Persimmon Homes (North East) Ltd v Newcastle City Council & Ors

There are three applications for judicial review before the court. The first relates to the adoption by the defendant of the “Callerton Master Plan and Design Code” (“The Masterplan”) on 12^th October 2016. The second judicial review relates to the defendant’s decision to grant planning permission to the first interested party for the development of 600 dwellings on a site known as “East Middle Callerton” (“EMC”). The third judicial review relates to the defendant’s decision on 11^th November 2016 to grant the second interested party planning permission to develop up to 550 dwellings, a primary school and retail facilities on a site known as “West Middle Callerton” (“WMC”).

The structure of this judgment is as follows. Firstly, the factual background to all three of the applications for judicial review is set out. Secondly, the relevant law in relation to the applications will be rehearsed, albeit that it was essentially uncontroversial as between the parties. Thirdly, the claimant’s grounds for the applications will be explained. Finally, the judgment sets out the conclusions which have been reached in relation to the arguments advanced by the parties.

It is important to note that permission to apply for judicial review was refused on the papers by Kerr J on 18^th January 2017. The claimants applied for an oral renewal of the application for permission to apply in respect of each of the three claims. By virtue of the order which was made by Kerr J those applications came before me in the form of a rolled-up hearing in respect of each of the claims. I shall therefore address both the question of arguability in relation to each of the claims as well as, if permission is granted, the substantive conclusions as to whether or not relief should be granted. In that latter connection, arguments were raised by the defendant and both interested parties in relation to an allegation that each of the claims had not been brought promptly and that therefore both permission and, if it arose, any substantive relief should be refused.

In September 2011 the defendant together with Gateshead Council published their draft Core Strategy. It was a Core Strategy which sought to address the need for housing, amongst other development requirements. One of the proposals identified as a Strategic Growth Area was in the north-west quadrant of Newcastle’s urban area and was called Callerton Park. At that time the proposal was required to yield 2,000 dwellings by 2022 and 4,000 by 2030 (potentially rising to 6,500 by 2040). The site of the Callerton Park proposal was in the Green Belt. Its development was said to be “dependant on the implementation of new road infrastructure to service it including connections to the A69 and A696”.

By the time the Core Strategy was submitted for examination on 21^st February 2014 the proposal at Callerton had been reduced in capacity to 3,000 dwellings in response to a lower assessment of housing need, significant public opposition to the proposal and a clearer understanding of what it would be physically possible to develop by 2030. The site had been subdivided into Lower, Middle and Upper Callerton. A land ownership, or land control plan, contained within the Masterplan illustrates that the Lower Callerton site is in a single land ownership. The Middle Callerton site is in two land ownerships: the EMC site is in the ownership or control of the first interested party and the WMC site is in the ownership or control of the second interested party. The Upper Callerton site is in four controlling interests. The claimant controls the most easterly part of the site together with Taylor Wimpey UK Limited. Amongst the other three ownerships, one of the land owners also controls the land which is not included within any area identified for housing, but which lies between the Upper Callerton site and WMC and is required for the access road which is part of the subject matter of these proceedings. For the sake of completeness, land lying between the Lower Callerton site and WMC is also controlled by those same owners along with the defendants.

As observed above, the draft plan contained proposals in relation to road infrastructure, referencing connections to the A69 and the A696. For the purposes of these applications it is important to set out key parts of the road network around the Callerton site. Starting in the west, the south-western boundary of the Lower Callerton site is bounded by the A69. Moving north and east to the EMC and WMC sites, both of those sites lie against and have their south-western boundary formed by Stamfordham Road. Stamfordham Road continues past the two sites travelling to the south-east passing Newbiggin Lane and travelling on to intersect with the A1. Moving to the north and east, Upper Callerton has its north-eastern boundary formed by the A696. The A696 continues south-east past the Upper Callerton site to intersect with the A1. Newbiggin Lane runs approximately north-south linking Stamfordham Road in the south with the A696 in the north.

It was against the background of this existing road network that the defendant included proposals for a link road, or as it was named and is referred to in this judgement an access road, as part of the Callerton development. To explain their proposals the defendant provided a note to the examination hearings for the Core Strategy (which were held between 3^rd June and 4^th July 2014 and on 15^th October 2014) which explained the access road proposals in the following terms:

“Indicative Access Road

The indicative access road will link

-

The A69 Throckley junction to Lower Callerton

-

Lower Callerton to Middle Callerton

-

Middle Callerton to Upper Callerton

-

Upper Callerton either via Newbiggin Lane to the A696 or north to the A696 at Callerton Parkway

The purpose of the links is to provide a new local road network to serve the Callerton NGA. This will alleviate pressures on the existing local road network and address local concerns about congestion. Discussions with the Highways Agency have confirmed that the road is not required to reduce impact on the Strategic Road Network. The Council has proposed these interventions to provide the necessary infrastructure to accommodate the increase in traffic that would result from the new developments. This does not prevent other solutions coming forward for consideration during the Masterplan and Planning Application Process. Transport Assessments submitted will be assessed in the normal manner through the Development Management process to determine the most appropriate solution.

The nature of the road has changed over time to respond to the emerging Core Strategy and Urban core Plan, revised growth scenarios and emerging evidence. The access roads are not required to be delivered up front but rather will be developed out as and when needed in line with the approved Masterplan and phasing plan that will accompany its planning permission.”

It will be noted that the indicative access road provided a link all the way from the A69 through all three of the parts of the Callerton site to the A696. At the northern end there were potential alternative solutions either linking to the A696 north of the Upper Callerton site, or alternatively linking to it via Newbiggin Lane, which abuts the corner of the site and forms part of the south-eastern boundary to the claimant’s land ownership within Upper Callerton. The Inspector addressed the proposal for the link road in his report (which was received by the defendant on 24^th February 2015) in the following terms:

“118.

The Submission Plan includes a new link road through the countryside between the Lower, Middle and Upper Callerton sites which would connect westwards to the A69 at Throckley and northwards to the A696 at Callerton Parkway. The two sections between the three proposed sites would improve movement around the north-western fringe of Newcastle and take traffic off Stamfordham Road, which at times is congested. These links are therefore necessary on both highways and planning grounds. However, there seems to be little purpose to the link from Upper Callerton to the A696. The road would run parallel to the A696 dual carriageway, crossing farmland and a belt of woodland alongside the Ouseburn. A readily accessible alternative access to the A696 exists at the Newbiggin Lane junction, which appears to have ample capacity. With very little traffic forecast to use this northern link, the loss of countryside and intrusion into the Green Belt are not justified; consequently it has been removed from the Policies Map.

119.

The developers of the Callerton sites argue that the westwards link road to the A69 at Throckley is also not justified. From the limited evidence available it seems that relatively little traffic would use this section, so the case on highway capacity grounds is not strong. However, the alternative route via the B6528 is circuitous and goes through parts of Walbottle and Throckley. In light of the acknowledgement in paragraph 11.41 that the need for new routes through the Green Belt will be assessed at master-planning stage (MM18), this link should be retained as a possible new route to allow more detailed analysis to take place. Even if the road is not essential on traffic grounds, there may be a strong case on planning grounds for the additional connectivity it would bring and the relief of congestion on other parts of the road network. As currently phrased the link to the A69 is a requirement of policy NN1; MM32 includes the addition of “if appropriate” so as not to prejudice the future decision.”

Thus the Inspector preferred the link to the A696 via Newbiggin Lane, and concluded that the link through Lower Callerton to the A69 should be retained as a possibility which would require further justification at a detailed master-planning stage. The day prior to the receipt of the Inspector’s report, on 23^rd February 2015, the defendant’s Cabinet received a report entitled “Getting around Newcastle” (“GAN”). The report was produced following the establishment of a strategic highways network transport model which sought to examine the impact of new development on transport infrastructure and assess the travel demands by all modes which the strategic housing sites identified in the forward planning process would give rise to. It outlined the impact of the major development sites on the defendant’s strategic highway network and sought “decisions to support the framework strategy for development, the primary function on key corridors and future schemes”. The analysis presented in GAN identified a series of options including, in particular, a range of options based upon certain assumptions as to how demand for transport would be managed. Option 6 was regarded as the most likely development scenario which only included the sections of the link road between Stamfordham Road in the south-west and the A696 in the north-east. In relation to this proposal it was noted that one of its functions in managing demand was to route the majority of traffic generated from WMC and EMC onto the link road and the A696 rather than down Stamfordham Road “in order to avoid movements through existing communities and support sustainable modes” (See GAN paras 3.11 and 3.14).

In summary, GAN reported as follows:

“4.

What impact will this proposal have?

4.1

Managing demand, growth and infrastructure is a vital part in creating the right conditions for the city to thrive and grow. Examining and developing key corridors, creating links between sites and to existing communities is important.

