to be required. However, I do not consider that is arguable. It is inherently unlikely that the Highway Authority, having had the correct approach in mind on 15 November, would have adopted a blatantly wrong approach two weeks later. But it clearly did not err. The change in stance occurred after Dart, through PBA, had addressed the Highway Authority’s main concern, i.e. traffic flows at the Link Road Junction, in the further analysis submitted on 21 November and discussed with the Highway Authority at a meeting that day. The 23 November email makes clear, that, “Having considered the revised traffic flows based upon 650 dwellings being constructed prior to the northern connection within the site being made to the [Link Road]….”, an argument that the Link Road Junction did not have the capacity for the post-development traffic flows could not be sustained; and, “Following the revised information and discussions…”, the Highway Authority was prepared to remove its objection to the development. The reason for the change of stance is clear. It was not viability or deliverability of the proposal as a whole; it was the new traffic analysis. iii) In support of her submission to the contrary, Miss Lieven relied upon the references to deliverability in the email of 23 November:
“The relative late delivery of the connection, which had been discussed at meetings between the Highway Authority, your Council and the applicant, is related to the deliverability of the site for residential development and, at those meetings, that issue was explained and discussed in some detail. It was subsequently agreed that the applicant need not make the connection until the occupation of the 600th dwelling in recognition of maximising the potential for the scheme to be delivered early”
(emphasis added); And, particularly:
“Balanced against the proposed sustainable transport initiatives and contributions, and the deliverability issues of the site for substantial additional housing provision in the city, it is considered an objection on highway grounds could not reasonably be pursued or substantiated”
. That last sentence, she submitted, makes it clear that the Highway Authority did take into account deliverability in coming to the conclusion that an objection on highway grounds could not be sustained. I accept that that sentence might, perhaps, have been better phrased; and no doubt would have been if cast in a legal document drafted by a lawyer. But it has to be seen in its full context. It was part of a letter sent by the Highway Authority to the Council as planning authority in the context of on-going discussions between them, Dart and the Claimant. Miss Lieven said that the important context was that Dart asserted that the scheme was not viable with a connection to the Link Road – and was behaving in a commercially aggressive way, not wanting to pay any fee to the Claimant for a direct connection to its (the Claimant’s) private Link Road, as the Claimant accepted at the 13 December 2011 meeting – and a requirement to connect to the Link Road would affect deliverability, and in particular prompt deliverability (see paragraph 16 above). However, Dart did not put its proposal forward on the basis that there would ever be a connection, and indicated that, in the context of this application, it was not interested in obtaining and paying for such a connection. The real context was that the Highway Authority had been in meetings with the Council as planning authority, and Dart or the Claimant, in which viability and deliverability had been discussed as a material planning (not highway) consideration. These passages merely confirmed that the Highway Authority understood the wider planning picture; but it was clear that it had changed its stance on purely highway grounds, as a result of considering the further analysis of the Link Road Junction traffic flows, which had been troubling the Authority, but which the new analysis showed had sufficient capacity. iv) The Highway Authority’s final stance was properly expressed to the Planning Committee, who had the full text of the Highway Authority’s 3 January 2012 letter, and the summary that (a) the Highways Agency had considered the total impact of the development on the Strategic Road Network, accepted the traffic flow figures supplied by PBA and approved the proposal subject to a condition regarding the Travel Plan, and (ii) the Highway Authority considered the applicant’s trip generation assumption challenging but achievable, and considered “the impact of the development is acceptable”. It was confirmed, at the meeting, by the Highway Authority’s Mr Hensley (see paragraph 20 above). The Planning Committee members were therefore properly able to take into account the traffic information supplied, including the Highway Authority’s conclusion that the development proposal was, on highway grounds, acceptable.[28]For those reasons, I consider the proposition upon which these grounds are based to be unsound, and unarguably so.

