June Hautot v LB Wandsworth (1) Parkview International London plc (2) Halcyon Estates Ltd (3)

Transcript date:

Friday, April 4, 2003

Matter:

Court:

High Court

Judgement type:

Permission

Judge(s):

Roger Henderson QC (as DJ)

CO/5679/02

Neutral Citation Number: [2003] EWHC 900 Admin

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2

Friday, 4th April 2003

B E F O R E:

MR ROGER HENDERSON QC

(Sitting as a Deputy Judge in the Queen's Bench Division)

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THE QUEEN ON THE APPLICATION OF JUNE HAUTOT

(CLAIMANT)

-v-

LONDON BOROUGH OF WANDSWORTH

(DEFENDANT)

and

PARKVIEW INTERNATIONAL LONDON PLC (1)

and

HALCYON ESTATES LIMITED (2)

(INTERESTED PARTIES)

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Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

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MR C THOMANN (instructed by RICHARD BUXTON) appeared on behalf of the CLAIMANT

MR H PHILLPOT (instructed by NICOLSON GRAHAM & JONES) appeared on behalf of the DEFENDANT

MR A BOOTH (instructed by DENTON WILDE SAPTE) appeared on behalf of the Interested Party

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J U D G M E N T

(As Approved by the Court)

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Crown copyright©

Friday, 4th April 2003

1. THE DEPUTY JUDGE: The claimant seeks permission to challenge a planning permission of 13th September 2002, granted by the defendant in respect of the development of Battersea Power Station in London. An application was lodged with the court one day less than 3 months later. It was referred for an oral hearing by Newman J on 7th February 2003. The hearing lasted a full day.

2. On 15th May 1997, the defendant granted outline planning permission for development of the former power station for leisure and entertainment purposes and redevelopment of land surrounding the power station, inter alia to provide over 40,000 square metres of business floor space, up to 2 theatres, up to about 46,000 square metres of pavilion floor space, between 500 and 700 flats, 2 hotels totalling up to 100,000 square metres, 930 square metres retail floor space, 3,500 car parking spaces, and 80 coach parking spaces with a new vehicular access from Battersea Park Road and making provision for other matters. By all accounts it was, and remains to be, a very substantial development.

3. The permission included a number of conditions in reasonably standard form, including condition 1, that the development be begun within 5 years from the date of permission, or within 2 years of the date of approval of the last of the matters detailed in condition 3, whichever was the later. By condition 2, application for approval of details of development referred to in condition 3 had to be made within 3 years of the date of that permission. By condition 3 there was a long list of matters where detailed approval was required, including the siting of new buildings and their design, traffic management arrangements, and the design and external appearance of a railway station. By condition 8 all vehicular access and egress was restricted to three identified points. By condition 11 none of the development approved (with an irrelevant exception) was to be occupied or open to the public until the station was completed and available for use.

4. That permission remains valid and capable of implementation, but it is for question whether it is capable of presently acceptable commercial implementation.

5. There have been three subsequent applications under section 73 of the Town and Country Planning Act 1990, with the latest of which this application is concerned. Within the papers is a document dated 26th September 2000, entitled "Variation of Condition" which states that:

"The Council, in pursuance of its planning powers, hereby varies condition [sic] of planning permission dated for referred to [sic] in the schedule below..."

6. The schedule identifies the current permission of 1997, and the document describes itself as a:

"Variation of condition 8(a) of planning permission dated 15/05/97... so that the vehicular access... shall be approximately 155 metres east of the site's western boundary (previously approved at 105 m)."

7. By a similarly worded and structured document, dated 24th January 2002, condition 11 is described as varied such that only the railway station, shell and core stage need be completed as otherwise required.

8. The relevant decision, dated 13th September 2002, provides as follows:

"Town and Country Planning Act 1990

VARIATION OF CONDITION

The Council, in pursuance of its planning powers, hereby varies condition [sic] of planning permission dated for referred to [sic] in the schedule below...

