Neutral Citation Number:  EWHC 2407 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Thursday, 9th October 2003
B E F O R E:
MR JUSTICE COLLINS
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THE QUEEN ON THE APPLICATION OF JUNE HAUTOT
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THE LONDON BOROUGH OF WANDSWORTH COUNCIL
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PARKVIEW INTERNATIONAL LONDON PLC
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Computer-Aided Transcript of the Stenograph Notes of
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MR R HARWOOD (instructed by MESSRS RICHARD BUXTON) appeared on behalf of the CLAIMANT
MR N KING QC AND MR H PHILLPOT (instructed by MESSRS BRECKER ABRAM) appeared on behalf of the DEFENDANT
MR K LINDBLOM QC (instructed by MESSRS 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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1. MR JUSTICE COLLINS: This claim relates to a long-standing saga in relation to the development of the old Battersea Power Station site. Planning permission was eventually and originally, for our purposes, granted in May 1997. Wandsworth Council, which is the relevant planning authority, imposed a large number of conditions, and in addition there were the usual time conditions, namely five years, from the grant, or two years from the approval of various applications in relation to the reserved matters, which themselves had to be lodged within three years. That could mean that there was a period longer than five years because one has to take account of the time that might be taken by the Council in approving any applications made. If they were made at the end of the three year period, it is obvious there would be, and indeed this permission has had, a degree of extension.
2. There have been three applications described as applications to vary some of the conditions. Those were made in 2000 and 2002. The applications made in 2000 were all accepted. They related to extension of time and to a variation of a condition as to where one of the main access points to the development should be. The original condition was that it should be 105 metres from the western boundary. The change is that it should be 155 metres, and that is, as I understand it, to enable the development to include some buildings which would not otherwise be able to to be built because the original access would have run through the middle of where the buildings are proposed to be.
3. The claimant, who is the spokesperson, as it were, of a group which has opposed the development in its present form. I should make it clear the group is not opposed to development of the site -- indeed no-one in their right mind would oppose development of the site because presently it is an eyesore. In particular they are concerned that there should be a proper environmental impact assessment because this is a major development and that part of it which is proposed for housing should include a proper proportion of affordable housing. This in line with the present policies, in particular of the Mayor of London, and indeed, as I think, the national policy as well.
4. The Council unfortunately went about dealing with what were called "the variations" in an unfortunate fashion. The only means by which there can be a change in conditions granted with a planning permission is under section 73 of the 1990 Act.
5. S.73(1) provides that it applies to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.
6. Then by s.73(2) it is provided that on such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted. If they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, otherwise they should dismiss the application.
7. The applications were not for planning permission, as they should have been, and they were not dealt with by the authority, or so it would appear, as fresh applications for planning permission, nor does it seem that the authority considered conditions other than the single condition which was in issue on the application. I need, I think, only refer to one, which is a decision of the 26th September varying condition 8(a) to show what in fact happened.
8. The document is headed Town and Country Planning Act 1990 Variation of Condition. It records that "that authority hereby varies a condition of planning permission dated for referred to in the schedule below." That is hardly a sensible sentence but that is what it says. Then the schedule refers to the application number, which is presumably the application number of the application for variation and the description is variation of condition 8(a) of planning permission dated 15th May 1997 for the development of the former Power Station and it describes the development so that the vehicular access and egress on Battersea Park Road shows 155 metres, previously approved at 105 metres.
9. The Council have no planning powers to vary a condition of planning permission except by means of the provisions of section 73. The submission made by Mr Harwood is that that document therefore is meaningless and cannot have any effect at all.
10. The counter-submission is that it must have effect as a fresh planning permission and in it there should be all the conditions of the 1997 planning approval, together, of course, with the permission for the development, ie, it effectively should be read as a fresh planning permission for the development in question with different conditions. Of course, technically under section 73 the Local Planning Authority cannot consider whether permission should be granted, so it is clearly implicit that the permission remains granted as it was granted in 1997 and there is no issue, as I understand it, in relation to that. But what is said is that it has no effect because it purports to be a variation and not a grant. What it should do is to include in it all the conditions as they became and that would and should include conditions which were varied by other orders made by the other decisions of the Council, but the council did not do that and so the effect is that there are now, I think, three separate planning permissions resulting from variations of this nature, all of which include the original conditions in the 1997 permission with, of course, the individual variation in their separate cases.
11. What happened was that in September 2002 the Council again granted an application to vary. That variation was to extend the period within which details required by condition 2 should be lodged. The Council agreed to that variation and extended the time to the 31st December of this year. That was challenged on the basis of procedural defects. It is alleged in the application, in which permission was granted by Mr Roger Henderson, sitting as a deputy judge in April of this year, that it is not possible to vary a condition. The only lawful course is to grant a fresh planning permission with different conditions. That is clearly correct but, as I have said, in my view it is perfectly clear that the purported variations are, in fact, to be read as fresh planning permissions. Secondly, it is said that the extent and effect of reopening the planned merits of the 1993 planning should have been considered and the Committee failed to do this; and thirdly, there was no environmental impact assessment screening.
