A High Court judge has quashed an Exeter City Council decision to grant outline planning permission for up to 350 dwellings on the site of St Bridget Nurseries in Old Rydon Lane.
The council planning committee approved the application to demolish and redevelop the 33 acre horticulture nursery and former garden centre in March last year after unanimously deferring the decision from its February meeting so council officers could review the scheme’s controversial highways access proposals.
The decision was originally to have been made at the committee’s January meeting, which had to be cancelled after the council failed to inform objectors that it was taking place.
The highways access proposals included the partial closure of the western end of Old Rydon Lane and the introduction of a one-way motor vehicle restriction along the rest of the lane as far as Newcourt Way.
Traffic generated by the new low-density development would enter from the west and exit either westwards into Rydon Lane or eastwards into Newcourt Way, where a short one-way section already prevents westbound motor traffic entering the lane.
The proposed road layout is at odds with the long-planned vehicular access to the development site via its north-east corner, connecting with the Ikea roundabout on Newcourt Way which was constructed complete with a spur road for this purpose.
St Bridget Nurseries illustrative layout. Image: Clifton Emery Design.
The Sandy Park Farm Partnership, a property and farming business based in Old Rydon Lane, and Christine Pratt, a resident who would have been directly affected by the revised Old Rydon Lane road layout, jointly sought judicial review of the council’s decision last year.
Mrs Pratt is not directly involved in The Sandy Park Farm Partnership, which has beneficial ownership of land to the north-east of the development site across which vehicular access is envisaged in the Newcourt Masterplan, the thirteen year-old council development management framework for the area. She is, however, related to some of the partners.
The claimants sought to challenge the council’s decision on four grounds, but only two of these proved relevant. The first was the claim that the council had failed to assess the impact of the proposed new road layout on the existing residents of Old Rydon Lane.
The second was that the council planning officer had given materially misleading advice to the council planning committee on the feasibility of implementing the Newcourt Masterplan access scheme and had failed to discharge a duty to investigate whether the land to the north-east of the site intended for this scheme was for sale and, if so, on what terms.
St Bridget Nurseries proposed street hierarchy. Image: Clifton Emery Design.
Prospective site developer Waddeton Park Limited submitted an application for outline planning permission, with all matters reserved except access, in April 2022. It was accompanied by a transport assessment that concluded that the proposals would not result in severe impact on nearby roads, but did not address its impact on the existing residents of Old Rydon Lane.
The council consultation on the proposals generated 79 public comments, of which only one was in support. Both judicial review claimants submitted objections, disputing the developer’s claim that major changes had taken place since the Newcourt Masterplan had been adopted which meant the north-east road connection to the Ikea roundabout spur was no longer available.
They said neither the St Bridget Nurseries site owner nor the developer had contacted them to discuss the availability of the land required to make the connection.
Devon County Council also submitted a consultation response in its statutory role as local highway authority in which it accepted the developer’s assessment of the scheme’s prospective traffic impacts and also did not consider their effect on the existing residents of Old Rydon Lane.
The Exeter City Council planning officer’s report to the council February planning committee meeting also accepted the transport assessment submitted by the developers.
It added that the county council had “raised no in-principle objections to the scheme” and had “confirmed that the proposed access points will not generate significant safety concerns and are acceptable”.
Summarising objections to the scheme, the report mentioned that many had raised the planned highways connection to the north-east and said that while the connection “would be welcomed, there is third party land between the connecting points”.
It concluded that “the lack of a connection point to the north-east is not a suitable reason for refusal of this proposal”.
St Bridget Nurseries highways proposals plan. Image: Stantec.
Several planning committee members raised concerns about the proposed highways access. They cited doubts about the safety of the Old Rydon Lane junction with the much faster moving Rydon Lane dual carriageway, where near-misses were often reported and serious accidents had taken place, and said the connection to the north-east should be considered instead.
They were told that the status of the land to the north-east of the site was not part of the application in front of the committee, and that it was not the responsibility of the county council highways team to negotiate with third parties.
When they nevertheless voted to defer the application so council officers could review these issues, the developers sent the council a letter claiming that the owners of the residual land to the north-east of the development site were “seeking to impose a ransom burden on the development” to the tune of “one third of the development value of the land”.
They said the cost of this ransom strip would either prevent development delivery altogether or “significantly reduce” the benefits it might otherwise yield, such as the 35% affordable housing allocation that had been proposed for the site.
