Mr Justice Lindblom:
Introduction
- This is a claim for judicial review of two decisions: first, the "refusal" of the second defendant, the Secretary of State for Communities and Local Government ("the Secretary of State"), "as evidenced" in a letter dated 9 February 2011, to consider making a direction under regulation 4(8) of the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 (SI 1999/293) ("the EIA regulations") that a proposed development known as "The Quill", which would provide accommodation for students on the site of Capital House at 40-60 Weston Street, London SE1, is EIA development; and second, the planning permission granted for the development by the first defendant, the London Borough of Southwark Council ("the Council"), on 30 March 2011.
- The site on which the development is to be carried out lies close to London Bridge station and the London Bridge Tower, better known as "The Shard", which is being built nearby. It is owned by the first interested party, Bilford Ltd. The second interested party, Investream Ltd ("Investream"), was the applicant for planning permission for the development. Capital House is an office building of 10 storeys. The development would replace that building with a 31-storey tower providing student accommodation, with retail uses on the ground floor and ancillary facilities in other parts of the building. On behalf of the second claimant, Zurich Assurance Ltd ("Zurich"), the first claimant, Threadneedle Property Investments Ltd ("Threadneedle"), manages a six-storey office building called Becket House at 60-68 St Thomas Street, which adjoins the development site. The claimants were objectors to Investream's proposal.
- Permission to apply for judicial review was initially refused on the papers by Bean J, on 25 October 2011. The application for permission was renewed, and after a hearing on 25 January 2012 I allowed the claim to proceed.
The facts
Background
- In October 2008 Investream discussed with the Council a possible proposal to construct a tall building on the site of Capital House. On 12 January 2009 Drivers Jonas, on behalf of Investream, wrote to the Council requesting a screening opinion under the EIA regulations. On 27 January 2009 the Council issued a screening opinion, in which it stated both that the proposed development was not EIA development, within either Schedule 1 or Schedule 2 of the EIA regulations, and that it was not likely to have significant effects on the environment. The project did not, therefore, require an environmental impact assessment. On 25 November 2009 Drivers Jonas wrote to the Council requesting a screening opinion for an amended proposal. On 1 December 2009 Investream submitted to the Council an application for planning permission for the development of a 32-storey tower. The claimants objected to that proposal.
- In January 2010 the Council published for consultation the "Bankside, Borough and London Bridge Draft Supplementary Planning Document and Opportunity Area Planning Framework". The consultation document identified a number of development sites in the London Bridge area, including Capital House and Becket House. These sites were listed jointly as an Opportunity Site, with potential for tall buildings.
- On 28 January 2010 the Council issued a screening opinion, again concluding both that the project did not constitute EIA development under either Schedule 1 or Schedule 2, and that it was not likely to have significant effects on the environment. The amended proposal would not therefore require an environmental impact assessment.
- On 29 January 2010 the claimants' planning consultants, Indigo, sent the Council an objection to Investream's proposal, expressing concerns about its implications for any redevelopment at Becket House.
- On 26 March 2010 the Council submitted its draft Core Strategy to the Secretary of State for independent examination. Strategic Policy 8 of the draft Core Strategy required proposals for the development of student accommodation to provide 35% affordable housing within the development. This proposed policy was new. In the saved provisions of the Southwark Plan, which was then part of the development plan for the area, there was no equivalent policy requiring any affordable housing in developments of student housing, or any financial contribution instead. In September 2008 the Council had adopted a supplementary planning document ("SPD") to guide the provision of affordable housing in new developments. That document refers to the topics of "Housing to meet specific needs" (in section 6.1) and "Student housing" (in section 6.2). Section 6.1 acknowledges that certain members of the community, including students, "need to have housing that caters for their specific needs". It says that these "types of specialist housing", which include student accommodation, "need to be available at a level that is affordable to the people that they are intended to house". For this reason, it says, "requirements for affordable housing will not normally be applied to these types of housing
". Section 6.2 states "applicants will be required to submit with a planning application evidence of a local need for student accommodation", including "confirmation that the accommodation will be affordable to students based on information from the local education establishment that housing will be used by" and "details of the long-term lease, management and maintenance arrangements of the student accommodation."
- On 29 June 2010 the Council wrote to Drivers Jonas specifying changes it wanted to be made to the proposal. The officers referred to the provisions of policy 3.11 of the Southwark Plan, which required inter alia that new development should maximize the efficient use of land, whilst not unreasonably compromising the development potential of neighbouring sites. The Council's officers suggested that Investream should withdraw the 2009 application and submit a fresh proposal.
- Between 20 and 30 July 2010 the Core Strategy examination hearings were held by the Secretary of State's Inspector.
- On 17 September 2010 Investream withdrew the 2009 application, and submitted to the Council an application for planning permission for the demolition of Capital House, the erection of a tower of 31 storeys, rising to a height of about 109 metres, and providing 470 units of student accommodation on the 28 floors above the ground floor, together with other uses, including shops and cafes on the ground floor and various leisure facilities and a library on the top three.
- On 4 November 2010 the GLA, on behalf of the Mayor of London, wrote to the Council indicating the way in which the proposal could be made to comply with the London Plan.
The claimants' representations to the Council on 5 November 2010
- On 5 November 2010 Indigo wrote to the Council setting out the claimants' representations on Investream's proposed development. Indigo raised concerns about the form and siting of the proposed development and its relationship to Becket House, including its likely effects on the amount of daylight reaching that building, and the likely prejudice to the redevelopment of that site. Indigo acknowledged that a screening opinion had been formally requested at the beginning of 2009 but expressed surprise that the Council had concluded that an EIA was not required. They accepted that the development "may not constitute Schedule 2 development on the basis of site area", but contended that "there is the potential that the proposals could give rise to significant environmental effects, this requiring an EIA". As the Council had required in its scoping opinion for another development on St Thomas Street (the "Three Houses" project), the cumulative impacts of this proposed development with other development, including potential future development, should be considered. What those impacts might be was not explained.
The claimants' representations to the Council on 25 November 2010
- On 25 November 2010 Indigo sent further representations to the Council, pressing for a collaborative approach to the development of the Capital House and Becket House sites, highlighting the perceived inadequacy of the changes that had been made to the scheme and complaining about the lack of understanding of the likely cumulative impacts of development on these two sites. They questioned how, without an assessment of such impacts, the Council would be able to "understand that the application would not unreasonably compromise the development potential of Becket House". This, they said, was "one of the reasons that we contend that an Environmental Impact Assessment is still required as the culmination [sic] with other developments could give rise to likely significant effects such as on daylight and sunlight and townscape and visual impact
". The letter then referred to the fact that the Becket House site is "development land
in the emerging [Bankside, Borough and London Bridge] SPD", so that the cumulative effects were "likely and foreseeable". Indigo criticized Investream's "daylight and sunlight report", which, it was said, "should take account of the future development potential of the other neighbouring sites and measure the cumulative effect of all the sites being redeveloped within the foreseeable future". The evident concern was that the proposed development would reduce the development potential of the Becket House site.
The officers' report for the Planning Committee's meeting on 30 November 2010
- On 17 November 2010 the Council's officers had prepared their report on the proposed development for the Council's Planning Committee, which was to meet on 30 November 2010. On the day of the meeting the officers prepared an addendum report. Their first report, which ran to 36 pages, summarized the "main issues" for consideration as including "a) the principle of the development in terms of land use and conformity with strategic policies", "b) Environmental Impact Assessment", "c) Height", "d) Design", "e) Impact on Character and Setting of a Listed Building and Conservation Area", "g) Impact on adjoining occupiers", and "i) Planning obligations" (para. 16). The report dealt with each of those matters in turn. The officers recommended that planning permission be granted, with conditions and an appropriate planning agreement, and subject to the proposal being referred to the GLA (para. 1).
- Under the heading "Core Strategy" the report stated:
"22 The Council submitted the draft Core Strategy to the Secretary of State on 26 March 2010 and the Examination in Public hearings took place in July 2010. The Core Strategy policies should be considered as currently having no weight when determining planning applications as they are awaiting the Inspector's report and his finding of soundness. Applications should continue to be determined pending receipt of the Inspector's report primarily in accordance with the saved policies in the Southwark Plan 2007 and the London Plan 2008.
23 The Inspector's report on the Core Strategy is to be issued in December 2010. With a recommendation of soundness from the inspector there will be a very high degree of certainty that the Core Strategy will be adopted and that a number of existing Southwark Plan policies will be replaced. In view of this, on publication of the Inspector's report, all core strategy policies should be given significant weight in determining planning applications. Less weight should be given to existing policies which are soon to be replaced. Formal adoption of the [Core Strategy] is expected in January 2011."
The officers then turned to the requirement for affordable housing in draft Strategic Policy 8 of the emerging Core Strategy:
"24 Strategic Policy 8 of the Core Strategy Submission Version requires proposals for student accommodation to provide 35% affordable housing within the development. The detail of how this is to be provided is intended to be contained within a revised Affordable Housing SPD. Until the Inspector's report of the Core Strategy is received, this policy holds no weight; there is also the possibility that the Inspector may not accept the provisions regarding affordable housing in student accommodation. Accordingly, the requirement for affordable housing within the proposed development is not relevant under current adopted policy."
- The report considered the urgent need for the student accommodation proposed (paras. 45 and 46). The officers told the members (para. 47) that the site of the proposed development was "ideally located for student accommodation", being "within the King's College campus/Guy's Hospital and has a Public Transport Accessibility Level (PTAL) of 6 on a scale of 1 to 6, where 6 is the most accessible".
- Under the heading "Environmental impact assessment" the report stated:
"52 An Environmental Statement is not required with this application as the development does not fall within Schedule 1 or 2 of the Town and Country Planning (Environmental Impact Assessment) Regulations 1999.
53 The applicant made two Screening Opinion requests in relation to the proposed development. In both instances, the Council advised that the development was not considered to be EIA development and that an Environmental Statement was not required. The site does not exceed 0.5ha (being 0.0912ha), and therefore is not classified as a Schedule 2 'urban development project'. It has been determined that the development is unlikely to have a significant effect upon the environment by virtue of its nature, size or location based upon a review of the Schedule 3 selection criteria for screening Schedule 2 Development. The site has an established use as offices, and is located outside a sensitive area as per Regulation 2(1) and the development is unlikely to generate any significant environmental effects. Therefore an Environmental Impact Assessment is not required."
- In a lengthy section of the report dealing with "Design" (paras. 54 to 82) the officers dealt with the claimants' objection "that the proposed development will adversely impact their site and compromise its development potential" (para. 78). This issue had been "raised and discussed at length" with Investream (para. 79). The officers acknowledged (at para. 82) that the proposed development would "impact on the development potential of the adjoining site to a degree", but, for the reasons they had given, did not consider the impact to be unreasonable. The proposed building met all the criteria in policy 3.11 of the Southwark Plan, and was, on balance, considered to be a "highly efficient use of land" (para. 82). The officers had noted that the consultation draft Bankside, Borough and London Bridge SPD was a material consideration, but one that held only "limited planning weight" at this stage (para. 37). They considered the likely effects of the development on the local and wider townscape, and on the historic environment encompassing the Tower of London World Heritage site, and on views, in accordance with the London View Management Framework (paras. 83 to 90). They also dealt with the likely effects of the development on the daylight and sunlight available to adjoining occupiers (paras. 98 to 102). In all of these respects they found the proposal acceptable.
- In their "Conclusion on planning issues" the officers advised the members that the site of the proposed development was "within an area designated for growth and
located adjacent to a major public transport interchange" (para. 137). A "high intensity student accommodation scheme" was appropriate under local and regional policy (ibid.). The addition of 470 student rooms for King's College, London would assist in meeting "the need for good quality accommodation within the London Bridge King's College/Guy's Hospital campus" (para. 138). It had been acknowledged that tall buildings may be appropriate in the London Bridge Opportunity Area (para. 139). The "striking design of the building, together with its elegant form" would create "an appropriate third element within the emerging cluster with Guy's Tower and the Shard" (para. 139). The proposed development was "acceptable in terms of principle of the use, design and the height, bulk and massing" (para. 140). It was "in conformity with the adopted development plan and [did] not present any sufficient grounds for refusal" (ibid.). Accordingly, the officers recommended that the proposal be approved (ibid.).
The Planning Committee meeting on 30 November 2010
- The committee resolved to grant planning permission, subject to the referral of the application to the Mayor of London, and the conclusion of a section 106 agreement by no later than 20 December 2010, but that if an appropriate legal agreement had not been entered into by the that date the Council's Head of Planning was authorized to refuse planning permission.
The Secretary of State's article 25 direction of 14 December 2010
- On 14 December 2010 the Secretary of State issued a direction under article 25 of the Town and Country Planning (Development Management Procedure)(England) Order 2010 requiring the Council not to grant planning permission "without special authorisation", so that he could consider whether to call in the application for his own determination. The Secretary of State asked the Council to send him a copy of the planning application and the supporting plans and documents, and copies of any representations submitted to the Council on the application.
The Mayor of London
- Indigo wrote to the Mayor on 14 December 2010, raising concerns about the proposed development. On 15 December 2010 the Mayor notified the Council that he did not propose to direct refusal of the application or to call it in for his own determination. By this stage the Mayor had received from his officers two reports on the proposed development, which considered various aspects of the proposal from the perspective of strategic policy. In the light of the Stage II referral report and the further representations he had received, the Mayor said he was content to allow the Council determine the application itself, subject to any action the Secretary of State might take. Copies of both reports went to the Secretary of State: the Stage I referral report together with a copy of the GLA's letter of 4 November 2010 to the Council, the Stage II report with a copy the Mayor's letter of 15 December.
- In the Stage II report (dated 15 December 2010) it was noted (at para. 6) that, at the consultation stage, the Mayor had requested that a section 106 planning obligation be entered into, to restrict the use of the accommodation provided in the development to full-time higher education students, at a rent no greater than those charged for similar accommodation. The report noted that the Council had included a clause in its proposed section 106 agreement which would ensure that, in the first instance, the accommodation would only be let to full-time students of King's College, and that the accommodation would be let at a rent not exceeding those for comparable student housing (para. 7). With those commitments in prospect, the Mayor's officers had advised him that the proposal now complied with London Plan policy (para. 8). The development would, they said, make a "welcome provision of student accommodation as part of the [King's] College campus in a highly accessible area" and was "broadly consistent with the London Plan" (para. 64). The Mayor accepted that advice.
- In both reports the Mayor's officers considered the design of the development. In the Stage II referral report this was done in the light of the responses to consultation, including the representations of English Heritage and Historic Royal Palaces. The Stage I referral report had a section on "Views and built heritage", in which the officers reminded the Mayor that policies 4B.16 to 4B.18 of the London Plan "set out the strategic approach to the management of strategically important views" (para. 40). The officers noted that "the townscape, conservation and visual impact assessment indentifies that the building would be visible in the backdrop assessment area of the London View Management Framework (LVMF) Protected Vista within the London Panoramas from Parliament Hill and Kenwood (assessment points 2A.1 and 3A.1) towards St. Paul's Cathedral". Detailed analysis of the relevant views followed. The officers concluded:
"The assessment highlights that from key strategic views and from views within the World Heritage Site, the impact is slight, and has been managed in accordance with the visual management guidance in the LVMF and the London Plan. On this basis the assessment of views supports the approach adopted by the design team to preserve the conservation interests and strategic views that are affected in this instance."
In the Stage II referral report the officers dealt specifically with a new objection relating to the view towards St Paul's Cathedral from Parliament Hill (para. 38), advising the Mayor that the GLA had considered the "alternative view analysis" provided by the objector and was satisfied that Investream's consultant's "approach is accurate and in line with the methodology set out in the London View Management Framework."
Indigo's letter of 7 January 2011
- On 7 January 2011 Indigo wrote to the Secretary of State on behalf of the claimants requesting him to call in the application for his own determination. A copy of the letter was sent to the claimants' solicitor. But the Council was not sent one. Nor were the interested parties. Having elaborated the request for a call-in at some length, the letter continued:
"As you may be aware the Council had decided that this development should not be subject to an Environmental Impact Assessment notwithstanding that the points referred to above including those from English Heritage, CABE and Historic Royal Palaces. The Secretary of State has power under Regulation 4(8) of the Town and Country Planning (Environmental Impact) Regulations 1999 to direct that a development should be subject to an EIA as it is likely to give rise to significant environmental effects. We would request that if the Secretary of State decides to call in the application he should exercise his discretionary powers contained in Regulation 4(8) to direct that this infrastructure project is an EIA development, notwithstanding that the conditions contained in sub paragraphs (a) and (b) of the definition of "Schedule 2 Development" are not satisfied in relation to the development. The proposed development requires an EIA for the following reasons pursuant to Schedule 3 of the Regulations:-
Characteristics of the Development
- the proposals [provide] a total of more than 10,000 m2 of new commercial floorspace (student accommodation is not defined as residential floorspace) as set out at paragraph A19 of
Circular 02/99;
- the cumulative impact with other known and foreseeable developments could give rise to likely significant effects such as on daylight and sunlight; townscape and visual impact; and other microclimate effects (see paragraph 46 of Circular 02/99: Environmental Impact Assessment). The Council has identified the Becket House site for a tall building element as well as the site to the east of Becket House, known as the "Three Houses" site, in the emerging BBLB OADF and supporting background evidence. For example, we have undertaken a cumulative assessment in terms of daylight and sunlight and due to the sensitivity of the relationships between the buildings conclude that if the Capital House scheme were approved in its current form then even if the current Becket House building were raised in height by one floor, there would be a detrimental impact on adjoining habitable student rooms and the properties to the rear.
