Neutral Citation Number:  EWHC 2220 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
London WC2A 2LL
Wednesday, 8 June 2011
B e f o r e:
MR JUSTICE LINDBLOM
THE QUEEN ON THE APPLICATION OF GODFREY
LONDON BOROUGH OF SOUTHWARK
BARRATT HOMES (EAST LONDON) LIMITED
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MR J BURTON (instructed by Richard Buxton) appeared on behalf of the Claimant
MR D KOLINSKY (instructed by London Borough of Southwark) appeared on behalf of the Defendant
MR N KING, QC and MR R WALTON (instructed by Richard Max & Co) appeared on behalf of the Interested Party
J U D G M E N T
(As Approved by the Court)
1. MR JUSTICE LINDBLOM: This is a renewed application for permission to apply for judicial review of the decision of the London Borough of Southwark Council ("the Council") to grant planning permission on an application submitted by Barratt Homes (East) London Ltd ("Barratt Homes") for a large mixed use development on a site known as "Downtown" on the Rotherhithe Peninsular.
2. The claimant contends that he has the support of the local community in pursuing his claim and I see no reason to doubt that. A substantial statement of facts and grounds has been provided. It is supported by evidence in the witness statements of Miss Vickie Green, Mr Steve Cornish, Miss Cath Whittam and Councillor Lisa Rajan. Both the Council and Barratt Homes have appeared today to oppose the grant of permission. Permission was originally refused on the papers by Sir Michael Harrison on 27 October 2010. Argument today, full though it has been in an application for permission to apply for judicial review, has nevertheless focused on the main issues in dispute.
3. The claimant contends that the Council made the local community a promise that a community centre would be provided when the site came to be redeveloped and that the new community centre would at least replicate the one which had stood on the site before. The Council's Planning Committee was not told of this promise when it came to make the decision now under challenge. Both the Council and Barratt Homes deny that any such promise was made.
4. For the claimant, Mr James Burton submits that the Council has sought to shift the argument to the question whether it had promised a community centre of any particular size. But this, says Mr Burton, is to misrepresent the true issue. There is, he says, no need to put a gloss on the promise that the community centre which once stood on the site would be re provided, in terms of a particular floor area being specified.
5. Mr Burton submits that the Council has itself produced documents which show that it actively involved the local community in shaping the redevelopment of the site from the outset through the Downtown Advisory and Assessment Panel, the DAAP. Having done this, the Council promised the DAAP and the local community that the community hall would be re provided. Mr Burton points to the evidence of Mr Cornish in his second witness statement, to the effect that the Council told him, in his capacity as a member of the DAAP, that the new community centre would be some 50 per cent larger than the old one. This, says Mr Burton, accords with Mr Reid's understanding of what the Council had promised. Mr Burton also refers to the evidence of Cath Whittam and in particular to paragraph 10 of her witness statement, in which she says:
"In all we must have met at least 12 times over the course of at least a year, and we were always told by the Council quite clearly that any development would re provide a new, larger Health Centre to take account of the growing population brought about by any development, and a new Community Centre to replace the established one which was being allowed to run into the ground through a laissez faire policy of abandonment. When the heavily damaged building was finally destroyed by arson and the remains cleared away, we were always led to believe a replacement building would be provided, and detailed discussions took place as to its exact location, which we felt would be best nearby to the school, so both facilities could benefit from each other, and complement each other."
6. Mr Burton submits that the creation of the DAAP, which comprised not only members of the local community but also members and officers of the Council, reflected commendable efforts on the part of the Council to involve the local community in the redevelopment of the site. This, says Mr Burton, went well beyond normal statutory consultation on a planning application, but was appropriate because the local community faced the prospect of losing the Downtown District Centre as well as the community hall itself when the site came to be redeveloped. Mr Burton submits that as a matter of "ordinary fairness", it cannot be right for the Council to have established the DAAP as the body representing the local community, guiding the development and protecting community interests, only then to ignore commitments made to that body in the course of a public process.
7. In refusing the application for permission on the papers, Sir Michael Harrison observed that the Council was entitled to conclude that the proposed development was not contrary to Policy 7P of the Southwark UDP which, he said, does not require a community centre of any particular size. Nor, he said, was the proposed development arguably contrary to Policy 2.1 of the UDP. He noted that the community centre which had stood on the site had already been demolished; that took place in 2003. Sir Michael observed that the development brief and the preferred bidder report had been concerned with securing the appointment of the preferred developer, respectively in 2002 and 2003. They were not, he said, documents containing promises of the kind contended for by the claimant, which needed to be brought to the Council's attention as the local planning authority when it determined Barratt Homes's application. So, Sir Michael concluded, the circumstances of this case did not give rise to a legitimate expectation, as the claimant had contended.