SCHEDULE

...

DESCRIPTION: Variation of condition 02 of the planning permission granted on 15th May 1997... to extend the period within which those details set out in condition 03 of that planning permission may be submitted for approval.

REVISED CONDITION AND REASON:

02 Application for approval of details of development referred to in condition 03 must be made by 31st December 2003..."

9. That document resulted from a report to a planning application committee of 29th August 2002, which described the proposal in these terms:

"Variation of condition 02 of the planning permission granted on 15th May 1997... for the development of the former Power Station and surrounding land, to extend [until 31st December 2003] the period within which those details set out in condition 03 of that planning permission may be submitted for approval."

10. I do not set out examples from the text of the report, but it is plain that the substance of the report addressed the application for the purposes of the committee, in terms apt to the description of the proposal at the outset of the report, namely that this was an application for variation of a condition of an extant planning permission. It concluded with a recommendation to approve a variation to condition 2 of the planning permission.

11. I need only add, by way of update, that it is the defendant and the interested parties case, that the permissions are implementable and that all outstanding matters have been resolved. I do not need to accept that submission, about which the evidence is deficient, but I am prepared to assume against the claimant that it may be so. Nonetheless, for the reasons to which I turn, I consider that permission relating to the planning consent should be granted in this case.

12. Section 73 of the 1990 Act provides:

"Determination of applications to develop land without compliance with conditions previously attached.

(1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.

(2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and -

(a) If they decide that planning permission should be granted subject to conditions differing from those subject to which previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and

(b) If they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application. ...

(4) This section does not apply if the previous planning permission was granted subject to a condition as to the time within which the development to which it related was to be begun and that time has expired without the development having been begun."

13. It is common ground between the parties, and is indeed self-evident from the language of section 73, that a permission granted under section 73 of the 1990 Act is a planning permission. It is wrong to describe it as a variation of some other planning permission. I accept that the relevant document of 13th September 2002, is fit to be construed as a planning permission, but in my judgment that avails the defendant and the interested parties little in their submission that there is no arguable case under ground (1). In essence, that ground, as clarified in the submissions by counsel on the claimant's behalf, impugns the decision-making process, albeit in language which is not entirely felicitous. I am in no doubt that it is arguable that the process was flawed. Although it may be absolutely correct that the officers of the defendant were well aware that the section 73 process would lead, if successful, to a planning permission, the language of the report to the committee, and of the permission itself, was materially different. It invited the committee to vary an extant permission rather than to grant a new one, and it is arguable that this erroneous approach invalidates the permission.

14. I asked all counsel whether the practice of Wandsworth in this case was standard practice. In essence the answers were that planning authorities acted idiosyncratically, with some adhering to what was recognised now to be less than satisfactory practice, and others treating section 73 applications as applications which, on their face, sought planning permission, rather than a variation of planning permission. It seems to me to be most desirable that any authorities which presently persist in the practice which has obtained in this case, should promptly revisit that practice and their standard section 73 documentation. In aid of both transparency and of good process and administration, it would be wise at least to consider the incorporation of provision for all conditions in standard forms.

15. In Powergen United Kingdom Plc and Leicester City Council and Safeway Stores Plc (2000) JPL 1037, at paragraph 29, Schiemann LJ endorsed the judgement of Sullivan J in Pye v Secretary of State for the Environment (1998) 3 PLR 72, in which he said this:

"While section 73 applications are commonly referred to as applications to "amend" the conditions attached to a planning permission, a decision under section 73(2) leaves the original planning permission intact and unamended. That is so whether the decision is to grant planning permission unconditionally or subject to different conditions under para (a), or to refuse the application under para (b), because planning permission should be granted subject to the same conditions."

16. It may not be essential for ground (1) in section 5 of the claim form to be redrawn, because the parties and the court will be aware from the oral hearing, and hopefully from this judgment, of the substance of this ground of challenge. The second ground of challenge is inextricably entwined with ground (1) with the decision-making process which led to 13th September 2002 permission. I consider that permission in relation to item (ii) should be granted for that reason.