12. There are three other matters raised which relate to a listed building application which are not perhaps of central importance in the light of what is now accepted. What is now accepted is that ground 3, that is to say the absence of environmental impact assessment screening, is fatal to the grant of the permission that the Council purported to make in the form of the variation approval and the Defendant Council and the developers have indicated that they accept that the approval must be quashed on that ground.
13. The Council had before it earlier this year applications for approval of some of the reserved matters, one of which was granted on the 2nd April of this year and was an approval which depended upon the access being at 155, as opposed to 105 metres, because otherwise the buildings which were referred to in it could not properly be built. Of course, those two approvals could not be dealt with in these proceedings because these proceedings related to the 2002 variation.
14. Accordingly, the Claimants seek leave to amend to include a challenge to those and also to seek a declaration that the purported variations had no legal effect. That is resisted. It is said, first of all, that it is too late to challenge those decisions. We are now in October and way beyond the relevant three month period, and secondly, in the event it is said it is not appropriate to amend because this is not a question of changing grounds, but of adding new decisions which were not in existence when the proceedings were instituted. In certain circumstances it clearly is possible to avoid the technicalities but in principle it seems to me that the Defendants are clearly correct in what they say, that it would be unusual to deal with separate and fresh decisions by means of amendment of existing proceedings. What has to be done normally is that applications should be made in relation to those separate proceedings and, no doubt, if appropriate and if permission is granted, the hearing can deal with all matters at the same time. That would depend upon questions of timing and so on.
15. That is what is submitted should happen here, particularly as the Defendants and the Interested Party would want to put in evidence in relation to in particular the effect of delay because, undoubtedly, on any view, there has been delay. It seems to me that the appropriate date is the 22nd August because that is the date on which the Court was notified of the application for an amendment. That itself is more than three months after the decisions and there may be some excuse for a delay until the end of June, 1st July, but there is no excuse, as far as I can see, for delay after, say, the latter part of July and it is very important, particularly in planning cases, that applications are made timeously.
16. But, quite apart from the question of delay, as I have said, as it seems to me, the variation decisions must be regarded as planning permissions incorporating all the conditions of 1997 other than the ones changed.
17. Mr Harwood submitted that in the circumstances the interested party would be in difficulty because it could hardly rely on, for example, the 8(a) change for the purposes of the change of the access and have to rely upon one of the others in order to ensure that the permission still existed because they had not got their applications for approval under condition 3, even by the 26th September 2003 which is the crucial date.
18. I can well see that there may be problems in having to pick and choose among the three permissions, but as things stand I am concerned with the lawfulness of the decisions made in April 2003 when the 8(a) varied permission, if I may call it that, was undoubtedly still valid and accordingly, as I see it, assuming that it relies on that the application and the grant is lawful, I say assuming it relies on that.
19. In fact, the decision refers to the 1997 conditions and it is submitted that that means that the application has been dealt with under the wrong planning permission and that is fatal because the 1997, it is common ground, has now expired by efluxion of time. However, that is not what the approval says in terms. The approval simply refers to the conditions imposed by the 1997 permission and those were, as is common ground, imported, subject to the variation in 8(a) and it seems to me that it is quite clear that there was a planning permission, namely the 8(a) one, which was a valid planning permission and under which the consents could properly have been granted.
20. It must be, and indeed, as I understand it, it is accepted by the defendants and the interested party, that they have to rely upon that planning permission in relation to this particular approval of consent. If, of course, the 8(a) planning permission expires or otherwise disappears then there will be no approval relating to any other agreed planning permissions. Whether that in due course creates a difficulty is not for me to say. But I can foresee that there may be some hazards ahead. But I am concerned only with the application to amend these proceedings.
21. The reasons I have given are that there is no arguable case in relation to the points that are sought to be made in the amendment, but even if I were wrong about that, it seems to me that this is a case where it would be wrong to admit the amendment because it is clear, and indeed it is accepted, that the Defendants and the Interested Parties are entitled to time to put in evidence relating to delay; there may be other evidence too. That being so, there would have to be an adjournment to this application. Accordingly, a convenient course to take would be to dispose of these existing proceedings by the consent order and to allow the Applicant, if she saw fit, to make an application for Judicial Review of the April 2003 decisions. That would, of course, be met by a delay submission but, provided she gets that application in very, very quickly, it seems to me it would be appropriate to consider that the delay since 22nd August should not be held against them because they were waiting for this application.
22. That is my view. If she does make an application and it does not come before me, another judge could take a different view and I cannot bind the approach of a different judge. I do not encourage any such application for the reasons I think I have already indicated, but of course I cannot prevent it being done if the Claimant is so minded. As it is, as I say, I refuse the application to amend and, as it seems to me, the sensible course for me to take now would be simply to implement the existing consent order and direct that the decision of September 2002 that is in issue be quashed.