Location of Development
- Due to the presence of the Tower of London World Heritage Site, the area is particularly environmentally sensitive. This is proven is the significant visual and townscape effects that have resulted in outstanding objections from English Heritage and Historic Palaces. The cumulative impacts of the planned redevelopments on adjoining sites on this sensitive resource must be understood; and
Characteristics of Potential Impact
- The extent of the impact is wide-ranging with the proposed development at 31 storeys, visible from adjoining Local Authority boundaries, and further afield due to its impact on strategic viewing corridors from Parliament Hill and Kenwood as identified in the London Plan.
We trust that the Secretary of State will agree that this application should be called in for his determination pursuant to Section 77 of the Town and Country Planning Act, and additionally, that the application should be subject to an EIA."
The Council's screening opinion of 18 January 2011
- On 11 January 2011 Drivers Jonas wrote to the Council asking it to issue a screening opinion for the proposed development. On 18 January 2011 the Council issued a screening opinion, concluding both that the proposed development was not EIA development and that it was not likely to have significant effects on the environment. The proposed development was not Schedule 1 development (para. 16 of the screening opinion). And although this was an "urban development project" within the meaning of Schedule 2 of the EIA regulations (para. 18), the area of the development, about 0.1 hectares, did not cross the threshold for "urban development projects" if they are to constitute Schedule 2 development (paras. 19 to 21). Therefore, in the light of the Court of Appeal's decision in Berkeley v The Secretary of State [2002] EWCA Civ 1012, it was "strictly unnecessary to consider whether the proposed development would have significant effects upon the environment" (paras. 22 and 23). However, the Council said it was instructive to carry out that exercise (para. 23). It went on to explain why, in the light of the guidance in Circular 2/99 and having regard to the nature, size and location of the development and the factors in Schedule 3 to the EIA regulations, it considered that the development was not likely to have significant effects on the environment. The proposed development was "not of more than local importance"; it was "not proposed in an environmentally sensitive or vulnerable location"; it "would not be likely to have unusually complex and potentially hazardous environmental effects"; it "[did] not meet or exceed the criteria set out in paragraph A19 of Circular 2/99"; its "use, height, bulk and massing
[were] not considered to be likely to have significant effects upon the environment"; its "likely impacts
upon traffic, emissions, climate change, noise/vibration and the amenity of occupiers in the surrounding area (including sunlight and daylight) [were] not considered to be likely to give rise to significant effects upon the environment"; it was "not considered to be likely to give rise to any significant wind effects upon the environment"; its "potential impact
on the Bermondsey Street Conservation Area, the Tower of London (World Heritage [Site]) and other heritage assets [was] not considered to be likely to give rise to significant effects upon the environment"; and "the likely cumulative impacts of the proposed development (in particular in the context of the Shard development) [were] not considered to give rise to significant effects" (paras. 33 and 34). When the European Commission's guidance was applied, the same conclusion was reached (in para. 42).
The Planning Committee's meeting on 18 January 2011
- The proposal was considered again by the Council's Planning Committee on 19 January 2011. The committee resolved to allow a period of 30 days for the completion of the section 106 agreement following any decision by the Secretary of State not to call in the application, and, if the application was not called in, to grant planning permission subject to the same conditions, and for the same reasons, as had been resolved in November 2010.
The Core Strategy Inspector's report
- On 3 February 2011 the Inspector's report on the Core Strategy was published. On the same day the Council informed Indigo that it was to take the Core Strategy to its Cabinet on 22 March and to Council Assembly, for final adoption, on 6 April 2011.
- In his report the Inspector recommended the adoption of the Core Strategy, subject to minor changes. In the section headed "Student Homes", he said there was no doubt that the Council had recognized "the need for more student housing across London" and that it sought "to balance this against the significant need within Southwark for other types of housing". This was demonstrated in Strategic Policy 8 (para. 98). The proposed policy required "an element of affordable housing to be provided as part of student schemes, either on-site or via paid contributions and in line with [Strategic Policy 6]" (para. 100). This was "particularly important given the finite land supply and the likelihood that possible housing sites identified in the SHLAA and the DCA could come forward for student housing provision" (ibid.). The Inspector observed that "site specific circumstances will determine precisely the viability of developments which come forward". He said he was satisfied that the Core Strategy "[set] out clearly the policy objectives of the Council in a credible and deliverable fashion" (para. 101). He went on to say this (in para. 102):
"In terms of the effective implementation of SP8, adequate flexibility will be achieved via policy and guidance which currently exists at a national level (including circulars), the extant development plan, including UDP Policy 4.7, and the intended details which will be set out in the Council's Future Housing and/or Development Management DPDs and associated guidance. The balanced nature of SP8 and its supporting text would not limit unduly the supply of necessary student housing."
Finally, the Inspector noted that the policy was "underpinned by a requirement to demonstrate a 'need' for development" (para. 103).
The Secretary of State's letter of 9 February 2011
- On 9 February 2011 the Secretary of State wrote to the Council, informing it that he would not be calling in the application for his own determination. In paragraph 2 of his letter the Secretary of State referred to his "general approach
not to interfere with the jurisdiction of local planning authorities unless it is necessary to do so". In paragraph 4 he said that "all the matters raised in relation to [the] application" had been "carefully considered". The "main matters" he regarded as relevant to his decision were his policy "to promote high quality inclusive design in the layout of
developments and individual buildings in terms of function and impact", his policy for designated heritage assets in PPS5: Planning and the Historic Environment, the relevant provisions of the Southwark Unitary Development Plan (2007), and the relevant provisions of the London Plan 2008. Paragraph 5 of the letter stated:
"Having carefully considered these and other planning issues raised by the proposal together with all representations received it has been concluded that the Secretary of State's intervention would not be justified. The Secretary of State is satisfied that the planning issues identified above have been adequately addressed by the Council, and that the application does not raise issues of more than local importance which would be more appropriately decided by him rather than the local planning authority. He has, therefore, concluded that the application should be decided by Southwark Council".
In paragraph 6 of his letter, the Secretary of State said this:
"In considering whether to exercise his discretion to call in this application, the Secretary of State has not considered the matter of whether this application is EIA Development for the purposes of the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999
. The local planning authority responsible for determining this application remains the relevant authority responsible for considering whether these Regulations apply to this proposed development and, if so, for ensuring that the requirements of the Regulations are complied with."
The decision in the Great Dover Street appeal
- On 18 February 2011 an appeal against the Council's refusal of planning permission for a development including 237 units of student accommodation on a site at 200 Great Dover Street, London SE1 was dismissed. The Council had submitted to the Inspector that Strategic Policy 8 of the emerging Core Strategy was applicable to the proposal and that a contribution to affordable housing had to be paid if the application was to comply with that policy. The Council argued that the draft policy ought to be given substantial weight. The appellant resisted that argument, citing the existing SPD on affordable housing, the London Plan, draft policy in the emerging Replacement London Plan, and the Core Strategy Inspector's report. The Council's argument was rejected by the appeal Inspector. He concluded (in para. 34 of his decision letter):
"It appears that a concern being addressed in the draft policy is that sites identified in the Strategic Housing Land Availability Assessment (SHLAA) and the Development Capacity Assessment (DCA) as housing sites, for which an element of affordable housing would be provided, might be developed for student housing with no such provision. This would clearly lead to a reduction in affordable housing numbers. However, the appeal site is not so identified and no, even notional, loss would occur. The implementation of the policy will be detailed in documents which are yet to be produced, as referred to by the Inspector. The existing guidance identifies students as a group that require housing that is affordable to them, rather than a group targeted for delivering it. The new guidance will need to address these matters and provide a robust methodology for implementing Strategic Policy 8. Until that time and having regard to the timing of this application, the discussion that took place with officers during the process and the aims of policy, it does not appear appropriate to attach adverse weight to the lack of affordable housing associated with this scheme."
The officers' report for the planning Committee meeting on 22 March 2011
- On 9 March 2011 the Council's officers prepared a report for the meeting of the Council's Planning Committee on 22 March 2011, at which Investream's proposal was to be considered again. This report considered the proposal in the light of the Strategic Policy 8 of the draft Core Strategy and the absence of any provision of affordable housing in the scheme. The recommendation in the report (in para. 1) was this:
"That, having regard to the additional weight of the Core Strategy and subject to the legal agreement being signed by the Council and referral to the GLA, planning permission be granted subject to conditions."
In the section headed "Background information" the report stated (at para. 5):
"The Secretary of State issued his decision on 9 February 2011 advising that he was not using his discretion to call in the application and that the Council could proceed to issue the decision notice. However, whilst waiting for the Secretary of State to issue his decision, the Inspector's Report on the Core Strategy was released which resulted in a change in the status of, in particular, Strategic Policy 8 'Student homes'. The application is being brought back to Planning Committee to allow for consideration of this application in the light of the Inspector's Report."
The previous reports to committee, including the November 2010 report, were appended to this one. The report set out the timetable envisaged for the adoption of the Core Strategy: its consideration by the Planning Committee on 21 March 2011, by Cabinet on 22 March 2011, and by the Council's Assembly, with a view to its adoption on 6 April 2011 (para. 11). The report then went on to state:
"12. As identified in paragraph 24 of the original planning committee report, Strategic Policy 8 'Student homes' seeks to require 35% of student developments to be affordable housing.
13. Given the accommodation within the scheme has been designed to be 100% student accommodation, any affordable housing would need to be provided by means of an in lieu payment. The mechanism for calculating student affordable housing contributions is to be included in a revised Affordable Housing SPD which is in draft form. The draft of this document will be subject to consultation from April to June this year.
14. The mechanism being proposed within the draft SPD is for student developments not providing affordable housing on or off site to make a financial contribution of £100,000 per habitable room. Whist limited weight can be afforded to this mechanism given the early stages of the document, should it be applied, the applicant would be required to make a contribution of £18.8 million towards the provision of affordable housing.
15. It is considered that there are a number of material considerations of sufficient weight which suggest this policy should not be strictly applied to the application at this point in time.
16. There are four main considerations as to why the policy should not be applied:
1. Timing: whilst the inspector's report has been received, the document is not scheduled to be presented to the Council Assembly for adoption until April.
2. Mechanism: in the absence of on-site provision (given the scheme has been solely designed as student accommodation), there would need to be an in lieu payment. The mechanism for calculating the provision is to be included in the revised Affordable Housing SPD which is intended to go out for consultation between April and June and therefore currently has little weight. In essence there is no adopted mechanism for calculating the appropriate amount of any contribution now.
3. Location: the site is located within the Guy's Hospital and King's College campus and is not identified in the Strategic Housing Land Availability Assessment (SHLAA) and the Development Capacity Assessment (DCA) as housing site.
4. Stage of design: this is the third time the application has been before Members with officers having been involved in pre-application discussions since 2008; it would be considered unreasonable to apply the policy at this point in time."
The officers turned next to the Inspector's decision in the Great Dover Street appeal (para. 17):
"In a recent decision relating to student accommodation, an Inspector had to determine whether it was appropriate to apply the requirement for affordable housing strictly. He determined that it was not on the basis of similar considerations to those set out above."
Paragraph 34 of the Inspector's decision letter was quoted in full. The officers then went on to say this:
"18. It is important that like planning decisions are determined in a like manner. Particularly in the light of the decision of the Planning Inspector for Great Dover Street and the similar circumstances to the Quill, it is suggested that the same reasoning applies and it follows that Strategic Policy 8 should not be strictly applied to this development at this point in time.
19. As with the clarification report to Members in January, officers have sought legal advice on the implementations of both the Inspector's Report on the Core Strategy and the Inspector's Report on the Great Dover Street appeal decision. The advice of Counsel is that it is appropriate that the approach taken by the Great Dover Street Inspector be relied upon for this application and, given the similarities between the two schemes, the policy is not currently strictly applicable."
- In the "Summary" at the end of their report the officers said this:
"20. Were it not for the delayed response from the Secretary of State in 8 weeks as against the internal guideline period of 3 weeks, the decision notice and completed
legal agreement would have been issued. However, due to the delay, the Core Strategy Inspector has published his report. In the absence of an adopted mechanism to calculate an in lieu payment, the lack of inclusion of the Quill site as an identified housing site in the SHLAA or DCA and given the late stage of the process, it is considered inappropriate to apply the policy strictly and to require a payment of £18.8 million.
21. In terms of ensuring any decision is robust in light of an anticipated judicial review, officers have taken Counsel [sic] advice and recommend to Members that the issuing of the decision will be consistent with the Great Dover Street decision and that the Council is unlikely to be successfully challenged in this regard. It is also considered that there are sufficient material considerations to justify not applying the policy strictly in this instance and that it will not set a precedent given that a draft SPD is to be published setting out the mechanism for the calculation of off-site contributions in such cases.
22. Accordingly, it is recommended that Strategic Policy 8 is not strictly applied to this application. In the light of that recommendation, and the fact that there has been no other material change in circumstances since the previous resolution to grant planning permission, it is recommended that planning permission be granted."
Indigo's letter of 18 March 2011
- On 18 March 2011 Indigo submitted further representations. They criticized the officers' approach to affordable housing and Strategic Policy 8 in their report for the committee meeting on 22 March 2011. They commented on the advice contained in the report, reiterating much of the substance of the claimants' objections to the proposal on its merits. They began by summarizing the claimants' objections. They contended that the proposal was "not in conformity with the soon to be adopted Southwark Core Strategy", that the "Core Strategy and all its policies now have almost maximum weight in any planning decision", and that "without material considerations of sufficient weight to indicate otherwise, these policies should be strictly applied and as such the application should now be refused". A substantial part of the letter was devoted to the relationship of the proposal to Strategic Policy 8 of the draft Core Strategy. Indigo said:
"The four main considerations given in the committee report at paragraph 16 as to why Strategic Policy 8 Student Homes should not be strictly applied are not individually or collectively of sufficient weight to outweigh the significant weight that should now be given to that policy and the rest of the Core Strategy.
".
The letter went on to address each of the four specific considerations discussed in paragraph 16 of the officers' report. As to "Timing" Indigo said:
"Policy within the Core Strategy should now be given significant weight, almost akin to it being part of the development plan. This would be appropriate given the fact that the document will be adopted 14 days after the date of the planning committee at which the Capital House application will be considered.
On this basis, the Core Strategy should be given almost maximum weight in any planning decision, and the fact that the Core Strategy is a mere 14 days away from being adopted is of minimal weight."
As to "Mechanism" they said:
"The fact that the Council do not have an adopted mechanism for calculating the appropriate amount of any affordable housing payment should not prevent the Council from seeking conformity with Strategic Policy 8.
An appropriate affordable housing contribution can be negotiated today, using the current draft SPD as a guide. The applicant could provide a financial viability appraisal to test this position.
The consideration therefore holds little weight."
As to "Location" they said:
"Core Strategy Policy 8 does not state that only sites identified within the Strategic Housing Land Availability Assessment (SHLAA) and the Development Capacity Assessment (DCA) should be subjected to the provision of affordable housing, nor does it say that where sites providing student housing are on or close to [a] college [campus] that they should not be subject to the provision of affordable housing. The site's location or previous identification for housing is not relevant to the imposition of this policy, and even if it [was], it would hold little weight in any decision on whether to strictly apply this policy."
As to "Stage of Design" they said:
"
We wholly disagree with the Council's previous logic set out at paragraph 24 of the officer's report to committee on the 30 November 2010 that states that only once an Inspector has commented on a policy document does the policy within hold any weight. This is a variance with most Councils where increasing weight is given to emerging policy through the formulation stages, with many Councils adopting draft policy for development control purposes at a Pre-Submission stage. This is a failing in the officer's past consideration of the application, which now leads to the Council's conclusion that it would be unreasonable to apply this policy at this point in time.
Legislation dictates that planning decisions should be made against planning policy in force at the time a decision is made. On this basis, the application should be assessed against the Core Strategy, and when applied strictly, it should be refused against Strategic Policy 8.
".
Indigo made these comments on the Great Dover Street appeal decision:
"The officer's report refers to a recent decision on Great Dover Street. We address each of the main considerations above in relation to the Capital House application and conclude that none of these are sufficient to outweigh the significant weight that should be attached to the soon-to-be-adopted Core Strategy. Had this appeal been allowed, there would be a strong case to challenge this decision on this particular point. The officer states at paragraph 21 of the committee report that the approval of the Capital House application would not set a precedent on the weight given to soon-to-be-adopted policy, therefore nor should the Great Dover Street decision. As frequently indicated by Councils, the Capital House application should be considered on its own merits. The merits of this case and the more imminent adoption of the Core Strategy indicate that the application should be refused."
In the penultimate paragraph of their letter Indigo said this:
"It is considered that there have been certain irregularities with regard to the consideration of this application, and accordingly our client reserves the right to pursue a claim for judicial review if appropriate.
".
The officers' addendum report
- On 22 March 2011 the officers prepared an addendum report for the March committee meeting, which included summary advice on the claimants' representations. Indigo's contention that the draft Core Strategy should be applied was noted, and the members were referred to the report already prepared.
