R (oao Hewitt) v Southwark Council

Transcript date:

Friday, January 18, 2013



High Court

Judgement type:

Permission renewal


Ingrid Simler QC

Transcript file:

Neutral Citation Number: [2013] EWHC 373 (Admin)
Royal Courts of Justice 
London WC2A 2LL

Friday, 18 January 2013

B e f o r e:

(Sitting as a Deputy High Court Judge)





Computer Aided Transcript of the Stenograph Notes of 
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(Official Shorthand Writers to the Court)

Ms S Sackman (instructed by Richard Buxton) appeared on behalf of the Claimant 
Mr D Kolinsky (instructed by London Borough of Southwark) appeared on behalf of the Defendant
Mr K Kakowski QC (instructed by SJ Berwin) appeared as an Interested Party

J U D G M E N T 
(As Approved by the Court)

Crown copyright©

1. THE DEPUTY JUDGE: By this renewed application for permission, the claimant seeks permission to challenge the defendant's decision to grant planning permission on 30 March 2012 for an extension to the Surrey Quays shopping centre. The relevant facts are set out in paragraphs 1 to 12 and 23 to 31 of the claimant's grounds, and in the interests of time, I shall not repeat them.

2. The defendant's decision is challenged on three grounds. The first relates to the design issues. What is said in broad summary, is that the design review panel reached a conclusion that this was a poor and unacceptable design, and though the defendant's officers did not differ from that view, they concluded that the design would not preclude the future design changes. That, it is argued, is an unlawful approach: future phases in relation to this scheme are irrelevant. The defendant was bound to consider and appraise the actual proposal without reference to that unlawful consideration, and this approach was an error of law or irrational. There is also a reasons challenge.

3. Secondly, and interrelated with the first ground, the claimant contends that the design fails to comply with the national planning policy framework and is unlawful for that reason.

4. Finally and separately, it is contended that there was a failure to carry out an EIA in this case. The requirement to do so was circumvented by a screening decision that, in effect, ignored the significant local impact, and thereby rendered the decision not to carry out an EIA, unlawful.

Ground 1: design

5. Dealing with ground one first, the officer's report to the defendant's planning committee addressed the design issues associated with this scheme head on, at paragraphs 80 to 95. However, before looking at those paragraphs, it is important to consider the context against which the design was being assessed and considered. That context is referred to in the officer's report. In particular, paragraph 25 makes clear that the first phase that was being considered for planning permission purposes was a first phase of a more comprehensive development of a shopping centre site and its associated car park. The report says:

"The applicant had submitted an indicative master plan showing possible future phases of development around the existing shopping centre, car parks and service area. This master plan does not form part of the current proposals, but is intended to demonstrate that any early phases would not undermine the potential to deliver a wider re generation for Canada Water town centre, as envisaged in the area action plan policy 16 and proposal site seven of the CWAAP, which require a master plan to be brought forward with any application at the first phase of development."

6. At paragraph 28 that context is further identified and set out. It is clear that the assessment of the design could not be made in isolation of the context, but had to be considered in the context of the wider, more comprehensive development plan.

7. Against that background at paragraphs 80 to 95, the officer's report deals with deals with the design. A careful reading of those paragraphs makes clear that both the benefits and the shortcomings of the design plan were identified. A clear example of this appears at paragraph 88. In my judgment, it is not a fair reading of the officer's report to say that the design as a whole was regarded as poor. Rather, this was a design where there were positives and negatives that would have to be weighed up, and weighed up against the backdrop of the wider AAP, and the wider scheme that had been identified on an indicative basis.

8. At paragraphs 94 and 95, the officer's report deals with the conclusions of the design review panel. The officers recognise that the design review panel was critical of the design, and had identified aspects of the design that raised significant concerns. The officers, however, make clear that the views of the panel are advisory in nature, and they had been considered in terms of the architectural and urban design qualities, and not in the context of the wider benefits of this development to the area. That, in my judgment, makes clear that the officers had at the forefront of their minds the fact that any design shortcomings would have to be considered against possible economic or other benefits of the development plan, and that is precisely what happened here.

9. At paragraph 147 the officers reach a conclusion that the design does not achieve some of the aspirations originally identified, that it does not take full advantage of opportunities to improve certain aspects of this development, and that it is not as good as the hoped for design. However, against those "negatives" the officers go on to conclude that the design does not undermine the wider master plan aspirations and long term aspirations, nor is it outweighed by the economic benefits. Indeed, the officers reach what is quite clearly a finely balanced planning judgment, that those latter two points outweigh the negative aspects of the design.

10. On judicial review in a planning case of this kind, the court is concerned with the legality of the decision making process and not the merits of the particular decision. Planning decisions are made by the relevant local planning authority, as the expert body entrusted by Parliament to do so, and provided the authorities have regard to all the material considerations, avoiding Wednesbury irrationality, it is for the authority to attach what weight it regards as appropriate to each material consideration, and to come to a planning judgment on the acceptability of the particular scheme. I have in mind in particular what is said in the cases of West End Green and the Tesco case at authorities bundle 1 and 3 respectively.

11. In my judgment, in this case there was what can only be described as a finely balanced planning judgment. The officers assessed the design as a whole, identifying some criticism, but also some positive aspects of the design. The view of the design review panel was plainly considered, and considered as a material consideration, but the weight to be attached to the design review panel's views was a matter for the planning authority. The design review panel is not itself the decision maker, but a panel of experts. The report weighed up the merits of the scheme, and as I have indicated, concluded on balance that the proposal was acceptable.