17. Turning to the third ground of application, it was accepted before me that no environmental impact assessment screening was carried out in relation to this application or any prior permission. It is the claimant's case that such screening was required in relation to this application, and the defendant and interested parties' case that it was not required, under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.

18. This is a matter of pure law. Questions of convenience and governmental intentions are of no consequence, but it may be helpful to refer to the aetiology of the regulations, through the consultative documents of Her Majesty's Government.

19. The present Regulations and their predecessors sought to give effect to Directive 337 of 1985, as amended by Directive 11 of 1997. In paragraphs 61 and 62 of the consultation paper in relation to implementation of the amending directive, one finds the following:

"Development without compliance with conditions previously imposed

61. Applications for planning permission for the development of land without complying with the conditions imposed when a previous planning permission was granted are exempt from the EA Regulations. The Government believes that such applications are applications for "development consent" within the meaning of the Directive. Where this entails a modification to a project listed in Annex I or II of the Directive, it is possible that it could have significant environmental effects and should be subject to EA procedures.

62. The Government intends to remove the current exemption from the EA Regulations for applications under section 73 of the Town and Country Planning Act..."

20. In further consultation in respect of draft regulations in 1998, one finds the following:

"Development without compliance with conditions previously imposed

16. In line with the Government's proposals, the exemption from the need for EIA for planning applications made under s73 of the Town and Country Planning Act 1990 has been removed."

21. In substance, section 73 applications were especially exempted from the 1988 Regulations because Regulation 2 defined schedule 1 and schedule 2 applications in terms which expressly excluded applications made pursuant to what became section 73.

22. Whatever the ambit of Her Majesty's Government's purpose, the 1999 Regulations define schedule 1 and schedule 2 applications, and schedule 1 and schedule 2 development in Regulation 2 without any exemption for section 73 applications. This case concerned schedule 2 rather than schedule 1, and Regulation 7 provides as follows:

"(1) Where it appears to the relevant planning authority that -

(a) an application for planning permission which is before them for determination is a Schedule 1 application or Schedule 2 application; and

(b) the development in question has not been the subject of a screening opinion or screening direction; and

(c) the application is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of these Regulations, paragraphs (3) and (4) of Regulation 5 shall apply as if the receipt or lodging of the application were a request made under Regulation 5(1)."

23. Regulation 5(1) provides:

"A person who is minded to carry out development may request the relevant planning authority to adopt a screening opinion."

24. I consider that it is plainly arguable that the relevant section 73 application for planning permission, for such it was, fell within Regulation 7 of the 1999 Regulations, although it would have fallen outwith the predecessor Regulations. The natural meaning of the words supports such an argument, as does the genesis of the 1999 Regulations, but I ignore the provenance of the consultative documents, and adopt them as an arguably correct implementation of the directive as amended.

25. In reaching that conclusion I recognise that formidable arguments to the contrary have been advanced most elegantly by leading counsel on behalf of the defendant, and the interested parties, and I confess that my conclusion has not been reached without some difficulty. The words of Lord Hoffmann in R v North Yorkshire County Council ex parte Brown (2000) 1 A.C. 397 at page 404 are in point:

"The purposes of the Directive... is to ensure that planning decisions which may affect the environment are made on the basis of full information... The position would be different if, upon a proper construction of the United Kingdom legislation, the determination of conditions was merely a subsidiary part of a single planning process in which the main decision likely to affect the environment had already been taken."

26. At page 405 he proceeded:

"The principle in this and similar cases seems to me to be clear: the Directive does not apply to decisions which involve merely the detailed regulation of activities for which the principal consent, raising the substantial environmental issues, has already been given."