The subsequent council officer’s report to the deferred planning committee meeting in March noted the claims about the cost of the residual land and the limits such a cost would place on the developer’s ability to provide affordable housing and other benefits.
It added that “exact financial details of this have not been provided” but nevertheless said this issue should be given consideration when making a decision on the development. It concluded: “Whilst the use of third party land for a connection would be beneficial it is not possible to require this through the planning system”.
The planning committee then approved the developer’s application.
Newcourt Masterplan. Source: Exeter City Council.
Successful judicial review challenges require claimants to establish public law errors on the part of decision-makers.
In this case considerations included whether Exeter City Council had taken sufficient steps to inquire into the decision before making it (known as the Tameside duty), whether it had properly taken material considerations into account, and whether the council planning officer had materially misled committee members on a matter bearing on their decision without the error being corrected before the decision was made.
In her judgement, Mrs Justice Lang first considered the claim that the city council had failed to properly assess the impact of the proposed road layout on the existing residents of Old Rydon Lane.
She said that the public consultation objections submitted to the city council had put it “on notice” that residents were concerned about the prospective highways changes, to which the council was obliged to have regard as required by the local development plan and because they were a material consideration.
She found that the county council had “failed to discharge its statutory duty” as local highway authority, adding that its decision not to participate in the court proceedings meant that no explanation had been provided for “its undisputed failure to consider the availability of highway access and loss of amenity for the existing residents of Old Rydon Lane in its consultation response.”
She also found that the developer’s transport assessment was “inadequate because it did not assess the effects of its access scheme on existing residents”.
Given that neither the county council nor the developer had provided the city council with the advice it needed, the judge found that the city council “ought to have discharged its Tameside duty to investigate the likely impacts” of the scheme on existing residents before making its decision.
As the planning officer’s report “failed to grapple adequately, or at all” with these impacts, and “failed to give any or any adequate reasons as to why such impacts were acceptable”, the judge found that it was therefore “materially misleading by omission”.
Newcourt Masterplan figure showing St Bridget Nurseries site access. Image: Exeter City Council.
Considering the second claim, Justice Lang observed that Newcourt Way and the Ikea roundabout, with its existing spur, had been designed at the request of both Exeter City Council and Devon County Council “specifically to accommodate the future traffic from allocated sites in the Newcourt area” as part of the area Masterplan.
This meant that the north-east access to the St Bridget Nurseries site had already been identified and that the developer’s proposed alternative access arrangements via Old Rydon Lane “departed significantly from the Masterplan’s access scheme”.
Consequently, the judge found that the council planning officer’s report had “not given proper regard” to the substance of the Masterplan and had instead “dismissed” public consultation responses that were in favour of the Masterplan’s access scheme.
The judge identified a sequence of errors in the planning officer’s report which amounted to the advice it contained being “seriously misleading”. These included failing to advise the planning committee that a Grampian condition could have been employed to prevent on-site development until the off-site connection to the Ikea roundabout spur had been completed on the adjacent land.
They also included that there was no evidence that the adjacent land would cost one third of the site’s development value, as had been claimed, and that the warning that affordable housing and other benefits might be lost as a result of this cost was also mistaken.
In fact, the owners of the adjacent land had written to the council two days before the February planning committee meeting to confirm that the land was “certainly available” and that its owners “would like to negotiate” its use for the Masterplan-compliant access to the development site.
The judge found that the council planning officer appeared only to have consulted the developers, and not the landowners, despite the February planning committee deferral for this purpose, and so the council had “failed to discharge its Tameside duty” and had “irrationally failed” to contact either the landowners or their agent to ask if the land was available and, if so, to find out the asking price.
Sandy Park Farm phase two illustrative masterplan. Image: LHC Design.
Extraordinarily, Waddeton Park Limited resubmitted its application for outline planning permission to redevelop St Bridget Nurseries three months after its previous application had already been granted.
It did so three days after the application for judicial review of the previous decision was accepted.
Its new planning application is accompanied by a transport assessment addendum. This says that while it provides “additional information and clarification around certain aspects of the proposals, the access strategy and implications of the development are unchanged and therefore the proposals should remain acceptable to Devon County Council and Exeter City Council in highways and transport terms”.
The Sandy Park Farm Partnership, meanwhile, has submitted a separate application for outline planning permission, for up to 158 residential dwellings and 17,500m2 of commercial space, on a twenty acre greenfield further east along Old Rydon Lane between Sandy Park stadium and the railway line.