4.2

From the work that has been undertaken the strategy for development includes key public transport corridors, namely the West Road and Great North Road and key corridors for general traffic, namely Scotswood Road, Stamfordham Road and Ponteland Road.

4.3

To the west of the A1 traffic will be focused onto the A69 and A696 and the proposed Link Roads in order to avoid movements through existing communities and support sustainable modes.”

The report indicated that further reports were to be presented in due course identifying both specific transport mitigation and a delivery timetable. GAN included as an appendix an explanation of the detailed traffic modelling which had been undertaken. The analysis, having explained how the existing network was modelled and traffic was assigned through it, went on to set out the following in respect of the modelling of the link road:

“As new roads are proposed, namely the Outer West Link Road and the Airport Access Road, we want to know how much traffic would use it and how much traffic would be removed from other roads. The new roads are coded as new links in the model network and the assignment process re-run. The result would be the amount of traffic the assignment model estimates each link will carry. The amount of traffic estimated on the new links in the model is the amount of traffic the model has estimated that the new road will carry. For the existing roads the model's traffic volume estimate for a link can be compared with what it was without the new road and the difference is the traffic diverted from the link due to the new road.

Focusing traffic onto main roads and corridors is important therefore the analysis has restrained the network in places. For example, Stamfordham Road through to Stamfordham Road/ Newbiggin Lane Roundabout to the A1 is restrained so the majority of traffic uses the new link road. Similarly, further development of the Gosforth North Public Transport Corridor will see an element of traffic move onto the Ponteland Road Corridor. The analysis effectively connects the zones and links in a different way. The design of development, physical works and the use of technology are important to the management of the network.”

Having received the Inspector’s report the defendant and Gateshead Council adopted the Core Strategy in March 2015. For the purposes of its planning strategy the Core Strategy divided its area up into three spatial strategy areas. Those areas were the Urban Core, the Neighbourhood Area and the Rural and Village Area. Each of those areas was provided with its own bespoke strategy. The Neighbourhood Area is formed by the majority of the built-up area of Gateshead and Newcastle beyond the Urban Core, and is surrounded by the Rural and Village Area. Within the Neighbourhood Area the spatial strategy included the allocation of Neighbourhood Growth Areas including, in particular, that at Callerton. In respect of this strategic policy area the Core Strategy provided as follows:

“7.2

A key spatial priority of the Plan is concentrating new housing development in our Neighbourhood Area. The majority of new housing development will be accommodated here, both within the existing built up area and in the new Neighbourhood Growth Areas. We will ensure that our Neighbourhoods Areas are places of choice for living, supported by sustainable access to job opportunities and a range of other services and facilities to meet the day to day needs of residents. Our Neighbourhood Area will provide housing choice for people, regardless of age and income to underpin the areas’ economic competitiveness and support our working population.

7.3

Policy CS3 identifies locations where growth and development will be supported.

Policy CS3 Spatial Strategy for Neighbourhood Area

In the Neighbourhood Area sustainable communities will be promoted and maintained, meeting housing needs and supporting jobs by:

1.

Development of approximately 21,900 new homes.

2.

Investing in housing development and neighbourhoods specifically in Opportunity Areas at: Bensham and Saltwell, Benwell and Scotswood, Birtley, Byker, Dunston and Teams, Elswick, Felling and Walker Riverside (Figure 7.2).

3.

Development of major brownfield sites for new sustainable communities in Areas of Change at Newburn (AOC1) and Metrogreen (AOC2).

4.

Allocating Neighbourhood Growth Areas for housing development at: Callerton (NN1), Dunston Hill (GN1), Kingston Park/Kenton Bank Foot (NN2), Newbiggin Hall (NN3) and Newcastle Great Park (NN4). Development will be carried out in accordance with:

i.

approved masterplans for each of the identified Neighbourhood Growth Areas which demonstrate a comprehensive, phased and coordinated approach to site development setting out how necessary infrastructure, and the strategic infrastructure identified for the site in the Infrastructure Delivery Plan, will be delivered on a phased basis.

ii.

approved development phasing plans setting out build rates and triggers for infrastructure and demonstrating how each phase of the development is sustainable and deliverable...

7.10

Given that the new development will generate the need for new infrastructure it is important that the individual sites (as defined in Policy CS3) in each of the Neighbourhood Growth Areas are masterplanned together, regardless of ownership. Phasing plans will be required which set out the triggers for the provision of required infrastructure and legal agreements will need to be put in place to deliver that infrastructure. Masterplans will be prepared by the landowner/developer(s) in consultation with the Councils and must be approved as part of the planning application process. The masterplanning and the development requirements of these sites are set out in policies in the Sub Areas and Site Specific policies in Section 5 of the Plan.”

As will have been noted from policy CS3 the Neighbourhood Growth Area at Callerton is cross-referenced to policy NN1. That policy provides as follows:

“Policy NN1 Lower, Middle and Upper Callerton

Land is allocated at Lower (NN1a Figure 16.8a), Middle (NN1b Figure 16.8b) and Upper Callerton (NN1c Figure 16.8c) Neighbourhood Growth Area for approximately 3000 new homes. Development is required to be comprehensively masterplanned and demonstrate together with a phasing plan, how the following will be provided to ensure that each phase of development is sustainable.

Development will be required to provide:

…

4.

Road connections to the highways network (including an Access Road and connections to the A696 and, if appropriate, A69), between and through new housing areas and to existing communities and services.

5.

Mitigation of the cumulative traffic impacts of the proposed development on the highway network.”

On 5^th June 2015 the first interested party applied to the defendant for planning permission to develop up to 600 dwellings at EMC. On 16^th October 2015, the second interested party also applied to the defendant for planning permission for up to 550 dwellings together with a primary school, local retail facilities and associated access roads and other ancillary works. In June 2015 WYG Transport published a Transport Assessment (the “TA”) in respect of the whole of the Callerton Neighbourhood Growth Area assuming 900 homes at Lower Callerton, 600 at EMC, 500 at WMC and 1,200 at Upper Callerton. The TA included the access road from Stamfordham Road to Newbiggin Lane close to the A696 junction thereby providing a link from Stamfordham Road via West Middle Callerton and Upper Callerton to the Newbiggin Lane and the A696. It concluded that with junction improvements to 29 of the 33 highway junctions which were assessed and modelled the road network could satisfactorily accommodate all of the traffic generated by the totality of the proposals in policy NN1.

To seek to address the requirements of policies CS3(4)(i) and (ii), and NN1, the defendant commenced preparation of the Masterplan document. One of the issues with which that masterplanning exercise had to grapple was the question of the triggers for the provision of various elements of infrastructure required for the Neighbourhood Growth Area, and in particular, the access road. In February 2016 WYG, on behalf of the first and second interested parties, produced an “Access Road Assessment”. The purpose of the report was to assess the implications for highway capacity on developing Lower Callerton, EMC and WMC together with a partial development of Upper Callerton on three critical junctions on Stamfordham Road in the absence of the access road which formed part of the highways infrastructure required by the policies. It will be recalled that at paragraph 118 of his report, the Inspector had noted that the access road was designed to “take traffic off Stamfordham Road, which at times is congested”. This purpose was reiterated in GAN. Thus the WYG Access Road Assessment looked at the impact of increased traffic from proposed development at Callerton in the absence of the access road. Although the housing capacity of Upper Callerton had been identified as 1,200 dwellings, the Access Road Assessment only included 700 dwellings on the Upper Callerton site. The reason for this was explained within the report as follows:

“Highway Adoption Issues

2.9

Newcastle City Council’s Street Design Guide dated March 2011 advises that the maximum number properties which can be served from a residential street is 700 homes, as shown in Table 4.2 of that document (copy attached at Appendix B). Initial discussions with NCC have suggested that the limit may be lower than 700 homes.

2.10

The dwelling limit is important for Upper Callerton, which is expected to deliver 1,200 homes. Its main access is on Newbiggin Lane just to the south of A696, and there is very limited opportunity for a secondary access to the nearby Hareydean estate which could not serve a significant number of new homes. As a result the Access Road is necessary for the Upper Callerton site to provide a secondary access point in order to meet the NCC’s highway adoption requirements.”

The analysis used two alternative sets of trip generation data: the first from a report from consultants JMP, who had been engaged by the defendant to undertake an assessment of the traffic implications of the Core Strategy’s proposals, and the second trip generation and traffic flow data produced by WYG themselves. These latter WYG flows were forecast both at 2025 and 2030. The overall conclusions from the analysis were expressed in the following terms:

“5 CONCLUSIONS

5.1

The need for the Access Road is required for highway adoption reasons when Upper Callerton reaches 700 homes and, based on the phasing plan, this is expected to be in 2025. This report considered the implications for the key junctions within the local road network, should the Access Road not be delivered by the end of the Core Strategy trajectory using both JMP flows and WYG flows.

