Neutral Citation Number:  EWHC Admin 680
IN THE HIGH COURT OF JUSTICE CO/1000/2001
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Monday 10 September 2001
B e f o r e:
HIS HONOUR JUDGE RICH QC
(Sitting as a Judge of the High Court )
- - - - - - - - - - - - -
on the application of
- v -
LONDON BOROUGH OF LAMBETH
Computer Aided Transcription by
Smith Bernal, 180 Fleet Street, London EC4
Telephone No: 020 7421 4040
(Official Shorthand Writers to the Court)
MR WILLIAM UPTON (instructed by Messrs Richard Buxton, Cambridge CB1 1JX) appeared on behalf of THE CLAIMANT
MR PETER HARRISON (instructed by Messrs Sharpe Pritchard, London WC1V 6HG) appeared on behalf of THE DEFENDANT
J U D G M E N T
(As Approved by the Court)
Monday 10 September 2001
1. THE JUDGE: This is an application to quash a decision of the Lambeth Borough Council taken by a subcommittee on 30 January 2001 by which it granted permission for the use of part of an open space known as the Lambeth Walk Open Space, to provide a playground as an extension of the school playground for the Walnut Tree Walk Primary School. Permission was also given for the extension of the school itself, but that is not to the point of the application to this court, save only that it was, as I understand it, essential to that extension of the buildings that there should be the opportunity to extend the playground also.
2. The relevant development plan (the council's own unitary development plan) included a policy RL17 headed "Replacement of open space", which provides:
"Where development results in a loss of public open space, the Council will require alternative sites with an equivalent area and quality to be made available as replacement open space, particularly in any areas of public open space deficiency."
3. It is not essential to this decision, but it is accepted that this area where the proposal fell to be considered is indeed an area of North Lambeth where public open space is deficient. However, even if that were not the case, the planning authority was bound by section 54A of the Town and Country Planning Act 1990 to determine the application made by its Education Department in accordance with the development plan, unless there were indications from material considerations to the contrary. Moreover, if they had determined that the proposal would have contravened policy RL17, they would not have been entitled to decide the matter without further advertisement and procedures to comply with the rules which appertain to the decisions of local planning authorities in respect of land in their own ownership. Thus their decision that the proposal as it came before them did not contravene that policy was essential to their decision.
4. There was no a doubt that the proposal did involve the loss of some part of the established public open space. The reason why the development plan policy was said not to be contravened is that it was a condition of the permission which the Committee granted that there should be made available alternative space. Condition 8 of the conditions attached to the permission required:
"The replacement open space identified in the plans shall be acquired and incorporated into the Lambeth Walk Small Local Park and fully landscaped in accordance with condition 7 .... before the relevant works are commenced."
5. The reason for that condition was:
"To ensure that there is no loss of public open space arising from this development."
6. The replacement open space identified in the plans formed a part of land which had been leased over a significant number of years to a youth club and community centre known as the Ethelred Estate Youth and Community Centre. It was a part which was reported to the committee as being derelict waste land and not in actual use by that youth club. Its frontage was occupied by advertisement hoardings facing the Kennington Road which, as I am told, were retained in the ownership and occupation of the council.
7. The reference to "public open space" in the unitary plan is not accompanied by any definition specific to its use in that plan. Therefore " ;open space", unless the context clearly indicates otherwise, must be construed in accordance with the definition which is contained in section 336 of the Town and Country Planning Act, under which the unitary plan is made. That defines "open space" to mean:
"any land laid out as a public garden or used for the purposes of public recreation or land which is a disused burial ground."
8. The replacement open space identified on the plans was not laid out as a public garden, nor is it a disused burial ground. Its sole use for purposes of public recreation is such use as arose from its being let to the youth club and community centre.
9. It is apparent from evidence which has been brought before this court that the land was acquired by the Greater London Council under comprehensive development area powers, but was appropriated by them for public open space purposes. By "the land" I mean both that proposed to be used as an extension of the school playground and the replacement land.
10. The land so acquired was transferred to the Lambeth Borough Council for public open space purposes. It was held by them for such purposes, unless otherwise appropriated. The land intended to be used under the planning permission to extend the school playground would have to be appropriated for such purpose in accordance with the appropriate procedure if the permission is to be implemented, but that is a procedure distinct from the decision to grant permission, impugned by these proceedings.
