Threadneedle Property Investments Ltd & Anor v Southwark Borough Council & Anor

A Secretary of State has no general duty to consider using the exceptional power under regulation 4(8) of the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999. Ordinarily, the power is engaged only by a clear and unambiguous request identifying a particular development and its potentially significant environmental effects. A conditional request may properly be treated according to its terms. The weight given to emerging planning policy is a matter for the planning authority, provided all material considerations are taken into account. Defective summary reasons do not necessarily invalidate planning permission where the decision and its legal basis remain clear and no substantial prejudice is shown.

The claimants sought judicial review of the Secretary of State’s decision not to call in an application for a 31-storey student accommodation development at Capital House, and of Southwark’s subsequent grant of planning permission. They alleged that the Secretary of State unlawfully failed to consider a direction under regulation 4(8) requiring the development to be treated as EIA development. They also challenged Southwark’s treatment of emerging Strategic Policy 8, which required 35% affordable housing in student developments, and the adequacy of the decision notice’s summary reasons. The central questions were whether the Secretary of State’s regulation 4(8) power had been engaged, whether any failure affected the planning permission, and whether Southwark’s planning judgment and reasons were legally sufficient.

1. Regulation 4(8). The power under regulation 4(8) is exceptional, is exercisable only by the Secretary of State, and is not required by the EIA Directive. There is no general obligation to consider making a direction in every case. Ordinarily, a person seeking a direction must make a clear and unambiguous request identifying the relevant environmental concern.
2. The claimants’ letter requested a regulation 4(8) direction only if the Secretary of State called in the planning application. Once call-in was refused, the condition was not satisfied. The Secretary of State was entitled to take the request at face value and was not required to reinterpret it or seek clarification. The surrounding circumstances also did not create an independent duty to act.
3. The Secretary of State’s letter correctly left responsibility for applying the EIA Regulations with the Council. It disclosed no misdirection, irrationality, irrelevant consideration, or failure to consider a material matter. Ground A therefore failed.
4. The question whether an unlawful failure by the Secretary of State under regulation 4(8) would necessarily vitiate a later grant of planning permission was left moot. The court considered that the claimants’ EU-law argument was persuasive, but also recognised powerful domestic-law arguments that the Regulations did not expressly prevent the Council from granting permission.
5. Strategic Policy 8. Southwark lawfully treated the Inspector’s report as increasing the weight of the emerging Core Strategy, while considering timing, the absence of an adopted contribution mechanism, the site’s location outside identified housing sites, the advanced stage of the proposal, and consistency with the Great Dover Street appeal. These were material considerations within the Council’s planning judgment.
6. The officers’ reports did not mislead the committee. The committee was entitled to decide that Strategic Policy 8 should not be applied strictly to this proposal. The decision was neither irrational nor otherwise unlawful.
7. The decision notice substantially complied with article 31 of the 2010 Order. Although its statement that the proposal conformed with Strategic Policies 6 and 8 did not fully reflect the Council’s reasoning, the defect did not make the permission unlawful or cause substantial prejudice. The claim was dismissed, subject to a mandatory order allowing the parties to agree amended wording for the notice.

First-instance judicial review proceedings in the High Court (Administrative Court). The court dismissed the substantive challenge to the Secretary of State’s decision and Southwark’s planning permission, while permitting amended wording to the decision notice.