8. That reasoning is not accepted on behalf of the claimant. Mr Burton submits that the statements in the development brief and the preferred bidder report, indicating that the Community Hall would be provided, represented in written form the promises the Council had made to local people in the process of community involvement. Mr Burton says that these are not the only examples of those promises, but they do serve to confirm them. The Council's statements in those documents to the effect that the community hall would be re provided did not come out of the blue. They reiterated what had already been promised. That this was the Council's intention, says Mr Burton, is supported by the evidence of Miss Whittam, Mr Green and Mr Cornish, and also by Councillor Rajan in her witness statement. Indeed, Mr Burton submits, the Council's selection of the bid made by Barratt Homes, which had originally included an enlarged community centre, was further confirmation of the Council's promise, as was it's adoption of Policy 7P in the UDP.
9. It is necessary at this stage to focus on the terms in which the developer's brief and the preferred bidder report are expressed. The developer's brief, which was produced in 2002, states in section 4.0, "Factors for Consideration", at paragraph 4.1, under the heading "Requirements":
"The developer will also be expected to carry out improvements, or create new infrastructure necessary to development. This may include:
• To finance and build a new community hall on site if the existing hall is to be developed.
• Redriff Primary School playing field boundaries are to be adjusted to improve both the Downtown development site and to create more usable play space for the school which has plans for improved sports facilities."
10. The preferred bidder report, which is dated 29 July 2003, contains in paragraphs 1 to 5 the recommendations which were put before Council's Executive Committee. Then, under the heading "Background Information", it is stated at paragraph 6:
"The Downtown site is an area of approximately 4.78 acres net where the community buildings on the site became surplus to requirements over several years and have subsequently been vandalised and demolished".
The document goes on to refer to the final area of the site, at the tenants' hall, having been declared surplus to requirements by the Strategic Director for Housing in July 2003, and to the health centre on the land let to the NHS, which was to be replaced, it was envisaged, by an enlarged, improved facility in the comprehensive redevelopment of the site. Then in paragraph 10 it is stated:
"A new community hall will be re provided within the comprehensive redevelopment".
11. Having set that background in place, I turn now to the particular submissions which Mr Burton has made on the claimant's grounds of challenge.
12. I turn first to ground 1. Mr Burton submits that the promise of the re provision of the community centre cannot be understood as allowing the community centre to be re provided by a room which measures 92 square metres within the new health centre in the development, 32 square metres of which is devoted to lavatories and a kitchenette. This, says Mr Burton, cannot, on any view, amount to a re provision of the community centre, which was a hall measuring 413 square metres with a kitchen large enough to enable catering for groups, as well as lavatories and an area of open space around it.
13. Mr Burton submits that the Council's promise of re provision was a material consideration when it came to consider Barratt Homes's application. The members were unaware of it and they had no regard to it. This, submitted Mr Burton, is a sufficient ground in itself for quashing the planning permission. Mr Burton goes further: he submits that the Council's promise informed the relevant site specific policy in proposal 7P. The members were also unaware of that. They did not have regard to it as a consideration when construing and applying Policy 7P, despite the fact that one of the members, Councillor Nardell, was asking officers in the course of the meeting to explain what Policy 7P required by way of community provision. Mr Burton submits that, as the Court of Appeal made clear in Petter and Harris v Secretary of State for the Environment Transport and the Regions  EWCA Civ 975, a decision maker must strive to understand "the policy behind the policy".
14. So, says Mr Burton, the Council's approach to Policy 7P was unlawful for three reasons: first, the Council ought to have had regard to the context underlying the policy; secondly, had the Council done this, its approach to the interpretation of the policy and in particular the words "community centre" within it, would have been different; and, thirdly, the concept of a "community centre" cannot in any event be satisfied by provision such as was secured by this proposed development, namely:
"Part one, part four storey Health Centre (1535 square metres) including Community Centre (124 square metres) and residential building (block e)."
Thus, submits Mr Burton, the committee's ignorance of the context of the policy was enough to invalidate its decision.
