Legal Viewpoint
The Nerrols 3 planning meeting was reviewed/audited by a leading Barrister.
Certain council actions were considered 'unlawful' and others were 'misleading' and not following correct process, certainly well below the standards a public office should provide.
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Copy of letter -
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IN THE MATTER OF:
LAND AT LYNGFORD LANE, CHEDDON FITZPAINE, TAUNTON
NOTE
27 June 2025
Introduction
1. I have been instructed by Cheddon Fitzpaine Parish Council on a pro bono basis to
comment on the potential grounds for challenging a decision which may be made by
the Somerset Council (“the Council”) following a meeting of the Planning Committee
- West (“the Committee”) on 15th April 2025.
2. This is not a full advice addressing all of the relevant matters in connection with any
challenge or appeal or the prospects of success of any claim.
3. The matters addressed in this note are based on the documents I have seen, namely the
minutes of the two relevant committee meetings referred to below, the planning
officer’s reports for the two meetings and the road safety audit referred to. All of these
documents are publicly available.
Background
4. An application was made by BDW Trading Ltd (“the Applicant”) to the Council on
18/04/2019 for full planning permission for the phased development of 292 dwellings
with associated access, infrastructure, open space (formal and informal), landscaping
and related works on land at Lyngford Lane, Cheddon Fitzpaine, Taunton (“the
Site”)(“the Application”). The Application was given reference 38/19/0129.
5. The Application was contentious and received widespread public interest. Whilst there
was limited objection to the principle of a housing development on the Site, there were
a large number of objections relating to the impact of the development on the highway
network. In particular, concerns were raised about the single point of access to be
created for the development and the impact of increased traffic on a narrow, quiet
country lane (Cheddon Road), which has no footway and which is used regularly for
vehicles and pedestrians to access the local Cheddon Fitzpaine Primary School.
6. The Applicant had provided the Council with a Road Safety Audit document prepared
by Rappor dated April 2024. The document focused on a number of “problems” which
it acknowledged and provided proposals in respect of the problems identified.
However, the document did not expressly address the issue of whether the impact of
the development and the proposed access arrangements would be safe. Further,
surprisingly, the audit was expressly based on only one visit to the site during daylight
hours made by the Audit Team on Monday, 25 March 2024 at 12:50 (i.e. when there
was unlikely to be any school traffic). The document noted that traffic data had been
provided to the Audit Team in the form of a “Transport Assessment Addendum” dated
February 2023 but that “Specific traffic data within the area of the audit ha[d] not been
provided”.
7. Residents of the local community disagreed with the Applicant’s traffic assessment and
provided their views on the impact of the proposed development on Cheddon Road and
highway safety including by reference to their own traffic counts.
8. The planning officer’s first report to the Committee noted that there had been 98 letters
objecting to the Application and summarised highways/transport objections as follows:
“Highways / Transport
• Fails to provide the link road to the adjoining site
• Local roads do not have capacity to accommodate the number of dwellings
proposed
• Increased traffic would be detrimental to highway safety
• Fails to provide suitable walking and cycling routes
…”
9. The Application was considered by the Committee on 18 February 2025. The approved
minutes for the meeting state:
“The Chair used his discretion to allow more objectors to speak. The Committee
were addressed by 10 objectors including Local Members and Parish
Councillors whose comments included: The rurality of the road and its lack of
suitability for increased traffic, …
Councillors were invited to discuss the application and the following points
were raised:
- Councillors queried the traffic impact assessment and if the widening of the
road was included. Sam Tearle, Planning Highways Officer, confirmed that the
widening of the road was not part of this application.
- Councillors queried the traffic impact assessment and the large volume of
traffic in Cheddon Fitzpaine. Councillors felt that the reality of the traffic had
not been adequately assessed.
- Councillors raised the need for an additional access point to alleviate the
traffic flow and the resolution for this.
- Councillors did not consider that the site would be well served by an active
cycle route and that the improved bus stops would be some distance from the
site
…
- Councillors acknowledged that the principle of developing the site was
accepted but that more information was needed to understand the transport
impacts of the proposals”
10. It was decided (with 11 votes in favour, none against and only 1 abstention) that the
application be deferred for the following reasons:
“1) In order to receive further information under paragraph 116 of the National
Planning Policy Framework in respect of the potential transport impacts of the
development (including active travel and public transport); and
2) To carry out a site visit at an appropriate time of day.”
