Case No: CO/1646/2002
Neutral Citation Number:  EWHC 960 Admin
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
London, WC2A 2LL
Friday 2 May 2003
The Hon MR Justice COLLINS
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Between : R(Prokopp)
- and - R(Prokopp)
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London Underground Limited
London Borough of Hackney
London Borough of Tower Hamlets
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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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Richard Clayton Q.C., Richard Harwood & Christiaan Zwart (instructed by Richard Buxton Solicitors) for the Claimant
Michael Barnes Q.C., Eian Caws & Julian Greenhill (instructed by London Underground Ltd) for the First Defendant
Peter Harrison (instructed by LB Hackney) for the Second Defendant
Philip Petchey & James Periera (instructed by LB Tower Hamlets) for the Third Defendant
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As Approved by the Court
Crown Copyright ©
Mr Justice Collins:
This claim was launched on 31 March 2003 against London Underground Limited (LUL) seeking to prevent it commencing work to demolish any part of the Bishopsgate Goods Yard (BGY). The work in question had been due to start on 3 April 2003. Maurice Kay, J granted an interim injunction. LUL applied to discharge that injunction. That application was fixed for 15 April 2003. By that time, the two boroughs in whose areas the BGY was situated (the borough boundary runs through the yard) had decided not to take enforcement action against what LUL proposed to do notwithstanding that it had no planning permission. Accordingly, the claimant (as he had forecast in his claim) sought leave to amend to add both the boroughs (whom I shall refer to as LBH and LBTH respectively) as defendants so as to challenge those decisions. Since it was clear that there was an arguable claim and it was important that the matter be decided as soon as possible, counsel agreed that it would be sensible to grant permission and to treat the hearing on 15 and 16 April 2003 as the hearing of the claim for judicial review. I made the necessary order accordingly.
2. This is the second challenge in an attempt to preserve the BGY. It follows from Hammerton v LUL  EWHC 2307 (Admin) decided by Ouseley J on 8 November 2002. The BGY is to be affected by the proposed construction of the East London Line Extension (ELLX) which will extend the line at present running from New Cross and New Cross Gate to Whitechapel to link with the North London line at Dalston Junction. LUL applied for an order under s.1 of the Transport and Works Act 1992 and for deemed planning permission under s.90(2A) of the Town and Country Planning Act 1990 for the ELLX as long ago as 1993. There was a public enquiry before an Inspector assisted by a listed building assessor in 1994. The inspector recommended in favour of the applications and on 20 January 1997, the necessary order under the 1992 Act and deemed planning permission were granted by the Secretary of State. In addition, on 14 January 1997 listed building consents were granted as necessary. The order and grants were all subject to a number of conditions and work had to be commenced within 5 years of the grant of permission.
3. Negotiations followed, initially involving Railtrack who owned the BGY and the disused viaduct running from the old Broad Street Station to Dalston along much of which the new line was to run. Those negotiations involved the putting together of finance for the new line. By July 2001, but not until then, initial funding was agreed and notices to treat were served to enable various properties to be obtained compulsorily. One such notice was in respect of the BGY against its owners, Railtrack. In December 2001 there was what is described as a 'Start of Construction Ceremony', attended by, among others, the then Secretary of State for Transport and the Mayor of London. This underlined the importance attached by central and local government to ELLX. Indeed, there is no opposition to ELLX and the claimant himself has said that he does not wish to stand in the way of it; he is only concerned to protect the BGY and believes, in company with others including now English Heritage and the Prince of Wales, that ELLX can proceed without demolishing any of the BGY.
