Development – Planning permission — Environmental impact assessment (EIA) – Claimants seeking judicial review of secretary of state’s refusal to consider direction for EIA and local authority grant of planning permission – Whether secretary of state erring in law – Whether local authority adopting wrong approach to draft core strategy – Whether local authority giving materially defective reasons for granting permission – Claim dismissed
In October 2008 the second interested party discussed with the first defendant council a proposal to construct a tall building on a site close to London Bridge station owned by the first interested party. On 12 January 2009, it wrote to the first defendants requesting a screening opinion under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (SI 1999/293) (“the EIA regulations”).
The first defendants issued an opinion stating both that the proposed development was not EIA development and was not likely to have significant effects on the environment. Therefore, the project did not require an environmental impact assessment. The second interested party subsequently applied to the first defendant for planning permission for the development of a 32-storey tower.
On behalf of the second claimant, the first claimant, managed a six-storey office building which adjoined the development site. The claimants objected to the proposal and claimed judicial review of: the refusal of the second defendant secretary of state to consider making a direction under regulation 4(8) of the EIA regulations that the proposed development, which would provide accommodation for students on the site, was EIA development; and the planning permission granted for the development by the first defendants.
The claimants argued that: (i) the second defendant had erred in law by not considering whether to make a direction under regulation 4(8); (ii) that error vitiated the first defendants’ grant of planning permission; and (iii) the first defendants erred in law in their approach to strategic policy 8 of the draft core strategy (which supported the need for student housing) and the summary reasons for granting permission given in the decision notice were materially defective.
Held: The claim was dismissed.
(1) There was no general obligation on the second defendant to consider making a regulation 4(8) direction. If the second defendant made such a direction, his decision to do so was a significant step, which entailed a subsequent process of assessment under the EIA regulations following notification to the applicant that the submission of an environmental statement was required: R (on the application of Baker) v Bath and North East Somerset Council [2009] EWHC 595 (Admin); [2009] PLSCS 348 considered.
Regulation 4(8) did not provide a duty but only a power reserved to the second defendant alone which he would only use in an exceptional case. Whether such a direction was justified was always a matter of judgment for the second defendant when his power to direct was engaged. An onus lay on anyone seeking a regulation 4(8) direction to prevail on the second defendant to make one in clear and unambiguous terms: Berkeley v Secretary of State for the Environment, Transport and the Regions and another [2001] JPL 660 (Admin); [2002] JPL 224; [2002] 1 P & CR 21 (CA) applied; Aannemersbedrijf PK Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland (Case C-72/95) [1996] ECR 1-5403, [1997] Env.L.R. 265 considered.
On the facts of this case, the second defendant had not erred in law. The request for a regulation 4(8) direction was coupled to the request for a call-in, whereby he would take on the role of decision maker and determine the application for planning permission, and was clearly conditional upon the call-in request being accepted. Accordingly, there was no effective application to the second defendant to exercise his power under regulation 4(8), and no failure by him to act, so that there had been no breach of duty. Furthermore, there was no misdirection, no irrationality, no taking into account of immaterial considerations or failure to take into account material considerations. The claimants’ misdirection argument was unsound.
(2) The first defendants’ planning committee had acted wholly consistently with the overarching principles of planning decision-making. There was a perfectly reasonable and lawful basis for the decision it made to approve the proposed development in the circumstances at the time. Neither the planning officers’ reports, nor their combined advice, had misled the committee about the application of strategic policy 8 or any material aspect of the task it had to perform.
The advice given had been consistent with the general principle that the weight to be given to emerging policy depended on the stage it had reached in its progress towards finality. The affordable housing issue had been thoroughly and vigorously debated by the committee and the decision was not subject to judicial review. The court would only intervene if some distinct illegality was demonstrated: Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 EGLR 147; [1995] 27 EG 154; R v Selby District Council, ex parte Oxton Farms [1997] PLSCS 105; [1997] EGCS 60; R (on the application of Kides) v South Cambridgeshire District Council [2002] 4 PLR 66; and R (on the application of Cala Homes (South) Ltd v Secretary of State for Communities and Local Government [2011] 2 EGLR 75; [2011] 34 EG 68 considered.
(3) The court was not persuaded that the summary reasons given in the decision notice were fatal to the planning permission itself. Although the reasons given did not fully reflect the first defendants’ reasoning process, the claimants could not say that they were in any real doubt about the basis for the decision to grant planning permission. There was 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 was not an inevitable consequence of the first defendants’ failure to comply with its duty to provide summary reasons that the planning permission it had decided to grant had to be quashed. So drastic a remedy was unnecessary when the permission itself was plainly lawful, or when the party attacking it had suffered no substantial prejudice. This was not a case in which deficient reasons in a decision notice afforded a ground for quashing the grant of planning permission: R (on the application of Midcounties Co-operative Ltd) v Wyre Forest District Council [2009] 2009] EWHC 964 (Admin); [2009] PLSCS 222 and R (on the application of Telford Trustee No 1 Ltd and another) v Telford and Wrekin Council [2011] EWCA Civ 896; [2011] PLSCS 200 applied.
The preamble to the list of relevant policies in the decision notice that appeared under the heading “Reasons for granting planning permission” could have stated more clearly, 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. The court would grant a mandatory order requiring the decision notice to be amended to clarify the summary reasons to that effect.
Peter Village QC and David Loveday (instructed by Lawrence Graham LLP) appeared for the claimants; Robin Purchas QC and Saira Kabir Sheikh (instructed by the Legal Service Department, Southwark London Borough Council) appeared for the first defendants; Jonathan Moffett (instructed by the Treasury Solicitor) appeared for the second defendant; Neil Cameron QC (instructed by Nabbarro LLP) appeared for the interested parties.
Eileen O’Grady, barrister