5.2

Using the JMP flows assuming 2030 and full development of Lower Callerton and Middle Callerton, with 700 homes at Upper Callerton it is concluded that the Stamfordham Road/Newbiggin Lane/Wheatfield Road, Stamfordham Road/Hillhead Road and Hillhead Road/West Denton Way junctions can accommodate the level of development generated from the full build-out of Lower and Middle Callerton and with 700 homes at Upper Callerton without the Access Road.

5.3

The need for completing the Access Road has also been assessed using the WYG Flows assuming 700 homes at Upper Callerton and full development of Lower Callerton and Middle Callerton, termed the 2030 WYG flows. This assessment predicted long queues and delays at the Stamfordham Road/Newbiggin Lane junction even if some of the AM Peak eastbound traffic on Stamfordham Road diverted via West Denton Way – reported as the Sensitivity Test. The improved Stamfordham Road/Hill Head and Hill head/West Denton Way junctions both had acceptable performance with both WYG Flows and Sensitivity Test flows. However, it was concluded that the performance of the Stamfordham Road/Newbiggin Lane junction was at its limit.

5.4

Following the 2030 WYG Flows assessment of the Stamfordham Road/Newbiggin Lane junction an assessment based on the Phasing Plan for housing delivery for Callerton was undertaken. In the 2025 WYG Flows assessment it was assumed 700 homes at Upper Callerton, 620 homes at Lower Callerton and full development at Middle Callerton.

5.5

The critical Stamfordham Road/Newbiggin Lane and Wheatfield Road traffic arrangement has been assessed with 2025 WYG Flows and the junction performance can be considered acceptable on both Stamfordham Road west on Newbiggin Lane. There is some headroom before an unacceptable performance is reached and this may be utilised to allow the full development of Lower Callerton if Upper Callerton is delayed.

5.6

Using the 2025 WYG flows, the improved Stamfordham Road/Hillhead Road and Hillhead Road/West Denton Way junctions can accommodate the level of development generated traffic.

5.7

From this analysis it can be concluded that:

i)

Using the JMP Flows the Access Road between West Middle Callerton and Upper Callerton need not be completed if both Lower and Middle Callerton are fully developed and there are 700 homes at Upper Callerton. The Access Road would be required once the development of Upper Callerton goes beyond 700 homes to meet NCC highway adoption requirements.

ii)

Using WYG Flows, the performance of the Stamfordham Road/Newbiggin Lane junction is at its limit both Lower and Middle Callerton are fully developed and there are 700 homes at Upper Callerton without the Access Road (2030 WYG Flows). However, if Middle Callerton is fully developed, 620 homes are developed on Lower Callerton and 700 homes at Upper Callerton without the Access Road (2025 WYG Flows) then the local junction performance subject to identified improvements is acceptable.”

In March 2016 a meeting occurred between the claimants, the defendants and the other land owners within the Callerton site. The purpose of the meeting was, amongst other matters, to discuss the question of when the delivery of the access road needed to be triggered within the proposals of the Masterplan. At the meeting the claimant expressed its view that in order to meet the requirements of policy it was necessary for the Masterplan to ensure that the access road and connection to the A696 were provided, and that the traffic generated by development which was proposed as part of the Callerton Neighbourhood Growth Area should use the access road so as to reduce congestion on Stamfordham Road. It was agreed at the meeting that the defendants would instruct JMP to review WYG’s work and to examine the appropriate trigger points for the provision of the access road. It appears that around 30^th March 2016 JMP were instructed. The scope of their brief was expressed within their fee proposal as comprising two stages. In broad terms the first stage comprised a review of the WYG work, including an analysis of the suitability of the junction modelling and the conclusions which had been drawn by them. The second stage was described as follows:

“- The build out rates will be considered for all the Callerton sites based on the information contained within the Newcastle Northern Land Release Development Assessment Report dated 29^th September 2015. Where the number of houses has increased this will be taken into consideration.

- Flows will be incrementally increased to determine when the junction is severely impacted (the threshold for severe impact will be agreed with NCC based on precedents from previous planning applications and knowledge of local considerations).

- Determine an indicative programme for the trigger points for Stamfordham Road junctions and the completion of the link through Upper Callerton to Newbiggin Lane in terms of build out on the Callerton sites.

- Determine the approximate number of units which can be accommodated through an access taken on to Hareydene and discuss the implications of linking this access to the main spine road through Upper Callerton.

- Produce a short report showing the findings.”

The claimants emphasise for the purposes of their arguments which are set out below the use of the yard stick of “severe impact” for the purposes of determining when the access road should be delivered. For reasons which are explored more fully below, the claimants contend that the use of this threshold was wholly inappropriate and led to errors of law.

The report which JMP produced having undertaken their analysis reiterated that the test which it was using for the purpose of designing the trigger points for the Masterplan was one of severe cumulative impacts of development, derived from paragraph 32 of the National Planning Policy Framework (“the Framework”). The development assumptions contained in the JMP report were that by 2025 Lower Callerton had 620 dwellings built out, WMC and EMC were fully built out and that 730 dwellings had been constructed at Upper Callerton. Three junctions were examined by JMP to arrive at two trigger points: the first trigger point being the year prior to the introduction of the link road, when junction mitigation was required at any or each of the three junctions; the second trigger point was the year in which the link road itself was required due to the traffic impact on the junctions. In respect of the first junction (Hillhead Road/West Denton Way) the junction was found to be approaching capacity by 2030 and thus mitigation proposals had been submitted which required further design work. So far as the second junction was concerned (Stamfordham Road/Hillhead Road) no mitigation was required. The third junction (Stamfordham Road/Newbiggin Lane/Beaumont Terrace/Wheatfield Road) was the one which was the most sensitive. The summary of the analysis was as follows:

“5.6

The JMP Development Assessment Study concluded that the mitigation scheme at Stamfordham Road /Newbiggin Lane needed to be constructed by 2030. However, that study did not assess assigning all the West Middle Callerton traffic via Stamfordham Road.

5.7

The increase in traffic from West Middle Callerton due to the Link Road not being in place and the higher flows used in this assessment mean that the mitigation scheme for Stamfordham Road / Newbiggin Lane will need to be in place earlier than stated with the JMP Development Assessment Study. The results show that both the existing and proposed layouts are over capacity in 2030 and 2025.

5.8

Using the build out rate contained in Appendix C of the WYG report, the development flows were built up to determine the incremental impact on the existing Stamfordham Road / Newbiggin Lane. Stamfordham Road West was used to determine the trigger points as this is the arm most susceptible to becoming over capacity.

5.9

The trigger for what is considered a severe impact is subjective and should be considered in the context of the junction. In this instance a queue which interferes with the operation of Stamfordham Road / Hillhead Road junction (the next upstream junction) is considered severe. The junctions are 570m apart which equates to 99 pcus, therefore a queue of 99 pcus or fewer is considered within acceptable tolerances. This will occur in 2019 therefore the mitigation should be in place by the end of 2018.

5.10

A similar exercise was carried out with the proposed layout to determine when it is considered to cause a severe impact and thus trigger when the Link Road should be completed. The proposed layout does not result in a queue of more than 100 pcus therefore the Link Road is not required before 2030.”

The outcome, therefore, of the independent analysis undertaken by JMP was that, on the basis of the development assumptions which included 730 dwellings (but not 1,200) at Upper Callerton, provided mitigation works were undertaken in particular at the Stamfordham Road/Newbiggin Lane junction, the link road was not required before 2030. This was on the basis that the cumulative impact on the network from the traffic generated by the three elements of the Callerton development assessed was not severe.

This conclusion was fed into the work being undertaken by the defendants in preparing the Masterplan. On 5^th June 2016 the claimants wrote to the defendants expressing, again, their position that the access road and connections to the A696 should be ensured by the Masterplan so as to satisfy the policy requirements, and further that the Masterplan should ensure that the impact of traffic generated by the proposed development at Callerton should use the access road so as to have a beneficial effect on congestion on the Stamfordham Road. A technical note was provided by the claimant’s own transportation consultants, TPS Transport Consultants Limited (“TPS”). Within that note TPS analysed the work undertaken by JMP. Firstly, they gave a view in relation to the use of the yardstick of severe impact in the following terms:

“The report centres around the concept of ‘severe’ impact; this is the ultimate test identified in prevailing planning policy, however, the focus on severity is as a consequence of the emphasis given wrongly to the determination of the Middle Callerton planning applications.