Grounds 2 and 6

[29]Miss Lieven submitted that there were two serious flaws in the traffic and transport assumptions relied upon by the Planning Committee, so that the factual basis upon which the Committee made its decision was fundamentally flawed and thus unlawful. i) First, Table 4.1 in paragraph 4.7.1 of the Traffic Assessment sets out the trips included in the figures, namely from housing, school, care home and nursing home. It does not include trips generated by other proposed community facilities – the surgery, sports facilities, local store and community building. Miss Lieven submits that trips generated by facilities was an important factor in the minds of the Committee – because the 13 January 2012 meeting minutes record the point being raised, and Mr Hensley confirming his understanding that all traffic movements had been taken into account in the analysis. But, Miss Lieven submitted, they had not: they omitted trips generated by some of the proposed community facilities. That was a fundamental flaw; and particularly so as the trip assumptions in the Traffic Assessment were recognised at the time as “challenging”, and the critical junction (i.e. the Link Road Junction) was already at capacity, so any small error was material and indeed important. ii) Second, as I have already indicated, the Transport Assessment said that all homes in the development would be no more than a 400m walk of a bus stop. The Council accept that that was an error, again vital because of Dart’s reliance on alternative transport, the range of sustainable transport measures as part of the proposal being regarded as important by both the Council and the Highway Authority which referred to them as “a core element of the applicant’s case that the transport elements of their application be accepted.”[30]However: i) Mr Alan Swan of PBA, who was involved in the traffic analysis for Dart, in his statement of 17 December 2013 at paragraph 4, explains that:
“Specific trip generation was not included for these uses as they were not considered to be significant generators especially during local highway peak hours as they will be aimed at providing local facilities for local people. Moreover, they are neither likely to be attractive to passing traffic along Topsham Road or become a destination in their own right.”
He says that trips to the local shop are often “pass by trips”, not additional trips; and in any event they would not usually mean turning right at the junction with the Link Road – and would not materially impact on that junction. Bellamy Roberts disagree: in appendix 18 of his statement of 22 November 2013 – of course, well after the event – Mr Ian Roberts of that firm seeks to show that the number of trips generated would be significant. But the important point for the proposed challenge in this court is that the Highway Authority and the Council had all of the relevant information, they were fully aware that no figures had been included in the PBA trip generation analysis as arising out of these development facilities, and were able (and entitled to) determine whether (i) they had sufficient information to come to a view as to whether additional trips generated by these facilities would be significant; and (ii) on the basis of that information, if sufficient, whether additional trips generated by these facilities were in fact significant. Both of those require the exercise of planning judgment. The Planning Committee, clearly, considered that they had sufficient information to decide whether additional trips generated by these facilities were significant; and, on that information determined that they were not. Those were matters of planning judgment within their proper remit. There is not arguably an error of law here. ii) So far as bus stops are concerned, in fact, the parts of the Dart Site furthest from the bus stops on Topsham Road would be nearest to the new proposed rail station, and all dwellings would be within 400m of a stop on the new community bus service. Consequently, for those charged with considering the merits of the application, the fact that not all houses would be within 400m of a main bus stop may have been diminished in importance. But that is a merits point. The important point for the proposed challenge in this court is that, not only did the Officer’s Report to the Committee not rely on that proposition, the officers and Highway Authority well knew that not all dwellings would be within 400m of a main bus stop. The Planning Committee certainly knew, because, not only did they have a plan showing where the bus stops were to be, but the Claimant’s representative made that very point at the 13 January 2012 planning meeting; so the Committee were clearly aware of it when they made their decision. Indeed, Miss Lieven concedes that they must have known; but submitted that they were not told the effect of that on the number of generated car trips. That is so; but, again, the Committee were in a position to judge whether they required further analysis to be in a position to determine whether any additional trips would be material, and clearly concluded that they did not. That, again, was a matter for planning judgment for them. There is thus no basis for the assertion that the erroneous statement in the Traffic Assessment played any part in the decision-making process. It unarguably did not. Therefore, it cannot be said the error in the Transport Assessment was arguably material.

Ground 3

[31]Finally, Miss Lieven submitted that the Committee were, or might have been, misled into considering the application on the basis that the Dart Site would connect with the Link Road and with the Persimmon Land. They may have been led to that misbelief, she submitted, because Condition 35 (quoted at paragraph 21 above) is premised upon connecting the Dart Site and the adjacent Persimmon land, as is clear from the reason for the imposition of the condition:
“to ensure that the facility to connect the proposed development to the adjacent development is made available and not negated by the development”
. That is reinforced by the Officer’s Report, which suggests there will be such a connection with the Persimmon development: there are references to the fact that “planning conditions will facilitate a connection to the adjacent development…” and to “two connections to adjoining development land/the [Link Road]”. However, although Dart was required to construct a road to its northern boundary, and Persimmon a road to its boundary close by, the Claimant owns a 1m strip of land between the two – and so it was wrong to suggest that there would be a through road between the developments. Whether there would be such a road would depend upon the Claimant’s consent. At the very least, Planning Committee members would be left in a state of confusion.[32]However, I do not consider there is force in that submission. The reason behind Condition 35 condition is clear and express: it is to facilitate connection to the adjacent development, and to ensure that such a connection is not negated, i.e. rendered impracticable. There is only one reference to “[a connection] to adjoining development”; but that is in the same sentence and context as “[a connection] to the [Link Road]”, which the Planning Committee were very well aware could not be achieved without the approval of the Claimant. Connection of the development to the Link Road and to the adjacent development were aspirations of the Council; and, in the passages relied upon by Miss Lieven, when the material is read as a whole, Officer’s Report was merely saying that the development was such as not to eliminate the future practicability (and, indeed, to facilitate the practicability) of a connection with the adjacent development. In any event, whether or not there was permeability between the two developments was immaterial to the decision with which the Planning Committee were concerned: the traffic analysis was based upon all traffic exiting the Dart Site via one of the two connections to Topsham Road, and, in respect of this application, the Committee could not have been materially concerned with any difficulties there might be in practice in linking to the road required to be built as part of the Dart permission to a road within the Persimmon development as a result of the position the other side of Dart’s boundary.[33]There is thus no force in this ground, which I consider to be unarguable.

Conclusion

[34]Therefore, I do not consider any of the grounds upon which Miss Lieven focused to be arguable. Of the other written grounds, she formally abandoned some, and did not actively pursue others. Insofar as other grounds were not formally abandoned, I have considered them all. I consider that Miss Lieven was right not to press them. For the reasons given by Lewis J, I do not consider any to be arguable.[35]As well as the reasons given by Lewis J when refusing the application on the papers, those are the reasons upon which I refused permission to proceed.