11. The Application was deferred to a meeting of the Committee on 15 April 2025. A site
visit took place on 03 April 2025 with members of the Committee in attendance. It was
asserted, at the meeting on 15 April 2025, that the site visit focused on the point of
access and the connection with Cheddon Road to the west, and that the members of the
Committee were not taken north towards Cheddon Fitzpaine Primary School. Further,
the Applicant did not provide any further assessment or evidence about the potential
transport impacts of the development. Rather, it asserted that its earlier assessment was
adequate.
12. The minutes of the meeting on 15 April 2025 (“the Minutes”) record the following:
“The Chair used his discretion to allow a further public speaker. The
Committee were addressed by 6 objectors whose comments included:
- Lack of adequate site visit(s) by the Committee.
- The risk to public safety that the development would cause.
- The volume of traffic using the single access point.
- The risk to children and parents who walked to school.
Councillor Tom Deakin and David Forthergill addressed the Committee, whose
comments included:
- Lack of traffic assessments and photos of the area to the north of the
proposed development.
- The impact the development would have on Cheddon Road.
- The need to increase cycling and walking routes if approved.
The Committee were addressed by the agent.
The Highways Officer responded to queries around the future residents driving
routes to the north of the development and confirmed that the assessments were
done to industry standards and were satisfied with the impact.
Councillors were invited to discuss the application, and the following points
were raised:
- Councillors asked for the traffic numbers that were reported for the
development area during the assessment. This was duly provided by the
Highways Officer.
- Councillors were unhappy with the lack of a link route and second access
point. The Planning Officer confirmed that the application did not include a
second access point, and the application was recommended for approval
without it.
…”
13. A proposal was made to approve the Application. A vote was taken, which failed.
14. The Minutes confirm that the Committee then engaged in a debate to resolve a suitable
reason for refusing the Application. The Minutes confirm (emphasis added):
“The Committee took the view that the traffic provided to industry standards
did not reflect the view of the local area. The Planning Officer confirmed this
was not a suitable reason for refusal and would likely not win at appeal.
Councillors queried the cost of losing at appeal and the likelihood of finding a
consultant that would support the refusal. The Head of Planning gave an
estimated cost of a loss at appeal and confirmed that Somerset Council would
struggle to fund a consultant who would go against officer recommendation
and support the refusal.
After deliberation and a suitable reason or amendment not being proposed for
refusal, Councillor Simon Coles proposed that the application be approved,
which was seconded by Councillor Stephen Pugsley.
Subject to the completion of a Planning Obligation, to grant permission subject
to the conditions detailed within the officer’s report.
(Vote: 5 For,4 Against, 1 abstention)”
15. The Council has not yet granted permission. For the reasons addressed below, the
Council is entitled to refer the matter back to the Planning Committee to reconsider its
decision in light of the matters raised in this Note. Therefore, there is currently no
decision which could be challenged by way of judicial review. However, if the terms
of a Section 106 Obligation are agreed and the permission granted, that decision may
be challenged by way of judicial review.
Summary - Grounds
16. In my view, there are a number of potential grounds on which a grant of planning
permission could be challenged in the circumstances:
Ground 1: The members of the Committee based their decision to grant permission
on an illegitimate consideration, namely the risk of an adverse costs
award on appeal – R (East Bergholt Parish Council) v Babergh District
Council [2019] EWCA Civ 2200 applied.
Ground 2: The Committee were misled by officers and/or misdirected themselves
that an appeal of their proposed decision to refuse permission was bound
to succeed and/or that the impact on highway safety could not provide a
reason for refusal.
Ground 3: Alternatively, having identified that the Applicant’s traffic impact
assessment was inadequate, the Committee were misled by officers
and/or misdirected themselves that they could not base their decision on
local knowledge or representations from the public because an
assessment had been provided which had been prepared to industry
standards.
Ground 4: The Committee were misled by officers and/or misdirected themselves
that the Council would have to pay costs if an appeal against a decision
to refuse the Application succeeded and therefore took into account an
immaterial consideration.
Ground 5: The Committee were misled and/or took into account an immaterial
consideration in reaching their decision on the basis that the Council
“would struggle to fund a consultant who would go against officer
recommendation and support the refusal”.