4. The scheme is recognised to be of the greatest importance for the rejuvenation of a very deprived part of London. It is a key element of the transport strategy for London. The anticipated value of the regeneration in north and east London is as much as £10 billion. There has already been delay resulting from litigation by some tenants in the BGY, from attempts to list the BGY culminating in a decision in March 2002 to list what is known as the Braithwaite Viaduct in the BGY and from the Hammerton case. The project has been programmed in four stages, the first of which was due (after having already been delayed by the matters already mentioned) to be concluded in August 2003. That phase, which is concerned with acquisition of all necessary land and site preparation, including demolition of part of the BGY, has already cost large sums. About £74 million has been committed or has already been spent. Contractors have been employed and the delay has already cost over £1 million and is running at at least £30,000 per day. A statement produced by Mr. Alan Thornton, LUL's project manager, paints a gloomy picture of the effects of any further delay. It will, he says, jeopardise the project as a whole. The costs already incurred are irrecoverable and contractor's costs will inevitably be increased. There is at best a real risk that the whole scheme will be lost and with it the benefits which all recognise will flow from it.
5. Unfortunately, when LUL commenced the development it did so without complying with a condition attached to the planning permission. The condition in question was number 21 which read:-
The development shall not commence until the exchange land described in Article 30 of the Order has been made suitable for use as open space by [various specified means]".
In Hammerton it was alleged that there had been failures to comply with two other conditions, but Ouseley, J found only a relevant breach of Condition 21. He also rejected claims that breaches of conditions attached to the listed buildings consents rendered those consents of no effect.
4. Condition 21 was in fact largely otiose. There was as things turned out no need for LUL to take most of the open space for which Condition 21 was designed to provide compensation. Such as was to be affected would only be temporarily. Further, it did not seem to have been appreciated that the implementation of Condition 21 would involve the closure of Shoreditch Station, a huge inconvenience for the 300,000 who use it each year. There seems little doubt that an application for permission to proceed without Condition 21 pursuant to s.73 of the 1990 Act would have succeeded. However, no such application was made. It was suggested that that was a deliberate decision by LUL because it was appreciated that an Environmental Impact Assessment would have been needed and consideration would have been extended to other conditions. Mr. Barnes Q.C. denied this. It was, he said, an oversight. I have no reason to doubt his word.
5. Nevertheless, there was a clear breach of Condition 21. Ouseley J was unable to find that the circumstances enabled him to say that, notwithstanding that breach, the development was begun lawfully. Authority in the form of P G Whitley & Sons v Secretary of State for Wales (1992) 3 PLR 72 and cases considering it precluded him from so deciding. He did however take the view that a principle emerged from the cases, notably Whitley itself, that:-
where it would be unlawful, in accordance with public law principles, notably irrationality or abuse of power, for a local planning authority to take enforcement action to prevent development proceeding, the development albeit in breach of planning control is nevertheless effective to commence development" (Paragraph 127(5)).
5. Mr Clayton Q.C. submits that this is inconsistent with the decision of the Court of Appeal in Henry Boot Homes Ltd v Bassetlaw DC  EWCA Civ 983 which was handed down on 25 November 2002. Keene LJ, giving the only reasoned judgment, noted at paragraph 50 that s.73 had the important purpose of providing safeguards for third parties and the public generally and in Paragraphs 55 and 56 he said:-
"The interests of third parties and the public in such matters also greatly reduce the potential for a legitimate expectation, such as is contended for in the present appeal, to arise. One of the reasons is that it is difficult to see how a legitimate expectation, said to derive from the conduct of the local authority, could operate to so as to prevent an interested third party from questioning whether development has validly begun, and whether planning permission is still extant ..."
Mr Lowe invited us to say that legitimate expectation could never operate so as to enable the developer to begin development validly and effectively in breach of condition. I am not prepared to adopt so absolute a proposition. It is possible that circumstances might arise where it was clear that there was no third party or public interest in the matter and a court might take the view that a legitimate expectation could then arise from the local authority's conduct or representations. But ... one suspects that such cases will be very rare".
6. These observations were made in the context of legitimate expectation resulting from something said or done by the local planning authority. But the public interest in planning decisions will generally apply to prevent it being irrational for a planning authority to decide to take enforcement action. Equally, it will be open to the authority rationally to take the view that it would not be expedient to enforce. It seems to me that Henry Boot does suggest that Ouseley J has expressed the principle too widely, certainly where the unlawfulness of a decision to enforce is said to flow from a breach of a legitimate expectation.