12. In reaching the overall planning judgment that the development was acceptable, the defendant was entitled to give weight to the other considerations, namely the economic benefits of the proposal in light of its strategic policy aspirations for the area, and the long term wider planned development that was proposed. The defendant was entitled to do this, even if a better scheme could have been devised. In my judgment, there is nothing even arguably unlawful or irrational in the defendant's approach in this regard.

13. So far as the reasons challenge is concerned, in my judgment the reasons set out in the officers' report are plainly adequate and intelligible, and there is no deficiency, even arguably, disclosed by the grounds in that respect.

Ground 2: National Planning Policy Framework (NPPF)

14. Ms Sackman accepted that if I reached a conclusion that ground one was unarguable, the same would follow in relation to the ground related to the NPPF. That is plainly right. In my judgment, it is not arguable that the NPPF compelled the defendant to refuse planning permission here. The defendant was required to assess the design of the scheme against national and government policy, evaluating the design issues, and determining whether the advantages outweighed the disadvantages or vice versa. For those reasons, this ground is unarguable too.

Ground 3: EIA

15. Turning to the third ground which relates to the EIA, it is common ground that this ground can only proceed if it can be shown to be arguably Wednesbury unreasonable. The claimant focuses on the decision letter at page 156 of the bundle, contending that the only way to make sense of the decision letter at page 156 is to infer that the screening must have ignored local impacts and effects simply because they were local. This approach runs counter to precautionary principles that apply in relation to EIAs, that localised impacts are capable of constituting significant impacts, particularly where the scale of the development is substantial. Therefore, there was an error of law in relation to the decision that no EIA was required.

16. In my judgment, that is a misreading of the letter at page 156, which at first blush does appear to raise a potential internal contradiction. However, the decision letter (page 156) cannot be read in isolation of the report that informed it. Looking at the screening report that informed the decision (page 144 and following), it sets out quite clearly that this was a case where no significant impacts have been identified. At page 147 the report makes clear that the appropriate and relevant guidance and policies have been considered and followed, and concludes as follows:

"Within the context of circular 299, and having regard to the nature, size and location of the proposed development and the factors in schedule 3 to the EIA regulations, it is concluded that

(a) The proposed development is of local importance;

(b) The proposed development is not proposed in an environmentally sensible or vulnerable location;

(c) It would be not likely to have unusually complex and potentially hazardous and environmental affects;

(d) Does not meet or exceed the criteria set out in paragraph A19 and circular 2 of 99;

(e) The use, height, bulk and massing of the proposed development are not considered to be likely to have significant effects upon the environment."

Then importantly:

(f) The likely impacts of the proposed development upon traffic, emissions, climate change, noise and the amenity offered by it in the surrounding area, including sunlight and daylight, are not considered to be likely to give rise to significant effects upon the environment."

17. Having dealt with wind and cumulative impacts, which are not considered to give rise to significant effects, at (g) and (i), the conclusion is:

"Having regard all the relevant policy and advice, the proposed development is not considered to be likely to have significant effects upon the environment by virtue of factors such as its nature, size or location."

18. That, in my judgment, as submitted to me on behalf of the defendant and the interested party, is a clear and focused assessment of the material considerations. Furthermore, at paragraphs 149 onwards, there is a line by line analysis of the screening checklist, and in each case a reasoned conclusion as to why each aspect of the checklist is regarded as not giving significant impact. In my judgment, the claimant's contention that the screening report must have proceeded on the footing that local impacts could not be significant impacts by virtue only of being local, is simply not arguable. It is quite clear, and paragraph (f) in particular makes clear, that local impacts were considered in the context of whether they were likely to give rise to significant impacts on the environment. Traffic emissions and the amenity of occupiers in the surrounding area are the sort of local impacts that should be considered in this context, and were in fact considered, and no adverse impact was identified.

19. Having read the screening report, it is quite clear that the conclusion reached was that there were no significant impacts such as to require an EIA in this case. The claimant's focus on the final paragraph of the decision letter at page 156, takes it out of context, and ignores the reasoned, rational that conclusion that there were no significant impacts for EIA purposes, albeit that there were some impacts that required careful fully consideration. In my judgment, the argument that there has been a screening out of local impacts in order to circumvent the requirement of an EIA in this case of local impacts, is simply not arguable.

20. Finally, as far as delay in relation to grounds one and two are concerned, although this claim was brought within the three month period, it was brought on the very last day of that three month period. As was submitted on behalf of the interested party, it is well known and well established that planning involves all sorts of interests; the interests of the developer and the defendant council, as well as all sorts of other interests. For that reason, case law makes clear that the need for challenges to be made promptly is all the more important, and that has been reiterated repeatedly, for example in the case of Kelsey v Milton Keynes 2008 EWCA 6 1067. So although this claim was made within the three months, the question remains whether it was made promptly. There has been no attempt to address or explain the delay, beyond pointing out the fact that the pre action protocol procedure was being conducted. As Kelsey makes clear, that is no reason to delay a judicial review challenge, and in that regard the explanation is inadequate. For those reasons, I see no basis for departing from the decision of the Recorder of Birmingham on this point too in relation to grounds one and two. Accordingly, permission is refused in relation to all three grounds, and the order of HHJ Davies is upheld.

21. MR KOLINSKY: I am grateful. There is no application from the defendant.

22. MR KAKOWSKI: Thank you.

23. THE DEPUTY JUDGE: Thank you very much to you all for your extremely helpful skeletons and submissions.