11. The use of the replacement land for the purposes of the youth club and community centre, on the other hand, did not require such appropriation from its open space use because the Ministry of Housing and Local Government Provision Order Confirmation (the Greater London Parks and Open Spaces) Act 1967 authorised its use. Paragraph 7 of the Schedule to that Act provides:
"(1) A local authority may in any open space
(a) provide and maintain
.... (vi) centres and other facilities .... for the use of clubs, societies or organisations whose objects or activities are wholly or mainly of a recreational, social or educational character;
(g) set apart or enclose in connection with any of the matters referred to in this article any part of the open space and preclude any persons from entering that part so set apart .... other than a person to whom access is permitted by the local authority or (where the right of so setting apart or enclosing is granted to any person by the local authority under the powers of this Part of this order) by such person."
12. The replacement land was so set apart for the purposes of the youth club and community centre.
13. It does not, however, follow from that that, whilst so set apart, it was in fact being used within the meaning of section 336 of the Act for the purposes of public recreation. In my judgment, although appropriation from its public open space use was not necessary, it was being used other than as public open space when it was used for a restricted body of people in accordance with the Schedule to the 1997 Act.
14. The 1997 Act, as I construe it, authorised such use of a part of the total area appropriated for open space; it could, alas, if appropriate, authorise such use of a part of an actual open space so laid out without altering the status of that part as part of the open space. However, I see nothing in the facts of this case, or the history of the replacement land, to indicate that the replacement land ever formed part of an actual open space as defined. I make that reference to the possibility of land being so set aside under the 1997 Act because there has been reference to decisions in cases where the definition of open space has been held to extend to parts of a wider area to which the particular part is integral, although the particular use of the park did not involve public recreation. An example of such a case is the decision of the Court of Appeal in R v Council of the City of Plymouth and Cornwall County Council, ex parte Freeman 19 HLR 328. That decision, in my judgment, turned entirely upon the acceptance of the submission by counsel that the lodge which was the subject of the issue in that case was an integral part of a country park and therefore formed part of an open space. The lodge was itself used for the purpose of public recreation in the sense that the building and the surrounding trees formed part of the country scene. That decision, in my judgment, has no bearing on the facts of the case which falls for my decision.
15. The council was therefore, in my judgment, correct in its construction of the development plan policy which it was required to apply. The ground of the contention to the contrary was adumbrated in an objection made when the matter was considered by the committee. It was expressed in the report to the committee as an objection that:
"The 'new' open space provided as part of this application is not replacement space at all since it already makes up a part of the open space."
16. That was rightly rejected. The application to this court on the ground that the council erred in law in resolving to grant planning permission in that it failed to determine the application in accordance with the provisions of section 54A of the Town and Country Planning Act must therefore also be rejected.
17. But it is said on behalf of the claimant that the council also erred in law in resolving to grant planning permission in that it failed to take into account relevant considerations and/or took into account irrelevant considerations. Amongst the matters which were reported to the council in explaining the status and nature of the replacement land was an explanation of how the application site being considered by the committee in January 2001 differed from a previous application which had been withdrawn after the committee had made it clear that it was not willing to grant permission for an extension of the playground without the provision of additional land for the open space. It was explained therefore by the officer reporting to the committee that the site boundary (as compared with the original application) has been extended to include the Lambeth Walk Small Local Park, that is to say the whole of the local park which was to be safeguarded in accordance with the policy, and an area of waste ground at the corner of Fitzalan Street and Kennington Road. What was so described as an area of waste ground was the proposed replacement land, as indeed is explained in the next sentence of the report:
"It is intended that this waste land should be laid out as green space to compensate for the space that would be lost to the playground extension. This waste land does not constitute part of the park. Indeed there is an extant planning permission to develop this site for housing."
18. The penultimate sentence, namely that the waste land does not constitute part of the park, was indeed an accurate description of the circumstances of the land. The final sentence, that there was an extant planning permission to develop this site for housing, is admitted to have been mistaken. There was indeed in 1997 a resolution to grant permission for residential development, not only of the proposed replacement land, but also of the rest of the site occupied by the youth club and community centre. It was, however, a resolution which was conditional: planning permission should be granted only "with effect from the date upon which the council agrees that the site of the youth and community centre shall be sold and that that shall not be before arrangements for the centre on a new site have been agreed by the council, by the community centre's management committee and the local planning authority".
19. No such agreement has ever been reached, and no planning permission is accordingly extant. The only planning permission for which a resolution has been made is on the basis that that use permissible within the terms of the 1967 Act upon land which is appropriated for public open space purposes is itself replaced elsewhere in a way which satisfies both the council and the centre.
20. It seems to me that, whereas the implication of the description of the land which I have just read with its final sentence that there is extant planning permission to develop the site for housing, there was here land which, so far from being land "earmarked" (I deliberately use a term other than a term of art) for open space purposes, it was land which was potential housing land. So far from that being the case, this was land which was used for purposes consistent with open space appropriation, which use was to be displaced only if provision was made for the replacement of that use elsewhere.