7. The result of Ouseley J's decision in Hammerton was that, since development had been commenced in breach of Condition 21, there was no lawful commencement within the permitted 5 year period and so the planning permission was no longer extant. Since there was no suggestion by anyone that work commenced or the development of ELLX anywhere other than at the BGY should be enforced against, this was only of importance in relation to BGY. The object of the claimant's challenge was to try to preserve the BGY and so, if it could lawfully be demolished, there would be no purpose in taking any enforcement action. Ouseley J decided that the listed building consents were still in force and so he stated (at Paragraph 143):-
If ... the rest of the Goods Yard could be demolished without the need for any further planning permission (and, as I have already concluded, the listed buildings consents have not lapsed), it would be irrational for enforcement proceedings to be considered with a view to a re-examination of the prospects of retaining the whole of the Goods yard and of the value in doing so. There is no other rational basis upon which it has been suggested that enforcement action could be taken ... Indeed, these whole proceedings would be completely pointless if LUL could demolish the Goods Yard (save the Viaduct) anyway. There is otherwise seeming insensitivity as to the urgent need for ELLX, and no desire to review it on transport policy or other environmental grounds".
The irrationality would arise from the futility of the exercise. Thus neither LPA could rationally conclude that it was expedient to take enforcement action. It does not seem to me to matter whether in such circumstances an exception within the Whitley principle applies or (as I believe is more consonant with Henry Boot ) enforcement action could not be taken so that the development would go ahead.
8. Whether or not demolition could lawfully proceed depended on whether the BGY was to be regarded as a single building or whether the viaduct was a separate building. Either view was possible and Ouseley J refused to decide the issue: it was, he said (in my view clearly correctly) a question of fact to be decided by LBH and LBTH respectively. The reason why that question is determinative lies in s.55(2)(g) of the Town and Country Planning Act 1990 and in Paragraph 2 of the Town and Country Planning (Demolition - Description of Buildings) Direction 1995. Section 55 provides in s.55(1A) that demolition of a building constitutes a 'building operation' and so development which required planning permission, but s.55(2)(g) stated:-
The following operations ... shall not be taken to ... to involve development ...
(g) the demolition of any description of building specified in a direction given by the Secretary of State ..."
Paragraph 2 of the Direction provides, so far as material:-
2(1) ... the demolition of the following descriptions of building shall not be taken ... to involve development of land:
(a) any building which is a listed building ...
(d) ... any building other than a dwelling house or a building adjoining a dwelling house.
3. In this Direction -
"building" does not include part of a building..."
The effect of all this in the context of this claim is as I have indicated.
12. LUL have tried to persuade LBH and LBTH that the viaduct should be regarded as a separate building ('building' is defined to include a structure: see 1990 Act s.336). They have been unsuccessful. Mr. Barnes has recognised that, although LUL continue to contend that they are factually wrong, the decisions of the boroughs cannot be said to be wrong in law. The effect of these decisions is to mean that the demolition of such of the BGY as is needed to enable ELLX to be constructed cannot lawfully be carried out. Either a fresh planning permission is required or the councils must decide that it is not expedient to take enforcement action.
13. Following Ouseley J's decision, there was much correspondence between the claimant's solicitors, LUL and the two boroughs. Advices of counsel were disclosed and have been put before me. The officers of the boroughs were persuaded that they could properly advise that it was not expedient to take enforcement action subject to LUL entering into an agreement pursuant to s.106 of the 1990 Act whereby it would be bound by conditions which reflected those included in the lapsed planning permissions (with some modifications to take account of any changed circumstances including the removal of Condition 21). Having obtained that indication and mindful of the need to avoid delay, LUL decided to commence work on 3 April 2003. The claimant was anxious to preserve the position and so instituted proceedings against LUL and obtained the interim injunction.