15. I do not accept those submissions. It is clear, as has been pointed out by Mr Kolinsky for the Council and Mr King, QC, for Barratt Homes, that proposal 7P of the UDP contains no specific size requirement for the community centre. That proposal simply provides that the site is to be developed for Class C3 residential use Class D uses "including a Community Centre and a Health Centre." Thus the issue becomes a simple one: did the Council act rationally in forming the judgement it did that the community facilities provided in the proposal before it amounted to a community centre so as to comply in substance with the requirements of Policy 7P? As Mr Kolinsky has submitted, with several references to the committee report, this matter was dealt with clearly and carefully by the officers. The officers explained that the community centre proposed was fit for its purpose, and that several safeguards would be secured by a section 106 planning obligation, ensuring that the facility proposed would be available for use as a valuable and versatile community resource. It is not necessary to refer to the specific stipulations of the section 106 planning obligation. It is enough to say that Mr Kolinsky's submissions to that effect seem to me to be well founded.
16. I cannot accept Mr Burton's submission that the true construction of proposal 7P of the UDP must depend on an understanding of a policy behind a policy, namely that the provision should be at least as much as had previously existed on the site. That is not what proposal 7P says, and there is no hint of it in the UDP itself, either in policy or in text. Nor, indeed, is there any evidence that in the process of the adoption of the Southwark UDP that this was how the policy was intended to be understood and applied.
17. In simple terms, what the Council's Planning Committee had to do, and what it did, was to satisfy itself that the proposal before it contained a community centre that was good enough for the purposes for which it was to be provided.
18. I acknowledge that at the committee meeting there was some debate as to the meaning of Policy 7P, but it seems clear that the committee, or at least the majority of the members on it, concluded that the policy did not contain any minimum size for the community centre and that the development proposed was in accordance with Policy 7P. That conclusion is recorded clearly in the summary reasons for the grant of permission. Thus the primary judgment which a decision maker must make under section 38(6) of the 2004 Act was, in my view, properly exercised in this instance. In my view, therefore, it cannot be argued that the Council failed to understand the requirements of proposal 7P or that its judgment that the development satisfied those requirements was other than rational.
19. It is convenient to deal at this stage with a further argument advanced by Mr Burton, which is that the Council failed to apply Policy 21 of the UDP. That policy, under the heading "Enhancement of Community Facilities", states:
"Planning permission for a change of use from D class community facilities will not be granted unless:
"i. The applicant demonstrates to the satisfaction of the LPA that the community facility is surplus to requirements to the local community and that the replacement development meets an identified need; or
"ii. The applicant demonstrates that another locally accessible facility with similar or enhanced provision can meet the identified needs of the local community facility users."
As I read it, this applies to existing Class D community facilities. In the present case, by the time the planning application came to be considered by the Council's committee, there was not an existing community facility on this site. Mr Burton's submission is that the policy guards against a reduction in community provision by restricting the circumstances in which permission would be granted for changes of use. He submits that neither of the circumstances in which the policy permits such changes of use was made out in the present case. He points out that "community facilities" are defined in the UDP as including buildings used by voluntary sector groups, libraries, social services, day centres, medical health facilities, leisure and recreational facilities and so forth. That list, observes Mr Burton, is similar to Class D of the Use Classes Order.
20. The court is not concerned in an application of this kind with forming its own conclusions on matters of fact and degree as to the existing or lawful use of a site. That is the difficulty, it seems to me, which faces Mr Burton in advancing this ground of claim. In any event I think the simple answer to this point is, as I have indicated, that the policy is not engaged: first, because there was not in fact a loss of Class D community facilities, but also, as has been submitted both by Mr Kolinsky and Mr King, that it is necessary to read the policy in the context of the specific proposal for this particular site. One must try to do that in a way which does not create inconsistency between the two. This site, the Downtown site, is the subject of a specific proposal, namely proposal 7P, which envisages a mixed use development comprising some 250 residential units as well as the Class D uses. It was to this proposal that the Council's local planning authority had to direct its mind. In my judgment, it did so, and it did so without falling into legal error.
21. I turn next to ground 2 of the claim. This is connected, as indeed is ground 3, with the general submissions made as to the construction of Policy 7P and the background to the adoption of that policy. Put simply, the submission is that the Council's promise of the re provision of the community centre was a material consideration, but the Council's committee was unaware of the commitment, and had no regard to it. I do not accept that submission. The basic answer to it is that there was not, in fact, a public commitment of the kind for which Mr Burton contends. There was no commitment on the part of the Council that there would be a community centre of any particular size as part of the development. The documents relied upon by the claimant do not support that proposition. I have already referred to the developer's brief and to the preferred bidder report. The extracts which I have quoted from those documents do not, in my judgment, give rise to any promise or commitment. This point, it seems to me, can be approached on the basis of the well known principle that authorities move only by their own resolution. Officers' reports, of themselves, cannot be taken as representing a commitment or a promise on the part of the Council in these circumstances, or generally. Neither the brief nor the preferred bidder report fixed any commitment on the part of the Council as to the provision of a community centre, let alone the provision of a community centre of any particular type or size.