The Planning Committee meeting on 22 March 2011
- Investream's proposal was considered again by the Council's Planning Committee at its meeting on 22 March 2011. The claimants were represented at the meeting by Mr Peate of Indigo. A note of the discussion that took place in the open session of the meeting was made on behalf of the claimants by Mr Sutcliffe of PPS Group. The planning officer reminded the members of the history of the committee's consideration of the application, mentioned the Secretary of State's decision not to call it in, and explained the progress of the draft Core Strategy. He told the members that they must take Strategic Policy 8 into consideration. This, he said, was "the main purpose" of the report for this meeting. The report "deals with this in detail and considers that the application can be approved in accordance with the previous report". The officer referred to and expanded upon each of the four "key considerations" set out in paragraph 16 of the report. He advised the members that, in the officers' view, the same conclusion as had been reached by the Inspector in the Great Dover Street appeal could be reached in this case too, and that permission should be granted "on the same basis". Responding to questions asked by members about the operation of Strategic Policy 8, the officer said that there was, as yet, no mechanism in place for calculating a contribution to the provision of affordable housing. The possibility of a contribution of £18.8 million calculated on the formula referred to in the report was discussed. Objectors were allowed to address the meeting. On behalf of the claimants Mr Peate said that the draft Core Strategy "should be given maximum weight now, consistent with what was said in the 30 November committee report", that the Great Dover Street appeal decision should not be a precedent, and that this application should be determined on its own merits. Councillor Stratton asked Mr Peate about the possibility of attaching "sufficient weight" to the draft Core Strategy to apply Strategic Policy 8 "and secure up to £18.8 million for affordable housing". Mr Peate urged the members to accept that they could do this, and that "99% weight" should now be attached to the draft Core Strategy. The Council's "legal officer" expressed his opinion:
"Strictly speaking it's open to you to revisit the issues but unless a material change in the information has occurred then focus on the reason why it's been brought back to committee. It's [SP8] a relevant policy so it can be considered a material policy, but it's the weight to be attached which is for councillors to consider."
Mr Peate added his view: "the question is 'are there material considerations sufficient to outweigh the policy this late in the day'." Investream's representative then answered questions from the members, pointed to the similarities between the present case and the Great Dover Street appeal, and referred to the need for 2,000 units of student accommodation and to the substantial contributions to which Investream had committed itself for "public open space, public realm and transport". The members discussed the possibility of deferring consideration of the proposal to allow for the viability of the proposal to be tested and a contribution to affordable housing negotiated. The advice of the "legal officer" on this idea is recorded in the note:
"Nothing to be gained by deferring the matter. It is a material consideration it's why coming before you. Weighing up all the information before you and weight to be given to any individual policy. How much weight to give it at this time?"
The planning officer reiterated that the Council did not have "a robust mechanism in place" for such a negotiation, and that this was "the crux of what [the] Inspector said in [the] Great Dover Street decision". The "Head of Development Management" gave the members this advice:
"We could go away to look at this but we are here to make a decision. Up to you to take a decision 'on balance' to approve, defer or refuse. We would have to come back after a viability study with no robust mechanism. In effect it would kill this scheme. It would come back it would simply be a different scheme.
To seek to get additional funds out of it without a robust assessment can't do it in the timescale to get it developed.
The practical fact is that it will be a different scheme. You need to weigh up the offer and the relative positions. Bring forward Policy SP8 in a robust manner and see the site developed now."
The committee retired to receive legal advice in a private session. When the meeting resumed in open session the committee again debated the application of Strategic Policy 8. Councillor Stanton moved, and Councillor Mann seconded, an "amended recommendation to try to negotiate a section 106 contribution". Councillors Chopra, Coyle and Dolezal each made closing remarks in favour of the scheme, Councillor Dolezal observing that if negotiations were pursued now the Council "would lose the other benefits of the student housing". The Chair moved that the officers' recommendation be adopted. Councillor Stanton's amendment was put to the vote and defeated. And by a majority four votes in favour, two against the committee resolved to grant planning permission, subject to the conclusion of a section 106 agreement, and without requiring any financial contribution in lieu of affordable housing.
The Council's decision notice
- On 30 March 2011 the Council's decision notice was issued, the claimants having on that day entered into a section 106 agreement with the Council. Planning permission for the development was then issued. The decision notice describes the development for which permission was granted, and lists the drawings and documents comprised in the application, including the Daylight, Sunlight and Overshadowing and Solar Glare Report, the Sustainability Assessment, the Transport Assessment, the BREEAM Pre-assessment, the Archaeological Evaluation, the Microclimate Wind Assessment, the Student Accommodation Market Report of Autumn 2010, the Air Quality Assessment, the Phase 1 Environmental Review, the Noise and Vibration Report, the Planning Statement, the Flood Risk Assessment, the Heritage, Townscape & Visual Assessment and a document called Student Accommodation, London and the Design and Access Statement.
- Under the heading "Reasons for granting planning permission" the decision notice states:
"This planning application was considered to be in conformity with the development plan, the draft Core Strategy 2011, the saved Southwark Plan 2007 and specifically with the following policies including:
".
A long list of policies follows, under the headings "a] Southwark Plan (2007)", "b] The draft Core Strategy (2011)", "c] The London Plan 2008 (Consolidated with Alterations since 2004)": and "d] Planning Policy Statements". The policies of the draft Core Strategy listed include "Strategic Policy 6 Homes for people on different incomes" and "Strategic Policy 8 Student homes". After the list of policies the notice states:
"Particular regard was had to the principle of the proposed uses and the loss of office floorspace that would result from the proposed development but it was considered that there was demonstrated need for student accommodation within the borough and that the scheme would enhance the Opportunity Area by providing student accommodation for King's College, which will make an important contribution to the regeneration of the London Bridge area. The use, height, bulk and massing of the proposed development were considered to be acceptable in its context. The design of the proposed development was considered to respond successfully to its context, to be elegant and dynamic and of high quality. The proposed development was considered to be a highly efficient use of land. The impacts on neighbouring amenity and transport conditions were assessed and were considered acceptable. The proposed development was considered to provide a satisfactory standard of accommodation. No unacceptable wind impacts would arise.
The impact on the Bermondsey Street Conservation Area, the Tower of London (World Heritage site) and other heritage assets were assessed and considered acceptable. Planning obligations are also secure to offset the impact of the development in accordance with the Supplementary Planning Document on Planning Obligations. It was therefore considered appropriate to grant planning permission having regard to the policies considered and other material planning considerations and that the development is in conformity with the development plan."
The adoption of the Core Strategy
- On 6 April 2011 the Council adopted the Core Strategy. Strategic Policy 8, entitled "Student homes", provides:
"
Our approach is
Development will meet the needs of universities and colleges for new student housing whilst balancing the building of student homes with other types of housing such as affordable and family housing.
We will do this by
1. Allowing development of student homes within the town centres, and places with good access to public transport services, providing that these do not harm the local character.
2. Requiring 35% of student developments as affordable housing in line with policy 6 and figure 28.
We are doing this because
5.69 There is a need for more student accommodation across the whole of London and Southwark. We want to encourage new student homes. However this needs to be balanced with making sure we have enough sites on which to build other types of homes, including affordable and family homes. London Plan Policy 3A.5 Housing choice requires us to identify the range of housing needs in the borough and offer a range of housing choices. Whilst London as a whole has a recognised need for more student bed spaces, our Strategic Housing Market Assessment and Housing Requirements Study also highlight the huge need for more family and affordable housing.
5.70
Allowing too much student accommodation will restrict our ability to deliver more family and affordable housing.
5.71 Through our Strategic Housing Land Availability Assessment we have identified sites that need to be developed to make sure we can meet our housing targets. If these sites come forward without affordable housing we would not be able to meet our affordable housing target. Policy 3A.7 Affordable housing targets of the London Plan encourages boroughs to look at a range of sources of supply of affordable housing including provision for non self-contained housing (which includes student housing). By requiring an element of affordable housing or a contribution to affordable housing
from student accommodation schemes we can make sure we work towards meeting the needs for both student accommodation and affordable accommodation. It will also help us to provide more family housing as within the affordable housing there will be an element of family housing.
5.72
We will only allow student housing in our town centres and areas with good public transport accessibility as these are the areas which can accommodate growth. We will work with local universities to make sure that student accommodation is focused where there is a need."
- Strategic Policy 6, which is referred to in the second action in Strategic Policy 8, is a policy directed at the provision of "Homes for people on different incomes". The aim or "approach" of this policy is twofold: first, that development "will provide homes
for people on a wide range of incomes", and secondly, that development "should provide as much affordable housing as is reasonably possible whilst also meeting the needs for other types of development and encouraging mixed communities". The actions set out in the policy include providing a minimum of 665 affordable housing units in the Bankside, Borough and London Bridge Opportunity Area between 2011 and 2026, as is indicated in figure 28 (the third action), requiring a minimum of 35% affordable housing units on developments with 10 or more units (the seventh action).
The launching of the claim for judicial review
- On 28 April 2011 the claimants' solicitors sent a pre-action protocol letter to the defendants and the interested parties, acknowledged that the Council was now functus officio and that "(unless the grant of planning permission is first quashed), there is no practical purpose in the Secretary of State considering whether or not to direct that the proposed development is indeed EIA development, even if (absent an order quashing the grant of planning permission) there is in principle scope for the Secretary of State to do so." Therefore, it was said, the claimants now had "no option but to issue proceedings for judicial review". The claim was issued on 6 May 2011.
Mr Peate's evidence
- In his third witness statement on behalf of the claimants (dated 13 January 2012) Mr Peate says that Zurich's "property portfolio in the Council's area, which consists of the Becket House site and three other sites, has an overall value of £35 [million]" (para. 3). He says there are two "key reasons" why the claimants have an interest in the proper application of affordable housing policies in Southwark. First, they are "entitled to expect the Council to approach affordable housing consistently, because unless there is a consistency it is very difficult for Zurich to make investment decisions which [affect] is own estate within the [borough]" (para. 4). And secondly, the Council's approach to affordable housing in the present case will affect the claimants "if and when they come to develop the Becket House site (or any of Zurich's other sites in [Southwark]) for residential use". In particular, if "student or other residential accommodation" is developed on the interested parties' site without any affordable housing contribution being made, this is "likely to increase the pressure to make an affordable housing contribution as part of any residential development of Becket House site itself" (para. 5). This, says Mr Peate, is likely to be exacerbated by the fact that the interested parties' site and Becket House site are treated as a single "opportunity site" having "the potential for tall buildings" in section 5.6 of the Council's "Bankside, Borough and London Bridge Draft Supplementary Planning Document and opportunity area planning framework". He says that "the complete absence of any affordable housing contribution on [the interested parties'] site can only increase the onus to make up the shortfall on the remainder of this "opportunity site", which is owned by Zurich and managed on their behalf by [Threadneedle]" (para. 6).
The Secretary of State's evidence
- Evidence has been provided to the court on behalf of the Secretary of State, in two witness statements of Mr Robert Putnam, dated 3 and 21 February 2012. Mr Putnam is a casework manager employed by the Department of Communities and Local Government. In his first witness statement Mr Putnam confirms (in para. 3) that in the present case "no consideration was given to whether the power conferred by [regulation] 4(8)
should be exercised". He explains why (ibid.):
"The view was taken that the request to exercise the [regulation] 4(8) power, made in a letter from Indigo
dated 7 January 2011, was conditional upon the application for planning permission being called in. Because the decision was taken not to call in the application for planning permission, the condition on which the request was predicated was not met and therefore the view was taken that the request did not arise. If an unconditional request had been made, then consideration would have been given to whether to exercise the reg 4(8) power."
That explanation is repeated in Mr Putnam's second witness statement (in para. 6) and appears also in a note prepared in May 2011 by his then superior, Mr Ian McNally, who had signed the Secretary of State's letter of 11 February 2011. Mr Putnam also says in his first witness statement (at para. 4) that paragraph 6 in the Secretary of State's letter of 9 February 2011 was "a standard paragraph that is included in most letters informing a local planning authority that an application for planning permission is not being called in". The purpose of that paragraph, he says (in para. 5), is "simply to make clear that the Secretary of State has only considered the issue of call-in and has not also considered whether or not the development in question is EIA development". It "also reminds the local planning authority of their obligations under the [EIA regulations]". It "was not included as a response to the request from Indigo" in their letter of 7 January 2011 (ibid.). Mr Putnam goes on to explain (in paras. 6 to 8) the "considerable administrative burden" that would fall on the Secretary of State's department if the Secretary of State were under a duty to consider exercising his power in regulation 4(8) in cases where there is no specific request for him to do so.
The issues for the court
- There are now three grounds of challenge: grounds A, B1 and B2. They raise these main issues:
(1) Did the Secretary of State err in law by not considering whether to make a direction under regulation 4(8) (the issue in ground A of the claim)?
(2) Did the Secretary of State's error vitiate the Council's grant of planning permission (the issue in ground B1)?
(3) Did the Council err in law in its approach to Strategic Policy 8 of the Council's draft Core Strategy, and were the summary reasons for granting permission given in its decision notice materially defective (the issue in ground B2)?
Issue (1): Did the Secretary of State err in law by not considering whether to make a direction under regulation 4(8)?
The relevant law
- It is necessary to recall the relevant provisions of the EIA regulations. This case is not directly concerned with those of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (SI 2011/1824), which did not come into force until 24 August 2011.
- The proposed development in this case was not "EIA development" within the definition in regulation 2(1). It was not "Schedule 1 development". It was development of a type described in Schedule 2 to the EIA regulations as an "urban development project". But it was not "Schedule 2 development", as defined in regulation 2(1), because the area of the development site did not exceed 0.5 hectares. However, regulation 4(8) enabled the Secretary of State to direct that a development of a description mentioned in column 1 of Schedule 2 including an "urban development project" is "EIA development", notwithstanding the fact that it is not "Schedule 2 development". Regulation 4(8) provides:
"The Secretary of State may direct that particular development of a description mentioned in Column 1 of the table in Schedule 2 is EIA development in spite of the fact that none of the conditions contained in sub-paragraphs (a) and (b) of the definition of "Schedule 2 development" is satisfied in relation to that development."
- Responsibility for superintending the assessment of projects under the EIA regulations normally lies with the decision-maker either the local planning authority or the Secretary of State as the case may be. Generally, assessment will be required only for EIA development as defined in regulation 2(1), i.e. Schedule 1 development or Schedule 2 development likely to have significant effects on the environment. Regulation 4(7) empowers the Secretary of State to make a "screening direction irrespective of whether he has received a request to do so". The definition of a "screening direction" in regulation 2(1) is "a direction made by the Secretary of State as to whether a development is EIA development". Thus, although it finds its place in regulation 4, "General provisions relating to screening", a regulation 4(8) direction is not, strictly, a screening direction. It is not a direction "as to whether" development is EIA development as defined in regulation 2(1) but a direction "that" development which is not EIA development again as defined in regulation 2(1) is to have such status. It is, in effect, a power, reserved to the Secretary of State alone, to deem a project EIA development even though it is not. In this sense it is, plainly, a power to make an exception to the normal operation of the statutory regime under the EIA regulations. The effect of a regulation 4(8) direction is to require the submission and consideration of an environmental statement before the decision-maker can lawfully grant planning permission. Such a direction "shall determine for the purpose of [the EIA regulations] whether development is or is not EIA development" (regulation 4(3)). In the absence of a direction by the Secretary of State under regulation 4(8), it was not open to the Council to conclude that the project was "EIA development" or to require the submission of an environmental statement regardless of the likely environmental effects of the development.
- As the Court of Appeal confirmed in Berkeley v The Secretary of State for the Environment, Transport and the Regions and another ("Berkeley (No.3)") [2002] 1 P. & C.R. 265 (at paras. 47(5) and 49), the EIA Directive was appropriately transposed into domestic law by incorporating into the EIA regulations, in Schedule 2, thresholds and criteria by which to determine whether a particular development is EIA development, leaving the Secretary of State with the discretionary power to direct, under regulation 4(8), that a particular development is EIA development even though it does not qualify as such under either Schedule 1 or Schedule 2. Regulation 4(8) was not required for the adequate transposition of Council Directive 85/337/EEC ("the EIA Directive"). It is permissible to have a combination of case-by-case examination and thresholds and criteria. Indeed, the United Kingdom embraced both in regulation 2, applying the test of significance to projects exceeding the relevant thresholds (see the first instance judgment of Mr Duncan Ouseley QC, as he then was, sitting as a deputy judge of the High Court in Berkeley (No.3) [2001] J.P.L. 660 (at para. 39). Regulation 4(8) is "not purely a domestic add on"; it "is not required but it is permitted instead by [the EIA Directive] and it should be seen and construed as part of the United Kingdom's implementation of [the EIA Directive]" (ibid., para. 40).
- At first instance in Berkeley (No.3) the judge described the discretion in regulation 4(8) as an "exceptional power exercised only by the Secretary of State on application to him directly in relation to a specific matter" (para. 34). He went on to say that the "very existence of thresholds and criteria means that the [EIA Directive] recognises the potential lawfully to exist for projects to fall below them, which nonetheless are likely to have significant environmental effects, and yet not to be assessed" (para. 37):
"It would wholly undermine the role of thresholds and criteria, including the definition of sensitive areas, if in addition to the thresholds and criteria all applications, whether on appeal or otherwise, had to be considered against the single test of whether they were likely to have significant environmental effects. Indeed, it is difficult to see what purpose in that context the existence of thresholds or criteria could possibly have." (ibid.)."