21. That seems to me to be a significant matter which ought to have been brought to the attention of the decision makers. It is perfectly possible that if it had been so brought to their attention, they may well have concluded that that piece of history was actually a good reason why planning permission should actually be granted as they granted it; because they could perfectly legitimately have derived from that piece of history the conclusion that in the absence of such permission as they were being asked to grant for the extension of the school, the likelihood of this piece of land always intended for open space use actually being brought into open space use was remote. They might, on the other hand, have derived from this same piece of history the inference that here was a longstanding policy for (loosely) open space uses which the council had consistently maintained, subject to an acceptance of variation either within the term of the 1967 Act or, alternatively, on the basis of provision of alternative facilities, and that for that very reason, even though policy RL17 might be satisfied, as a matter of balance, planning permission should not be granted. That is a conclusion at which they might well have arrived having regard to RL20, which is a policy entitled "Preserving Public Open Space". That provides:
"The Council will resist the loss of public open space throughout the Plan area."
22. The incorporation of the public open space into the playground of the adjoining school, although it leaves the space open, involves the loss of public open space. The use to which the replacement land has been put is a use which is dealt with in the second sentence of that policy:
"Proposals to provide private sports facilities on public open space will also be resisted."
23. Under the current development plan, that existing use of the replacement land in so far as it is being continued at all on the northern most section of the land allocated to the centre and club, would be a use which would now be resisted in accordance with the plan. The resumption of such use, or any use except public open space use might however now be resisted.
24. That separate proposal in the second sentence of RL20 raises the possibility that there is something different between such use on public open space and the discontinuance of public open space altogether. I have considered whether for that reason it was right that the council should decide that the replacement land was not to be treated as public open space. However, I think that they were right, not merely for the reasons I have already given of the simple definition in the statute, but also within the meaning of the policies which fall for interpretation, firstly, because this particular piece of land so far as was known to the council had never actually been used as public open space and so it was a diversion of land appropriated for that purpose to private facilities, not a use of such land for such purposes; and secondly, it seems to me that it is consistent within the terms of RL20 that there should be within a larger area of open space, and integral to it, land put to the private sports facilities in the same way as the lodge referred to in ex parte Freeman was construed as being open space, notwithstanding that it was not directly used for public recreation.
25. The fact, however, that the use to which the reinstatement land is presently put is not such as to bring into play a development plan reason why permission should not be granted so as to entitle the claimant to complain of the alleged error of law to which I first referred, namely of contravening section 54A, does not mean that these aspects of its history ought not to have been considered as material considerations by the decisionmakers in determining whether or not to grant permission. They had before them advice that (as it was put) there was a commitment for the GLC to designate the replacement land for open space purposes, which was never implemented. But, as I have sought to indicate, what the implication of that was either for or against the treatment of this land as appropriate replacement open space was not explored and, in my judgment, it ought to have been, and the failure to do so was a failure to have regard to a material consideration.
26. They were further misadvised, in my judgment, when the status of the land in terms of the development plan was questioned. It is recorded in the minutes of the meeting that the Borough solicitor's representative advised that, although the frontage land (and there has been some dispute as to whether or not this referred to the whole of the replacement land or only a part of it) might currently be used as open space, it had not been formally designated as open space in terms of the UDP. If the frontage occupied by advertising hoardings was meant, the advice was plainly wrong. That advice, as so recorded, seems to me to have been particularly unhelpful because it seems to accept a use, which is the very thing which would have justified treating the land as public open space, although I am satisfied that there was no proper evidence that any such use had ever been made; but it also uses a reference to a process of designation which, so far as I know, is unknown to the UDP and certainly is an inappropriate expression to use in respect of a piece of land which certainly was treated by predecessor plans as proposed for open space use and so far as its legal status was concerned, was land which could only be used for such purposes, unless formally appropriated for some other use.
27. I have been told that that minute which I have just recited is inaccurate and I am referred to the note from which it derives. That note reads:
"Frontage land isn't included in small local park so is extra land."
28. That it was not part of the small local park is indeed the point that was being made, and is acknowledged to be accurate so far as the lay-out of the open space is concerned. The note goes on:
"For UDP purposes, not designated open space."
29. That appears to me to confirm what is put in the minute, which is, as I have sought to indicate, unsatisfactory in the sense of being inappropriate advice as to the true status of this land which I think was a material consideration for the committee to take into account.
30. For these reasons, and making absolutely clear that the reasons do not amount to reasons which would lead to the conclusion that the council must certainly, on reconsideration, arrive at a different conclusion from that at which it arrived, I think that it is appropriate that I should quash this decision in order to enable the council to reconsider the matter in case, on further consideration of those matters which were not taken into consideration, they do indeed think it appropriate to arrive at a different conclusion. I accordingly quash the council's decision.