Ground 6: Further or alternatively, the Committee failed to provide adequate
reasons for rejecting the inadequacies they had identified in the
Applicant’s traffic assessment and/or as to why the highways impact was
acceptable despite the inadequacies identified in the Applicant’s
assessments and the representations received about the harmful impact
of the development on highway safety.
Addressing the grounds in more detail:
Ground 1
17. The Minutes confirm that the majority of the Committee rejected an initial vote to
approve the Application and engaged in a discussion about the reasons for refusing
permission for which the Minutes record: “Councillors queried the cost of losing at
appeal and the likelihood of finding a consultant that would support the refusal. The
Head of Planning gave an estimated cost of a loss at appeal and confirmed that
Somerset Council would struggle to fund a consultant who would go against officer
recommendation and support the refusal.” The Minutes then confirm that the
Committee approved the Application albeit with a majority of one vote. This
demonstrates that the members of the Committee changed their minds and approved
the Application based on considerations about the costs of losing at appeal. In my view,
this is unlawful.
18. In R (East Bergholt Parish Council) v Babergh District Council [2019] EWCA Civ
2200, Lindblom LJ said (at 82) (emphasis added):
“It need hardly be said that local planning authorities are not free to misread
or misapply government policy because they fear the financial consequences for
themselves if later faced with an appeal against a decision to refuse planning
permission, or indeed, as in this case, proceedings for judicial review
challenging a decision to grant. They must adhere, always, to a correct
interpretation of relevant policy, apply such policy lawfully when assessing the
proposals before them solely on the planning merits, and not allow the
potential consequences of the decision for their own resources to influence
their exercise of planning judgment. If authorities abide by that basic
principle, they may still not avoid the expense of having to defend their decisions
on appeal or resist claims for judicial review. That is beyond their control. But
they will, at least, be acting in accordance with the law. …”
19. Underhill LJ said (at 87)(emphasis added):
“… It is true that in the real world councillors and officers are bound to be
aware that a refusal of planning permission for a big development is likely to
be appealed, and that, win or lose, the process will be expensive in terms both
of officer resources and of legal costs incurred – let alone the further, though no
doubt typically remote, risk of liability for the developer's costs if the appeal is
successful and the council is held to have acted unreasonably. No doubt the risk
of those costs will encourage them to think carefully about any refusal decision,
and that is fair enough – though of course in principle they should be doing so
anyway. But that is not the same as allowing the risk of the costs associated
with defending an adverse decision on appeal to influence them in the
exercise of their planning judgement. That is not legitimate ... It is important
that that distinction is not blurred; and there is a risk of that occurring if
officers in their advice make express reference to the likely costs consequent
on a refusal. Councillors’ job is to exercise their planning judgement, and if
that leads to an expensive appeal that cannot be helped. The same of course
goes for planning decisions which cannot be appealed as such but which an
adversely affected party may choose to challenge by way of judicial review. I
therefore particularly endorse what Lindblom LJ says at para. 82.”
20. The Minutes reveal that the Committee were not advised that the officer’s comments
about the costs of an appeal and/or the risk of paying costs should not influence them
in the exercise of their planning judgment. Rather, it appears that the risk of paying
costs had a significant impact and was the reason for the change in their decision. This
was not legitimate and meant that the Committee based their decision on a factor which
was not a material planning consideration.
Grounds 2 and 3
21. The Minutes record that “The Committee took the view that the traffic provided to
industry standards did not reflect the view of the local area. The Planning Officer
confirmed this was not a suitable reason for refusal and would likely not win at appeal.”
(1) Firstly, it is not correct that the impact of the traffic on the local area could not
be a suitable reason for refusing the Application:
(a) The weight to be given to the evidence and representations before the
Committee is a matter of planning judgment for the Committee: Tesco
Stores v Secretary of State for the Environment [1995] 1 WLR 759. They
were entitled to prefer the evidence of local residents and/or their own
local knowledge over the Applicant’s assessments (whether or not
prepared in accordance with industry standards) and/or over the views
of highways or planning officers.
(b) Section 70(2) of the Town and Country Planning Act 1990 required the
Council to have regard to the provisions of the development plan, so far
as material to the application, and any other material considerations.