The judge identified the essential purpose of the power in regulation 4(8) in this way (at para. 42):
"
Thresholds and criteria, whilst themselves capable of being sufficient, have been added to by Regulation 4(8) in case something which fell below or outside the thresholds and criteria, but which is likely to have a significant environmental effect, is specifically identified and drawn to the Secretary of State's attention. A procedure for considering that is given. It can be invoked by local planning authorities or third parties communicating with the Secretary of State. Indeed, the Secretary of State can take a view without there having been a request specifically made to him."
In paragraphs 44 and 45 of his judgment the judge emphasized the limited and exceptional nature of the power in regulation 4(8):
"44. I do not consider that the limited and exceptional power that has been given only to the Secretary of State, and not to Inspectors or to local planning authorities, involves any inadequacy of transposition.
As I say, it is permitted but not required by the European Directive that certain cases falling below the thresholds and criteria be subject to a case by case examination and, even if some safety net were required, this would be an adequate provision enabling the Secretary of State to consider matters but not enabling anyone else to do so.
45. Accordingly, Regulation 4(8), an adjunct to the thresholds and criteria, can be given effect in the narrow and circumscribed terms in which it is expressed. The Directive's purpose does not require Regulation 9(2) or Regulation 4(8) to be given broader meanings which in effect would reimpose the single test of whether a project was likely to have significant environmental effects and thereby undermine one of the chief objectives of the amendment to the Directive which introduced thresholds and criteria instead of such a single test."
The judge then (in para. 46) stressed how narrow is the scope of the power in regulation 4(8):
"To enlarge Regulation 9(2) or Regulation 4(8) so as to create some general obligation to consider the likely significant effects of projects which fell below the thresholds and criteria would undermine not merely the purpose of the Regulations but, in my judgment, would run counter to the purpose of Article 2 of the Directive itself, depriving thresholds and criteria of any substantial effect. The Directive does not require that projects falling below the thresholds and criteria be subject to a [significance] test. Accordingly, an additional permitted check can be narrowly circumscribed."
Rejecting the notion that the Secretary of State was obliged to consider whether to make a direction under regulation 4(8) in each appeal being dealt with by an Inspector, the judge said (in para. 48):
"I do not consider that there is any separate obligation, either under the domestic Regulations or by reference to the European Directive, on the Secretary of State directly to consider each appeal being dealt with by an Inspector for the purposes of considering whether he wishes to make a direction under Regulation 4(8). The matter has to come before his notice in some way or other before any particular failure to consider the exercise of his power can be raised as a matter of complaint. No such application was made to the Secretary of State.
".
- Giving the judgment of the Court of Appeal in Berkeley (No.3), Schiemann LJ said (at para. 2) that "a balance has to be struck between the desirability of securing that the decision maker has, after consulting every conceivably interested person, before him all possibly relevant information before he comes to a decision and the desirability of not making the process of obtaining planning permission unduly lengthy, expensive and burdensome for the applicant, the decision taker and all the possible consultees."
Several things were clear from a consideration of the EIA regulations, including that "[the] Secretary of State is never obliged to make a direction under regulation 4(8)" (para. 39). Schiemann LJ firmly rejected the notion that the Secretary of State has a duty in every case to consider exercising his discretion to make a direction under regulation 4(8). He said this (at para. 45):
"
[Counsel's] written submissions could be read as suggesting that since Regulation 4(8) envisaged the possibility of a case by case examination therefore the Secretary of State was obliged to make an examination in every case as to whether the application should be subjected to EIA procedures and therefore the Inspector was always bound to refer this question to the Secretary of State. We reject this submission as manifestly unsustainable and indeed [counsel] modified it in her oral submission.
".
The EIA Directive was not intended to prevent all development likely to have a significant effect on the environment, but "to improve the quality of the decision taking process in a group of cases" (para. 47(1)). The EIA Directive clearly envisaged, as the case law confirmed, that "Member States can establish criteria in advance and that cases on one side of the line do not need to be subject to an EIA assessment" (para. 49).
Circular 2/99
- The Secretary of State's policy in Circular 2/99 makes it clear that the power under regulation 4(8) is a power that will be exercised exceptionally. Paragraph 77 of Circular 2/99 states:
"
b. Local planning authorities may, exceptionally, draw the Secretary of State's attention to a particular development which although listed in Schedule 2 does not constitute a Schedule 2 development for the purposes of the [EIA regulations]. The Secretary of State has powers to direct that such development is EIA development (regulation 4(8)).
".
Paragraph 78 of the circular indicates that, before exercising the discretionary power in regulation 4(8), the Secretary of State would normally give the applicant for planning permission and the local planning authority an opportunity to make representations. It goes on to describe the statutory procedures, under regulation 7, that follow from the making of a direction.
Submissions for the claimants
- Starting from the accepted fact that in this case the Secretary of State did not consider whether or not to issue a direction under regulation 4(8), Mr Village submitted, first, that this was one of those cases in which the Secretary of State was obliged to decide whether or not, in his discretion, to issue a screening direction under regulation 4(8) ("the breach of duty argument"); and secondly, that in any event the Secretary of State's refusal to consider whether or not to issue a direction under regulation 4(8) in this case was unlawful because it was irrational or based upon irrelevant considerations, or the Secretary of State had failed to take into account relevant considerations, or he had misdirected himself as to the nature and extent of his powers ("the misdirection argument"). These, said Mr Village, were alternative arguments. The claimants did not have to win on both. Winning on one would be enough for ground A of the claim to be upheld.
- Developing his breach of duty argument, Mr Village submitted that, because all parties had agreed that in certain circumstances the Secretary of State would be obliged to make a decision whether or not to issue a direction under regulation 4(8), there were two main questions to be considered. The first was this: what is the trigger for the duty? And the second was: was the duty triggered in this case?
- As to the first question, Mr Village submitted (in para. 7 of his skeleton argument) that it is "a necessary, but sufficient, trigger that it has come to the Secretary of State's notice that there is a genuine matter of substance as to whether the development proposed [in] the planning application ought to be recognised as EIA Development: that is whether despite not being carried out in a "sensitive area", and despite not crossing the applicable threshold in Schedule 2 of the EIA Regulations the development is likely to have significant effects on the environment taking account of the selection criteria set out in Schedule 3 of the EIA Regulations, and an environmental statement ought therefore to be produced and considered on the planning application".
- To the second question was the duty triggered in this case? Mr Village submitted the answer was clearly "Yes". The Secretary of State had asked for and had been provided with copies of Indigo's representations of 5 and 25 November 2010, which made it clear that although the development proposed might not constitute Schedule 2 development on the basis of the site area, there was potential for it to give rise to significant environmental effects, in particular because of the cumulative impact that it would have when combined with other developments. Indigo's letter of 7 January 2011, which had summarized the objections of English Heritage, Historic Palaces and CABE, reminded the Secretary of State of his power under regulation 4(8) and told him that the proposed development required an environmental impact assessment for several reasons, summarized under the headings "Characteristics of the Development", "Location of Development" and "Characteristics of Potential Impact". Therefore, Mr Village submitted, by the time the Secretary of State refused to consider whether or not to issue a screening direction under regulation 4(8), he had a duty to do so because it had come to his notice that there was a genuine matter of substance as to whether the development proposed ought to be recognized as EIA development. And the Secretary of State had acted unlawfully in failing to discharge that duty.
- Mr Village submitted that it was wrong to suggest, as the other parties had, that the duty to consider whether to issue a direction under regulation 4(8) would arise only if the Secretary of State had received a direct and unconditional request to make a direction. This could not be right, said Mr Village, for several reasons. First, regulation 4(7) makes it clear that the power in regulation 4(8) did not depend on the Secretary of State receiving a request to exercise that power. Secondly, the power in regulation 4(8) allows the Secretary of State to undertake a case-by-case examination of whether an environmental impact assessment should be required for projects that do not cross the thresholds and satisfy the criteria set out in Schedule 2 of the EIA regulations. Thirdly, it would be "a triumph of form over substance", defeating the purpose of the EIA regulations and the purpose of regulation 4(8), if the Secretary of State could close his mind to the exercise of his power simply because no one happened to address a specific request for a regulation 4(8) direction to him. Fourthly, it was not correct to characterize the Secretary of State's power under regulation 4(8) as being an exceptional power, exercised only by the Secretary of State on an application to him. And fifthly, on a fair reading of paragraph 42 of the judgment at first instance in Berkeley (No.3), the conditions described by the judge in that paragraph would be satisfied whenever it has come to the Secretary of State's notice that there was a genuine matter of substance as to whether the development proposed ought to be recognized as EIA development.
- But, submitted Mr Village, even if the defendants and interested parties were correct in describing the trigger as they had, the Secretary of State's duty was triggered in the present case. Indigo's letter of 7 January 2011 was a direct and specific request to the Secretary of State for a direction under regulation 4(8). Mr Village submitted that the other parties were, in effect, arguing that the word "if" in the relevant passage of the letter had to be read as "if and only if". But that was to distort the meaning of Indigo's letter. The letter must be read as a whole, in the context of the representations Indigo had submitted on 5 and 25 November 2010, on the assumption that the Secretary of State would direct himself properly as to the scope of his powers, and with an understanding that a letter like this ought not to be interpreted as if it were a statute. Read as a whole, Indigo's letter was telling the Secretary of State that the development required an environmental impact assessment, for the substantial reasons given. Indigo expressly invoked the Secretary of State's power under regulation 4(8). At the end of their letter, where the Secretary of State was asked to call in the application and "additionally" to recognize that it "should be subject to an EIA", they were, said Mr Village, raising two separate requests. The second did not depend on the first. It was, said Mr Village, "overwhelmingly clear" that Indigo wanted a decision to be made that the proposed development was EIA development, no matter whether the application was to be decided by the Secretary of State or by the Council as local planning authority.
- Elaborating his misdirection argument, Mr Village said it was axiomatic that the Secretary of State's discretionary power under regulation 4(8) had to be lawfully exercised, in accordance with traditional public law principles. In the present case the Secretary of State had clearly refused to consider at all whether or not to issue a direction under regulation 4(8). Even if it was within the bounds of the Secretary of State's discretion to refuse to consider whether or not to issue a direction under regulation 4(8), the court still had to consider whether that refusal was irrational, or based on irrelevant considerations, or flawed by a failure to take into account relevant considerations or by a misdirection on the part of the Secretary of State as to the extent of his powers. If so, the Secretary of State's refusal to exercise his discretion was unlawful. Mr Village submitted that the Secretary of State had indeed fallen into such error. In refusing to consider whether to issue a direction that the development was EIA development, he had prevented himself from considering the exercise of a power that lay only with him. Leaving the Council to ensure that the requirements of the EIA regulations were complied with was, in effect, to deny the existence of a power given only to the Secretary of State. If the Secretary of State was in fact operating a blanket policy of refusing to consider whether to exercise his own powers to issue a screening direction, this in itself would be unlawful (see British Oxygen Company Limited v Minister of Technology [1971] AC 610, per Lord Reid at p.625A F).
Submissions for the defendants and interested parties
- The submissions made for each of the defendants and for the interested parties on this issue were closely similar, and may conveniently be taken together.
- All parties opposing the claim contended that, in the circumstances of this case, the Secretary of State clearly did not commit any error of law in not considering whether to exercise his discretionary power under regulation 4(8). The Secretary of State was neither in breach of any duty, nor did he misdirect himself.
- As to the breach of duty argument, three main submissions were made. First, as it was put by Mr Moffett, for the Secretary of State's duty to exercise his discretion in regulation 4(8) to be triggered, there must, ordinarily, be an express request made to him. Secondly, there was in this case no activated request for the Secretary of State to exercise his power under regulation 4(8). The request communicated to him on behalf of the claimants was unequivocally a conditional one. It depended on a decision being made, by him, to call in the application for planning permission. In the event he did not decide to call the application in. So the request made to him did not arise. And he was not, therefore, under a duty to exercise his discretion. Thirdly, the Secretary of State clearly treated Indigo's letter of 7 January 2011 as meaning precisely what it said, and he was entitled to do so. He did no more and no less than he was asked to do. He was not then asked to do more. There was no renewed request to him to exercise his discretion under regulation 4(8), though there was no lack of opportunity for the claimants to make such a request had they wanted to. It is absolutely plain from his letter of 9 February 2011 that he had not dealt with the conditional request that had been made to him. In the absence of any complaint, either from Indigo or otherwise by or on behalf of the claimants, he could properly assume there was no outstanding application or request for him to consider. The Council, for its part, had formally confirmed its own view that the development was not likely to have significant environmental effects. It was not asked to refer this question to the Secretary of State for a direction, though it could have been. Nor did it see any need to do so on its own initiative. By the time it granted planning permission for the proposed development there was no reason for anyone to think that the Secretary of State was under a duty to undertake a screening exercise of his own, and there was no unlawful failure on his part to exercise his power under regulation 4(8). And fourthly, in any event, there was nothing in the facts of this case so exceptional as to oblige the Secretary of State to exercise his discretion under regulation 4(8) in spite of there being no effective request for him to do so. Again, the absence of any contemporaneous complaint from the claimants is significant. Therefore, it cannot be said that it was unreasonable or otherwise unlawful for the Secretary of State not to consider exercising his discretion under regulation 4(8) in this case.
- The misdirection argument was misconceived. Paragraph 6 of the Secretary of State's letter does not betray any misunderstanding or misapplication of his statutory powers. It simply states two things: first, that the Secretary of State had not considered whether the proposed development was EIA development, which was true as a matter of fact; and secondly, that the Council, as local planning authority, remained the authority responsible for the ensuring that the EIA regulations were complied with in so far as this had to be done which was correct as a matter of law. In the circumstances there is no warrant for reading anything more into that paragraph of the Secretary of State's letter than was actually there.
Discussion
- It is not in dispute that in this case the Secretary of State did not, in fact, consider exercising his discretion to make a direction under regulation 4(8). The only occasion on which the claimants suggested to him that he should consider doing so was when Indigo wrote on 7 January 2011 asking him to call in the application for planning permission. Nobody else ever asked him to do it. And the claimants never invited him to consider doing so other than in the circumstances specified in Indigo's letter. Neither in his letter of 9 February 2011 to the Council, informing it that he had decided not to call in the application for his own determination, nor in any other correspondence did the Secretary of State refer to his power in regulation 4(8). The crucial question here is whether the Secretary of State ought to have considered exercising that power, and whether in not doing so he committed any error of law. This is not a case where a challenge is brought on the ground that the decision-maker has failed to perform a duty provided by statute, or on the ground that the decision-maker has exercised an administrative discretion unreasonably or otherwise unlawfully. The thrust of the claimant's challenge on this ground is that it was unlawful for the Secretary of State not to consider the exercise of a discretionary power available to him in the relevant statutory scheme.
- There is clear jurisprudence on the nature and scope of the Secretary of State's power in regulation 4(8), in the decisions of the Court of Appeal and at first instance in Berkeley (No.3). I have referred to salient passages in those judgments. The principles apparent in them must be applied to the particular facts of the present case.
- Four features of the power contained in regulation 4(8), identified by Mr Moffett in his submissions for the Secretary of State, seem to me to be worth noting. First, this provision is unlike others in the EIA regulations in that no procedure for it is prescribed (see paras. 37 and 38 of Collins J's judgment in R (Baker v Bath and North East Somerset Council [2009] EWHC 595 (Admin)). Secondly, the power may be used only by the Secretary of State (see paras. 34 and 44 in the first instance judgment in Berkeley (No.3)). Thirdly, a decision not to exercise the power in regulation 4(8) will not amount to a breach either of the EIA Directive or the EIA regulations (see para. 39 of the judgment of the Court of Appeal in Berkeley (No.3)). And fourthly, there is no general obligation on the Secretary of State to consider making a regulation 4(8) direction; such an obligation would be inimical to the purpose of the EIA regulations in providing thresholds and criteria (see paras. 37 and 46 of the first instance judgment in Berkeley (No.3), and para. 45 of the Court of Appeal's).
- If the Secretary of State makes a direction under regulation 4(8), his decision to do so is a significant step, which entails a subsequent process of assessment under the EIA regulations following notification to the applicant (under regulation 7(4) and (6)) that the submission of an environmental statement is required.
- Regulation 4(8) does not provide a duty; it provides only a power. And whilst regulation 4(7) permits the Secretary of State to make a screening direction even if he has not received a request to do so, it does not provide that he must (see para. 42 of the first instance judgement in Berkeley (No.3)). The power in regulation 4(8) is, and must be seen as, an exceptional one: exceptional not just in the sense that it is reserved to the Secretary of State alone, but also in the sense that he will only use it in an exceptional case. The procedure envisaged in government policy, in paragraph 77 b. of Circular 2/99, is one on which local planning authorities may "exceptionally" rely by drawing a "particular development" to the attention of the Secretary of State. This, of course, is not to say that third parties cannot do the same. They can. To regard the power to make a direction under regulation 4(8) as exceptional is, I believe, consistent with the approach of the European Court of Justice in Aannemersbedrijf PK Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland (Case C-72/95) [1996] E.C.R. 1-5403, [1997] Env.L.R. 265 (at para. 49):
"
A Member State would have no interest in fixing specifications, thresholds and criteria if, in any case, every project had to undergo an individual examination with respect to the criteria in Article 2(1)".
(see also the decision of the European Court of Justice in Commission v Ireland (Case C-427/07) [2010] Env.L.R. 8 (at paras. 40 to 42)). The essential point is that the power in regulation 4(8) is not one that is normally still less automatically resorted to by the Secretary of State.