14. It has been submitted that such action was not justified and that a private individual cannot act against a developer to enforce the law. The power to enforce is given and only given to the LPAs. That, as a general proposition, is clearly correct. However, it is also undoubtedly open to a private individual who has sufficient locus standi to compel an LPA not to act unlawfully. Accordingly, if for example there has been a failure to take enforcement action in circumstances where it was unlawful not to regard such action as expedient, a private individual can make the necessary claim to ensure that such action is taken.
15. If a developer is about to take what may be irrevocable steps which are said to be unlawful but the LPA is not taking action, there must be a way in which the court can preserve the position. Thus I am satisfied that an individual can seek and, if appropriate, obtain interim relief to prevent such arguably unlawful action. His claim will initially be against the developer, but he must notify the LPA and add it (as has been done here) as defendant. The developer will then become an interested party and the claim will proceed against the LPA. The court will in such a case have imposed time limits on the LPA to ensure that it makes its decisions within a reasonable time. What a private individual cannot do, at least in a public law claim, is to obtain a permanent injunction the effect of which is to take the enforcement action which is the responsibility of the LPA and which contains safeguards for the developer in the form of rights of appeal on specific grounds. Clearly if an individual's private law rights (for example in nuisance) are being infringed, different considerations apply, but that claim would be in private and not in public law. Now that LBH and LBTH have decided not to take enforcement action, this claim is against them and LUL is to be regarded as an interested party.
16. The claimant's case is straightforward. The development which now needs a fresh planning permission is one which falls within Paragraph 10(h) of Annex II to Directive 85/337/EEC as amended (The Council Directive on the Assessment of the Effects of Certain Public and Private Projects on the Environment) which requires consideration of an Environmental Impact Assessment (EIA) to be provided for ....:-
Elevated and underground railways ... used exclusively or mainly for passenger transport".
likely to have significant effects on the environment according to criteria set by member states. That Directive has been implemented in domestic law by the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 (S.I. 1999 No: 293). Schedule 2 paragraph 10(i) of the Regulations coincides with Annex II of the Directive and requires consideration of an EIA where the area of the works exceeds 1 hectare and such an infrastructure project is likely to have significant effects on the environment. The Directive specifies what information must be contained in an EIA. This is reflected in Schedule 4 to the Regulations. It includes an assessment of the effect of the proposed development on 'cultural heritage' (Directive Article 3) which covers architectural and archaeological heritage (Regulations Schedule 4 Paragraph 3).
14. An EIA was produced in 1993 for the original application. At that time, not only was no part of the BGY listed save for the entrance, but it was proposed that the whole should be demolished. It had been severely damaged by fire in 1964. At the inquiry in 1994 Mr. Prokopp was the only objector who was fighting for its retention and suggesting that the ELLX could be built without any demolition: it could run over the existing structure. The inspector rejected his case. He doubted that it would be practical to build a higher level line and station above it and continued (Paragraph 9.24.1):-
Even if this were structurally possible, I think the resulting hybrid appearance would do little for the enhancement of the surrounding area".
He also preferred LUL's arguments that the existing buildings dated from the 1880s rather than the 1840s as Mr. Prokopp had contended. In fact, we now know that only the Braithwaite Viaduct (or rather the remaining 260 metres of it) dates from about 1840. the rest was constructed in the 1870s and 1880s.
16. Since then, Mr. Prokopp and other enthusiasts have managed to persuade English Heritage and other bodies and persons believed to carry some weight that the BGY is worth preserving. By a report dated 18 December 2001 inspectors considered whether there should be any additional listing. The report is not as clear as it might be since it states that the proposal to list the whole BGY as Grade II was "wholly appropriate for the bulk of the surviving fabric which dates from 1877 -1881". It goes on:-
The earlier work is of exceptional interest and rarity and requires a greater degree of management contro (sic). Consequently, we are also recommending that the 1839-1842 Braithwaite Viaduct be scheduled. The draft scheduling submission is attached".