The extract from the National Planning Policy Framework (NPPF), quoted in the report, requires that:

“Development should only be prevented or refused on transport grounds where the residual cumulative impacts of development are severe.”

What is not quoted is the preceding sentence that requires improvements to be undertaken within the transport network that “limit the significant impacts of the development.” Given that, at the heart of the NPPF, there is a presumption in favour of sustainable development which should be seen as a “golden thread”, it is incumbent on developers and local authorities to explore and implement measures that mitigate the significant impacts of development and only when the “residual” cumulative impacts are agreed not to be severe should a development be granted planning consent.

With regards to Callerton particularly, appropriate highways works must be considered in the masterplanning of this strategic residential allocation not simply to satisfy a piecemeal planning application. Consequently, in line with current planning policy, if it is possible to bring forward an improvement that ameliorates traffic congestion and its associated environmental impacts then it should be a requirement of the planning consent.

Clearly, when the relevant NPPF policy is read as whole, decisions should take account of whether cost effective improvements can limit significant impacts; if it is considered appropriately, an access road can clearly achieve this. There is a general acknowledgement that the link road will act to reduce traffic congestion on Stamfordham Road; WYF acknowledge this is its report and there is a tacit acknowledgement in the JMP report given that it identifies the need for the link road at some point in the future.”

The TPS document then proceeded to analyse the output of the JMP analysis as follows:

“Stamfordham Road/Newbiggin Lane

In fact, JMP has, with regards to the Stamfordham Road/Newbiggin Lane junction,:

-

reviewed the operation of the existing roundabout with four traffic flow scenarios and

-

reviewed the operation of the proposed signalisation scheme with the same four traffic flow scenarios.

With regards to the operation of the existing roundabout, in each of the four traffic flow scenarios, the junction is forecast to operate in excess of its capacity in 2025 and in 2030. This is unsurprising given that the junction is currently observed to the operating with congestion. The forecast ‘maximum’ traffic queue on Stamfordham Road west is 49.5 PCU in the 2016 AM peak period, without development.

In the 2030, with development, scenario the same AM peak period traffic queue extends to a maximum 207.6 PCU and maximum 325 PCU. The difference in queue length is marked and is a reflection of the variation between the WYG forecast development flows and the NCC forecast flows. There is automatically, therefore, a question about the accuracy of the modelling, not least because both purport to be maximums; nonetheless, the larger ‘maximum’ queue extends to some 1,870km and, therefore, by the JMP measure, this is would be classed as severe as it exceeds the PCU stacking distance between the junction and the next upstream junction.

The assessment of the proposed signalised improvement employs the same traffic flow scenarios and the junction is forecast to operate with capacity in the 2016 [assumed, as it is unclear], without development scenario albeit, even improved, the junction is approaching saturation; the maximum degree of saturation (DoS) is 81.1% and the ‘maximum’ queue is 18.1 PCU or 104m.

In the 2030, with development, scenario the DoS increases to 91.7% and 104.7% with the NCC derived traffic flows and the WYG traffic flows respectively. The variation in DoS in this instance is not as marked, however, the difference in maximum queue length is very marked, these being 25.4 PCU and 85 PCU with the NCC derived traffic flows and the WYG traffic flows respectively; this is a difference of almost 60 PCU or 342m which not only demonstrates the sensitivity of the modelling buy highlights the challenge to be accurate. Clearly, however, at 85 PCU – some 489m – the traffic queue must be regarded as significant even if it is not ‘severe’ by JMPs measure.

In the 2025 scenario, with WYG derived development flows, the forecast maximum traffic queue is 60.6 PCU or 348m.

JMP conclude, therefore, that even with improvements the junction “is still over capacity in 2025 and 2030” albeit the queues are “less severe”. TPS consider that the forecast traffic queue – an increase of 36 PCU or 240m compared with the 2016 without development scenario – reflects, at least, a significant impact and, therefore, in accordance with the NPPF should be limited if and where possible, yet the link road has not been considered as mechanism to relieve this forecast traffic congestion.”

The conclusion of the TPS report was that JMP’s assessment and modelling was unrealistic given the interaction between junctions which required a corridor study or micro-simulation modelling. Moreover, in their conclusions TPS re-emphasised the failure of JMP to consider the link road as a mechanism to relieve congestion. TPS concluded that, on the basis of the JMP assessment, improvement to the Stamfordham Road/Newbiggin Lane junction was likely to be required prior to any development at Callerton and further that the link road needed to be constructed early in the development process and open to traffic no later than 2024 so as to accommodate the partial build out of the Callerton sites and to relieve significant congestion forecast on Stamfordham Road.

On 24^th June 2016 the defendant responded to the claimant’s letter. By way of introduction the letter observed as follows:

“You have highlighted the fact that Core Strategy Policy NN1 requires the relevant road connections be provided for the Callerton allocations, and that mitigation is provided for the cumulative traffic impacts. However I do not consider that the conclusions drawn from the evidence relating to the link road, the mitigation measures within the supporting TA for the planning applications for Middle Callerton and the independent JMP assessment of this information, conflicts with the objectives of criteria 4 and 5 of Policy NN1…

I note your support for the provision of the access road earlier within the phasing in order to use it to ease existing congestion. However in appointing JMP to undertake the independent assessment of the traffic evidence, the Council were concerned with the timing and delivery of the infrastructure and highway works referenced within the Infrastructure Delivery Plan for the Masterplan. Officers believe that the JMP assessment provided an appropriate and robust analysis of this evidence and has successfully established the parameters for the delivery and timing of those works. I cannot therefore agree to the amendments proposed by yourselves to the Masterplan on this matter.”

The defendant went on to address the detailed points within the TPS report and, in particular, responded to certain of the points as follows:

“1.

The link road has not been considered as a mechanism to relieve traffic congestion.

The assessment provided by White Young Green (WYG) to accompany the Middle Callerton applications demonstrates that the link road is not required in traffic terms for the full build out of Middle Callerton. The Trigger Point Assessment carried out by JMP provided an independent assessment, and these findings concur with the findings of the WYG assessment.

The analysis of the Link Road in planning terms was outside the scope of the brief which was as follows –

-

Determine how many units can be built on each of the Callerton sites before the link road is completed

-

Determine trigger points for the completion of the link road

-

Timing of junction improvements needed at the following junctions

- Hillhead Road/West Denton Road

- Stamfordham Road/Hillhead Road; and

- Stamfordham Road/Newbiggin Lane…

4.

The definition of severe impact is arbitrary. There is no assessment of the Newbiggin Lane junction with the Hillhead Road junction. Consequently, the assertion that stacking back would result in a severe impact has not itself been demonstrated.

At the EiP it was agreed that the Masterplan approach should be speedy. While a corridor study would be beneficial and allow better understanding of the interaction between the junctions, the time and cost of building a validated micro-simulation model to test various scenarios would be prohibitive.

The definition of what constitutes severe impact, as stated in the National Planning policy Framework (NPPF), is subjective, The definition of severe in this instance was based on the current operation of Stamfordham Road and what could be added before being viewed as severe in a legal context (for example at an enquiry). Queues are already present on Stamfordham Road, yet land has been allocated for development within Newcastle City Council’s Core Strategy. Once the back of the queue from the Stamfordham Road/Newbiggin Lane junction interferes with the operation of the next major junction, Stamfordham Road/Hillhead Road, it could be considered a severe impact.

5.

The reliance of traffic queues as a measure of severe impact is flawed as it concentrates on the wellbeing and convenience of drivers. The impact of congestion on other road users, public transport, local residents and business is ignored.

The brief, as outlined in point 1, required JMP to determine a trigger point for the completion of the Link Road and consider the timing of junction improvements. Planning related decisions were outside the scope of the Trigger Point Assessment. However, pedestrian and cycle facilities will be included in the junction designs.”

On 5^th July 2016 the claimant’s solicitors wrote to the defendant contending that the then consultation draft of the Masterplan was unlawful and threatening judicial review. An Opinion from Mr Christopher Lockhart-Mummery QC (who represented the claimants at the hearing of this matter) accompanied the letter. The Opinion expressed the view that the approval of the Masterplan in its consultation form

“whereby delivery of the link road is explicitly to be determined by planning applications which are themselves to be determined on a “severe impact” basis, would be fundamentally inconsistent with statutory policy requirements, and therefore unlawful”.

On 12^th October 2016 the defendant’s Cabinet received a report recommending the adoption of the Masterplan. The report identified that the Masterplan was a requirement of the adopted Core Strategy and “it also ensures any infrastructure requirement is comprehensively planned rather than assessed on a piecemeal basis which may otherwise be the case if numerous planning applications were submitted across a number of years for the individual sites”. The report addressed the representations which had been received in relation to the access road between MWC and Upper Callerton in the following terms:

“3.12

As part of the consultation, representations were received regarding the proposed road between Middle and Upper Callerton. Representations were made with regard to the timing of the delivery of the road, with responses stating that for good planning purposes, the delivery of the road should be front loaded on the developments rather deliver being based on a traffic related trigger. Council evidence considers that the triggers in the document are robust and policy compliant.”