- Whether a direction under regulation 4(8) is justified in any given case will always be a matter of judgment for the Secretary of State when his power to direct is engaged. If the Secretary of State's power in regulation 4(8) is to be engaged there must be a definite cause for him to exercise his discretion. As it was put in the submissions made on behalf of the defendants and for the interested parties, there has to be a sufficient trigger for this to happen. This was accepted on behalf of the claimants. In the light of the judgments in Berkeley (No.3) it had to be. As the Court of Appeal acknowledged in that case, the Secretary of State is "never obliged to make a direction under regulation 4(8)" (para. 39), nor is it incumbent on him "to make an examination in very case as to whether the application should be subjected to EIA procedures" (para. 45). The court rejected the concept of there being a general obligation on the Secretary of State to act spontaneously under regulation 4(8) as "manifestly unsustainable" (ibid.). A corollary of this is that an onus lies on anyone who seeks such a direction to prevail on the Secretary of State to make one. If the power in regulation 4(8) is to be invoked, that must be done in clear and unambiguous terms. This understanding of the discretionary power in regulation 4(8) also reflects the concept, referred to by the judge at first instance in Berkeley (No.3), of an "application to [the Secretary of State] directly in relation to a specific matter" (at paras. 34 and 48), and a "procedure" that can be "invoked by local planning authorities or third parties communicating with the Secretary of State" (para. 42).
- Although, of course in the words of the judge at first instance in Berkeley (No.3) (at para. 42) the Secretary of State "can take a view without there having been a request specifically made to him" (my emphasis), I see force in the submission made on his behalf in this case that he is, ordinarily, only required to consider exercising his power in regulation 4(8) at the instigation of a local planning authority, or a third party, if an express request to do so is made to him, bringing to his attention a particular feature of the development that is said to be likely to have a significant effect on the environment. I do not accept that the Secretary of State has a duty to consider whether he should exercise his discretion under regulation 4(8) whenever it has come to his notice that there is, as Mr Village put it, "a genuine matter of substance as to whether the development proposed on the planning application ought to be recognised as EIA [development]". In any event, I see no reason to adopt in the present case an approach any less stringent than that indicated in the decisions in Berkeley (No.3). And I am in no doubt that if one applies that approach to the particular facts of this case, the Secretary of State cannot be held to have erred in law.
- Whether, in any particular case, it was lawful for the Secretary of State not to consider the exercise of his discretion under regulation 4(8) must be addressed in the factual context of that case. One must look at all the relevant facts up to the point at which planning permission for the development in question was granted. The EIA Directive and its transposition into domestic law through the EIA regulations preclude the granting of consent for a relevant project in the absence of formal assessment. Therefore, an allegation of unlawful failure or refusal to exercise the discretionary power in regulation 4(8) can only properly be tested against the facts as they stood at the end of the decision process. The question will always be whether, taken as a whole, the facts display an unlawful failure or refusal by the Secretary of State to consider exercising his discretion to require the project to be assessed under the EIA regulations before planning permission was finally granted.
- If, as was held in Berkeley (No.3), the matter has to come to the notice of the Secretary of State in some way (see para. 48 of the first instance judgment), and if in a particular case it did, one must look at the way in which this occurred. In the present case the means by which the claimants sought to initiate the exercise of the Secretary of State's discretion was by making a request in the terms of Indigo's letter of 7 January 2011.
- When a local planning authority or a third party has made a request to the Secretary of State asking him to exercise his discretion under regulation 4(8), the Secretary of State may take that request at face value. So too may the court. In principle, it cannot be unlawful for the Secretary of State, when responding to a request made in limited terms, to heed the limits imposed. Even where a public body is under a general duty to consider exercising a power which, in this case, the Secretary of State was not the duty can be qualified where the request to do so is expressly limited (see R. v. Barnet L.B.C., ex p. Shah [1983] 2 AC 309, in the speech of Lord Scarman (at pp. 349 and 350)).
- In my view the terms of Indigo's letter of 7 January 2011 are perfectly clear and beyond semantic dispute. The request for a regulation 4(8) direction was coupled to the request for a call-in. And it was clearly conditional upon the request for a call-in being accepted. What the Secretary of State was asked to do was to exercise his discretionary power in regulation 4(8) "if he [decided] to call in the application". The plain meaning of this was that the claimants were only asking the Secretary of State to consider making a direction under regulation 4(8) if he first decided that he, and not the Council, was going to determine the application for planning application. Their request depended expressly on that. One does not have to construe the letter as if it were a contract or a statute to read it in this way. On a straightforward, common-sense reading it cannot mean anything else. Indigo did not ask the Secretary of State to deploy his power in regulation 4(8) in any event, irrespective of his decision on the request to call the proposal in. Nor did they ask him, in deciding whether or not to call in the application, to consider first whether the application ought to be deemed EIA development. They asked him to exercise his discretion under regulation 4(8) if he decided to take the role of decision-maker upon himself. The comments they made about the characteristics of the development, its location and its "potential impact" were clearly integral to the conditional request. Here, apparently, were the reasons why Indigo were suggesting to the Secretary of State that, if he did call in the proposal, he should ask himself whether he wanted to have an environmental statement to help him in making his decision. The final paragraph of Indigo's letter repeated the invitation to the Secretary of State to call in the application and "additionally" to agree that it should be subject to an environmental impact assessment. That paragraph can and, in my view, should be read as confirming the way in which Indigo had put their request. It did not change or contradict the earlier part of the letter by asking the Secretary of State to do the opposite of what he had already been requested to do, and to conclude that an environmental impact assessment should be required even if he did not decide to call the application in. The authors of the letter experienced planning consultants must be taken to have meant what they said on the claimants' behalf.
- As Mr Putnam's evidence explains, the Secretary of State understood the claimants' request in the way I believe it had to be understood. Mr Village said that Mr Putnam's evidence was ex post facto and ought not to be accepted, untested by cross-examination as it was. But even without the benefit of Mr Putnam's evidence, I would hold that the Secretary of State's understanding of the claimants' request was right. Nor can the Secretary of State be said to have erred in law in not dealing with that request as if it had been made in different terms, or criticized for not going back to the claimants to ask them whether that is what they wanted him to do (cf. the observations of Schiemann LJ in the judgment of the Court of Appeal in Taylor & Sons (Farms) v Secretary of State for the Environment, Transport and the Regions [2002] 1 PLR 16, at paras. 41 and 44).
- By the time Indigo wrote to the Secretary of State on 7 January 2011, the Council's process of decision-making on the claimants' proposal was well advanced. The application had twice been before the Planning Committee. A provisional resolution to approve it had been made. The Council had twice concluded, after a formal screening process, not only that the development proposed for the Capital House site was not in fact EIA development, but also that it did not merit the preparation of an environmental statement. In each of its screening opinions the first issued in January 2009, the second in January 2010 the Council had concluded that the development was not likely to have significant effects on the environment. A third screening opinion, to the same effect, was to be issued on 18 January 2011. In these circumstances, for the claimants to ask the Secretary of State to consider exercising his discretion under regulation 4(8) should he decide to take the role of decision-maker away from the Council may be seen as a logical thing to do. Indigo were asking the Secretary of State to inform his own decision-making process, if he embarked on it, with an environmental impact assessment. Had the claimants wanted the Secretary of State to compel the Council to inform its decision-making process with such an assessment, they could and surely would have asked him to do that at a very much earlier stage. They did not do so, either before or after the Council had screened the proposal itself.
- I do not accept that Indigo's letters to the Council dated 5 and 25 November 2010, which were before the Secretary of State when he was considering whether to call the proposal in, created a duty for him to consider making a direction under regulation 4(8). Those letters had been aimed at the Council's decision-making process. They did not suggest that the Secretary of State ought to intervene in that process by making a regulation 4(8) direction. Nothing said in them could be seen as modifying the terms of the request Indigo were to make to the Secretary of State when they eventually wrote to him. The passages in which the Council was urged to accept that an environmental impact assessment was required were not specifically referred to in, or incorporated into, Indigo's letter of 7 January 2011. But even if the assertions made by Indigo in its correspondence with the Council were meant to be added to those they made directly to the Secretary of State, they too would have been subject to the same conditional request.
- I conclude, therefore, that there was in this case no effective request or application to the Secretary of State to exercise his power under regulation 4(8), and, it follows, no failure by him to act on such a request. To read Indigo's letter of 7 January 2011 as if it had made a different request, not contingent on call-in, would be to impose retrospectively on the Secretary of State a duty to consider the exercise of his discretion not merely unprompted but contrary to the way in which it had, in fact, been invoked. I cannot reconcile that approach with the jurisprudence in Berkeley (No.3). This is not to allow form to triumph over substance, as Mr Village suggested. Rather, it is to respect the form in which the claimants chose to make their request to the Secretary of State. It is to recognize that, in this instance, form and substance were one and the same.
- In my judgment, in the particular circumstances of this case, that is enough to dispose of the claimants' breach of duty argument.
- I shall, however, consider the further question on which submissions on either side were made, namely whether, irrespective of the way in which the claimants' request for a regulation 4(8) direction was made to him, the Secretary of State was in any event under a duty to consider making such a direction. To answer this question one must, again, focus on the relevant facts. And, again, the context must not be ignored.
- What was the context here? Over the course of about two years between October 2008 and September 2010, and with the guidance of the Council's officers, Investream's proposal had evolved into the form it took in the application for planning permission the Council had resolved to approve in November 2010. A substantial body of supporting information and assessment had been supplied with the application for planning permission, and had been considered by the Council's committee when it decided to grant planning permission. In issuing his article 25 direction on 14 December 2010, the Secretary of State asked the Council to provide to him, as well as the application documents, any representations it had received about the proposal. Those representations included the Mayor of London's letters indicating that he was not going to direct refusal or require the application to be referred to him. The Mayor himself had sent to the Secretary of State copies of the two referral reports (on 4 November and 15 December 2010). The Secretary of State also had the Council's officers' report for the committee meeting on 30 November 2010, which explained (in paras. 52 and 53) that the interested parties had twice requested a screening opinion for their scheme, and on both occasions had been told that the development was not EIA development. But the report also noted that the Council had gone further. It had determined that the development was "unlikely to have a significant effect on the environment by virtue of its nature, size or location based upon a review of the Schedule 3 selection criteria for screening Schedule 2 Development"; that the site had an established use for offices; that it was outside a "sensitive area" (as defined in regulation 2(1)); that the development was "unlikely to generate any significant environmental effects"; and that, therefore, an environmental impact assessment was "not required". It was also clear that this conclusion had been maintained notwithstanding the representations made to the Council by Indigo on behalf of the claimants in their letters of 5 and 25 November 2010. Both of those letters had mentioned the fact that the proposed development had not been subjected to assessment under the EIA regulations, and, in somewhat tentative terms, had urged the Council to accept that such assessment was required. The officers' report for the committee meeting on 30 November had dealt in substance with the claimants' concerns about the characteristics of the proposed development, had tackled all of the environmental issues raised by the claimants and other objectors, and had seen in none of them any reason for refusing planning permission. They had specifically considered the likely consequences of the development for the development potential of the Becket House site, in the light of relevant development plan policy the draft guidance for the Bankside, Borough and London Bridge area. They had considered the likely effects of the development on the daylight and sunlight available to adjoining occupiers, on the local and wider townscape, on the historic environment encompassing the Tower of London World Heritage Site; and on views, in accordance with the London View Management Framework. The Mayor's officers had also dealt with strategic views, including views from Parliament Hill and Kenwood. Both the Council's and the Mayor's officers had dealt thoroughly with the design and height of the building, as one of the emerging cluster of tall buildings at London Buildings, taking into account all the representations made about it, including those of English Heritage and Historic Royal Palaces. All of this had been done with the benefit of the material supplied in the application documents. And those documents were before the Secretary of State.
- As one can see from his letter of 9 February 2011, the Secretary of State focused in particular on the quality of the design of the development "in terms of function and impact", and on the historic environment, in the light of relevant policy. He carefully considered all of the representations made to him. Having done so, he concluded that the planning issues had been adequately addressed by the Council, and that the application for planning permission did not raise issues of more than local importance that he ought to decide himself.
- In the circumstances I do not see how the Secretary of State can be said to have gone wrong in law in not considering whether, as an exception to the normal procedure under the EIA regulations, he should at this stage set in motion the process of environmental impact assessment. Even if the claimants had not made their request for a regulation 4(8) direction dependent on the proposal being called in, I am unable to accept that it would have been either unreasonable or otherwise unlawful for the Secretary of State not to consider exercising his power to make such a direction. He was entitled, in law, to assume that the Council, as local planning authority, had properly discharged the normal statutory functions given to it, including its functions under the EIA regulations. And he was also entitled, in law, to conclude that the abnormal discretionary function given to him by regulation 4(8) had not been engaged. The fact that the Council had rejected the suggestion that the development ought to be subjected to assessment under the EIA regulations, despite its not being EIA development as defined in regulation 2(1), did not constrain the Secretary of State to ask himself whether or not he agreed. He took the course of allowing the EIA regulations to operate in the normal way. Paragraph 6 of his letter of 9 February 2011 standard paragraph as it was reflected a both lawful and relevant decision, in line with the statutory code.
- For all the reasons I have given, I find that the Secretary of State's duty to exercise his discretion under regulation 4(8) was not triggered in the present case. The use by him of his power to make a direction was at no stage instigated in some deliberate and definite way. And in any event, as was submitted on behalf of the defendants and the interested parties, there was nothing in the particular facts of this case to make it unlawful for him not to consider exercising his discretion under regulation 4(8). Neither his letter to the Council of 9 February 2011 nor anything he did or did not do while the application for planning permission was formally in his hands, or at any other time, betrays a failure by him to discharge any duty arising under the EIA regulations. There was no breach of duty here.
- Nobody suggested otherwise before the Council's final decision was made. By then the Council had reaffirmed, in the further screening opinion it issued on 18 January 2011, its own conclusion that the development was not likely to have any significant effects on the environment, and it was, therefore, unnecessary for an environmental statement to be prepared. The Council saw no need to ask the Secretary of State to address this question himself. Nor did the claimants suggest to the Council that it should prompt the Secretary of State to do so. The question of environmental impact assessment could have been ventilated by the claimants at the committee meeting on 22 March, but was not.
- If one looks at what the claimants said and did at the time, one sees no hint of their being aggrieved by the Secretary of State not having exercised his discretionary power under regulation 4(8). They did not react by writing to him again, to complain that he had neglected to exercise his discretion, or to recast their original request by asking him to issue a direction even if he was not going to call the application in. This, I think, is telling. If those advising the claimants truly believed that the Secretary of State had failed to do something they had asked him to do, they had an ample opportunity to ask him to do it before the application went back to the Council's committee for a decision. But they did not. If, on the other hand, they had now changed their minds and wanted the Secretary of State to make a regulation 4(8) direction in any event, they did not ask him to do that either. In the seven weeks that elapsed between the Secretary of State's decision not to call in the application (on 9 February 2011) and the Council's grant of planning permission (on 30 March 2011) nothing at all was said to the Secretary of State to suggest the claimants thought he had failed to deal with a request they had made to him. The absence of such complaint is, of course, entirely consistent with the conclusion that the Secretary of State was not thought to be in any kind of default. No evidence before the court suggests a different conclusion.
- The comment made by Indigo in the penultimate paragraph of their letter to the Council of 18 March 2011 about "certain irregularities with regard to the consideration of this application" and the claimants reserving their "right to make a claim for judicial review" was not expanded. Whether this was simply intended to embrace the points already made in the letter, or was, as Mr Purchas put it, a somewhat Delphic reference to so far unspecified "irregularities" is not clear. What is clear, however, is that Indigo did not now raise with the Council any dissatisfaction about "irregularities" allegedly committed by the Secretary of State. They did not write to the Secretary of State himself. They did not warn the Council that, in their view, the Secretary of State's omission to exercise his discretion in regulation 4(8) would infect the planning permission it might now be about to grant. Indeed, it seems that the Council did not even know that the possibility of the Secretary of State making a direction under regulation 4(8) had been put to him in January 2011.
- There is obvious force in Mr Purchas's submission that if the claimants really had been concerned by a perceived failure on the part of the Secretary of State to act under regulation 4(8), and had seen this as an "irregularity" in the process, it is odd that they did not raise it at this stage. It was not until the claimants' solicitors sent their pre-action protocol letter on 28 April 2011 about a month after the planning permission had been granted and some two and a half months after the Secretary of State had sent Indigo a copy of his letter to the Council of 9 February 2011 that the Secretary of State was told of the claimants' grievance about his not having considered whether he should act under regulation 4(8). The significance of this is not that the claimants are to be criticized for raising the point so late (cf. Jonathan Parker's observations in para. 131 of his judgment in R (Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370); it is that their silence at the time tends only to strengthen the conclusion that the Secretary of State made no error at all.
- Having rejected the breach of duty argument, I turn to the contention that the Secretary of State misdirected himself.