However, the Decision Precis at the end of the report says that the Braithwaite Viaduct was being recommended for scheduling and does not mention the whole BGY. Whatever may have been the recommendation, the decision from the Secretary of State conveyed by letter of 8 March 2002 was that only the Braithwaite Viaduct should be listed.
18. While this obviously represents a change of circumstances, it does not directly affect the proposed construction of ELLX since the demolition needed will not extend to the viaduct. However, s.66 of the Listed Building Act 1990 requires that regard should be had when considering an application for planning permission to the desirability of preserving the building and its setting.
19. Regulation 25 of the 1999 Regulations prohibits the Secretary of State from granting planning permission on an enforcement notice appeal for a development which requires an EIA unless he has first 'taken the environmental information into consideration, and he shall state in his decision that he has done so'. But this is the only reference to enforcement and a failure to take enforcement action does not attract any such requirement.
20. It may be regarded as curious that the alleged need for an EIA stems from what has been described as a technical breach of a condition which had become (and perhaps was always) ineffective coupled with the finding that the BGY was one rather than more than one building. But for this combination of circumstances which has no direct bearing on whether the BGY should at this late stage be preserved the ELLX could go ahead with no delay and there would be no risk that it and the enormous benefits it will produce would be lost. But if that is what the law requires, I must decide accordingly.
21. Mr. Clayton submits that the 1999 Regulations have not fully implemented the Directive since a failure to enforce amounts to a development consent within the meaning of the Directive. Article 1(2) of the Directive defines ' development consent' as:-
the decision of the competent authority or authorities ... which entitles the developer to proceed with the development".
A decision not to enforce against a development which has no permission is a decision which entitles it to proceed. This submission Mr. Clayton supports by reference to R v N. Yorkshire CC ex p. Brown  1 A.C. 397. That case concerned old mining consents given prior to 1947 and the need to obtain registration of such consents subject to conditions. The Regulations of 1988, which were those then in force purporting to implement the Directive, did not cover such cases. At p.405 Lord Hoffmann set out the principle which is applicable. He said:-
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. I express no view about the way in which this principle was applied to the different facts of the various cases which were cited. It seems to me clear, however, that it can have no application to this one. The procedure created by the Act of 1991 was not merely a detailed regulation of a project in respect of which the substantial environmental issues had already been considered. The purpose of the procedure was to give the mineral planning authority a power to assess the serious consideration of the environmental effects of old mining permissions which had been granted without, to modern ways of thinking, any serious consideration of the environment at all. It is true that the power to deal with these effects was limited to the imposition of conditions rather than complete prohibition. But the procedure was nevertheless a new and freestanding examination of the issues and could therefore, in my opinion, require the information provided by an environmental impact assessment. It was therefore a "development consent" within the meaning of the Directive".
In R v Durham CC ex p. Huddleston  1 W.L.R. 1484, the Court of Appeal decided that a private individual could challenge a failure by the Council to reach a decision on an old mining consent application within the specified time the effect of which was to grant the application. The applicant was entitled to rely upon the direct effect of the Directive notwithstanding that it had not been implemented fully to require the Council as an emanation of the State to comply. This was so even though the council could not have required the mining company to submit an EIA and so itself enforce the Directive. Sedley LJ's judgment contains a learned disquisition on how Directives can be given effect and the prohibition against what is called horizontal direct effect.
22. Mr. Barnes sought to distinguish these cases because a failure to enforce was a negative action and could not therefore be properly regarded as the giving of consent. In addition, on the facts, the only enforcement action that could, consistently with Ouseley J's judgment, be taken was in relation to the BGY, itself a small part of the whole development and one which would not have fallen within the terms of the 1999 Regulations and so of the Directive. He draws attention to the observations of Lord Hoffmann in Brown's case at p.404, where he said:-
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".
This leads him to submit that in this case the main decision had indeed been taken in 1997 and all the necessary environmental information had been provided.
