C1/2006/1976
Neutral Citation Number: [2006] EWCA Civ 1256
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE WILKIE)
Royal Courts of Justice
Strand
London, WC2
Wednesday, 13 September 2006
B E F O R E:
LORD JUSTICE MAURICE KAY
- - - - - - -
KAY BALLARD
Claimant/Applicant
-v-
LONDON BOROUGH OF TOWER HAMLETS
Defendant/Respondent
TOWER HAMLETS SCHOOLS LIMITED
BALFOUR BEATTY CONSTRUCTION LIMITED
Interested Parties
- - - - - - -
(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)
MR PAUL BROWN (instructed by Richard Buxton Solictors) appeared on behalf of the Applicant
MR SIMON BUTLER (instructed by Tower Hamlets, Legal Department) appeared on behalf of the Respondent
- - - - - - -
J U D G M E N T
(As Approved by the Court)
- - - - - - -
Crown copyright©
LORD JUSTICE MAURICE KAY: Until recently, Bonner Primary School in the London Borough of Tower Hamlets was housed in its original Victorian building. It is now housed in new purpose-built accommodation nearby, the new building having been constructed pursuant to a PFI arrangement. For some time the Council has had it in mind to demolish the Victorian building so as to provide space for recreation and other facilities for pupils attending school in the new building. The applicant and 642 others have recently signed a petition opposing the demolition.
The position on the ground is that the contractors started demolition work a fortnight or so ago, but have not yet attacked the structure and main fabric. In the last few days they moved the necessary equipment onto the site in order to proceed to the next stage. They anticipate that it will take some weeks to complete the demolition.
The applicant and her supporters have a genuine concern to ensure the conservation of the Victorian building, hence the petition. The London Borough of Tower Hamlets has a constitution which includes a provision for petitions. It is to be found in Rule 19 of the Constitution, which provides that:
"19.1 Petitions may be presented by residents of the borough ... at any ordinary meeting of the Council. They must be about matters for which the Council has a responsibility or which affect the area. The Mayor may, on the advice of the Chief Executive, refuse a petition which is illegal, scurrilous, improper or out of order ...
19.2 A person wishing to present a petition must give notice in writing to the Assistant Chief Executive ... at least seven clear days before the meeting. The petition must contain signatures from at least 30 persons with residential or business addresses in the borough."
There is then a provision in Rule 19.3 empowering the Assistant Chief Executive to reject a petition in certain circumstances, one of which is if it is frivolous.
On or about 6 September the petition was presented to the Council. There is evidence that it was received by a Council official and that, following consideration by other officials, it was put on the agenda for consideration by the Council at its meeting this evening (13 September).
On the evening of 6 September, Wilkie J granted an injunction following a telephone application. However, following an inter partes hearing on 8 September, Hodge J discharged the injunction. The matter came to my attention by a telephone application on Saturday morning. I reinstated the injunction pending a hearing on notice, which took place yesterday. At its conclusion I refused permission to appeal and the injunction has been discharged. I now give brief reasons.
Although the Victorian building is of some architectural and historic interest, it is not a listed building and is not in a conservation area. In March of this year, English Heritage, whilst acknowledging the interest of the building, refused to recommend its statutory listing and subsequently the Council has declined to include it on the local list. Neither of those decisions has been subjected to legal challenge. It is common ground that planning permission is not required for the demolition of the building. It follows that the demolition is not statutorily constrained and it is being carried out pursuant to a lawful contract.
The development of the site for recreation and ancillary purposes does require planning permission. However, that was granted last Friday. The applicant knew nothing of that until yesterday, and on hearing of it, Mr Brown said that the applicant wished to reserve her position in relation to that decision.
The application for an injunction within an application for permission to apply for judicial review was based on legitimate expectation. The case for the applicant is that the Council formally accepted the petition and put it on the agenda for tonight's meeting when it will be considered under Rule 19. In these circumstances, Mr Brown submits that the applicant has a legitimate expectation that the demolition work will be discontinued until the Council has given final consideration to the petition -- whether that is at tonight's meeting or, more probably, following reference to the relevant officials and some delay.
In my judgment, Mr Brown attaches too much significance to the notion of "acceptance" of the petition by the Council. I do not consider that it means any more than that the petition has not been rejected as frivolous or for any other reason under Rule 19.3. That being the case, its appearance on the agenda was inevitable.
Mr Brown next seeks to rely on the history of the planning application. An application was first made in 2005. It included in terms an application for permission to demolish. It attracted a similar degree of public opposition. A decision was taken to refer the application to the Development Committee, rather than deal with it under delegated powers, because of that public interest. However, that application was withdrawn, presumably because someone realised that demolition did not require permission. For that reason, a second application lodged in June 2006 made no mention of demolition, but sought permission for re-development on a recreational basis, which could only take place following demolition. Because it was now appreciated that demolition was not part of the application, it was considered that there was no longer the same public interest factor. Accordingly, the application was referred to officials under delegated powers and the result was the grant of permission last Friday.
The applicant naturally feels that she has been deprived of participation in the process which had seemed to be within her grasp when the original application was referred to the Development Committee. However, there is nothing presently before the court which suggests that the second application has been dealt with otherwise than lawfully. It would have been possible for her to make representations in relation to the second application.
The present application to this court has to be seen in this context. Demolition has commenced under a lawful contract in the absence of any statutory restriction, and the proposed re-development is the subject of planning permission. Although I do not know the precise details of the contract between the Council and the developers, it is inevitable that any enjoining of the demolition works would result in some financial liability on the part of the Council. It will not be possible for the Council to rescind the decision to demolish at tonight's meeting. Such a decision could only come later after appropriate referral. That would take time, with the financial liabilities rising by the day. The applicant is not in a position to give an undertaking in damages. All that militates against the applicant's application. However, matters do not stop there. What the applicant is seeking is the opportunity to make meaningful representations in circumstances where: (1) similar representations have been made in the past but were not successful; and (2) such representations, if they were to be repeated or augmented, could have been repeated or augmented far more promptly.
Mr Butler submits that, although the Council is bound to receive the petition (not having rejected it on the ground of frivolity et cetera) and to make a small amount of time available at tonight's meeting, it is unthinkable that this would result in a change of heart when essentially nothing new is being put forward and all the circumstances point to the completion of the project. This is a forceful submission. In my judgment, it is correct.
I do not consider it arguable that the petition and its inclusion in the agenda has created any further legitimate expectation which accrues to the benefit of the applicant. The provision for petitions in the Constitution is a general provision. It may be that in some contexts the subject matter and timescale could give rise to the possibility of a legitimate expectation. However, in the present context, I find no such possibility.
Before leaving the matter, I should add that to some extent I share the sorrow of Hodge J, but for the reasons given, I refuse permission and discharge the injunction.
Order: application refused. Injunction discharged. Applicant to pay Respondent's costs in the sum of £1792.50.