- In my judgment, the basic premise of this argument is mistaken. Contrary to Mr Village's submission, the Secretary of State did not, in his letter of 9 February 2011, purport to direct himself on the exercise of his discretionary power in regulation 4(8). Paragraph 6 of the letter is the only part of it in which the Secretary of State referred to the EIA regulations. In that paragraph he said two things: first, that he had not considered whether the development proposed was EIA development under the EIA regulations; and secondly, that the Council, as local planning authority, remained the authority responsible for considering whether the EIA regulations applied to the development and, if they did, for ensuring that they were complied with. Both of those statements are unimpeachable. Paragraph 6 of the Secretary of State's letter did not address the conditional request for a regulation 4(8) direction in Indigo's letter of 7 January 2011. It did not have to; the condition had manifestly not been met. No explanation was called for beyond the Secretary of State's reasons for deciding not to call in the application for planning permission. He gave those reasons, in the preceding paragraphs of his letter. They are not criticized in these proceedings. Nor could they be. They are clear, concise and complete. The Secretary of State did not say that he was refusing to exercise his power in regulation 4(8), or that he had decided not to do so, or why he had not done so. He neither said nor implied that he had not considered exercising that power because he thought the Council could have required an environmental impact assessment itself. In fact, he said nothing at all about his power in regulation 4(8). So, as a matter of fact, it cannot be said that the Secretary of State misdirected himself in the way the claimants allege that he did.
- The Secretary of State can hardly be faulted for saying he was leaving to the Council responsibility for making sure that the EIA regulations were complied with. So far as I can see, the Council performed its own functions under the EIA regulations impeccably. Though the claimants may disagree with the conclusions reached by the Council as to the likelihood of significant effects on the environment, they have not sought to impugn the lawfulness of any of its three screening opinions. Nor could they.
- I cannot accept that the Secretary of State's letter reveals any misunderstanding or misapplication of the relevant provisions of the EIA regulations generally, or regulation 4(8) in particular. Nor does it betray a blanket policy on the part of the Secretary of State to decline the exercise of his discretion in regulation 4(8); the principles referred to by the House of Lords in British Oxygen are not offended. There was no misdirection, no irrationality, no taking into account of material considerations, and no failure to take into account considerations that were material. In short, none of the varieties of public law error identified by Mr Village is to be found here.
- In my judgment, therefore, the claimants' misdirection argument is unsound. I reject it.
Conclusion on issue (1)
- Elegant as they were, I cannot accept Mr Village's submissions on this issue. Neither his breach of duty argument nor his misdirection argument is well founded. Both were cogently answered in the submissions made on the other side. This ground of the claim fails.
Issue (2): Did the Secretary of State's error vitiate the Council's grant of planning permission?
The relevant law
- Had the Secretary of State issued a direction under regulation 4(8) that the proposed development is EIA development, the Council would have been bound, by regulation 4(3), to treat it as such. And in that case there being no "environmental statement" and, therefore, no "environmental information" regulation 3(2) would have made it unlawful for the Council to grant planning permission.
- As a general principle, domestic law relating to environmental impact assessment, including the EIA regulations, must be interpreted so far as possible in the light of the wording and purpose of the EIA Directive, so as to ensure that the result pursued by the EIA Directive is achieved (see, for example, Marleasing SA v La Comercial Internacional de Alimentacion SA (case C-106/89) [1990] ECR I-4135 (at paras. 7 to 9).
- In Berkeley v Secretary of State for the Environment and another [2001] 2 AC 603 (Berkeley (No.1)) Lord Hoffmann, with whose opinion Lords Bingham, Hope, Hutton and Millett agreed, said this:
"
[The] Regulations represent the way in which the United Kingdom has chosen to implement [the EIA Directive].
I would accept that if there was a failure to observe some procedural step which was clearly superfluous to the requirements of [the EIA Directive], it would be possible to exercise the discretion not to quash the permission without any infringement of our obligations under European law.
".
- In R (Goodman) v Lewisham London Borough Council [2003] EWCA Civ 140 Buxton LJ, with whose judgment the other members of the court agreed, said this (at para. 14):
"
The whole aim and object of the system introduced by [the EIA Directive] is that there should be sequential and transparent consideration of the environmental implications of a project, and that decisions whether or not to grant planning permission should be taken by planning authorities in the light either of the information contained in an environmental statement or of the reasons why such a statement is not required.
".
- In R (Bateman) v South Cambridgeshire District Council [2011] EWCA Civ 157 a local planning authority's screening opinion was held to be insufficiently reasoned to satisfy the requirement of the EIA Directive and the EIA regulations that it should make clear why an environmental impact assessment was not required. Moore-Bick LJ, with whom Jackson LJ agreed, said (at para. 31 of his judgment):
"
[The] adoption of a screening opinion, if one is required, is part of a process that leads eventually to the grant or refusal of planning permission. If any step in that process is legally flawed, the process as a whole is flawed and the grant of permission must be quashed. Accordingly, I think that there is no alternative but to grant the claimants the relief they seek."
- In Boddington v British Transport Police [1999] 2 A.C. 173 the House of Lords considered whether an unlawful administrative act on the part of one actor can have legal consequences on which another may lawfully rely as a means of validating an act of its own. Contrasting opinions were delivered (see the speech of Lord Browne-Wilkinson at p.164C, that of Lord Slynn at p.164D and p.165D, that of Lord Steyn at p.172B to D, that of Lord Irvine at p.155C and p.156D, and that of Lord Hoffmann at p.176E). Lord Browne-Wilkinson acknowledged (at p.164C) that the "status of an unlawful act during the period before it is quashed is a matter of great contention and of great difficulty". He was
"
far from satisfied that an ultra vires act is incapable of having any legal consequence during the period between the doing of that act and the recognition of its invalidity by the court. During that period people will have regulated their lives on the basis that the act is valid. The subsequent recognition of its invalidity cannot rewrite history as to all the other matters done in the meantime in reliance on its validity."(ibid.)
(see also the speech of Lord Steyn at p.172A to D, citing with approval the analysis of Dr Forsyth in "'The Metaphysic of Nullity' Invalidity, Conceptual Reasoning and the Rule of Law").
- In R (Shoesmith) v OFSTED and others [2011] ICR 1195 the appellant had contended that a direction made by the Secretary of State was unlawful and void because he had acted unfairly and in breach of the rules of natural justice. That contention had been expressly raised on the appellant's behalf before the Dismissal Appeal Panel. However, the panel proceeded on the basis that the direction was lawful and took the risk of its subsequently being held to be void. Lord Neuberger of Abbotsbury MR was "prepared to accept, without deciding, that there is a principle that, in "ill-defined" circumstances, the act of a public body
acting in good faith and in reliance on the reasonable assumption that an earlier act of another public body
was lawful, will not be vitiated as a result of a subsequent finding that the earlier act was in fact unlawful". He found the existence of such a principle supported by what had been said by Lord Browne-Wilkinson in Boddington and Lord Phillips in Mossell (para. 141). But he did not consider that it was open to the local authority to rely on such a principle on the facts of that case (para. 142; see also the judgment of Stanley Burnton LJ at paras. 136 and 137, and cf. that of Maurice Kay LJ at para. 119).
Submissions for the claimants
- Mr Village submitted that if the claimant's argument on the issues in ground A succeeded, the Council's grant of planning permission must be quashed because the Secretary of State's error vitiated the Council's decision. There were two ways in which to approach this question: first, under EU law, and secondly, under domestic law.
- If EU law were applied, Mr Village submitted, the Council's grant of planning permission ought to be quashed, for two reasons: first, because domestic law, including the EIA regulations, must be interpreted consistently with the wording and purpose of the EIA Directive; and secondly, because there is nothing in domestic law to prevent the court from holding that the Council's grant of planning permission in this case is vitiated by a prior error of law committed by the Secretary of State under the EIA regulations. As was held at first instance in Berkeley (No.3), the power to issue a direction under regulation 4(8), should be seen as an essential part of the United Kingdom's lawful transposition of Article 4(2) of the EIA Directive. A member state must follow the approach it has chosen to adopt to implement Article 4(2). In the case of the United Kingdom, this includes case-by-case examination under regulation 4(8). A grant of development consent without lawful application of the procedure involved in regulation 4(8) would place the United Kingdom in breach of the EIA Directive. If the Secretary of State had gone wrong as alleged in ground A of the claim, it would follow that there had been no sequential and transparent consideration of the environmental implications of the development. It was, said Mr Village, no answer to this argument that the error under the EIA regulations had been made not by the Council as local planning authority but by the Secretary of State. The United Kingdom is required under articles 2(1) and 4(2) of the EIA Directive to establish a procedure for determining, before consent is given, whether Annex II projects require environmental assessment. Any breach of the procedure chosen by the United Kingdom for implementing that requirement puts the United Kingdom in breach of the EIA Directive, regardless of which of the authorities designated to play a role in that procedure was responsible for the breach. It follows, submitted Mr Village, that if the claimants succeeded on ground A, the Council's grant of planning permission must be quashed. This is what the EIA Directive requires, and is not prohibited by domestic law.
- Although Mr Village submitted that the court ought not to approach ground B1 of the claim simply by looking at the position under domestic law, if it were to do this, it would be faced with a difficult question: whether the Council had the power to act validly in granting planning permission, notwithstanding the invalidity of the Secretary of State's prior act in refusing to consider whether to direct that the proposed development should be treated as EIA development. Mr Village submitted that it is not necessary for the court to determine this point in these proceedings. The proper application of the EIA regulations, to achieve the result intended by the EIA Directive, he said, leads to the inevitable conclusion that if ground A succeeds the Council's grant of planning permission must be quashed. But if the court did confront this point, it should hold, under domestic law, that the Secretary of State's error in failing to exercise his discretion under regulation 4(8), which was in itself unlawful, had generated a fatal flaw in the Council's decision to grant planning permission.
Submissions for the Council
- Mr Purchas submitted that, the Secretary of State having made no error in his approach to regulation 4(8), this ground of the claimant's challenge cannot succeed.
Submissions for the Secretary of State
- Mr Moffett submitted that Mr Village's argument failed to acknowledge the way in which the EIA regulations had implemented the EIA Directive, and to recognize the difference in status between those parts of the EIA regulations that are required by the EIA Directive and those, such as regulation 4(8), that are not. Article 4(2) of the EIA Directive requires a mandatory procedure with mandatory consequences, providing that for Annex II projects there "shall" be a determination whether a development "shall" be subject to an EIA. In the United Kingdom the requisite mandatory procedure is implemented by regulations 7(1), 8(1), 9(1) and 9(2), which provide a procedure described by the Court of Appeal in Berkeley (No.3) (at para. 3) as "establishing whether the application falls into a class for which the assessment procedures are mandatory". By contrast, the power in regulation 4(8) does not constitute the type of mandatory procedure required by Article 4(2) of the EIA Directive. Mr Moffett submitted that this is not a case in which any prior act that was a condition precedent to the Council's power to grant planning permission was unlawful. Nor is this a case in which the Council relied on an unlawful prior act when deciding to grant planning permission (cf. Shoesmith). Given that the EIA regulations expressly provide a bar on the granting of planning permission in certain specified circumstances, the court ought not to infer such a bar from the facts of this case.
- The true analysis here, Mr Moffett argued, is this: first, where the EIA regulations intend to preclude a grant of planning permission they say so expressly; secondly, they do not so provide for circumstances in which the Secretary of State has not exercised his power under regulation 4(8); thirdly, the absence of such provision must be taken to be intentional; fourthly, that conclusion is consistent with the absence of any procedural framework for regulation 4(8); fifthly, it is consistent too with the exceptional nature of the power in regulation 4(8), and the fact that the Secretary of State is never under a duty to make a direction under regulation 4(8); sixthly, therefore, a failure by the Secretary of State to consider exercising the power in regulation 4(8) does not prevent a local planning authority from granting planning permission; and seventhly, the proper remedy for a third party disappointed by the Secretary of State's failure or refusal to make a direction under regulation 4(8) is to challenge the Secretary of State's decision before planning permission is granted, or at least to tell the local planning authority that it is concerned about the lawfulness of the Secretary of State's approach, and not to wait until after the local planning authority has granted planning permission before making that concern known. At any rate, the Council's grant of permission in this case is not invalidated by a failure to take account of the fact that the Secretary of State had made no decision under regulation 4(8). This was not a consideration material to the Council's decision. When it granted planning permission the Council did not know the claimants had made the request they did to the Secretary of State in Indigo's letter of 7 January 2011, or how the Secretary of State had dealt with that request.
Submissions for the interested parties
- Mr Cameron submitted that the only basis upon which the court could conclude that the Secretary of State's failure to exercise his discretion under regulation 4(8) required the planning permission granted by the Council to be quashed would be the principle referred to by Moore-Bick LJ in Bateman: that if any step in the process was flawed the process as a whole was flawed. In this case, however, the circumstances were not analogous to those in Bateman. When planning permission was granted by the Council, the Secretary of State had made no direction under regulation 4(8), the Council itself had issued a screening opinion to the effect that the application was not for EIA development. That decision had not been challenged and, therefore, the Council as the "relevant planning authority" was not prohibited from granting planning permission by regulation 3(2).
Discussion
- It follows from my conclusion on issue (1) that issue (2) is academic. I have held that the Secretary of State did not commit any legal error in not considering the exercise of his discretion under regulation 4(8). Therefore, this potentially fatal defect in the Council's own process of decision-making a defect of which the Council itself knew nothing at all at the time did not exist. Thus the submissions made by Mr Village on this part of the claim do not require an answer from the court.
- However, I shall briefly consider Mr Village's argument, not merely because the point is an important one though clearly it is but because it seems to me that it may have some bearing on the questions raised in issue (1).
- There are, as Mr Village submitted, two ways of approaching the issue. One can approach it under EU law. Or one can approach it by applying relevant principles of domestic law.
- If one takes the route signposted by the familiar principles of EU law, one has to start from the proposition that domestic law, including the EIA regulations, must be interpreted so far as possible in the light of the wording and purpose of the EIA Directive, so as to ensure that the result pursued by the EIA Directive is achieved (see, for example, Marleasing).
- The second stage, as Mr Village submitted, is to ask oneself whether there is anything in domestic law to prevent the conclusion that a grant of planning permission by a local planning authority can be vitiated by a prior error of law committed by the Secretary of State in applying the EIA regulations. Arguably, in my view, there is not.
- Therefore, assuming that the claimants had succeeded in showing a prior error of law on the part of the Secretary of State which they have not the main question to be considered would be whether the EIA Directive required the result for which the claimants contend on this ground of the claim. Arguably, in my view, it would.
- The EIA Directive gave member states a choice as to whether to impose thresholds and criteria, or to proceed by way of case-by-case examination, or to adopt a procedure involving a combination of the two. But it is clearly envisaged by the EIA Directive that a member state will follow the approach it has chosen to adopt to implement article 4(2). Under the statutory system embodied in the EIA regulations, this includes giving proper consideration by way of a case-by-case examination under regulation 4(8) if albeit only if the discretionary power it contains is engaged. As the domestic courts have consistently stressed, planning decision-makers must adhere to the procedures by which the United Kingdom has chosen to transpose the EIA Directive (see, for example, the decision of the House of Lords in Berkeley (No.1) and the Court of Appeal's decision in Goodman). If the Secretary of State had erred as alleged in ground A of the claim which I have held he did not it is, I accept, arguable that the "sequential and transparent consideration" of the environmental implications of this project would not have been lawfully achieved, and that the system by which the EIA Directive was transposed into domestic law would thus have failed. Though this failure would have been no fault of the Council itself, as the local planning authority ultimately responsible for the decision to grant planning permission, and was not even known to the authority when it made its decision, a failure it still would be.
- The EIA Directive recognizes, in article 1(3), that a member state may confer the duties it creates upon one or more "competent authorities". But the member state bears the obligation under articles 2(1) and 4(2) to establish a procedure for determining, before consent is given, whether Annex II projects require environmental assessment. A breach of the procedure enacted as the means of implementing that requirement will put the member state in breach of the EIA Directive, regardless of which of the particular authorities designated to play a role in that procedure was responsible for it. As Mr Village pointed out, the EIA Directive, in article 2(2), contemplates that member states can, if they wish, choose to implement its requirements by separating the process of screening and assessment from the process for granting development consent. But if this were done, and if the development consent was granted by an authority that was not the "competent authority" responsible for a breach under article 4(2), the breach would be a breach nonetheless. So, in my judgment, the United Kingdom could not escape the consequences of a breach of the EIA Directive simply by contending that, in regulation 4(8), it has elected to confer upon the Secretary of State, rather than upon the local planning authority ultimately deciding whether development consent should be granted, the function of determining whether particular projects of the types listed in Annex II are to be subject to an assessment in accordance with articles 5 to 10.
- The conclusion one would reach via the principles of domestic law should be the same. This route, however, is not without its difficulties. The question from which one has to begin is whether a local planning authority would have the power to act validly in granting planning permission notwithstanding the invalidity of a prior act, or an unlawful failure or refusal to act, on the part of the Secretary of State. This is the vexing question of principle to which attention was given by the House of Lords in Boddington and the Court of Appeal in Shoesmith. Can an unlawful administrative act on the part of one actor have legal consequences on which another may lawfully rely as a means of validating an act of its own? And if the answer is that it can, do the facts of the case in hand dictate that the decision impugned must fall? It is, I think, not easy to see why the validity of a local planning authority's grant of permission should hang on the authority's ignorance of the Secretary of State's mistake. But leaving that aside, there is obvious attraction in Mr Moffett's submission that a failure by the Secretary of State to consider exercising his discretion under regulation 4(8) cannot deprive an authority of its power to grant planning permission under section 70 of the Town and Country Planning Act 1990. As Mr Moffett submitted, the EIA regulations do not expressly preclude permission being granted in these circumstances. Had Parliament intended to do this, it could have done. And if there is no general duty to make a direction under regulation 4(8), as the Court of Appeal held in Berkeley (No.3), how can a failure to consider making one be an obstacle to a local planning authority later granting permission for a project which never was, and had never become, EIA development? As Mr Moffett submitted, this would not mean that a third party is left with no remedy in the case of an allegedly unlawful refusal or failure by the Secretary of State to consider exercising his discretion under regulation 4(8). His remedy would be to move the court before the local planning authority had granted planning permission.
