Jennie Sharokin Arthur v London Borough of Barnet
| Jurisdiction | England & Wales |
| Judge | Mr Tim Smith |
| Judgment Date | 18 November 2022 |
| Neutral Citation | [2022] EWHC 2933 (Admin) |
| Docket Number | Case No: CO/324/2022 |
| Court | King's Bench Division (Administrative Court) |
The King on the application of
and
[2022] EWHC 2933 (Admin)
Mr Tim Smith
(sitting as a Deputy High Court Judge)
Case No: CO/324/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Harwood KC (instructed by Harrison Grant Ring) for the Claimant
Richard Ground KC and Ben Du Feu (instructed by Capsticks LLP) for the Interested Party
(The Defendant was not represented at the hearing)
Hearing date: 5 th October 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:00am on 18 November 2022.
Mr Tim Smith (sitting as a Deputy High Court Judge) :
Introduction
This claim concerns a challenge to the grant of planning permission by the Defendant following an application made by the Interested Party. The planning permission relates to part of the Finchley Memorial Hospital site to the south of Granville Road and to the east of Bow Lane ( “the Site”).
The planning permission was granted in outline on 17 th December 2021 for a residential development and ancillary facilities on land which had been used for public open space ( “the Permission”). The Claimant is one of numerous objectors to the planning application.
The Claimant sent a pre-action protocol letter on 21 st January 2022. The Defendant replied on 28 th January and indicated that “The potential claim is contested in full”. The Claimant brought the claim on the same day citing four grounds of challenge.
The Defendant filed an Acknowledgement of Service and Summary Grounds of Resistance on 25 th February 2022. As the Defendant had foreshadowed in its reply to pre-action protocol correspondence the claim was resisted in full. The Interested Party did not file any Acknowledgement of Service.
By her Order dated 7 th March 2022 Lang J granted permission to apply for judicial review on all grounds. By the same Order Lang J certified the claim as being an Aarhus Convention claim and limited the Claimant's costs liability to the Defendant and the Interested Party to £5,000. She imposed a reciprocal costs limit of £35,000 for the Claimant's costs.
The Defendant filed its Detailed Grounds for contesting the claim on 13 th April 2022.
On 12 th May 2022 the substantive hearing was listed for 5 th October 2022 with a time estimate of one and a half days.
Thereafter, in or around early July 2022 the Interested Party became aware that the Defendant may no longer be willing to take an active part in the proceedings. Recognising the possibility that the claim may thus proceed without any party actively defending the Permission, the Interested Party elected to mount its own defence. As it had not filed an Acknowledgement of Service originally the Interested Party required the permission of the Court to do so. Permission was sought and granted by Order of the Court dated 8 th August 2022. The Interested Party's application was accompanied by its own Detailed Grounds for resisting the claim which were, in substance, identical to those filed by the Defendant. In effect, therefore, the Interested Party inherited the Defendant's grounds of resistance.
The reasons for the Defendant's decision not to take part in the proceedings any longer are not before me and it is not necessary for me to know what they were. In confirming that it consented to the Interested Party's application to file an Acknowledgement of Service and Detailed Grounds late the Defendant's solicitor stated “The Council would also like to confirm that it will no longer take an active role in the proceedings”. The Defendant has not consented to judgment nor withdrawn its Grounds of Resistance; it simply elected not to appear at the hearing, as is its right.
At the hearing the Interested Party was represented by Counsel to defend the claim. The Defendant did not appear.
Factual Background
In 2010 the Defendant had granted planning permission for the construction of a new hospital on the Site following the earlier adoption of a Planning Brief for the redevelopment of the Site in 2007. At that time much of the Site was in use as playing fields. The development of the new hospital left the bulk of the Site undeveloped, and that part of it was laid out and used subsequently as public open space.
The Interested Party is the freehold owner of the Site. It is a company wholly owned by the Secretary of State for Health and Social Care having been incorporated in 2001 with the objective of improving the NHS estate and, in turn, improving community-based health and social care services.
The status and objectives of the Interested Party are further explained in the Planning and Affordable Housing Statement accompanying the planning application ( “PAHS”) in these terms:
“1.2 CHP is wholly owned by the Secretary of State for Health and Social Care. Incorporated in 2001, CHP set out to improve community-based health and social care services by working to improve the NHS estate through Public Private Partnerships established by the NHS Local Improvement Finance Trust (‘LIFT’) programme. This includes Finchley Memorial Hospital which was a LIFT project.
1.3 CHP is not responsible for the delivery of healthcare services but works closely with NHS healthcare providers to ensure, so far as is possible, that the healthcare estate serves and is well-adapted to their needs.”
On 15 th September 2020 the Interested Party submitted a planning application reference 20/4343/OUT ( “the Application”) to the Defendant for the following development:
“Outline planning permission for the demolition of Bullimore House and the phased development of up to 130 units of residential accommodation along with the provision of associated car and bicycle parking on land adjacent to Finchley Memorial Hospital”
The Application was submitted in outline with all matters save for means of access being reserved. For the remainder of the reserved matters the future submission of applications for approval of reserved matters are required to be in accordance with the parameter drawings referred to in condition 1 of the Permission. This means that a broad impression of the final scheme can be gleaned even in the absence of full design details. It is known, therefore, that a consequence of the grant of the Permission is that most of the public open space previously used by the local community would be built upon.
The Application attracted a considerable amount of interest, the vast majority of which comprised objections. 677 objections were received (including one from the Claimant) along with 6 letters of support.
The Application was referred to the Defendant's Strategic Planning Committee ( “the Committee”) for determination. Twelve of the Defendant's Councillors are members of the Committee ( “the Members”), one of whom is the Chair and another is the Vice-Chair.
The case officer for the Application was Mr Carl Griffiths, an officer from the Defendant's Planning Department. In the usual way Mr Griffiths prepared an officer's report ( “the OR”) for the Committee summarising the application documents, the representations that had been received through consultation on the Application, and relevant planning policy, before then analysing the Application against planning policy and other material considerations. The OR ultimately recommended that planning permission be granted subject to the imposition of conditions and the completion of a planning obligation ( “the S106 Agreement”) under section 106 of the Town & Country Planning Act 1990 ( “the 1990 Act”). For the reasons which I describe below the OR was supplemented by a short Addendum Report before the meeting of the Committee but the positive recommendation remained unchanged.
I deal firstly with what the Application documentation says about the loss of public open space.
In relation to open space provision within the development the PAHS asserts (§2.12) that:
“The wider public will have access to open lawn areas and informal ‘doorstep’ play space alongside the permissive pathways which will benefit from level access and good accessibility for all members of the community”
but I accept the characterisation of this space by Mr Harwood KC for the Claimant as having a definite sense of enclosure with an orientation towards use by residents of the development. In any event it is not contended by Mr Ground KC for the Interested Party that the residual level of public open space compensates in any material way for the loss of the existing public space to built development and private enclosure allowed by the Permission. Mr Ground KC also did not pursue any point about the availability of other public open space in the vicinity of the Development (namely Victoria Park) justifying the loss of public open space here.
The “Planning Assessment” section of the OR began with this acknowledgement:
“The application site represents an area of green open space within the site of the Finchley Memorial Hospital site [sic]. The area is used by the local community for amenity and recreation. The proposed development would result in the loss of this open space and as such the primary consideration in the determination of the application is whether the loss of the open space is acceptable in principle”
The statutory development plan for the area comprises both the Barnet Local Plan (September 2012) ( “the Local Plan”), which itself comprises the Core Strategy and Development Management Policies documents, and the London Plan (2021) ( “London Plan”).
Policy DM15 of the Local...
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