Green for Stop

Date:

23/06/2000

Author:

Giles Barrie

Source:

Property Week

Matter:

General

Click on solicitor Richard Buxton's website and all becomes clear.

"The law is there to be used. It is surprising how little it has been used to protect environmental rights in the past." We have found that it can be.

"In our experience, once the government or other public authority decides to do something, it is very difficult to persuade them otherwise. They tend only to listen to the courts," Buxton continues. "Often the target in Judicial Review is central government: the Secretary of State or in our case, usually, the Department of Environment, Transport and the Regions.

"We are flexible about how we charge for work. Legal Aid may be available. We are also able to work on a conditional-fee basis. Our 'bottom line' is that we want to solve people's environmental problems, and are prepared to work with them to find affordable ways of doing so."

A Property Week investigation reveals that Buxton is the common thread in a string of cases going through the courts that are causing serious and increasing concern among developers.

They see these cases as a threat to one of their most prized institutions: a planning permission. Sooner or later a consent will be overturned, there will be a meltdown in values and property anarchy will prevail, say developers.

Chelsfield director Robin Butler is deeply concerned. His £500m White City shopping scheme was faced with a 12 June petition in the House of Lords for leave to appeal against the Court of Appeal judgment. Lord Justice Ward threw out this case, accusing the CPRE of seeking a 'back door' to re-open the planning battle, and ordering it to pay costs of around £30,000.

But believe it or not, the CPRE is fighting on.

It has petitioned the House of Lords to claim that the approval of the project's reserved matters will be unlawful because an environmental impact assessment was not carried out. So the whole process drags on.

"Certainty in relation to planning permissions it is vital to developers, funders and tenants," says Butler. "There is a trend in recent cases for applications to be made late and, particularly in cases involving EIAs, for the applicant to argue that time limits don't apply.

"If permitted, this would add an extra layer of approvals to the planning system and obviously cause havoc and sterilise development," he says.

Pattern of attack

In a range of cases involving White City, Fulham Football Club, Bromley council, St Edmundsbury Borough Council, North West Leicestershire District Council and at Hammersmith's Imperial Wharf the features are almost always the same:

- allegations of defects in procedure by local planning authorities, particularly in relation to the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988

- applicants' lawyers acting on a contingency basis or funded by Legal Aid reliance on duties of the state under EC Treaties or European Court of Justice judgments delay in instituting proceedings: the normal rule in planning cases is that six weeks is the latest time for instituting a challenge to the decision in question, but by attempting to invoke European law, the applicants claim these time limits should be disregarded

- continued renewal of unsuccessful applications.

London & Regional director Geoffrey Springer, whose £58m Crystal Palace leisure scheme was subject to a failed 3 April attempt to apply for Judicial Review, is more relaxed than Butler.

Springer says: "If you've got the planning application right first time you don't have to worry. If you try to take short cuts you will be caught out. You need planning lawyers alongside you every step of the way. It's not personal, it's business. You just deal with it correctly."

But if Springer knew what Mayor of London Ken Livingstone's environmental adviser Darren Johnson is planning, he might be more concerned. And Butler would be putting his legal team on double time.

As a Green Party candidate in the London elections Johnson was open about his opposition to the Crystal Palace and White City projects, but with the backing of the Greater London Authority he now has far more clout.

And he wants to start overturning planning permissions by matching Buxton and his allies in their legal efforts. The week after the election Johnson said that Livingstone had asked him to consult lawyers on these schemes.

Now, he has drawn up a list of options, with attention particularly focusing on White City and the CPRE petition filed in the House of Lords. The options are:

- providing funding to help the applicant (the CPRE's London branch is currently leafleting in an attempt to raise more cash for White City opposition)

- joining the CPRE's case: Johnson says, "It's being considered."

David Lock is lobbying John Prescott to call in reserved matters on the application for review, putting pressure on Chelsfield to withdraw the application and submit a new scheme the GLA considers more 'environmentally friendly', and putting pressure on Hammersmith & Fulham council to revoke the planning permission, holding a GLA inquiry into how planning permission for what Johnson considers to be a 'horrendous' scheme was ever awarded.

Johnson and the GLA are due to decide what action to take next week, and he has no hesitation in supporting legal action against development. He is working particularly closely with the CPRE, which, as well as lobbying against White City, has a member battling Fulham FC and backs Buxton in his other cases.

Wolf in sheep's clothing

The CPRE is also causing increasing concern and confusion among developers. To most people, including its 50,000 members, the 74-year-old council is seen as a genteel bastion of middle England, living off legacies and, with the Queen as patron, battling to protect the Countryside.

The opening spread of its latest annual report does little to dispel this idea, with images of sheep grazing in snow-covered Cumbria, a hay meadow in Somerset, autumn in Friston Forest, Sussex, and a wren's nest in Somerset.

A section on housing and urban renewal shows an extract from a booklet on the benefits of city life, countryside threatened by housing in West Sussex, decay in East Sussex and social housing in Hampshire.