31. What flows from that?
MR UPTON: My Lord, I would ask for the claimant's costs in this case. I do not know if at this stage you wish to draw any distinction in the particular submissions that have been made? Because we dealt with this particular point, my learned friend and I have not had to address you on the contentious issue of the human rights points.
THE JUDGE: I ought to have made reference in my judgment that such points had been raised and that I had not dealt with them because it was unnecessary to do so.
MR UPTON: I am grateful, my Lord. In those circumstances I would submit that it is appropriate that the preparation involved in dealing with those points for which permission to proceed was given would also be included in the general costs order.
THE JUDGE: You are just asking for your costs. Let us see if they are resisted.
MR UPTON: My Lord, I ask for costs.
THE JUDGE: Let us see if that is resisted.
MR HARRISON: My Lord, it is resisted in this case, but not solely because of the way that your Lordship has dealt with the matter. Your Lordship has found against the council on the history and of dealing with the history of the land, which did not form a major part of the applicant's claim or a major part of the applicant's skeleton. I accept that it is alleged that there was an error in the advice given by the officer and that there is mention of the planning permission point being wrong. In my submission, the bulk of the costs in this case have been incurred in saying that the council have not reached the conclusion which your Lordship has found and on the human rights point. In addition, we have not been served with a schedule of costs in any event. It may be that that is because it goes to legal aid taxation. But, in my submission, there should be either no order for costs or certainly only a partial order for costs in the circumstances of this case, both of which your Lordship has a discretion to make. Unless I can help further, those are my submissions.
THE JUDGE: I am inclined to think, Mr Upton, that I should award you something less than the full costs. I do not blame you, but the matter has been enlarged and the main point upon which you have founded yourself, namely the erroneous construction of RL17, I have found against you. That is significant in terms of what is open to the council. So I am inclined to think that possibly something less than full costs is appropriate, but I will hear you further.
MR UPTON: I am grateful, my Lord. The points raised in the detailed grounds the first was this very point about the legal status of the land; secondly, the section 54A point; thirdly, the material considerations point. It has always been part of this case that there have been a number of incomplete submissions that were considered by the council and the debate that occurred in the committee was something that was not fully taken into account. I would submit that it would not be possible to separate out what was or was not appropriate to take into account without having gone through the detail that we have, and indeed that the very issue that was before the committee, upon which it was split 3:3, was regarding the replacement open space. It was certainly reasonable for us to raise that point with you, and I suppose I would come to the point that costs in this respect might be seen as a disciplinary measure and would be suggesting that it was inappropriate for this point to be raised and that it had no merit. I would have been able to set out, both in written form and in submissions today, shown that there was a considerable substance to this point, quite apart from it being huge local controversy at the time as to the proper history of this site. The very thing that was not properly before the committee has only now come out through this case.
I do not understand my learned friend to be making a separate point about the human rights arguments
THE JUDGE: No.
MR UPTON: and I was not intending to address you on that further, but I would submit that it would be appropriate to include preparation time in the award.
It only remains for me to say that this is a publicly-funded case and there would need to be community legal services assessment of the costs before any detailed costs could be considered. So in this case there would need to be two orders: one for the assessment of legal services; and the other as to the appropriate order for costs to be made to the claimant. That is a procedural point.
Coming back to whether or not one should be considering a partial award, I trust, my Lord, that you do not consider that these are points which have been inappropriately taken?
THE JUDGE: No, it is not a question of inappropriately taken. I think that as, with the cooperation of counsel, it has been possible to contain this case within the day, it would be overzealous for me to try and carve up the share of costs. I will say that the claimant is to have the costs to be assessed, to have costs subject to detailed assessment, and make an order for public funding assessment. Is there anything else with which I should deal?
MR HARRISON: No, my Lord.
THE JUDGE: No applications?
MR HARRISON: My Lord, there is an application for permission to appeal. Although your Lordship has not found the arguments put forward persuasive in this case, in my submission there is sufficient scope for saying that the finding that the error was material and that the history should have been more taken into account can be properly appealed. This is a matter of public importance, whether or not of universal importance, so I make my application for permission on the grounds that there are reasonable prospects of success.
THE JUDGE: I think on the limited basis upon which I have decided, an error at least is admitted. The additional error is, I think, difficult to contradict, and so it becomes a matter of discretion as to whether or not those justify the quashing. I think therefore it is less likely than on pure points of law that my decision would be interfered with. I therefore refuse permission.
MR HARRISON: I am grateful, my Lord.
THE JUDGE: Anything else? I am obliged to you both for your very considerable assistance.