Hammerton, R v London Underground Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice OUSELEY,MR JUSTICE OUSELEY |
| Judgment Date | 08 November 2002 |
| Neutral Citation | [2002] EWHC 2307 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3697/02 |
| Date | 08 November 2002 |
The Honourable Mr Justice Ouseley
Case No: CO/3697/02
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand,
London, WC2A 2LL
Richard Clayton QC, Mr M. Edwards & Mr C Zwart (instructed by Richard Buxton & Co. Solicitors) for the Claimant
Michael Barnes QC & Mr J. Greenhill (instructed by Frances Low Solicitor LUL) for the Defendant
London Underground Ltd's East London Line currently runs from New Cross and New Cross Gate northwards to Whitechapel. LUL proposes to construct the East London Line Extension (“ELLX”) to Dalston where it would connect with the former Railtrack North London Line.
The proposal was advanced through an application by LUL in 1993 for an Order under section 1 of the Transport and Works Act 1992 and deemed permission under section 90 (2A) of the Town and Country Planning Act 1990, together with applications, so far as material, for listed building consents under section 12(3A) of the Planning (Listed Buildings and Conservation Areas) Act 1990, (“LBCA”).
These applications were considered at concurrent public Inquiries in 1994 by an Inspector who had the assistance of a listed buildings assessor. He recommended in favour of the applications.
On 20 th January 1997, the Secretary of State for Transport made the Order sought under the Transport and Works Act 1992, which came into force on 10 th February 1997. This empowers the construction and maintenance of the ELLX and provides related powers dealing with land acquisition, highways and bridges, and vesting of lands in exchange for the acquisition of public open space. By a decision letter of 20 th January 1997, he directed that planning permission be deemed to be granted for the development included in the Order, subject to various conditions. By a decision letter dated 14 th January 1997, the Secretary of State for the Environment granted listed building consent, again subject to conditions.
This case concerns the construction of ELLX over the Bishopsgate Goods Yard, an area of considerable historic interest and of importance in the development of the Victorian railway system in London.
It is difficult to describe the Goods Yard without becoming embroiled in controversy because an issue at the heart of the case was whether it should be seen as one or several buildings or structures. The Bishopsgate Goods Yard began life in 1839 as Shoreditch Station, the terminus of the Eastern Counties Railway Company. It covers some 4 hectares fronting on to Shoreditch High Street, north of Liverpool Street Station which replaced it in 1875. After 1875 the passenger terminal became a goods yard serving East Anglia. LUL describes it as “a series of connected structures on two levels”. English Heritage describe it as “a structure” of considerable architectural and historic importance to London and the local area. The tracks, platforms and station buildings including warehouses at the upper level were destroyed by fire in 1964. It is now covered in rubble and debris of varying depths.
The viaducts and arches at the lower level were used as Bishopsgate low level station for passengers, but this closed in 1916; its structures were largely removed and there has subsequently been some commercial use of the arch space.
The upper level is and was accessed by a ramp from Shoreditch High Street. The gateway and pillars at the entrance to the ramp from the High Street were listed before the inception of LUL's proposal. The extent of that listing was a matter in issue before me. The Goods Yard is supported by viaduct like structures including the Braithwaite Viaduct. This Viaduct is one of the oldest railway structures in the world and is the second oldest in London. Its designer, John Braithwaite, the chief engineer of the Eastern Counties Railway was also an early locomotive engineer. It runs east-west in the southern part of the Goods Yard. It was listed on 8 th March 2002. The significance of that listing for the demolition of adjacent arches and viaducts was in issue before me.
LUL's proposed ELLX would involve the demolition of the Bishopsgate Goods Yard to the north of the Braithwaite Viaduct. LUL's works would retain the listed gates and pillars and LUL was granted listed building consent in relation to any other necessary works of demolition at the Goods Yard for which such consent was required. The new line and the new Bishopsgate Station would be carried on new structures approximately 1 metre higher than the existing upper level of the Goods Yard, before crossing Shoreditch High Street to the west.
The claimant is the Honorary Secretary of the London Railway Heritage Society, and he has a longstanding personal enthusiasm for London's railway heritage and this particular part of it. He seeks declarations in effect that the planning permission and listed building consent have lapsed and that the construction of the ELLX, at least hereabouts, would be unlawful. He also contends that the listing in March 2002 of the part of the Goods Yard known as the Braithwaite Viaduct, which LUL never intended to demolish, nonetheless precludes other demolition work which it does intend to do. His avowed aim is not to prevent the construction of the ELLX, indeed he supports its construction, but to force a re-examination of the way in which it crosses the Bishopsgate Goods Yard. He contends that a viable, feasible way can be found to preserve the Goods Yard and to permit the ELLX to cross it, whereas the present Order envisages the demolition of all of it, save for the ramp gates and pillars and the Braithwaite Viaduct, together with whatever other parts cannot be demolished in consequence of the listing of that Viaduct in March 2002.