But there is nothing to hint at opposition to a west London shopping scheme on a Shepherd's Bush wasteland that has languished undeveloped for 40 years.

The CPRE's main objective, as set out in its constitution, is 'to improve, protect and preserve for the benefit of the public the countryside and open spaces within the Greater London area'.

The organisation also wants to encourage urban regeneration, in order to minimise pressure for development in the countryside.

But according to top planning consultant, and former adviser to the last Conservative Environment Secretary John Gummer, David Lock, the CPRE is 'pushing the envelope of that charitable purpose to its very limit'.

"I think its position is shite and unsociable," says Lock. "I just wish it was pursuing a wholesome agenda. It's awful really, because at the DETR it got a level of access I couldn't believe because of what it is perceived to be."

National-London divide denied

Developers believe that there is a split between the more sober national CPRE and its London branch. This is denied, however, by CPRE assistant director Tony Burton and the chief of its London branch, ex-antique dealer Richard Bourne.

Burton believes that there are links between the CPRE and the Fulham, Imperial Wharf and Crystal Palace cases as well as the White City agenda it is openly pursuing. Bourne plays these links down.

Bourne says it shouldn't be a surprise that the CPRE wants cities improved, but he struggles to name any commercial development he backs.

Bourne says he likes: "The Tate Modern, the Millennium Bridge, work by the Peabody Trust, restaurants, small shops and small-scale, organic, infill schemes. That's what should happen in London."

Burton, a member of Lord Rogers' Urban Task Force, says: "Developers may be more concerned about activities because we are beginning to hold sway with government planning policy.

"We are probably saying more about schemes in urban areas now, but you don't hammer home the message of the Urban Task Force by trashing London with huge car parks at White City.

"We are not out on a limb on this. We're becoming the mainstream."

And far from believing that the legal route is being abused, Burton wants to see Legal Aid extended to all parties that are engaged in ‘public interest litigation', rather than just to individuals who are put forward and who qualify.

Challenges roll on

Meanwhile, the challenges roll on. Two weeks ago, a legal battle to block the redevelopment of Fulham's Craven Cottage ground began.

Represented by Buxton, CPRE member Lady Dido Berkley is challenging an Appeal Court decision from February 1998 that gave the scheme the go-ahead, thus upholding an earlier High Court ruling.

Again, the objectors argued that a full environmental statement should have been provided. The judges disagreed, arguing that the scheme had earlier been subject to a thorough public inquiry. But through Buxton, the legal battle goes on, despite costs estimated to now total £60,000 for the CPRE's London branch. The public have their opportunity to object to projects through the normal planning procedure, and their comments have to be incorporated before projects win permission. That is how democracy works.

But what if this isn't good enough for groups like the CPRE, who are defying Hammersmith & Fulham council's yearning to create thousands of jobs in a deprived part of Shepherds Bush and are pressing on with objections?

Sooner or later the enormous investment of expertise, time and money that is needed to win consent for acceptable development will become intolerable, and confidence in development will drain away. One developer said he believes that the Lord Chancellor's office needs to say "enough is enough" and clamp down on the interminable disputes now plaguing the industry.

As Lock says: "This whole issue could change the development process from here on in. These people are stopping the modernisation of Britain."

Disputes now running, and running...

...at Fulham FC

The project, for a new stadium and riverside flats, was not subject to an environmental impact assessment. A public inquiry was held and the scheme was given permission. The applicant renewed is application to the Court of Appeal, which dismissed the case on the grounds that the inspector at the inquiry had considered all environmental issues. An appeal against this decision is now in the House of Lords.

...at Crystal Palace

An objector was granted permission to apply for Judicial Review in respect of Bromley council's granting of outline and reserved matters consent. The High Court set aside the permission to challenge the outline planning decision, and the applicant argued that reserved matters consent failed to have regard to changes in government policy since granting of permission. The court dismissed the case, saying that the question of environmental impact was required to be determined at outline stage. Mayor for London Ken Livingstone's environmental adviser Darren Johnson is now scrutinising the project's agreed regeneration package for flaws.

...at East Midlands Airport

On 12 April 2000 the Court of Appeal heard a renewed application for Judicial Review in connection with the extension of a runway. The application was initially refused on the grounds of delay and later because the applicant lacked standing, having moved away. The court rejected all arguments, and took the opportunity to comment on the length of the application hearing and was satisfied that a consent from 1994 should not be overturned. Solicitor Richard Buxton has now expressed his intention to petition the House of Lords.

...at Imperial Wharf, Hammersmith

An application was issued on April 6 for permission to apply for Judicial Review of a resolution to grant permission for a mixed-use scheme on a brownfield, former British Gas site. The objection was to failure to provide environmental information required under three Acts, but the High Court dismissed the case. CPRE London objects to the lack of transport provision for the scheme and is weighing up its options.