The defendant’s Cabinet resolved, having noted the consultation responses received, to “approve the draft Masterplan as Informal Planning Guidance”.

It is necessary at this point to examine the relevant proposals set out in the Masterplan pertaining to the criteria contained within policy NN1 and in particular those at NN1 (4) and (5). Within the Masterplan there is a table which sets out each of the NN1 criteria and provides the Masterplan response, in particular in relation to transport infrastructure, as follows:responds

The Masterplan contains a baseline review of the Callerton site having noted amongst the evidence the TA and the JMP Strategic Study carried out prior to the examination. The baseline review answers the question “how this has informed the Masterplan?” in the following way:

“• A road to link between Middle Callerton and Upper Callerton will be provided, should there be an evidenced need for this.

• The Masterplan allows for a future road link between the A69, Lower Callerton and Middle Callerton, should there be an evidenced need for this in the future.”

The Masterplan contains a number of topic based Concept Framework Plans. One of the Concept Framework Plans addresses the topic of movement. The movement plan shows a “proposed primary road” linking Stamfordham Road to the north-eastern end of Newbiggin Lane and travelling through WMC and Upper Callerton, traversing the undeveloped land between the two sites. In the detailed text accompanying the Upper Callerton part of the Concept Framework Movement Plan the text notes that the plan “allows for a link to be formed between Middle and Upper Callerton”.

Section 9 of the Masterplan addressed phasing and the provision of infrastructure. In respect of highways a number of junction improvements were identified as necessary in respect of each of the three parts of the Callerton Neighbourhood Growth Area. The delivery of the access road is described in detail by the Masterplan in the following terms:

“Access Road

9.12

The masterplan in accordance with NN1 indicates that a road connection will be provided from Stamfordham Rd through West Middle Callerton and Upper Callerton to the A696 (the Access Road). The Access Rd will be delivered by the developers in phases as and when the various phases of the development come forward. The indicative alignment of the Access Rd in the Masterplan is for illustrative purposes only and is subject to change. The detailed design of the Access Rd will be prepared by the developers and agreed with the Council in due course as part of the planning application process. The road will be constructed to an adoptable standard in accordance with the Council’s relevant construction guidance to ensure it is suitable for adoption by the Highway Authority.

9.13

The developer of West Middle Callerton will build the Access Road Junction onto Stamfordham Rd and the section through their site to the north east boundary of the West Middle site. The triggers for this section of road will need to be set through the planning application for the West Middle Callerton site (condition and/ or S106 agreement). It will need to ensure that the road is completed in an agreed timeframe to service the site and enable the link between Stamfordham Rd and Upper Callerton to be provided. The developer will also enter into a S106 agreement to ensure that the Access Rd through their site is in accordance with agreed design parameters and once constructed is dedicated as public highway.

9.14

Likewise the developer of Upper Callerton will build the Access Rd junction onto Newbiggin lane and construct the road in phases from this point through to the western boundary of Upper Callerton. The road will be built to agreed design parameters and once each section is completed it will be adopted as public highway. The Council envisages that Upper Callerton will be developed from East to West. The Masterplan does indicate that Hareydene could provide an opportunity for a secondary access but the detail of this will need to be established through a more detailed Transport Assessment for Upper Callerton. It is essential that Upper Callerton is planned comprehensively and any development off Harydene is fully integrated into the wider development with appropriate access and links to the supporting infrastructure such as schools, open space and SUDs. The delivery of the road will be secured through condition and / or S106 agreement and to an agreed phasing plan.

9.15

The middle section of the Access Rd between Middle Callerton and Upper Callerton will be delivered by the developer(s) for Upper Callerton. The timing of the completion (joining up) of the access road will be agreed with the Council as and when applications are submitted for Upper Callerton and will be determined by the phasing of the development, the need for a secondary access for the housing allocation and access to infrastructure such as schools and sports facilities. The timing will also need to be coordinated with the provision of the road through West Middle Callerton. This will be secured via S106 and planning conditions. It will be built to an agreed specification and adopted by the Council.

9.16

The Council is of the view that the developments of Lower and Middle Callerton can be constructed in advance of the Link between Middle and Upper Callerton being constructed. This assessment is based on a series of highway improvement works taking place to the Stamfordham Rd corridor. This will include junction improvements and linking traffic lights into the UTMC system. The detail of these improvements and the triggers for implementation will be established through detailed Transport Assessments submitted through the planning application process. It is envisaged that the works will take place at an early phase of the housing developments and they will be secured through planning condition/ S278 works.”

On 19^th October 2016 the claimant’s solicitors wrote seeking disclosure of the legal opinion which the defendant had received prior to the adoption of the Masterplan on 12^th October 2016. This was against the backdrop of a contemplated application for judicial review by the defendant. In the same letter the claimant’s solicitors noted that both the EMC and WMC applications were intended to be put to the planning committee on 21^st October 2016. They therefore sought confirmation that the applications would not be placed before the committee on that date. No such confirmation was forthcoming and thus on 20^th October 2016 the claimant’s solicitors wrote to object to both the EMC and the WMC applications.

For the purposes of considering the applications for judicial review in respect of the planning permissions granted to EMC and WMC the relevant contents of the committee reports devoted to highways and transportation considerations were essentially similar. In neither committee report was there reference to GAN and its analysis and conclusions. The analysis noted the requirements of policy NN1 (4) and NN1 (5). The reports noted the need to consider the impact of traffic from both developments in considering the approval of either of them. A cumulative assessment of highways impacts was explained in the following terms:

“101.

Overall this the cumulative effect of EMC and WMC on Stamfordham Road would be an increase of 652 vehicle movements in the AM peak and 713 in the PM peak. This equates to an overall increase of approximately 46% in the AM peak and a 50% increase in the PM peak.

102.

While this increase in traffic is large, it is inevitable that with the level of growth outlined in the Core Strategy, that levels of traffic would increase. The main point to consider is not the traffic itself, but whether or not road safety is prejudiced due to the additional traffic. Both the JMP study and Transport Assessments have considered the impact of the increased traffic on the operation of junctions and therefore road safety, and although there would be increased queue lengths and delays at the junctions, the impact is not considered to be prejudicial to road safety, or severe.”

The report went on to consider the requirement for mitigation works to be undertaken to a variety of existing junctions on the highway network and at a later stage considered the requirement for inclusion of the access road in the following terms:

“114.

The applicants provided supplementary information in respect of the number of dwellings which could be delivered on East Middle Callerton and West Middle Callerton before the link road between Stamfordham Road and A696 in the form of a Technical note. This technical note concluded that WMC and EMC could be fully built out without the impact of the additional traffic having a detrimental effect on Stamfordham Road and the junctions impacted on by the development.

115.

The Council also had an independent study carried out to look into the timings for the delivery of the link between Stamfordham Road and A696. This study, carried out by Transport Consultants JMP also concluded that the full EMC and WMC allocations could be built out before the link road would be necessary from a traffic perspective. This study, as with the developers own study, illustrated that there would be additional traffic on Stamfordham Road and through the junctions along it, with increased queuing and increased journey times. However, this additional traffic would not cause conditions on the highway which would be considered detrimental to road safety, and the cumulative impact would not be severe as required by the NPPF to refuse applications on highways grounds.

116.

It is therefore considered, that while the requirement for a link between Stamfordham Road and A696 remains an integral part of the Masterplan, evidence presented by both the developer and the Council’s own link road study, show that provision of the road is not necessary to deliver the housing on EMC and WMC providing the necessary mitigations are carried out at the appropriate time.”

Finally, the report considered local residents’ objections (which it should be noted included representations from a local councillor) and addressed them in the following terms:

“124.

Objections have been received from local residents concerning the likely impact of traffic on existing highways. Notwithstanding these objections, the Council’s Transport and Investment Manager has considered the details of the TA and the Environmental Impact Assessment and concludes that subject to implementation of the junction and highway improvement schemes along Stamfordham Road, then the traffic generated by both the West Middle and East Middle Callerton planning applications can operate without resulting in significant delays upon the local highway network and specifically Stamfordham Road, North Walbottle Road and Newbiggin Lane. It is concluded that the residual cumulative impacts of traffic from these two development are not predicted to be severe.”

Finally, in an update report in respect of the application for EMC (reflected in the main text of the report on WMC), the officers advised as follows:

“12.