The claimant contends that the existing Goods Yard structures can be retained, and can support the new line and station without undue cost or engineering difficulty, to the benefit of London's railway heritage. English Heritage has recently commissioned consultants’ reports to that effect. The idea has some measure of public support. LUL regards these reports as lacking in the requisite understanding of railway engineering.
The decision which is challenged is the refusal of LUL to give an undertaking that it would not demolish the Goods Yard. The undertaking was first sought by the claimant in his letter before action on 1 st August 2002. This refusal was said to be unlawful because the development and demolition had become unlawful, as the permission had expired because it had not been commenced or lawfully commenced in time. Other arguments have been added along the way.
Many issues arise in this case, including a substantial argument as to whether the claimant has standing. Whether he does or not, he is entitled to pursue his claim before the Courts in order for all those issues to be heard and dealt with. Accordingly, it is with at least deep regret that I have to record that I was told during the hearing, by Mr Clayton QC for the claimant, that Mr Hammerton had been assaulted by thugs, who had punched and kicked him causing injury and shock. Mr Hammerton was in consequence unable to attend the second and third days of the hearing. His assailants made it clear in their threats and abuse that they were trying to deter him from continuing with these proceedings. This is therefore a far more serious assault than the injuries, unpleasant though they were, would alone convey. I said then and repeat that the police should treat this as a very serious matter. LUL offered all co-operation. It is also not the first time that threats have been made to Mr Hammerton over this. He is lawfully pursuing his right to bring proceedings before this Court. I acknowledge his courage in persisting with them. I was told on 28 th October 2002 that these outrageous attacks had continued. The matter has been reported to the DPP.
I was asked to make Orders under CPR Part 5(4) (2) and (3) and Part 32(12) and (13) so as to prevent his address and certain other personal details being publicly available. I did so in the interests of justice, to reduce the potential for further attacks. I gave permission for his address to be deleted by way of amendment from the Claim Form and other documents.
The judicial review proceedings were lodged on 8 th August 2002 and, following an abridgement of time for the filing of the Acknowledgement of Service, Collins J adjourned the permission application to an oral hearing, which was to become the substantive hearing if the delay issue raised by LUL were no bar. He said that it was an arguable case but that LUL ought to have the opportunity to argue its delay case as a bar to proceedings, which it would not be able to do were permission granted. I heard all the issues together.
Although the two local planning authorities, the London Borough Councils of Hackney and Tower Hamlets, were served as Interested Parties, they did not appear or provide written submissions, or indeed indicate a position one way or the other in relation to these proceedings. Neither did English Heritage, which was also served as an Interested Party because of its role in relation to listed buildings, although it is clear that it shares the claimant's wish to see the whole of the Bishopsgate Goods Yard retained. Nor did any other Interested Party appear.
The Department for Culture, Media and Sport (which has the Governmental responsibility for listing...
To continue reading
Request your trial
-
Green v Secretary of State for Communities and Local Government
...any written notice of approval. 41 Then there is the exception enunciated by Ouseley J in R (Hammerton) v London Underground Limited [2002] EWHC 2307 (Admin) at paragraph 127, ie: "where it would be unlawful, in accordance with public law principles, notably irrationality or abuse of power,......
-
Greyfort Properties Ltd v Secretary of State for Communities and Local Government and Another
...proper justification for making an exception to the normally applicable principle. 11 In R (Hammerton) v London Underground Limited [2002] EWHC 2307 (Admin), Ouseley J examined those and other relevant authorities at some length. He drew from them a number of points set out at [123]–[133] o......
-
R (Rastrum Ltd) v Secretary of State for Communities & Local Government and Another
...out before the necessary approvals ( Whitley) or the laying out of the exchange land as an open space in compliance with a condition ( Hammerton), but if those works could nevertheless be treated as having been lawfully carried out, either because the approvals had been applied for and were......
-
R (Ardagh Glass Ltd) v Chester City Council and Others
...such circumstances I adopt with gratitude the flexible and commonsense approach of Mr Justice Ouseley in R (Hammerton) v LUL and others [2002] EWHC 2307 (Admin): “199. If I had been of the view that there had been a lapse of more than three months since grounds arose, I would have extended ......
-
Table of Cases
...(CS) 126 R (Hall Hunter Partnership) v First Secretary of State [2006] EWHC 2482 (Admin) 81 R (Hammerton) v London Underground Ltd [2002] EWHC 2307 (Admin), [2003] JPL 984, [2002] 47 EG 148 (CS), [2002] NPC 139 186 Page 49 Table of Cases xlix R (Hampton Bishop Parish Council) v Herefordshir......
-
Planning Conditions
...enforcement proceedings would be open to judicial review on grounds of irrationality. See R (Hammerton) v London Underground Ltd [2002] EWHC 2307 (Admin) (endorsed in the Court of Appeal in R (Prokopp) v London Underground Ltd [2004] 1 P & CR 31 and ( obiter ) by Court of Appeal in Norris v......