27. We are here concerned with a complementary or parasitic section 73 permission, and it can be said with very considerable force that the 1997 consent, which is now unassailable in public law, gave rise to the appropriate occasion when environmental issues were fit to be considered. On the other hand, I see force in the submission on behalf of the claimant that the most recent consent in point of time is often likely to constitute the "development consent" and the trigger of the directive, as embodied in the 1999 regulations, which brings environmental impact assessment into play. Without rehearsing many of the interesting submissions, I conclude that both the claimant's and the defendant's and interested parties' submissions are highly arguable and reach this composite position: It is arguable that the committee asked itself the wrong question, to use Lord Diplock's exposition of Lord Greene MR's dictum, and that it should have asked itself: Should we grant this permission and if so upon what terms, and do we have the appropriate information to satisfy ourselves about the environmental effects if this permission is implemented?

28. Ground (iv) contends that the listed building application which relates to the demolition of a famous pumping house, is parasitic upon the planning permission "and should fall with it." I consider that this is not arguable. It is more epiphytic than parasitic; that is to say it needs a host, not the host, and has its own being. Whereas a planning permission is required in order to implement the listed building consent, the permission does not need to be the outline planning permission.

29. Ground (v) contends that this application was not made by a person interested in the land, as required by section 19 of the Listed Buildings Act 1990. In my judgment this is not arguable. Upon the evidence, and under section 19 an agent or sub-agent may lawfully make such an application as was made in this case.

30. Ground (vi) is also not arguable. By operation of section 18(2) of the Listed Buildings Act 1990, the listed building consent in this case was due to expire on 11th July 2002. The application under section 19 was made on 9th May 2002, before the expiry of the consent. If such an application had to be decided before the expiry date the administrative vagaries of the time of determination would decide jurisdiction, with unforeseeable and undesirable side effects. In effect, the section 18(2) guillotine of five years does not fall if there is an outstanding application to extend that five year period and I refuse permission in respect of ground (vi).

31. It will already have been readily apparent that I do not accept that this is an application which fails to get off the ground by reason of delay. Having been made one day short of the 3 month period, I conclude that it was made promptly given the practical problems faced by the claimant in obtaining funding for legal representation as described in the statement of her solicitor dated 29th March 2003. I should add one postscript. In paragraph 6 of that statement Mr Buxton says:

"However, I take it from [Burkett] that, broadly speaking, unless very special circumstances are shown by the defendant or interested third party, a time of three months will be allowed for lodging judicial review proceedings."

32. That is a serious misconception. There will be cases, such as challenges to rate demands, where no more than a few days may be allowed to elapse before a challenge will fall to be disallowed.

33. I would welcome submissions as to how, if at all, this case may most efficiently be brought to a hearing. It seems to me that the parties need to take stock. It has been submitted by the defendant and interested party that this claim is academic. However commercial reality and the civil procedure regime considerations, in the light of this judgment, should lead to reappraisal of the case. I am minded to stimulate that reappraisal by ordering:

(1) That within 6 weeks evidence be filed by the defendant and interested party to show the up-to-date position as respects implementation of consents and conditions.

(2) That within 3 weeks thereafter counsel to the parties liaise on a legally privileged basis, to achieve agreement about the legal state, not the commercial state, of implementability, and in the absence of complete agreement to produce within 2 weeks thereafter a document setting out points of agreement and disagreement.

(3) It may be appropriate to try and find some form of date or time for the hearing.

34. Is there anything I can do to assist any of you?

35. MR THOMANN: My Lord, thank you very much. There is just one technical matter on behalf of the claimant.

36. THE DEPUTY JUDGE: Yes.

37. MR THOMANN: I need not take up your time with asking for leave to appeal on points 4 to 6. Those instructing me might wish to make an application to the Court of Appeal and for that purpose it would be very useful if we had an expedited transcript of your judgment, and if that could be funded by central costs given that we are legally aided.