22. Reference has been made to the Executive Committee report of 29 July 2003 on preferred tenders, which records that tenders had been received both from Barratt Homes and from a group called Lavender Mooring. The Lavender Mooring proposal included a community centre of 212 square metres. The report did not state that this bid failed to meet the terms of the brief, nor did it indicate that there was a minimum size requirement for the community centre. Nor, indeed, did it say that the bid put forward by Barratt Homes was preferred because of the size of the community centre it proposed.
23. I am not dissuaded from the conclusion supported in those documents by the evidence presented in the several witness statements to which Mr Burton has referred. None of those witness statements provide documentary support for the contentions that specific promises were made on behalf of the Council. And, as Mr Kolinsky also submits, circumstances have changed since bids were under consideration. Mr Kolinsky refers to the fact that two unsuccessful attempts were made to obtain planning permission, to the fact that the economic climate has changed, to the fact that the funding stream for the facility which was assumed at the time of the first application has dried up, and to the fact that the terms of the development agreement between the Council and the development were changed in 2008.
24. Leaving all of that aside, I think the simple response that can be given to this ground of the claim is that the Council's Planning Committee, when it met in 2010 to consider this proposal, was able to consider the merits of the community facility proposed. It did so in the light of representations submitted to it. Those representations did contend that the proposal was contrary to any commitment or policy on behalf of the Council. That is a notable omission in the objections advanced, if indeed such commitment or promise truly existed.
25. I turn then to ground 3 of the claim, which relates to legitimate expectation. The allegation here is that the claimant and the Downtown residents have a legitimate expectation that there would be at least a re provision of something equivalent to the old community centre or hall, if not to facilities superior to it (see paragraph 112 of the claimant's claim form). I need not rehearse at this stage my conclusion that no promise that a community centre of any particular size would be provided was in fact made. It follows that there is no true factual basis for the legitimate expectation alleged. As I have already said, the claimant's expectation was not mentioned in the representations submitted on the planning application. Nor, indeed, was there mention of any legitimate expectation of this kind in the proceedings challenging the earlier grant of planning permission for a similar scheme. Thus it seems to me that on the facts this ground must fail. The claimant's case is put forward on the basis of a legitimate expectation that never was. Neither in substantive nor in procedural terms a further basis for this ground to which Mr Burton has referred today is there substance in the point he makes.
26. I do not need to refer to authority, but in deference to the submissions made on behalf the Council by Mr Kolinsky, I would add that my conclusion seems to be supported by the approach in the relevant cases, notably that of the Court of Appeal in Barker & Ors, R (on the application of) v Waverley Borough Council,  EWCA 566 (at paragraphs 44 to 46, and in particular at paragraph 46, per Lord Justice Pill) and in Henry Boot Homes Limited v Bassetlaw District Council  EWCA Civ 983 (at paragraphs 49 to 56, and in particular, the judgment of Lord Justice Keane at paragraph 56). Thus, in my judgment, this ground of the claim is not arguable.
27. I conclude, therefore, that none of the grounds of the claim is an arguable ground which ought to be allowed to proceed. Having heard full argument on the renewed application for permission, I find myself entirely in agreement with the short reasons for refusing permission on the papers given by Sir Michael Harrison.
28. This renewed application for permission to apply for judicial review is, therefore, refused.
29. MR KOLINSKY: I am most grateful to your Lordship and in particular for sitting late. There is no application in relation to costs for today. The only matter that is worth ventilating is that Sir Michael Harrison made an order in relation to the acknowledgement of service. We would certainly wish that to maintain, but my learned friend says, and I accept the force of what he says, the fact that the order is made does not acknowledge the fact that the claimant is in receipt of permission for funding. I would suggest the appropriate order in relation to our costs of acknowledgement of service is the usual restriction not to be enforced without a further order.