Section 38(6) of the Planning and Compulsory Purchase Act 2004
provides that, if regard is to be had to the development plan for the
purpose of any determination to be made under the Planning Acts, the
determination must be made in accordance with the plan unless material
considerations indicate otherwise. In exercising their planning
judgment, the Committee were entitled to find that the impact of traffic
on highway safety was a material consideration which required the
Application to be refused even if the Application was in accordance with
the development plan in other respects.
(c) The advice that the Committee could not reject the Application on this
basis was incorrect and meant that the Committee did not consider
relevant material considerations and/or fettered their discretion.
(2) Secondly, it was not correct that the Council was bound to lose at appeal if it
refused the Application for the reasons proposed (namely the impact on
highway safety). Notwithstanding (1) the changes to the National Planning
Policy Framework in December 2024, (2) the identified need for housing in the
area, (3) the failure of the Council to demonstrate a five-year supply of housing
land, and (4) the relevant site allocations, the Council and any planning
inspector on appeal, are entitled to find that the harm arising from the
development would significantly and demonstrably outweigh the benefits of the
scheme.
(3) Further, Chapter 9 of the NPPF was relevant to the decision, including the
following policy text:
“115. In assessing sites that may be allocated for development in plans,
or specific applications for development, it should be ensured
that:
…
d) any significant impacts from the development on the
transport network (in terms of capacity and congestion),
or on highway safety, can be cost effectively mitigated to
an acceptable degree through a vision-led approach.
116. Development should only be prevented or refused on highways
grounds if there would be an unacceptable impact on highway
safety, or the residual cumulative impacts on the road network,
following mitigation, would be severe, taking into account all
reasonable future scenarios.
117. Within this context, applications for development should:
…
c) create places that are safe, secure and attractive – which
minimise the scope for conflicts between pedestrians,
cyclists and vehicles, avoid unnecessary street clutter,
and respond to local character and design standards;
118. All developments that will generate significant amounts of
movement should be required to provide a travel plan, and the
application should be supported by a vision-led transport
statement or transport assessment so that the likely impacts of
the proposal can be assessed and monitored”
Therefore, the impact on highway safety was a relevant consideration and the
NPPF acknowledges that, despite the presumption in favour of sustainable
development, applications can be refused where they would have an
unacceptable impact on highway safety.
Ground 4
22. The Committee seems to have been advised that the Council would be liable to pay
costs in the event of a successful appeal. However, costs on appeal do not follow the
event. Rather, the usual rule is that each party pays their own costs.
23. In the East Bergholt case, Lindblom LJ explained (at 76) (emphasis added):
“As the Government’s relevant guidance explains, adverse awards of costs are
only made for conduct that is unreasonable, such as “preventing or delaying
development which should clearly be permitted, having regard to its
accordance with the development plan, national policy and any other material
considerations” (paragraph 16-049-20140306 of the PPG), and where an
authority “has refused a planning application for a proposal that is not in
accordance with the development plan policy, and no material considerations
including national policy indicate that planning permission should have been
granted, there should generally be no grounds for an award of costs against the
… authority for unreasonable refusal of an application” (paragraph 16-050-
20140306). “National policy” would clearly include the policy for the five-year
housing land supply in the NPPF.”
24. Therefore, even if the fear of paying the costs of a successful appeal was capable of
being a legitimate material consideration on which the decision could be based (it was
not), the risk of paying costs was not inevitable. The Committee were misled and/or
took into account an immaterial consideration as a result of the advice that costs would
be payable in any event.
Ground 5
25. The Minutes confirm: “Councillors queried the cost of losing at appeal and the
likelihood of finding a consultant that would support the refusal. The Head of Planning
gave an estimated cost of a loss at appeal and confirmed that Somerset Council would
struggle to fund a consultant who would go against officer recommendation and
support the refusal.”
(1) Firstly, it is not necessary for the Council to be satisfied that a consultant would
need to support a refusal of planning permission for the Council to refuse
permission. The Committee were perfectly entitled to refuse permission for
material considerations, including considerations relating to highway safety,
even if no consultant would reach the same view.
(2) Secondly, it is not necessary for a consultant instructed by the Council to
personally agree with the Committee in order for the Council to make
representations at appeal.
(3) Thirdly, it cannot reasonably be said that no consultant would take the same
view as the Committee.
