Bishop's Stortford Civic Federation v East Hertfordshire District Council Anley Trustees Ltd and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 21 February 2014 |
| Neutral Citation | [2014] EWHC 348 (Admin) |
| Docket Number | Case No: CO/3826/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 February 2014 |
[2014] EWHC 348 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cranston
Case No: CO/3826/2013
and
Iain Colville and James Sandham (instructed by Nockolds) for the Claimant
Saira Kabir Sheikh (instructed by East Herts DC) for the Defendant
David Elvin QC (instructed by Hogan Lovells) for the Interested Parties
Introduction
This judicial review raises some important issues about the lawful operation of local government and the role of the courts. The Bishop's Stortford Civic Federation ("the Federation") challenge the decision of East Hertfordshire District Council ("the Council") to grant planning permission to Anley Trustees Limited and Maison Anley Property Nominee Limited. As nominee companies they act on behalf of Henderson Global Investors Limited (so I shall refer to them as "Henderson" throughout the judgment). The planning permission was to redevelop the land north of Link Road and at Old River Lane, Link Road, Water Lane, Bridge Street and Barrett Lane, Bishop's Stortford. I refer to Bishop's Stortford as "the town" and to the area to be redeveloped as "the site".
John Howell QC (sitting as a Deputy High Court Judge) granted permission to apply for judicial review on two grounds. The first is whether the Council's decision is flawed by reason of remarks by a member of the Council's executive, not a member of the planning committee, at its meeting which granted outline planning permission. Having regard to their contents, the position he held, how he came to speak and the influence those statements may have had, the Federation's case is that he "polluted the well". The second ground concerns whether the Council acted unfairly in granting planning permission by failing to give the Federation or others the opportunity to comment on additional documents submitted by Henderson after outline permission had been granted. In particular did the Council in this regard act in breach of what is now regulation 22 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011?
Background
(a) The Council — Henderson agreement
In 2007 Henderson approached the Council about redevelopment of the site as a mixed use development. It already had a property interest on part of the site. In the process of redevelopment Council offices were to be demolished, more land was to be leased to Henderson, the Council was to be released from various obligations contained in underleases, and an overage payment was to be made by Henderson. Following negotiations between the Council and Henderson confidential Heads of Terms were entered into on 6 August 2008. In broad outline Henderson would obtain land (including a Council car park and a Waitrose car park) and develop the site. The Council would still occupy some office space on the site for front line services and receive a payment of £2,350,000. Under the Heads of Terms Henderson endeavoured "to secure planning consent for a mixed use scheme based on (but not limited to) the scheme drawings". If planning consent were to be obtained, the Council agreed "to assist wherever possible". Upon completion of the scheme an overage payment would fall due, 10% if the profit on the gross development value exceeded 15%.
In early March 2009 the Council wrote to a number of interested parties (including the Federation) about its report on what were said to be some major changes being considered. These would affect the building on the site the Council currently occupied and the surrounding land. The report, which would be discussed by the Executive on March 17, and was subject to confirmation by full Council on March 24, recommended that the Council gave up its current occupancy on the site to Henderson (the landowner) with a view to moving into a neighbouring building. The proposals would reduce office space needs and thus overall costs, with many staff transferring to the Council office in Hertford.
"Depending on which option the Executive adopts, the Council would also transfer to Henderson the land surrounding [the building] which we also own. This includes the Waitrose and Causeway car parks. If this were to happen, [Henderson] has made a proposal that would allow the Council to strongly influence the future of the site. This supports the regeneration work already being carried out by the Bishop's Stortford 2020 board."
There was indeed a meeting of the Council's Executive on 17 March 2009. Those present included Cllrs Jackson (Leader of the Council), Alexander, Ball, Rutland-Barsby and Tindale. Cllr Tindale, then Executive Member for Resources and Internal Support, set out Henderson's proposals for the development. Some members expressed concern about its impact for car parking in the town centre. Cllr Jackson stated that that aspect was a planning issue for the future. Cllr Wood raised a number of objections, such as the impact of the development on other retail outlets in the town and the appearance that Hertford was being favoured over the town by the withdrawal of back office Council services. The Executive approved the recommendations. Cllr Tindale was entrusted to complete the negotiations regarding the surrender of its existing lease of offices on the site and to secure alternative premises for the Council's front-line services in another building there.
At the meeting of the full council on 25 March 2009, the late Michael Hurford, chair of the Federation, raised a public question about the absence of consultation regarding "a large development in the town not in the District Plan", which was bound to have an effect on traffic congestion, failed to reveal its full costs and did not address whether for legal reasons the Council was prevented from selling the freehold of the site. Cllr Jackson, as Leader, referred the question to Cllr Tindale, who stated that the Council's property arrangements were not a matter for public consultation since front line services would not be affected but instead would be enhanced. Public consultation would become more relevant at the time of specific development proposals being submitted. The Leader of the Council endorsed these comments, reiterated that public consultation would ensue whenever development proposals came forward. However, these proposals did not concern any development. He added that if and when proposals came forward alternative parking could be provided. The proposals would provide greater certainty over accommodation costs. The Council voted for the Executive's proposal, those in favour including Cllrs Alexander, Ashley, Bull, Tindale and Wrangles.
On 16 July 2009 the Council entered into an agreement with Henderson in furtherance to the Heads of Terms. On 16 October 2009 the Council and Henderson signed the Deed of Overage. Under the deed the Council agreed to use reasonable endeavours to assist Henderson in obtaining all necessary consents and to support it in promoting the development. The deed stated that the Council was entering the deed as landowner, not as the local authority, and its powers as such were not fettered. The development was defined as the development in the draft planning brief. The latter made clear that the development proposed was for mixed use development but that it was subject to normal planning legislation. In late November 2009 the land deal contemplated by the agreement commenced.
(b) The planning committee meets
On 4 November 2010, Henderson formally applied to the Council for planning permission to demolish existing buildings on the site and to develop it. This was to be by constructing a mixed use development comprising retail, leisure, hotel, food and drink, residential, community uses, car parking, servicing and access arrangements, together with alterations to the public highway and/or public realm works and flood mitigation measures. The proposed development created much public interest in the town. Along with others the Federation objected to the proposed development.
On 25 August 2011 the Council's Development Control Committee ("the planning committee") considered outline planning permission. The officer's report for the meeting recommended approval of the Henderson applications in principle since they represented a very significant development in retail, leisure services and facilities in the town, and would have a beneficial impact on the economy and employment. All those factors had to be afforded very significant weight in favour of the scheme. The report reminded members that the proposals had generated significant publicity and had been subject to extensive consultation (including by the developer). The report then set out the Council's land holding interest and how it had disposed of land in the land deal. Those Council disposals had enabled the developer to bring forward the proposals. The Council was still a land owner and would continue to be a tenant in some of the buildings on the site. The report continued:
"Despite the position in relation to land holding and tenancy arrangements, it is very important to set out here that these arrangements and previous decisions in relation to them should be given no weight in the planning application decision making process."
At several points the report underlined that only outline permission was involved and only the principle of development was at issue. The report identified...
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