Threadneedle Property Investments Ltd and Another v Southwark Borough Council and Another, Bilford Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindblom |
| Judgment Date | 30 March 2012 |
| Neutral Citation | [2012] EWHC 855 (Admin) |
| Docket Number | Case No: CO/4145/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 March 2012 |
[2012] EWHC 855 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lindblom
Case No: CO/4145/2011
Peter Village QC and David Loveday (instructed by Lawrence Graham LLP) for the Claimants
Robin Purchas QC and Saira Kabir Sheikh (instructed by the Southwark Borough Council Solicitor) for the First Defendant
Jonathan Moffett (instructed by the Treasury Solicitor) for the Second Defendant
Neil Cameron QC (instructed by Nabarro LLP) for the Interested Parties
Hearing dates: 20 and 21 February 2012
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...
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