Conclusion on issue (2)
- Mr Moffett's argument is a powerful one. I am not convinced that the answer to it, on domestic authority, is that a failure by the Secretary of State to consider, when he should, the exercise of his discretion under regulation 4(8) must always vitiate a subsequent grant of planning permission. But Mr Village's submissions, based as they were on relevant precepts of EU law, are also persuasive, severe though the consequences may be for apparently lawful grants of planning consent. As I have said, I do not have to decide which of these arguments is to be preferred. So I leave the question moot. Mr Village's thesis may well be right. If it is, it detracts not at all from my conclusion on issue (1). I think it aligns well with a restrictive view of the discretionary power in regulation 4(8).
Issue (3): Did the Council err in law in its approach to Strategic Policy 8 of the Council's draft Core Strategy, and were the summary reasons for granting permission given in its decision notice materially defective?
The relevant law
- In Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 WLR 759 (at p.780F to H):
"
Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.
This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."
(see also the speech of Lord Keith of Kinkel at p.764 G to H, and the speech of Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, at p.410).
- As a general principle, the weight to be given to emerging policy depends on the stage such a policy has reached in its progress towards finality (see R (Cala Homes (South) Limited) v Secretary of State of Communities and Local Government [2011] EWCA Civ 639 (at para. 27) and [2011] EWHC 97 (Admin) (at para. 52)).
- In Kides the Court of Appeal considered the circumstances in which it would be appropriate for a local planning authority to entertain a new material consideration that emerges only after it has resolved to grant planning permission. Jonathan Parker LJ, with whom Aldous and Laws LJJ agreed, said this (at para. 122):
"In my judgment, an authority's duty to "have regard to" material considerations is not to be elevated into a formal requirement that in every case where a new material consideration arises after the passing of a resolution (in principle) to grant planning permission but before the issue of the decision notice there has to be a specific referral of the application back to committee. In my judgment the duty is discharged if, as at the date at which the decision notice is issued, the authority has considered all material considerations affecting the application, and has done so with the application in mind albeit that the application was not specifically placed before it for consideration."
- As to the desirability of consistency in planning decision-making, Mann LJ provided a crisp summary of the relevant principle in North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P. & C.R. 137 (at p.145):
"To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration.
".
- The requirements of a planning officer's report to committee were considered by the Court of Appeal in R (Oxton Farms) v Selby District Council [1997] EWCA Civ 4004. Pill LJ said the "overall fairness of the report" must be considered, and it must also be borne in mind that "there is usually further opportunity for advice and debate at the relevant council meeting and that the members themselves can be expected to acquire a working knowledge of the statutory test." Judge LJ said:
"From time to time there will no doubt be cases when judicial review is granted on the basis of what is or what is not contained in the planning officer's report. This reflects no more than the court's conclusion in the particular circumstances of the case before it. In my judgment an application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."
(see also the judgment of Sullivan J, as he then was, in R v Mendip District Council, ex parte Fabre [2000] 80 P & CR 500, at p.509).
- Article 31(1) of the Town and Country Planning (Development Management Procedure)(England Order 2010 provides:
"When the local planning authority give notice of a decision or determination on an application for planning permission or for approval of reserved matters
(a) where planning permission is granted, the notice shall
(i) include a summary of their reasons for the grant of permission;
(ii) include a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission;
".
- In R (Siraj) v Kirklees Metropolitan Council [2010] EWCA Civ 1286 Sullivan LJ, with whom the other members of the court agreed, said (at para. 13 of his judgment) that it was important to bear in mind the contrast between the statutory requirement to give summary reasons for the grant of planning permission and the requirement to give full reasons for a refusal. He went on to say this (in paras. 14 and 15):
"14. A local planning authority's obligation to give summary reasons when granting planning permission is not to be equated with the Secretary of State's obligation to give reasons in a decision letter when allowing or dismissing a planning appeal.
[A] decision letter is intended to be a "stand-alone" document which contains a full explanation of the Secretary of State's reasons for allowing or dismissing an appeal. By their very nature a local planning authority's summary reasons for granting planning permission do not present a full account of the local planning authority's decision making process.
15. When considering the adequacy of summary reasons for a grant of planning permission, it is necessary to have regard to the surrounding circumstances, precisely because the reasons are an attempt to summarise the outcome of what has been a more extensive decision making process. For example, a fuller summary of the reasons for granting planning permission may well be necessary where the members have granted planning permission contrary to an officer's recommendation. In those circumstances, a member of the public with an interest in challenging the lawfulness of planning permission will not necessarily be able to ascertain from the officer's report whether, in granting planning permission, the members correctly interpreted the local policies and took all relevant matters into account and disregarded irrelevant matters.
16. Where on the other hand the members have followed their officers' recommendation, and there is no indication that they have disagreed with the reasoning in the report which led to that recommendation, then a relatively brief summary of reasons for the grant of planning permission may well be adequate.
".
Sullivan LJ endorsed the observations of Sir Michael Harrison in paragraphs 47 to 50 of his judgment .in R (Ling (Bridlington) Ltd) v East Riding of Yorkshire County Council [2006] EWHC 1604 (Admin). In R (Midcounties Co-operative Ltd) v Wyre Forest District Council [2009] EWHC 964 (Admin) Ouseley J said (at para. 190 of his judgment) that "the fundamental test" was "whether an interested person could see why planning permission is granted and what conclusion was reached on the principal issues". Ouseley J went on to say (at para. 191) that, had the challenge on this ground been made out, he would not have quashed the planning permission, but could have required proper reasons by a mandatory order. He continued:
"It does not seem to me that the inevitable consequence of a failure to comply with the reasons obligation is a quashing of a planning permission which is itself plainly lawful. It would be different if one could not tell from the reasons or absence of them whether the grant was lawful. Here one can tell whether the grant of a planning permission was lawful and I have so concluded. The alternative would be to say that the claimant suffers no substantial prejudice, as would be the case if there were no substantial prejudice in an ordinary reasons challenge."
In R (Loader) v Poole Borough Council [2009] EWHC 1288 (Admin) (at para. 23) Sales J considered whether, on the facts of that case, the failure to comply with the requirement to provide summary reasons for the grant of planning permission could have caused the objectors to be "in any real doubt" about what those reasons were. As Richards LJ said in R (on the application of Telford Trustee No.1 Ltd and Telford Trustee No.2 Ltd) v Telford and Wrekin Council [2011] EWCA Civ 896 (at para. 24):
"One must not lose sight of the fact that the statutory requirement is to give a summary of the reasons for the grant of planning permission, not a summary of the reasons for rejecting an objector's representations (even on a principal issue) or a summary of reasons for reasons."
- As to the views of individual members of a committee on a proposal for development and the considerations that may have influenced them in forming those views, Schiemann J, as he then was, said this in R v Poole Borough Council, ex parte Beebee [1991] 2 PLR 27 (at p.31):
"All one knows is that at the second that the resolution was passed the majority was prepared to vote for it. Even in the case of an individual who expressly gave his reasons in Council half an hour before, he may well have changed them because of what was subsequently said in debate.
".
Submissions for the claimants
- The submissions made by Mr Village on this ground divided into two main propositions: first, that the Council's decision notice in this case was defective in "its approach to affordable housing"; and secondly, that, in determining the interested parties' application for planning permission, the Council erred in its approach to the provision of affordable housing and in its application of Strategic Policy 8 of the emerging Core Strategy, or that, in any event, in the absence of a decision notice in which those matters were properly addressed, one cannot tell whether the Council did approach them lawfully.
- Relying on the decision of Ouseley J in Midcounties, Mr Village submitted that, to succeed on this ground, it would be enough for the claimants to establish, first, that the reasons given in the Council's decision notice did not enable an interested person to see why planning permission was granted and what conclusion the Council had reached on the principal issues, and secondly, that, in the absence of adequate reasons, one cannot tell whether the grant of planning permission was lawful. The Council had admitted that the reasons stated in the decision notice were not accurate in their treatment of the two policies relevant to affordable housing. This was one of the principal issues to be determined by the Council on Investream's application. The reasons in the Council's decision notice were defective plainly wrong in stating that the application was considered to be in conformity with those two policies. Hence the decision notice failed to satisfy the fundamental test imposed by article 31 of the 2010 Order. An interested person simply could not see from it why planning permission had been granted and what conclusion had been reached on this principal issue. The court ought to quash the grant of planning permission if one could not tell from the reasons or absence of them whether the grant was lawful.
- Mr Village submitted that the defect in the decision notice came from the Council's committee's mistaken understanding of the correct approach to the provision of affordable housing and to the application of emerging Strategic Policy 8. And that mistaken understanding came from the confusing and conflicting advice the members were given by the officers. One cannot tell which of the factors presented to the committee, relevant or irrelevant, moved the members to reach the conclusion they did. This, said Mr Village, was precisely the problem identified by Schiemann J in Beebee.
- Mr Village submitted that some of the considerations identified by officers in their March 2011 report as material to a decision not to require affordable housing from the development and not to require a financial contribution in lieu were not, in fact, relevant to such a decision, whilst others, not identified by the officers, were. In the first place, the officers' approach to the timing of the committee's consideration of the planning application so close to the likely adoption of the Core Strategy went against the principle that the weight to be given to emerging policy depends on the stage such a policy has reached in its progress towards finality (see Sullivan LJ's judgment in Cala Homes (at para. 27)). Secondly, the officers' advice that there was no adopted mechanism for calculating a financial contribution was also wrong. The fact that a revised affordable housing SPD had not been adopted was no barrier to applying Strategic Policy 8. The Council still had an adopted SPD on affordable housing, and this could have helped it decide on a mechanism for calculating an appropriate contribution to affordable housing in this case. Thirdly, the members were led to think that, because the site of the proposed development had not been identified in the SHLAA or the DCA, Strategic Policy 8 did not apply to it. That was not right. The policy is not confined to housing sites in the SHLAA. The officers' advice did not make this clear. Fourthly, the officers' approach to the stage of the design of the proposal itself was irrational. The proposal before the members in March 2011 had been submitted to the Council as a planning application only in late September 2010. Mr Village also submitted that all four of those considerations, if relevant in March 2011, would have been relevant too in November 2010. Yet none of them was mentioned then. Mr Village submitted that the committee's reliance on the Great Dover Street appeal decision was misguided. That decision did not change everything, as has been contended for the Council. The officers' advice on it was wrong, and did not justify the advice given in paragraph 16 of the committee report. The Great Dover Street case could be distinguished on its facts, and the Inspector's conclusions did not substantiate the officers' analysis of the "four main considerations" to which they had referred. Moreover, it was impossible to be sure that the Great Dover Street decision was the decisive factor in the members' deliberations.
- Mr Village also submitted that the advice given to the committee in March 2011 contrasted starkly with the advice the members were given when dealing with other applications for planning permission at that time, in particular the proposals for development at 166 -176 Camberwell Road, at 231-241 Blackfriars Road, and at the Harris Girls' Academy in East Dulwich.
Submissions for the Council and for the interested parties
- Mr Purchas for the Council and Mr Cameron for the interested parties submitted that the Council's decision was taken consistently with all relevant principles of public law, and that any shortcomings in the reasons given in the decision notice were not such as to justify quashing the planning permission.
- At the meeting of the Planning Committee on 22 March 2011 the written advice previously given to it by the officers, including the November 2010 report, was provided to members, and was referred to in the advice they were now given. The officers' guidance to the members on the weight to be given to Strategic Policy 8 was clearly set out. There was nothing mistaken or misleading in that advice. The officers took account of the circumstances in which the proposal now had to be considered. They advised that the weight to be given to the draft policy was a matter for the committee. The substance of their reasoning is to be seen in paragraphs 9 to 19 of their report. Overall, submitted Mr Purchas and Mr Cameron, the reasons underpinning the recommendation made by the officers were both clear and sound, and not inconsistent with the advice contained in the November report. In the light of the advice given to the Planning Committee in the March report and at the meeting itself, the Council could not conceivably be said to have lapsed into irrationality in giving Strategic Policy 8 the weight it did. The officers' advice to the members was not that the policy should be disregarded, but that in this instance, at this stage, and for the reasons they gave, the weight given to that policy ought to be less than it might be if circumstances were different. In law, that advice was impeccable. The four considerations identified by the officers in paragraph 16 of the report all went to the question of how much weight should be given to Strategic Policy 8. The committee knew there was no evidence before it to show whether or not the proposal could sustain a contribution to affordable housing of £18.8 million, or any other sum. The option of trying to negotiate a contribution at this stage, testing the effect of it on the viability of the proposed development, and putting off the decision on the application until that had been done, was discussed at the meeting. But the committee decided not to take that course, and instead to follow the officers' recommendation to grant planning permission. In the circumstances this was perfectly reasonable. The Great Dover Street appeal decision was also plainly relevant. The other cases on which the claimants relied, in contending that the committee took an inconsistent and indefensible approach to the application of policies in the emerging Core Strategy, were not comparable to the present case. None of them involved proposals for student housing.
- As to the Council's summary reasons in its decision notice, Mr Purchas and Mr Cameron submitted that the decision itself was not vitiated by the inaccuracy to which Mr Village referred. The statement that the "planning permission was considered to be in conformity with" Strategic Policy 6 and Strategic Policy 8 of the draft Core Strategy Policy was not fatal. It could not be said to have left the claimants in any real doubt about the reasons why permission had been granted. And it could easily be put right without undue violence to the decision notice. Through Indigo, the claimants had been closely involved in the process leading to, and including, the committee's consideration of Investream's planning application at the March 2011 meeting. They had not demonstrated any substantial prejudice from the error they alleged. In the circumstances an appropriate remedy would be simply to order the Council to provide amended reasons.
Discussion
- Investream's application for planning permission was considered by the Council on three occasions: in November 2010, in January 2011 and, finally, in March 2011. On each occasion the officers advised the Council's Planning Committee that the proposal was acceptable and recommended that it be approved.
- In the officers' report to the committee for its meeting on 30 November 2010 the members were advised about the weight to be attached to the emerging Core Strategy. Four points were made by the officers on the question of weight: first, that, while the Inspector's report with his finding as to soundness was awaited, the policies of the draft Core Strategy should be considered "as currently having no weight" when applications for planning permission were being considered, and that, in the meantime, applications should continue to be determined "in accordance with the saved policies in the Southwark Plan 2007 and the London Plan 2008" (para. 22 of the November report); secondly, that, if the Inspector found the draft Core Strategy to be sound, all of its policies should then be given "significant weight" in the determination of planning applications, and "less weight" should be given to policies soon to be replaced (para. 23); and thirdly, that, until the Inspector's report on the draft Core Strategy was received, the requirement for affordable housing in Strategic Policy 8 would hold "no weight", because the Inspector might not accept the provisions of the policy relating to affordable housing in student accommodation (para. 24), and that at that stage, under "current adopted policy", there was no relevant requirement for affordable housing in the proposed development (ibid.). I do not think that this advice was inconsistent with the general principle that the weight to be given to emerging policy depends on the stage it has reached in its progress towards finality. Nor did the officers misrepresent the position under the development plan as it stood. The saved provisions of the Southwark Plan, and the extant supplementary planning document (of September 2008) did not normally require affordable housing to be provided, or funded, by a proposal of this kind. So far as it went, therefore, the advice given to the members in November 2010 was, in my view, unexceptionable in its treatment of the emerging Core Strategy.
- One must not lose sight of what Strategic Policy 8 is about. As its title "Student homes" implies, and as the members were well aware, it is a policy that supports the provision of student housing, to meet a need for such accommodation "across the whole of London and Southwark" (para. 5.69 of the explanatory text). The aim of the policy is stated to be that "[development] will meet the needs of universities and colleges for new student housing whilst balancing the building of student homes with other types of housing such as affordable and family housing". Of the two actions set down as the means by which the policy's aim will be achieved, the first is to allow the "development of student homes within town centres, and places with good access to public transport services, providing that these do not harm the local character"; the second is to require "35% of student developments as affordable housing in line with [Strategic Policy] 6 and figure 28". The explanatory text emphasizes that the Council wants "to encourage new student homes", whilst balancing their provision with a sufficient supply of sites on which to build "other types of homes, including affordable and family homes" (para. 5.69). It notes that the sites identified in the SHLAA need to be developed if the Council's housing targets are to be met, and that, if those sites were to come forward without affordable housing, the Council would not be able to meet its affordable housing target (para. 5.71). And it says that requiring from "student accommodation schemes" an element of affordable housing, or a contribution to affordable housing, will ensure that the Council can "work towards meeting the needs for both student accommodation and affordable accommodation", as well as helping in the provision of family housing (ibid.). In this case there was a recognized need for the student housing proposed. The Council's Planning Committee had been so advised at its meeting in November 2010. This was, obviously, a need to which draft Strategic Policy 8 was directed. Not only was the development seen as helping to meet this need, it would do so in a "highly accessible" location. This does not seem to have been contentious.