24. The Directive is to be given a purposive construction. So much is clear from Brown's case. Its purpose is to ensure that decisions entitling developers to proceed with projects which might affect the environment are made on the basis of full information. A decision not to take enforcement action against a development will allow that development to proceed. As Huddleston's case makes clear, a failure to act which has the effect of allowing a project to proceed is within the Directive. If a decision not to take enforcement action were not within the Directive, there would be a real possibility of avoiding the requirement to provide an EIA in a particular case. Accordingly, I am satisfied that in principle a decision not to take enforcement action is a development consent within the meaning of the Directive.
25. While I see the force and indeed the attraction of Mr. Barnes' submission that the main decision had been taken in 1997, the reality is that because of the breach of condition the whole planning permission has lapsed. That means that the project now needs a fresh consent if it is to proceed. It is clear that if s.73 had been used to seek to remove Condition 21 an EIA would have been needed, albeit consideration of the matter would have been limited to conditions. Furthermore, although focussing on the BGY alone, the fact is that unless the relevant consent can be obtained, the whole project cannot go ahead. In these circumstances, the requirement of the Directive cannot be avoided. However, even though a fresh consent is needed, when it comes to considering what information is required, the whole history must be taken into account. If as a matter of fact the relevant information was indeed given at an earlier stage, then, notwithstanding the lapse of the former permission, no more will be required.
26. The use of a decision not to take enforcement action coupled with conditions to be imposed in a s.106 agreement as a means of permitting a development to proceed is not unlawful. But it cannot avoid the requirement to provide an EIA if the development falls within the Directive and an EIA is required.
27. At a late stage, LUL introduced what purported to be a planning permission granted by LBH to Railtrack on 29 August 1997 which permitted demolition of the 'majority of the BGY adjoining and excluding the listed gates and associated structures to the west of the site'. This had not been put before Ouseley J. Apparently, LUL had only learnt of its existence in the course of discovery of documents by Railtrack in proceedings before the Lands Tribunal relating to compensation payable for the compulsory purchase of the BGY. Mr. Barnes submitted that since a planning permission runs with the land, the document in question was on its face such a permission and LUL was in no way involved in obtaining it, it could not be challenged.
28. Those submissions I do not accept. Investigations have established that on 21 May 1997 Railtrack made an application to LBH for listed building consent to demolish the 'vast majority' of the BGY on the basis (which was almost certainly incorrect) that 'the Goods Yard adjoins a listed structure and is therefore technically listed'. The document it received is entitled 'Permission for Development (Conditional)' and purports to 'permit the development referred to in the under mentioned Schedule'. The Schedule refers to an un-numbered plan and the application letter of 21 May 1997. it contains a number of conditions. The reasons for the first (that the development must be begun within 5 years) is said to be:-
In order to comply with the provisions of Section 18(a) of the Planning (Listed Buildings and Conservation Areas) Act 1990'.
25. Railtrack regarded what they had as a listed building consent. They had not sought planning permission and so planning permission could not lawfully have been granted. When they drew LUL's attention to the document, they described it as a consent. It contains an ambiguity on its face in the reference to s.18(a) of the Listed Buildings Act, which is not consistent with conditions attached to a planning permission. The application letter was annexed to the 'permission' on LBH's file. In all the circumstances, it is in my view quite impossible to regard it as what it clearly was not and could not lawfully have been. LUL is not in any way prejudiced. It never relied on it nor was it misled by it. It is not a planning permission and does not avail LUL.