38. THE DEPUTY JUDGE: I do not think it is going to take very long for there to be a transcript, because, as you will have seen from the speed at which I delivered that judgment, and I gave a copy of it with scrawls on it to the shorthand writer. It will probably be available soon, so I refuse the application for an expedited transcript.

39. MR THOMANN: My Lord, I am grateful, on the substantive points you have just raised for the further progress of this matter, I have no objections to any of those. Perhaps it is useful if my friends voice their objections to --

40. THE DEPUTY JUDGE: Mr Phillpot?

41. MR PHILLPOT: My Lord, I have just had the opportunity to get a brief nodding.

42. THE DEPUTY JUDGE: I saw a wink or a nod, I did not know which it was.

43. MR PHILLPOT: My Lord, I took it as a nod that my client is content with that course of action, and, my Lord, may I say so, it seems eminently sensible. The only other question is the question of costs. I was going to suggest that costs be reserved.

44. THE DEPUTY JUDGE: I entirely agree. Subject to any submissions it seems to me that is right. I have merely said that these matters are arguable and some are not, and the right order to make is costs reserved.

45. MR PHILLPOT: I am grateful. I have nothing else, unless I can be of any further assistance?

46. THE DEPUTY JUDGE: Shall we see where we get to in terms of date? How long do you think this case is likely to take Mr Phillpot? You are the one who has been, I think, most involved, probably, so far.

47. MR PHILLPOT: Yes, well, my Lord, given that the permission hearing took a full day, and I think it is also fair to say that the position may change if, as my clients have submitted is likely, any application for permission on the refused grounds is unsuccessful, therefore there will be fewer issues to discuss. Nevertheless, I would have thought that even if one takes out those three further grounds, at least a full day is going to be necessary. I hope that the matters in issue will be reduced by means of the procedure that your Lordship has suggested, but I would have thought at least a day is necessary.

48. THE DEPUTY JUDGE: It is a day to a day and a half, is it not?

49. MR PHILLPOT: I think that is right, my Lord. I think being realistic, I think a day to a day and a half is right.

50. THE DEPUTY JUDGE: That is my view. My associate is busy trying to find out by modern technology what is available, but, effectively, the time-frame that I have set would lead to a date not earlier than October, would it not?

51. MR PHILLPOT: If that is right, my Lord.

52. THE DEPUTY JUDGE: I think logically that is right, is it not? Because 6 weeks plus 3 weeks, if they have the temerity to go to the Court of Appeal in relation to the points refused, that might delay matters a little more, but that should still have been able to be dealt with pretty speedily I would have thought. So I would have thought we are looking at October probably.

53. MR PHILLPOT: October is perfectly acceptable from our point of view in terms of the opportunity of having material reflection of what has been said, my Lord.

54. THE DEPUTY JUDGE: Can anybody tell me the first day of Michaelmas term?

55. MR PHILLPOT: Not off the top of my head I am afraid, my Lord.

56. MR THOMANN: I am afraid I only have up to 2002 in this.

57. THE DEPUTY JUDGE: I will simply say, somebody else can find it out, and will direct that it is listed for the first day in October, which is the first day of term.

58. MR THOMANN: Thank you, my Lord. There is one additional matter, that is I have been instructed to ask, for safety's sake, for Community Legal Aid assessment at this stage. It probably will not be carried out in practice, but just so that we have the order.

59. THE DEPUTY JUDGE: Why should you need that? In other words, if the case folds for some reason and it does not need to come back to court?

60. MR THOMANN: Yes.

61. THE DEPUTY JUDGE: Yes, that would seem to me to be a sensible course.

62. MR THOMANN: Thank you very much.

63. THE DEPUTY JUDGE: Did you ask for leave to go to the Court of Appeal in relation to grounds 4, 5 and 6 or not?

64. MR THOMANN: I do it formally.

65. THE DEPUTY JUDGE: You did? Well, I formally refuse it.

66. MR THOMANN: Thank you very much.

67. THE DEPUTY JUDGE: Thank you all very much.