The Callerton Masterplan and Design Code was adopted by cabinet on 12 October 2016. It was prepared to assist in the delivery of housing at Callerton as a requirement of Policy NN1 of the Newcastle/Gateshead Core Strategy and Urban Core Plan. The Masterplan considers the development and delivery of housing on the Callerton sites within the allocation, and incorporates an Infrastructure Delivery Plan which identifies the key roads, drainage, schools necessary to meets the needs for the housing development. The masterplan is informal planning guidance and a material consideration in the determination of planning applications for the Callerton sits. Applications coming forward within the Core Strategy for the Callerton Housing site are required to deliver where necessary in accordance with the Infrastructure Delivery Plan as set out within the Masterplan.”

As set out above, on 11^th November 2016, the defendant granted planning permission both in respect of the first interested party’s development at EMC and the second interested party’s development at WMC. Both of the planning permissions issued contained conditions securing the provision of highway improvements. Those conditions were coupled with provisions in each case in an obligation pursuant to section 106 of the Town and Country Planning Act 1990 securing financial contributions towards the identified junction improvements and, in the case of WMC, requiring the provision of the access road through the WMC site. No complaint is made by the claimant as to the enforceability of either the conditions or the section 106 obligations accompanying the permissions.

The determination of applications for planning permission is governed by a combination of statutory provisions. The first is section 70 of the Town and Country Planning Act 1990 which provides as follows:

“70 Determination of applications: general considerations.

(1)Where an application is made to a local planning authority for planning permission—

(a)…they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or

(b)they may refuse planning permission.

(2)In dealing with an application for planning permission… the authority shall have regard to—

(a)

the provisions of the development plan, so far as material to the application…

(b)

any local finance considerations, so far as material to the application, and

(c)

any other considerations”

Section 38(6) of the Planning and Compulsory Purchase Act 2004 also addresses the correct approach to the discretion as to whether or not planning permission should be granted and provides as follows:

“38(6) 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.”

The question of the interpretation of policy, as opposed to its application, is a question of law. This proposition was made plain by the decision of the Supreme Court in Tesco Stores Limited v Dundee City Council [2012] UKSC 13. When delivering the leading judgment of the Supreme Court Lord Reed JSC, in addressing, firstly, the broad proposition in respect of the interpretation of planning policy being a question for the court, and then, secondly, placing that proposition in the context of the particular policy with which that case was concerned (namely the interpretation of “suitable” in a policy governing retail development) stated as follows:

“18 In the present case, the planning authority was required by section 25 to consider whether the proposed development was in accordance with the development plan and, if not, whether material considerations justified departing from the plan. In order to carry out that exercise, the planning authority required to proceed on the basis of what Lord Clyde described as “a proper interpretation” of the relevant provisions of the plan. We were however referred by counsel to a number of judicial dicta which were said to support the proposition that the meaning of the development plan was a matter to be determined by the planning authority: the court, it was submitted, had no role in determining the meaning of the plan unless the view taken by the planning authority could be characterised as perverse or irrational. That submission, if correct, would deprive sections 25 and 37(2) of the 1997 Act of much of their effect, and would drain the need for a “proper interpretation” of the plan n of much of its meaning and purpose. It would also make little practical sense. The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others (as discussed, for example, in R (Raissi) v Secretary of State for the Home Department [2008] QB 836), policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.

19 That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 , per Lord Hoffmann. Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.

20 The principal authority referred to in relation to this matter was the judgment of Brooke LJ in R v Derbyshire County Council, Ex p Woods [1997] JPL 958. Properly understood, however, what was said there is not inconsistent with the approach which I have described. In the passage in question, Brooke LJ stated:

“If there is a dispute about the meaning of the words included in a policy document which a planning authority is bound to take into account, it is of course for the court to determine as a matter of law what the words are capable of meaning. If the decision-maker attaches a meaning to the words they are not properly capable of bearing, then it will have made an error of law, and it will have failed properly to understand the policy.”

By way of illustration, Brooke LJ referred to the earlier case of Northavon District Council v Secretary of State for the Environment [1993] JPL 761 , which concerned a policy applicable to “institutions standing in extensive grounds”. As was observed, the words spoke for themselves, but their application to particular factual situations would often be a matter of judgment for the planning authority. That exercise of judgment would only be susceptible to review in the event that it was unreasonable. The latter case might be contrasted with the case of R (Heath & Hampstead Society) v Vlachos [2008] 3 All ER 80 , where a planning authority's decision that a replacement dwelling was not “materially larger” than its predecessor, within the meaning of a policy, was vitiated by its failure to understand the policy correctly: read in its context, the phrase “materially larger” referred to the size of the new building compared with its predecessor, rather than requiring a broader comparison of their relative impact, as the planning authority had supposed. Similarly in City of Edinburgh Council v Scottish Ministers 2001 SC 957 the reporter's decision that a licensed restaurant constituted “similar licensed premises” to a public house, within the meaning of a policy, was vitiated by her misunderstanding of the policy: the context was one in which a distinction was drawn between public houses, wine bars and the like, on the one hand, and restaurants, on the other.

21 A provision in the development plan which requires an assessment of whether a site is “suitable” for a particular purpose calls for judgment in its application. But the question whether such a provision is concerned with suitability for one purpose or another is not a question of planning judgment: it is a question of textual interpretation, which can only be answered by construing the language used in its context. In the present case, in particular, the question whether the word “suitable”, in the policies in question, means “suitable for the development proposed by the applicant”, or “suitable for meeting identified deficiencies in retail provision in the area”, is not a question which can be answered by the exercise of planning judgment: it is a logically prior question as to the issue to which planning judgment requires to be directed.”

A consideration is a material consideration for the purposes of section 70 and section 38(6) if it serves a planning purpose, fairly and reasonably relates to the development and is one which concerns or relates to the character of the use of land (see Newbury District Council v Environment Secretary [1981] AC 579 at 599 and Westminster City Council v Great Portland Estates PLC [1985] 1 AC 661 at 670C-D). As set out above the Masterplan was prepared as an informal planning document. No issue was taken by any of the parties in this case that the Masterplan should have been prepared pursuant to any of the statutory processes provided for in planning legislation for the production of planning policy documents. It was common ground that the Masterplan was, given its status as an informal planning policy, a material consideration for the purposes of determining the EMC and WMC planning applications.

In relation to the Masterplan the claimant’s claim is brought on two Grounds. Ground 1 is the contention that the Masterplan’s approach to the access road between WMC and Upper Callerton does not comply with the requirements of the Council’s Core Strategy when those requirements are properly interpreted. Mr Lockhart-Mummery, on behalf of the claimant, submitted that the Core Strategy’s policies required the Masterplan to ensure that each phase of the development at Callerton was part of a “comprehensive phased and coordinated approach to site development” and, further, the Core Strategy’s policies, and in particular policy NN1, required that the Masterplan show how the access road would “be provided to ensure that each phase is sustainable”. He submitted that the Masterplan failed to achieve the requirement of the Core Strategy’s policies that provision of the access road be ensured. The approach of the Masterplan was he submitted, by contrast, to delegate the provision of this infrastructure to the development management process and the consideration of individual applications by the defendant. In reality, he submitted, the Masterplan makes no attempt to ensure that the access road is delivered since on the basis in particular of paragraphs 9.12-9.16 of the Masterplan the access road will only be delivered as and when it may be required as part of the consideration of individual planning applications. Thus the Masterplan does not, as the policies require, demonstrate the access road’s delivery. Mr Lockhart-Mummery expressed what he submitted the Masterplan should have contained, indicatively, in the following terms:

“The full delivery of the link is a requirement of Callerton NGA and any part of it – no development shall be brought forward until a legally binding scheme has been agreed between all landowners & the Council which ensures delivery of the entire [access] road.”

Ground 2 is the claimant’s contention that in approving the Masterplan the defendant failed to have regard to a material consideration, namely the accepted need to reduce traffic congestion along Stamfordham Road through the provision of the access road. Mr Lockhart-Mummery drew attention to the references in the documentation, including in both the Inspector’s report and the GAN, to the long-standing problem of congestion on Stamfordham Road. This was a concern not only raised in these documents, but also a concern specifically raised by local members and the public. Mr Lockhart-Mummery drew attention to the representations of the local councillor referred to above in relation to the congestion on the Stamfordham Road, and the solution which would be provided by the link road acknowledged in the documentation. He submitted that the analysis undertaken by WYG and JMP failed to engage with the need to reduce congestion on the Stamfordham Road which was clearly the objective of the Core Strategy, and the reason why the Inspector had endorsed the Core Strategy’s inclusion of the access road as part of the required infrastructure for the Callerton Neighbourhood Growth Area. Instead of having regard to this material consideration, and illegitimately, WYG, JMP and the defendant focused their attention on a different question, namely whether or not the impact of the proposed development gave rise to a “severe” impact in terms of paragraph 32 of the Framework which provides as follows:

“32.