26. In Berkeley v Secretary of State for the Environment  2 AC603, the House of Lords emphasised the importance of an EIA and made it clear that if but only if there had been substantial compliance with the requirements of the Directive would a permission be granted in the absence of an EIA. It was not sufficient that the court was persuaded that the outcome was inevitably going to be the same. In Berkeley there had been no EIA and it was necessary to trawl through various documents in order to obtain the information which should have been provided in an EIA. At p.608, Lord Bingham said:-
By virtue of regulation 25 of the Regulations the grant of planning permission in contravention of regulation 4 is to be treated for purposes of section 288 of the Town and Country Planning Act 1990 as action which is not within the powers of the Act. Even in a purely domestic context, the discretion of the court to do other than quash the relevant order or action where such excessive exercise of power is shown is very narrow. In the Community context, unless a violation is so negligible as to be truly de minimis and the prescribed procedure has in all essentials been followed, the discretion (if any exists) is narrower still: the duty laid on member states by Article 10 of the EC Treaty, the obligation of national courts to ensure that Community rights are fully and effectively enforced, the strict conditions attached by Article 2(3) of the Directive to exercise of the power to exempt and the absence of any power in the Secretary of State to waive compliance (otherwise than by way of exemption) with the requirements of the regulations in the case of any urban development project which in his opinion would be likely to have significant effects on the environment by virtue of the factors mentioned, all points towards an order to quash as the proper response to a contravention such as admittedly occurred in this case. For reaso ns given in more detail by Lord Hoffmann, I do not in any event agree that there was substantial compliance with the requirements of the Directive and the Regulations in this case. It is quite true that consideration was given, over many years, to various schemes for developing this site and that the scheme for which permission was given was the subject of detailed, careful and informed consideration and wide consultation. But the cornerstone of the regime established by the Regulations is provision by the developer of an environmental statement as described in Schedule 3 to the Regulations, setting out (among other things) the data necessary to identify and assess the main effects which the development was likely to have on the environment. The developer provided no document which, in my view, met the requirement".
26. There was a proper EIA provided in 1993. It is true that the Directive was amended in 1997 so that there is now an obligation to consider alternatives. But those were considered in the EIA and the amendments do not make any material difference. The inspector at the inquiry and the Secretary of State considered the relevant matters when deciding to grant planning permission. However, none of the BGY was then listed apart from the entrance gates and only Mr. Prokopp was prepared to put forward a case that it merited preservation. English Heritage has since come out in his support and has commissioned a report from Alan Baxter, engineers, which asserts that it would be possible to construct the line without demolishing any of the BGY. But English Heritage's approach to this claim has seemed to blow hot and cold. On the one hand, it has written to LUL a letter of 3 April 2003 in the following terms:-
English Heritage has now seen the application for judicial review which was placed before the Administrative Court on 31 March. That application led to the granting of an interim injunction restraining the demolition of Bishopsgate Goodsyard until a further hearing.
I wish to make absolutely clear that English Heritage took no part whatsoever in the preparation of that application for judicial review. Neither were we consulted in any way about it. English Heritage was not a party to the proceedings brought by the London Railway Heritage Society. Nor will it take any part, or offer any support for the proceedings which are now being initiated by Mr Prokopp.
English Heritage's position on Bishopsgate Goodsyard is clear. We wholeheartedly support construction of the East London Extension and do not wish to see the project delayed in any way. Equally, we believe that the Goodsyard is a structure of considerable historic, engineering and architectural interest which offers a tremendous opportunity for reuse. The study which English Heritage commissioned from Alan Baxter and Associates and Urban Initiatives demonstrates how the twin objectives of building the railway whilst retaining the existing structure could be achieved to create a development of real interest and value.
English Heritage continues to believe that it is not necessary to demolish the Goodsyard in order to build the East London Extension. Nevertheless, we are unwilling to take any action, including support for others, which might delay or prejudice the new railway. For that reason I wish to entirely disassociate English Heritage from the proceedings which are now being brought before the High Court.".
On the other hand, on 8 April 2003 the same person on behalf of English Heritage was writing to a Mr. Derbyshire who was actively supporting the retention of the BGY stating:-
Demolition is completely unnecessary, hugely wasteful of resources and would seemingly blight the area for years to come. That cannot be an acceptable way of developing valuable inner city areas in the 21st century. Given that we support these views, English Heritage is happy to support the Trust's Newsletter".