(4) Fourthly, the Council was not required by the Town and Country Planning Act
1990 or any other legislation to appoint an external consultant to support the
refusal at appeal. The Council’s officers were entitled to oppose an appeal even
if the officers had previously taken a different view. Alternatively, different
officers could have dealt with an appeal. It is common for planning authorities
to support their Committee’s decisions in such circumstances without
instructing external consultants.
(5) Any policy previously adopted by the Council (if such a formal policy existed)
which provides that appeals can only be defended by external consultants is
likely to involve the fettering of the Council’s discretion.
26. In the circumstances, the Committee were misled in being advised that a consultant was
required and/or would not be found and/or that the Committee’s decision was
dependent on a consultant supporting refusal and, as a consequence, the Committee
seem to have taken these matters into account in making their decision when they were
not relevant planning considerations.
Ground 6
27. It is well established that a local planning authority may be under a common law duty
to give reasons for the grant of planning permission where fairness requires it: see
CPRE Kent v Dover [2018] 1 WLR 108 at [50] to [60]. The circumstances that give
rise to a duty can include where permission has been granted in the face of substantial
public opposition.
28. The test for the standard of reasons is also well established and is set out in South Bucks
v Porter [2004] UKHL 33 at [36]. Amongst other matters, reasons for a decision must
be intelligible and they must be adequate. They must enable the reader to understand
why the matter was decided as it was and what conclusions were reached on the
"principal important controversial issues", disclosing how any issue of law or fact was
resolved. Whereas reasons can be briefly stated, the reasoning must not give rise to a
substantial doubt as to whether the decision-maker erred in law.
29. The Committee rejected the proposal to approve the Application and the Minutes
confirm that “The Committee took the view that the traffic provided to industry
standards did not reflect the view of the local area.” No adequate reasons, or any
reasons, were given about why the Committee changed their mind about the suitability
of the highways impact despite these findings.
30. The Officer’s Report and Addendum cannot come to the rescue because the Committee
had already rejected the officer’s views about the highway impact.
31. For these reasons, to the extent that the Minutes do not confirm that the Committee
changed their minds about the Application because of the risk of paying costs on appeal
(which was erroneous and not legitimate) or on the basis that a consultant could not be
found to support the refusal (which is also erroneous and is not a relevant planning
consideration), adequate reasons for the rejection of the Committees earlier view about
highway impact are wholly absent.
Reference back to Committee
32. In R (Kides) v South Cambridgeshire DC [2002] EWCA Civ 1370, Jonathan Parker LJ
said:
“125. … where the delegated officer who is about to sign the decision notice
becomes aware (or ought reasonably to have become aware) of a new material
consideration, section 70(2) requires that the authority have regard to that
consideration before finally determining the application. In such a situation,
therefore, the authority of the delegated officer must be such as to require him
to refer the matter back to committee for reconsideration in the light of the new
consideration. If he fails to do so, the authority will be in breach of its statutory
duty.
126. In practical terms, therefore, where since the passing of the resolution
some new factor has arisen of which the delegated officer is aware, and which
might rationally be regarded as a “material consideration” for the purposes of
section 70(2), it must be a counsel of prudence for the delegated officer to err
on the side of caution and refer the application back to the authority for specific
reconsideration in the light of that new factor. In such circumstances the
delegated officer can only safely proceed to issue the decision notice if he is
satisfied (a) that the authority is aware of the new factor, (b) that it has
considered it with the application in mind, and (c) that on a reconsideration the
authority would reach (not might reach) the same decision.”
33. The Council should be told that the Committee should not have based their decision on
the risk of paying costs on appeal or any difficulties in finding a consultant to assist it
at an appeal. These matters were not legitimate material planning considerations yet
they led the Committee to change their mind about the Application. In these
circumstances, the Council should consider referring the matter back to Committee with
correct legal advice before the permission is granted. The Council is entitled to do this
and the members of the Committee are entitled to reach a different view on the
application. The Council risks a further allegation of unlawfulness if it fails to do so.
34. This note has been provided to Cheddon Fitzpaine Parish Council. I am happy for it to
be disclosed to Somerset Council and other parties. However, any other party should
obtain their own legal advice and this note should not be relied upon by them. I accept
no responsibility for any losses arising from reliance on this advice.
Sancho Brett
27 June 2025
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