30. MR JUSTICE LINDBLOM: Yes. Mr Burton, do you resist that?
31. MR BURTON: I do not resist that, my Lord.
32. MR JUSTICE LINDBLOM: Very well, to that degree then, the order of Sir Michael Harrison is varied.
33. MR KING: My Lord, I make the same application on the Mount Cook principles on behalf of the interested party.
34. MR JUSTICE LINDBLOM: On what basis?
35. MR KING: Simply up to and including acknowledgement of service, obviously not for any costs beyond that.
36. MR JUSTICE LINDBLOM: Only up to acknowledgement of service and not in respect of today.
37. MR KING: Absolutely.
38. MR JUSTICE LINDBLOM: Mr Burton, do you resist that?
39. MR BURTON: Well, my Lord, as regards to what my learned friend says about costs for the interested party, I do, because this really is a case where, with the greatest of respect to my learned friends Mr King and Mr Walton, the interested party has added nothing. Its points mirror each point that the defendant takes. Mount Cook is obviously not an immutable role by any means. Were we standing here on a section 288 challenge, then the presumption, if there is a presumption, would be very much the other way against the interested party receiving an order of costs. I do invite your Lordship to consider whether or not the interested parties present here given
40. MR JUSTICE LINDBLOM: Well, it is not presence here, is it?
41. MR BURTON: Sorry, give presence through the acknowledgement of service.
42. MR JUSTICE LINDBLOM: He is entitled to put in an acknowledgement of service, isn't he? That is provided for in the rules. The normal position would be that for the acknowledgement of service, in the light of Mount Cook and other authorities too, he would be entitled to his costs up to that point. That is the normal position and that is not cut down by the degree of overlap or difference between the two parties in their summary grounds.
43. MR BURTON: My Lord, I understand that, but I would suggest it is unrealistic to work on the basis that the interested party and the defendant were not coordinating in some way.
44. MR JUSTICE LINDBLOM: That may have been a saving of costs, not a multiplication of costs, if there was co operation, and the court would normally endorse co operation between parties as a means of saving costs. There is no evidence here, is there, to suggest there has been an unnecessary multiplication of costs?
45. MR BURTON: None beyond the fact that the summary grounds are very similar on both sides, and that is the point. My Lord, I have a second point, not a point of principle, it is simply a point on assessment. I didn't read from the order of Sir Michael Harrison that he had summarily assessed the costs.
46. MR JUSTICE LINDBLOM: No, he didn't, he said that the matter was to be dealt with in the papers.
47. MR BURTON: Yes. You have the acknowledgement of service in the summary grounds in front of you.
48. MR JUSTICE LINDBLOM: What are you asking me to do?
49. MR BURTON: Assess the costs. I must admit I have not actually myself seen the statement of costs on which Sir Michael Harrison reached his figures.
50. MR JUSTICE LINDBLOM: I don't see why I should embark, at this stage, on the assessment of costs, rather than leave the matter to be dealt with on the papers which would be normal, I would imagine. Mr Kolinsky, what's your position on that?
51. MR KOLINSKY: My Lord, I am not sure that summary costs applies in a Legal Services Commission funding cases.
52. MR JUSTICE LINDBLOM: No, I don't understand quite how I can do other than leave the matter to be dealt with in the normal way.
53. MR BURTON: I apologise, my Lord, I have been confused by Sir Michael Harrison's order.
54. MR JUSTICE LINDBLOM: He didn't know that your client was publicly funded, I think.
55. MR BURTON: Very well, in that case, I have nothing to add.
56. MR JUSTICE LINDBLOM: The only question then goes to Mr King's costs on the normal basis up to acknowledgement of service. Mr King, do you want to add anything to that?
57. MR KING: Not really. Just to remind your Lordship, obviously Sir Michael Harrison's order did include costs. He didn't put it in quite those terms, but up to and including the acknowledgement of service, that is the usual rule for Mount Cook. It has got absolutely nothing to do with the greatest of respect to Mr Burton with whether there are arguments which are similar or different, that comes in on the full hearing when you apply the Bolton Principle.
58. MR JUSTICE LINDBLOM: That is right, the rules provide for summary grounds of resistance to be put forward by the interested party. Those made in any case, and they are frequently, are closely similar to the grounds put forward by the defendant.
59. MR KING: Yes.
60. MR JUSTICE LINDBLOM: That is built in to the Mount Cook principle as I understand it.
61. MR KING: I respectfully agree, it is.
62. MR JUSTICE LINDBLOM: Well, Mr Burton, I do not see in the present case that I should depart from what is and you can assure your clients of this, and I am sure you will the normal approach to costs. It is only up to the acknowledgement of service. Your clients need not think they are being saddled with the costs of two orders for costs today, that is not the case.
63. MR BURTON: I am grateful.
64. MR JUSTICE LINDBLOM: Is there anything else?
65. Thank you very much. I will add my own gratitude to that of counsel for the sterling services of the court staff today; I am very grateful to them and I am very grateful to the shorthand writer, in particular, for her work today too, so I endorse what has been said by counsel. I am also grateful to counsel for their helpful submissions.
Thank you very much, all of you.