- The strategic context for the Council's consideration of the proposal in March 2011 is also important. The explanatory text for Strategic Policy 8 refers to the corresponding provisions of the London Plan, relating to housing choice and affordable housing. By the time the Council's committee met in March 2011 it was clear that the Mayor was not objecting to the proposed development. He was not saying that the proposal ought to be expected to provide, or to fund the provision of, affordable housing. On the contrary, on 15 December 2010 he had written to the Council to say that he was content to allow the Council to determine the application itself, subject to any action the Secretary of State might take.
- In their report to the Planning Committee for its meeting on 22 March 2011 the officers explained to the members why the application was coming back to them. The reason was that the status of the emerging Core Strategy, and in particular Strategic Policy 8, had changed now that the Inspector's report recommending adoption had been published. The members were therefore given the opportunity of considering the application again "in the light of the Inspector's report" (para. 5 of the March report). The report began with the officers' recommendation, which expressly acknowledged "the additional weight of the Core Strategy". The committee clearly recognized that the Inspector's report was a new material consideration, which required it to consider the proposal yet again, notwithstanding its resolution in November 2010 to grant permission for the development. The members plainly knew they had now to make up their minds about the acceptability of the proposal without any provision of affordable housing in it and without any offer of a financial contribution in lieu. They knew they had to concentrate, in particular, on the weight to be given to Strategic Policy 8 of the draft Core Strategy in view of the circumstances as now they were. The officers' report for the meeting in November was referred to in their March report (at para. 6), and was appended to it. The whole exercise was, in my judgment, consistent with the principles underscored by the Court of Appeal in Kides.
- The principal question for the committee to resolve in March 2011 was whether the second action in Strategic Policy 8 which was to require "35% of the accommodation in developments of student housing to be provided as affordable housing in line with policy 6 and figure 8" should be applied to Investream's proposal, and, if so, how. As the members knew, a particular concern underlying this action is that the use of land for student housing might restrict the Council's ability to secure the provision of family and affordable housing (para. 5.71). Protecting the potential supply of land for housing and affordable housing identified in the SHLAA was therefore important (ibid.). But the site of this proposed development was in employment use. It had not been included in the SHLAA. The student accommodation proposed for it was to be restricted, under the section 106 obligation, to rents that students could afford. This was the specific context in which the committee had to consider, in the exercise of its own planning judgment, whether or not the second action in Strategic Policy 8 ought to be applied to the proposal before them.
- In paragraph 15 of their report the officers indicated that the question whether Strategic Policy 8 should now be "strictly applied" was a matter of "weight". So it was. And this advice was not inconsistent with what had been said to the members in the November report. The officers advised the committee that there were "a number of material considerations of sufficient weight" to suggest that the draft policy should not be strictly applied at this stage. This was not to say that the policy as a whole should now be regarded as having less than "significant weight", or that the members should not decide for themselves how much significance it had. The officers considered whether a financial contribution to affordable housing should be sought from Investream (para. 13). They advised the members that the mechanism for calculating such contributions envisaged in the draft SPD could only be given "limited weight", because the document was only at an early stage in its gestation (para. 14). The members were told what the contribution would be if the mechanism in the draft SPD were to be applied £18.8 million; the arithmetic is not in dispute. I cannot see anything legally wrong with any of this advice. None of it was confusing. And none of it was at odds with the views expressed by the officers in November.
- The four main considerations identified in paragraph 16 of the report, which the officers saw as militating against the application of the policy requirement for affordable housing in this case in shorthand, "Timing", "Mechanism", "Location", and the "Stage of [the] design" were, in my judgment, entirely proper and relevant factors for the members to consider. The officers' reference to timing was, in my view, appropriate. Whilst Strategic Policy 8 now carried increased weight, it had not yet been adopted, and hence was not yet part of the statutory development plan in accordance with which the application must be determined unless material considerations indicated otherwise. The officers were making clear to the members that the Core Strategy was soon to be presented to the Council's Assembly in April 2011. This was right. The advice on mechanism was also accurate. It cannot be faulted in law. The officers' advice on the location of the application site was true. Not being one of the housing sites listed in the SHLAA, it was not a component of the identified supply of housing in the borough that was expected to enable the Council to meet its targets for housing and for affordable homes. The officers' remarks on the stage of the design of the proposed development were understandable in the circumstances. They referred to the evolution of the proposal since the pre-application discussions in 2008. I cannot see anything wrong in the officers advising the members that, in their opinion, to apply to this proposal the requirement in Strategic Policy 8 for affordable housing would be "unreasonable". Once again, the guidance given was logical and not in conflict with that set out in the November report. In any case, the advice the members were now getting, after the Core Strategy Inspector's report had been received, was absolutely clear. And the officers can hardly be criticized for not having mentioned in November the four factors to which they now referred.
- Undoubtedly too, in my view, the officers were entitled to advise the members that those four considerations reflected the conclusion of the Inspector in the Great Dover Street appeal. In that appeal, decided only about a month before the committee met to determine Investream's proposal, and in the knowledge of the Core Strategy Inspector's report, the absence of affordable housing had not been seen as a tenable objection. Several factors were common to the two cases. In the first place, as the appeal Inspector said (in para. 34 of his decision letter), the site he was dealing with was not a housing site identified in the SHLAA and the DCA, and that there was, therefore, not even a notional loss of an opportunity to secure affordable housing. The same could be said of the present application site. Secondly, the Inspector noted (ibid.) that the implementation of Strategic Policy 8 would be addressed in documents yet to be produced, as the Core Strategy Inspector had said. Thirdly, he observed (ibid.) that the extant guidance required the student accommodation to be affordable to the students who would live in it which in the present case was to be achieved by the section 106 agreement and that new guidance on the application of Strategic Policy 8 would have to address students as a group and "provide a robust methodology for implementing Strategic Policy 8". And fourthly, he said that, in view of the timing of the proposal, the discussion that had taken place between the appellants and Council officers, and the aims of Strategic Policy 8, it would not be appropriate to attach "adverse weight" to the lack of affordable housing in the scheme before him (ibid.). In paragraph 17 of their report the officers described those considerations as "similar" to the ones that had informed their own analysis in the previous paragraph. They clearly were. In paragraph 18 the officers rightly reminded the members of the importance of consistency. They had taken the trouble to seek legal advice on the approach they were going to advise the members to adopt. They noted that their own views on the implications of the Core Strategy Inspector's report and the decision in the Great Dover Street appeal had been supported in the advice of counsel that Strategic Policy 8 was not "strictly applicable" in this instance (para.19). None of this was beyond the range of reasonable planning judgment. I cannot detect any legal error in the officers' treatment of the Great Dover Street appeal decision. Indeed, I think they would have been open to criticism if they had not given the members the advice they did.
- The considerations set out by the officers were brought together and summarized in the concluding passages of the report. In paragraph 21 the officers advised "that there are sufficient material considerations to justify not applying [Strategic Policy 8] strictly in this instance". This, again, was clearly a reference to the part of the policy requiring affordable housing. In paragraph 22 the officers advised the members that Strategic Policy 8 should not be "strictly applied" in this instance. For the members to follow that advice was not irrational or in any other way unlawful. It was not to take into account irrelevant considerations, or to fail to take into account considerations that were material.
- I see nothing in the submission that the Council took a different approach in other decisions it made at about the same time. Those other decisions related to quite different schemes, which were not proposals for student housing and did not fall within the scope of Strategic Policy 8. This is not to diminish the principle of consistency in decision-making. It is only to acknowledge, as did Mann LJ in North Wiltshire, that the application of that principle in any particular case depends on the particular facts. In the present case I cannot see any inconsistency in the Council's decision-making such as to taint the lawfulness of the decision it made on the proposal before it.
- Standing back from the minutiae of the officers' report, I ask myself whether it falls short of the standard by which one should judge it. I do not believe it does. What is the relevant standard? It is not that such a document is be construed with the rigour a court would apply to the interpretation of a contract or a statute. An officers' report is meant to convey clear advice on the principal factors of relevance to the decision being made. It does not prescribe an outcome. It offers guidance, and, preferably, a recommendation. Trite as it is, one has to remember this: officers advise, but members decide. The members will pay attention to the advice they are given and to any representations they receive. They then make their decision within the bounds set for it by statute, and subject to the scrutiny of the court. Decision-making at the local level has the virtues of local knowledge and experience and local accountability. A valuable element of it is the advice given to the members by professional officers, informed as it will be by their familiarity with the local, strategic and national policy context. Read with all that in mind, the report presented to the members in March 2011 does not, in my judgment, offend the principles spelt out by the Court of Appeal in Oxton Farms. Nor does the November report. Neither of those reports nor the advice they combined to give can be said to have misled the Council's Planning Committee about the application of Strategic Policy 8 or any material aspect of the task it had to perform. Mr Village's submissions to the contrary cannot be sustained.
- As Mr Purchas submitted, the claimants did not at the time appear to misunderstand the tenor of the advice the officers were giving the members. In their letter to the Council of 18 March 2011 Indigo did not assert that the officers' treatment of Strategic Policy 8 was legally wrong. They did complain generally about the alleged failure of the officers to deal with the policies of the Core Strategy as a whole a complaint that is not now pursued in these proceedings. When Indigo came in their letter to the advice the officers were giving the members on the application of Strategic Policy 8, they put forward their own views on the weight due to each of the four main considerations referred to in paragraph 16 of the committee report. Their basic contention was that those four considerations were "not individually or collectively of sufficient weight to outweigh the significant weight that should now be given to [Strategic Policy 8] and the rest of the Core Strategy". The focus, then, was on weight. Throughout the relevant parts of Indigo's letter it remained so. Implicit in this was the recognition that the officers' report was inviting the members to apply their own minds to the considerations referred to and to give such weight to them as they saw fit. What Indigo were seeking to do was to persuade the Council to exercise its planning judgment in the way they were suggesting it should, and not as its officers advised. Indigo's letter of 18 March 2011 was available to the committee when it met on 22 March 2011. Their Mr Peate attended the committee meeting, and took part in the discussion. The note of the meeting prepared for the claimants shows that the affordable housing issue was thoroughly and vigorously debated. Each of the considerations referred to in paragraph 16 of the officers' report came up in that discussion. So too did the Great Dover Street appeal decision. The committee considered the possibility of negotiating a contribution for affordable housing, and rejected it. The members plainly did not think they were facing a stark choice between seeking a contribution of £18.8 million and none at all. And it was made clear to them more than once that the weight to be attached to the considerations discussed was for them to decide.
- Questions such as this are typical of those a local planning authority often has to decide, guided by the expertise of its professional advisers. They are not the territory of judicial review. Only if some distinct illegality is demonstrated will the court intervene. This is not such a case. The Council's committee acted wholly consistently with the overarching principles of planning decision-making noticed by Lord Hoffmann in Tesco Stores Ltd.. In short, it had a perfectly reasonable and lawful basis for the decision it made to approve the proposed development in the circumstances as they were in March 2011.
- I turn to consider the decision notice issued by the Council as the formal and public record of the decision it had made.
- There are two distinct requirements of article 31 of the 2010 Order relevant in this part of the claim. The first is that, when a local planning authority gives notice of its grant of planning permission, its decision notice must include a summary of its reasons for the grant of permission. The second is that the notice must include a summary of the policies and proposals in the development plan that are relevant to the decision to grant planning permission.
- In this case reasons were given in the Council's decision notice of 30 March 2011. The notice does include "a summary of [the Council's] reasons for the grant of permission", as article 31(1)(a)(i) requires, and "a summary of the policies and proposals in the development plan which are relevant to the [Council's] decision to grant permission", as article 31(1)(a)(ii) requires. Under the heading "Reasons for granting planning permission", the notice contains a statement that the application was considered "to be in conformity with the development plan, the draft Core Strategy 2011, the saved Southwark Plan 2007", and specifically with a number of policies that are set out in a long list occupying almost three pages of the document. These policies are listed under four headings: the Southwark Plan (2007), the draft Core Strategy (2011), the London Plan 2008 (Consolidated with Alterations since 2004) and Planning Policy Statements. The notice thus incorporates a summary of the relevant provisions in the development plan, as well as other policy documents. It more than satisfies the statutory requirement in article 31(1)(a)(ii). The list of policies with which the proposal is said to be "in conformity" is followed by two paragraphs describing the rationale for the Council's decision to grant planning permission. It is stated that the Council "considered that there was a demonstrated need for student accommodation within the borough and that the scheme would enhance the Opportunity Area by providing student accommodation for King's College
". The substance of the Council's reasons for approving the proposal is given. The decision notice explains clearly why planning permission has been granted, without condescending to an explanation of all the reasons why it has not been refused. The statutory requirement in article 31(1)(a)(i) is satisfied.
- The gravamen of the claimants' complaint is that in the decision notice both Strategic Policy 6 and Strategic Policy 8 appear in the list of the policies with which the application is said to conform, which they should not, and that the Council's summary reasons for granting permission omit an explanation of the Council's failure to insist on the proposal providing, or yielding a contribution towards the provision of, affordable housing. Applying the relevant jurisprudence to the decision notice in this case, however, I am not persuaded that the summary reasons given in the notice were fatal to the planning permission itself. This is not a case of a local planning authority failing to give reasons for its decision. It is a case in which the reasons given do not fully reflect the authority's reasoning process. The claimants cannot say that they are, or were, in "any real doubt" about the basis for the Council's decision to grant planning permission. As Richards LJ said in the Telford Trustees case (at para. 24), there is no obligation on a local planning authority to provide a summary of its reasons for not upholding an objection to a proposed development, even if that objection was concerned with a principal issue. It is true that nothing is said in the decision notice about there being no affordable housing in the scheme and no money secured to fund its provision elsewhere. But the reasons set out in the notice may be seen as a condensed description of the Planning Committee's conclusion that the development would provide accommodation of the kind sought by Strategic Policy 8, namely student homes, albeit without 35% of the accommodation in the form of affordable housing, and without a financial contribution in lieu. If, as the Council's officers had advised and its committee had concluded, Strategic Policy 8 was not "strictly" applied in this case, in the sense that the Council did not insist on the policy's requirement for affordable housing, the general formula used in the decision notice to describe the proposal's relationship to the very large number of policies listed "in conformity with" was not such as to prevent anyone from grasping why planning permission had been granted. One can see in the decision notice itself that Strategic Policy 8 and Strategic Policy 6 of the draft Core Strategy were among the policies considered by the Council when determining the application. One can see that those emerging policies did not cause the Council to regard the development as unacceptable. And one can see that the Council supported the proposed development because it would assist in meeting the need for student homes identified in Strategic Policy 8.
- I accept that the part of the Council's decision notice that appears under the heading "Reasons for granting planning permission" could have been differently framed. The preamble to the list of relevant policies could have stated simply either that the proposal was considered to be acceptable in the light of all the policies listed or that it was considered to be both in accordance with the development plan, including the policies listed, and acceptable in the light of the listed provisions of the other policy documents. If the words "in conformity with" fail to embrace the Council's approach to the second action in Strategic Policy 8 as well as its approach to the first, they can readily be adjusted without the permission itself having to be struck down.
- As Ouseley J said in Midcounties (at para. 191), it is not an inevitable consequence of an authority's failure to comply with its duty to provide summary reasons that the planning permission it has decided to grant has to be quashed. So drastic a remedy is unnecessary when the permission itself is plainly lawful, or when the party attacking it has suffered no substantial prejudice. In my judgment, this is not one of those cases in which deficient reasons in a decision notice afford a ground for quashing the grant of planning permission. It is not impossible to tell from the Council's reasons whether the grant was lawful. And I have held that the Council's decision-making was legally robust. Granting permission, the members had followed their officers' recommendation to do so in clearly reasoned reports to committee. In my judgment, Mr Purchas and Mr Cameron were also right to submit that the claimants cannot sensibly say they have suffered any prejudice, let alone substantial prejudice, through the shortcomings they allege in the Council's reasons. When one considers the allegations of prejudice made by Mr Peate in his third witness statement, one can see that they do not go to the alleged defects in the Council's reasons. They go to the decision itself. But they also lack substance. Any future scheme of residential development for the claimants' site would have to be considered in the appropriate policy context. At the time of its decision on Investream's proposal the Council's adopted SPD on affordable housing was the document published in September 2008, to supplement the policies of the Southwark Plan and the London Plan. In that document it is made clear that requirements for affordable housing will not normally be applied to developments of student housing. Whatever scheme or schemes the claimants may pursue for their own land, they, in their turn, can expect their proposals to be dealt with, fairly and realistically, under the policy regime in place at the time, including any relevant SPD. The reasons given by the Council for approving Investream's proposal in March 2011 will not prejudice that process at all.
Conclusion on issue (3)
- The Council's decision to grant planning permission in this case was lawfully reached. The claimants' entitlement to a remedy on ground B2 does not extend beyond a mandatory order requiring the reasons in the Council's decision notice to be amended in the way I have indicated. I shall therefore allow the parties to agree, for the court to consider, a revised form of words for the preamble to the list of relevant policies included in the notice.
Discretion
- It follows from my conclusions on the three main issues that the question of my discretion to withhold relief does not arise. I do not, therefore, address the submissions made on that question.
Overall conclusion
- Save for the limited mandatory relief I intend to grant, the claim must be dismissed. I shall hear counsel on the appropriate form of the order.