All developments that generate significant amounts of movement should be supported by a Transport Statement or Transport Assessment. Plans and decisions should take account of whether:

● the opportunities for sustainable transport modes have been taken up depending on the nature and location of the site, to reduce the need for major transport infrastructure;

● safe and suitable access to the site can be achieved for all people; and

● improvements can be undertaken within the transport network that cost effectively limit the significant impacts of the development. Development should only be prevented or refused on transport grounds where the residual cumulative impacts of development are severe.”

By focusing exclusively upon the test from paragraph 32 the defendant lost sight of the material consideration recognised by the Core Strategy’s policies of alleviating congestion on Stamfordham Road.

Ground 3 relates to the claims in respect of both the EMC and WMC permissions. It is submitted by way of Ground 3 that, in common with Ground 2, when approving the applications for EMC and WMC the defendant failed to have regard to a material consideration, namely the need to reduce congestion on Stamfordham Road, and avoided that consideration by concentrating instead on a different question, namely the application of the test from paragraph 32 of the Framework. As in Ground 2, the starting point for this argument are the references in the documentation (such as the Inspector’s report, the GAN and the Core Strategy) to the need for congestion on the Stamfordham Road to be alleviated. The test applied, namely whether or not the impact was severe, meant that instead of considering the need to reduce congestion by provision of the access road, the defendant permitted the exacerbation of congestion on the Stamfordham Road by granting permission for the EMC and WMC sites, and would only contemplate refusing them if their impact was severe. Whilst Mr Lockhart-Mummery accepted that the test in paragraph 32 of the Framework was material to the determination of the applications, nevertheless so was the need to reduce congestion on the Stamfordham Road. He submitted that whilst considering the question under paragraph 32 of the Framework the defendant should also, alongside that question, have addressed the material consideration of the need to reduce congestion on Stamfordham Road and require provision of the access road so as to achieve that objective. The approach taken by the Council avoided taking account of the material consideration of increased congestion on Stamfordham Road and, therefore, left out of account a material consideration leading the defendant to a failure to discharge its duties under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act.

The starting point for consideration of Ground 1 is, of course, the relevant Core Strategy policies at CS3 and NN1(4) and NN1(5) which are set out above. The strategic policy, CS3, directs that development be carried out in accordance with approved Masterplans:

“which demonstrate a comprehensive, phased and coordinated approach to site development setting out how necessary infrastructure, and the strategic infrastructure identified for the site and the Infrastructure Delivery Plan will be delivered on a phased basis.”

It also requires that there be approved development phasing plans identifying “triggers for infrastructure and demonstrating how each phase of the development is sustainable and deliverable”.

Policy NN1 requires the Callerton Neighbourhood Growth Area “to be comprehensively masterplanned”. It sets out a list of a number of requirements, some of which are infrastructure related such as NN1(4) and NN1(5). In relation to this list of matters the policy requires that the development demonstrate “together with a phasing plan, how the following will be provided to ensure that each phase of development is sustainable”.

NN1(4) and NN1(5) are related to transport infrastructure and are the focus of the claimant’s challenge, particularly as they relate to the access road between Middle and Upper Callerton and the mitigation of cumulative traffic impact on the highway network. In respect of the requirements of NN1(4) and NN1(5) I am unable to accept that the provisions of the Masterplan do not satisfy the requirements of the policy. Firstly, it will be clear from what is set out above that the Masterplan provides a comprehensive plan for the development of the totality of the Callerton Neighbourhood Growth Area, and also provides a phasing plan in respect of the building out of each of the four parts of the overall proposal. The schedule of the phasing of development is itself linked to the provision of elements of infrastructure, including works related to highway infrastructure, as each of the phases comes forward for development. That approach to phasing, and the integration of phasing alongside the provision of infrastructure, addresses directly the question of delivery of the access road. In particular, paragraphs 9.12-9.16 of the Masterplan engage directly in demonstrating when, as part of the phased development of the Neighbourhood Growth Area, it is expected that the access road will be in place, and by which phase of the development it will be delivered.

In his submissions Mr Lockhart-Mummery sought to emphasise the use of the word “ensure” within the text of policy NN1. I am, however, unpersuaded by his submission that the use of that language required the Masterplan to specify a legally binding scheme agreed between all landowners in order to satisfy the requirements of the policy. In my judgment that is not the only way in which the Masterplan could “ensure that each phase of development is sustainable” through the provision of the required access road. In my view paragraphs 9.12-9.16 provide a policy mechanism to ensure the provision of the access road by linking it to the final phase of development. It was not contrary to either policy CS3 or policy NN1 for the relevant infrastructure required for the whole of the Callerton development to be delivered as part of a planning application or planning applications which would be brought forward pursuant to those policies. It was perfectly sensible for the defendant to anticipate that development of the Neighbourhood Growth Area as a whole would be achieved through the submission of a sequence of several planning applications by the individual controlling interests of the various land parcels making up the allocation. It was therefore appropriate for the Masterplan to address the provision of the various elements of the infrastructure including the access road by associating them with parts of the Neighbourhood Growth Area as they were brought forward by applications for planning permission.

Given that it was highly likely that the Neighbourhood Growth Area would be brought to fruition through a sequence of planning applications it was appropriate for the Masterplan to provide comprehensive guidance as to the expectations of planning applications in respect of the three parts of the Neighbourhood Growth Area, addressing the infrastructure requirements associated with each of those parts or phases of the overall allocation. It follows that I am unable to accept the claimant’s submission that the Masterplan failed to ensure the delivery of the access road, or that it was contrary to policies CS3 and NN1 for the Masterplan to anticipate that the access road (along with other necessary infrastructure) would be brought forward in the context of a sequence of subsequent planning applications for the various parts of the Callerton Neighbourhood Growth Area.

During the course of the parties’ submissions it became clear that the Masterplan would not be able to guarantee at all times and in all circumstances that the access road was delivered. Mr White accepted on behalf of the defendant that there always might be a risk that the whole development at the Neighbourhood Growth Area at Callerton might be granted permission without the access road forming part of it. It is theoretically possible that the developers of Upper Callerton may be able to establish through highway engineering analysis that, firstly, the release of the entirety of the Upper Callerton would not create a severe impact on the highway network cumulatively with the other Neighbourhood Area Growth traffic which was properly to be regarded as severe and thereby pass the test under paragraph 32 of the Framework. Secondly, it might, in addition, be possible to demonstrate that either the requirement for a second access after 700 dwellings should not be applied or that there is some second access available to the development thereby obviating the requirement for a second access as a reason for the link road. Mr Lockhart-Mummery in his submissions adopted and emphasised this as amounting to a demonstration of the failure of the Masterplan to comply with policies CS3 and NN1. In my view there are, at least, a number of legitimate reasons why that is not the case. Firstly, the risk identified by Mr White is a risk which only exists because the Masterplan is a planning policy. Thus, as a policy, it will apply unless and until there are good reasons which justify any departure from it. That is not a proper criticism of it, nor a basis for suggesting that it does not comply with policy CS3 and NN1. It is clear that both policy CS3 and NN1 were predicated on the basis that the comprehensive Masterplan which they required could be an informal planning policy of the kind which the defendant has produced. The fact that such an informal planning policy may be departed from if, and only if, there are sound and justifiable reasons for doing so does not amount to a basis for concluding that the Masterplan does not fulfil the requirements of those policies.

Secondly, on the basis of the evidence on which the Masterplan was prepared, there is no reason to suppose that either of the two hypotheses set out above (namely the demonstration that Upper Callerton could be developed without the access road and not create a severe impact on the highway network or that it might evade the requirement for a secondary access) are at all likely to occur. There is no evidence to justify either of those suggestions. Whilst I was unconvinced by the submission that on the basis of land ownership it might be concluded that it was inevitable that the access road would be built and paid for by the party across whose land it crosses, the further submission that on the presently available information paragraphs 9.12-9.15 of the Masterplan would effectively give rise to a basis for refusing any application for Upper Callerton which did not include the access road is sound, and grounded in the application of the Masterplan policy and the absence of any reason to depart from it. In particular, any application in relation to Upper Callerton which did not include provision of the access road would not be compliant with paragraph 9.15 of the Masterplan.

In short, I am satisfied that the Masterplan provided that which policies CS3 and NN1 required. The Masterplan provides for a comprehensive, phased and coordinated approach to site development and sets out when and in relation to which phase the infrastructure necessary for the whole of the Neighbourhood Growth Area should be provided. Both of these policies called for a Masterplan to be prepared, and preparing the Masterplan as a piece of informal planning policy was undoubtedly consistent with the requirements and expectations of both of those policies. It follows that I am unable to accept that there is any substance in the claimant’s Ground 1.