It does appear that, despite its belief that demolition is not appropriate, English Heritage takes the view that ELLX's importance overrides that belief and further delay cannot be countenanced
30. In considering whether there has been substantial compliance with the Directive, it is proper to consider the whole history and to take account of the previous planning permission. The issue is one of balancing the benefits of the ELLX against any environmental damage to be caused by it and an endeavour to ensure that all reasonable steps are taken to keep such damage to a minimum. In this context, preservation of architectural heritage is important. Since there has been an EIA, it is important to identify what changes have taken place since. Essentially they amount to a burgeoning support for Mr Prokopp's campaign and an expert's report that in engineering terms the demolition is unnecessary. Largely as a result of the increased pressure to preserve the BGY, the decision has been made to list the Braithwaite Viaduct and so any impact on it of the development is now to be considered.
31. Mr. Clayton makes the point that the existing EIA does not address the issues which in accordance with the matters prescribed by Schedule 4 to the 1999 Regulations it should address. LUL itself states that to deal with the Baxter report a detailed engineering conditions survey would be needed and this would take at least 9 months to carry out. One of the important objectives of an EIA is to enable there to be informed input from the public: that cannot occur and the public attendance at the LBH or LBTH meetings when consideration is given to whether it is expedient to enforce is no adequate substitute.
32. I see the force of all this, but in my view it does not address the realities. The question whether the line could be made to run over the existing structures was raised before and considered by the inspector in 1994. He decided that even if it could it would not be beneficial in visual terms. It is true that more detailed evidence is now available of the feasibility of doing what Mr. Prokopp was suggesting, but that is not usually a good reason to reopen a decision. In any event, when the listing of the viaduct took place in March 2002, it was specifically stated that the BGY was not worthy of listing. It is in those circumstances difficult to see how it could conceivably be said that the desirability of retaining the BGY should outweigh the need for an immediate progression of ELLX. There can be no justification for any further delay.
33. Mr. Clayton's arguments are based on the technical requirements for an EIA. They do not take proper account of the purpose of an EIA, namely that full information should be provided of the relevant environmental effects of a development. True it is that such information must be provided by means of an EIA. There has been one. What is left is the effect on a listed building (or part of a building ), since the decision not to list the balance of the BGY means that to demolish it cannot be regarded as detrimental to our cultural heritage.
34. It follows that I am satisfied that it would be open to LBH and LBTH to decide that there had been substantial compliance and that no new EIA was required. LBTH have not as yet considered that in terms since they were advised that Huddleston's case precluded them from requiring an EIA and so they would not take enforcement action since to do so would be to give direct effect to the Directive in a prohibited way. That advice I believe to have been erroneous. In deciding whether or not to exercise their discretion to enforce, they had to comply with the law. They had therefore to consider whether the Directive required them to enforce if no EIA was produced. They are in my view entitled for the reasons I have given not to and to take the view that the delay outweighs other factors.
35. LBH have considered the issue more widely. But neither they nor LBTH seem to have considered what conditions should be included to deal with the listing of the viaduct and to protect it. Further, I am satisfied that it was wrong to make the decision not to take enforcement action before all conditions were in place.
36. I have carefully considered whether I should exercise discretion against granting relief. I know that both LBH and LBTH are anxious that ELLX should proceed as soon as possible and will in my judgment be acting lawfully if they decided that it would not be expedient to enforce. Not only has there been substantial compliance with the Directive but, to quote again Lord Hoffmann, this decision may be said to involve the 'detailed regulation of an activity for which the principal consent, raising the substantial environmental issues has already been given'. Thus to quash the decisions would be to require unnecessary delay. I have decided, however, that, largely because I am clearly of the view that the decision should not have been made which enables demolition to take place before all appropriate Conditions under s.106 were in place, I should not refuse relief.
37. It follows that I think the decisions cannot stand. But they can and should be speedily reconsidered. What further information (if any) is required from LUL is a matter for the boroughs, but I am satisfied that they would be acting lawfully in deciding that it was not expedient to take enforcement action without a further EIA.
38. I will hear counsel on the relief which is appropriate.