Turning to Ground 2, it is accepted on all sides that congestion, and in particular congestion on the Stamfordham Road, was a material consideration in the preparation of the Masterplan. Any analysis of the evidence demonstrates that to be beyond argument. As Mr Lockhart-Mummery emphasised in his submissions not only was congestion on the Stamfordham Road an issue raised by local members and members of the public in respect of the Callerton Neighbourhood Growth Area, but it was also the subject of examination by WYG and JMP in preparing their evidence for the Masterplan itself. It is clear from paragraph 118 of the Inspector’s report following the examination that congestion on the Stamfordham Road was the concern which underpinned the provision of the access road. Whilst the claimant emphasised the contents of GAN, and it is right to observe that this document also included reference to the removal of traffic from Stamfordham Road as a consequence of the access road, I accept the submissions made on behalf of the defendant and the first and second interested parties that the observations of GAN need to be put in context, namely that it was a document which formed part of a continuum of work which it was intended would be followed by other, additional, analysis. However, none of that is to gainsay that congestion on Stamfordham Road was a material consideration.

In my view, however, the important point to keep in mind is that insofar as it is accepted as a material consideration, it was one whose interests were to be addressed through the provision of the access road. At the outset, therefore, it is clear that the congestion on Stamfordham Road was addressed by the Masterplan through its inclusion of the access road as part of the infrastructure requirements for the Neighbourhood Growth Area. I have set out above my reasons for concluding that the Masterplan met the requirements in that regard in policies CS3 and NN1.

The claimants, however, additionally submit under Ground 2 that the materiality of congestion on Stamfordham Road as a consideration has been obviated by the adoption by the defendant of the test under paragraph 32 of the Framework for deciding when the access road may be required. By proceeding on the basis that it could only be required when there was a severe cumulative impact pursuant to paragraph 32 of the Framework, it is contended on behalf of the claimant that the defendant has effectively failed to take into account the material consideration of alleviating congestion on the Stamfordham Road.

That is a submission I am unable to accept. Firstly, as a consequence of the Masterplan making provision for the construction of the access road as part of the Upper Callerton phase of the development, the question of congestion on the Stamfordham Road has been addressed through the provision of the access road and not obscured or ignored in the approval of the provisions of the Masterplan. Secondly, by virtue of the fact that it was reasonably and sensibly anticipated that the Callerton Neighbourhood Growth Area would be delivered through a sequence of planning applications, it was entirely appropriate for the defendant to consider when within the phasing of the development being delivered through those planning applications, the policy of the Framework would require delivery of the access road. Thirdly, in considering that issue, it was in my view entirely appropriate for that consideration to proceed on the basis of the application of paragraph 32 of the Framework which is expressly specified to engage with when development can be refused as a consequence of cumulative traffic impact.

I am therefore unable to accept that in approving the Masterplan the defendant failed to take account of the material consideration in relation to reducing traffic congestion on the Stamfordham Road. That consideration was locked into the provisions which were made in the Masterplan to secure the delivery of the access road, which was the infrastructure mechanism identified to address such congestion. I am unable to accept that by deploying the test under paragraph 32 of the Framework in order to identify the trigger points for the phase which required the access road the defendant ignored or overlooked the consideration of traffic congestion upon Stamfordham Road. By deploying paragraph 32 of the Framework to examine when the access road would be required the defendant was taking a sensible and realistic approach (bearing in mind that the Neighbourhood Growth Area was going to be delivered through a sequence of planning applications) to when the point would be reached where applications could properly be refused on the basis of cumulative impact on the highway network.

Mr Lockhart-Mummery also emphasised in the context of these submissions the fact that in paragraph 118 of the Inspector’s report he had noted that the access road had a planning as well as a highway function. Thus, it was submitted, the application of paragraph 32 of the Framework again side-stepped addressing the planning, as opposed to highways, justification for the provision of the access road. Whilst there is some force in this submission, in particular when allied to the acceptance by the defendant in correspondence that the JMP work had proceeded without regard to the planning requirement for the road or other planning policy imperatives, I am not satisfied that it is of any avail to the claimants. As set out above, the material consideration of reducing traffic congestion on the Stamfordham Road is locked into the provision of the access road as the infrastructure solution for that congestion. The use of paragraph 32 of the Framework to seek to identify which of the applications for planning permission in the phased sequence of development of the Neighbourhood Growth Area would be required to provide that access road does not in any way obviate the planning, as opposed to highways, justification for its provision. The use of paragraph 32 of the Framework is simply the use of an appropriate policy tool to identify those planning applications which should properly be required to deliver the access road.

I turn then finally to the claimant’s contentions under Ground 3 in relation to the planning permissions for EMC and WMC. It will be obvious that there is a considerable amount of overlap between Grounds 2 and 3 in terms of the substance of the suggestion that the material consideration of congestion on the Stamfordham Road was avoided by the use of paragraph 32 of the Framework as the yardstick for considering whether or not planning permission should be granted. It will be recalled that the claimant’s contention is that by solely applying paragraph 32 and asking the question as to whether the cumulative impact of development generated traffic would be severe, the defendant impermissibly evaded consideration of the reduction of congestion on the Stamfordham Road.

Again, in my view, the starting point for the evaluation of these submissions must be the recognition that the material consideration of reducing highway congestion on the Stamfordham Road was linked into the provision of the access road. The access road was the identified means of addressing that material consideration. I am unable to accept that the Council ignored or overlooked the material consideration in relation to reducing congestion on the Stamfordham Road for the following reasons. Firstly, it will be obvious from the evidence which has been set out above that as part and parcel of the Committee Report in relation to both the EMC and WMC applications, the issue of congestion on the Stamfordham Road was directly addressed when the officers set out the results and conclusions of the traffic analysis. That analysis examined in detail the effects which would arise as a consequence of the developments proposed at key junctions on the Stamfordham Road. Thus, there was an examination of the impact on congestion on Stamfordham Road within the report prepared for the defendant’s consideration of the planning applications.

Secondly, bearing in mind that the proposed solution for congestion on the Stamfordham Road was the provision of the access road, the Committee Reports consider directly whether, in the light of the access road being “an integral part of the Masterplan” the evidence showed that its provision was necessary to deliver housing on the EMC and WMC. Paragraph 116 of the Committee Report (set out above but reflected as to its substance in both Committee Reports) concluded that the evidence did not show that the access road was necessary to deliver housing on both of those sites. That conclusion did not involve overlooking or ignoring the need to address congestion on the Stamfordham Road, but rather the question of whether or not the access road solution was required at this point in the phasing of the development. That conclusion, applying the relevant policy of the Framework in paragraph 32, was one which was entirely appropriate and open to the defendant. It recognised that in accordance with the provisions of the Masterplan the access road was still an integral part of the Neighbourhood Growth Area but one which would be delivered at a later phase of the development in compliance with the Masterplan. In my judgment there was no error of law in that approach.

As set out above, Mr Lockhart-Mummery accepted that paragraph 32 of the Framework was an aspect of policy which was relevant to the defendant’s decision, but contended that it should have been considered alongside the material consideration of reducing congestion on Stamfordham Road. In my view that is what the defendant in fact did, in particular in paragraph 116 of the Committee Report where, having analysed the evidence in relation to paragraph 32 of the Framework and concluded that the development of the EMC and WMC sites did not themselves necessitate the provision of the access road, the defendant nevertheless identified that the access road was an integral part of the overall development taking place at the Neighbourhood Growth Area. Thus, the solution to the problem of congestion on Stamfordham Road was not required by the elements of the Neighbourhood Growth Area that they were considering at that point in time, but was still a requirement of the Neighbourhood Growth Area as a whole to be delivered through the Masterplan as part and parcel of a later phase of that overall development.

For all of these reasons I am unable to accept that there was any error of law in the consideration of the planning applications for EMC and WMC by the defendant.

As set out above the three applications came before me as a rolled-up hearing of the renewal of permission and, if permission were granted, the substantive merits of the applications. Having had the benefit of full oral argument, with respect to Kerr J, I have formed the view that each of the Grounds raised by the claimant passes the threshold of arguability. However, for the reasons which I have set out above, when considering each of the Grounds I am entirely satisfied that on detailed analysis none of them is substantively made out. There were no errors of law in the defendant’s approval of the Masterplan and subsequent approval of the planning applications for EMC and WMC. It follows that whilst the defendant and the first and second interested parties raised the question of delay, and made the case that none of these claims had been brought promptly, there is no need for me to express any concluded views in relation to that matter, since I have not found any legal flaw in the defendant’s decisions. For all of the reasons set out above, these three applications for judicial review must be dismissed.