R (Cummins) v Camden London Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Ouseley |
| Judgment Date | 21 December 2001 |
| Neutral Citation | [2001] EWHC 1116 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2003/2001 |
| Date | 21 December 2001 |
[2001] EWHC 1116 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr. Justice Ouseley
Case No: CO/2003/2001
David Wolfe (instructed by Leigh Day & Co, Solicitors for the Claimants)
Stephen Hockman Q.C. & Mark Beard (instructed by LB Camden Legal Services for the 1 st Defendant)
Paul Nicholls (Andrew Blake for Paul Nicholls) (instructed by Treasury Solicitors for 2 nd Defendant)
Peter Harrison (instructed by Owen White, Solicitors for the Interested Parties)
Introduction
On 7th March 2001, the London Borough of Camden, in full council, resolved to grant three interrelated planning permissions. The first related to an application by Dawnay Day Structured Finance Ltd for the demolition of an existing leisure and community centre, the erection of a new sports and leisure centre, together with other uses, in a new building and a new residential block, sixteen storeys high at its highest, at Swiss Cottage. The second, which for present purposes is uncontroversial, related to the refurbishment and alteration of the existing library adjacent to the existing and proposed sports and leisure facility. The third related to an application for various works of ground remodelling and landscaping to replace the existing sunken ball court or all weather pitch, part of the adventure playground and the market square. These applications were made by the Council's Director of Leisure and Community Services.
The land in question in all three applications was owned by the Council and appropriated for the most part to its Leisure and Community Services Committee.
On 27 th April 2001, Leigh Day & Co, Solicitors acting then for the Claimants apart from Ms Cooke, wrote a letter before action to the Council and a letter to the Secretary of State asking him to call the applications in for his own determination for reasons which foreshadow the challenge brought in this case. On 4 th May 2001, the Secretary of State rejected this request, in line with his normal policy, because no issues of more than local importance were raised. He had already rejected on 12 th March 2001 an earlier request to call in the applications, made by other persons.
On 18 th May 2001, the Council signed a development agreement with Dawnay Day Structured Finance Ltd (DDSF) and Barratt Homes Ltd. the Interested Parties. Planning permissions were issued on 2 nd August 2001, shortly after the signing of agreements under section 106 of the Town and Country Planning Act 1990.
On 18 th May 2001, judicial review proceedings challenging the 7 th March 2001 resolutions were lodged on behalf of the first four Claimants. The fifth Claimant seeks permission to be joined, in so far as such permission is necessary. The fifth Claimant notified the Council of her desire to participate on 21 st August 2001; it is her grounds alone which now raise a Human Rights Act point, and it is now her challenge alone which attacks the Secretary of State's refusal on 4 th May 2001 to call in the applications.
The grounds upon which the challenge is brought against the Council in summary are: first, that it failed to comply with its duty under section 54A of the 1990 Act to determine the applications in accordance with the development plan because it failed to consider relevant policies and whether they were breached; second, that it unlawfully allowed its interests as landowner, applicant and promoter of the development to influence what should have been its independent consideration of the planning merits so that its decision was biased and predetermined; this also meant that material considerations were ignored and immaterial considerations taken into account; and third, that for the Council to determine its own planning applications where it was involved as landowner was in breach of the fifth Claimant's rights under Article 6(1) of the European Convention on Human Rights to a fair and public hearing by an independent and impartial tribunal in the determination of her civil rights, because of factual disputes which, it was contended on her behalf, arose in the course of the determination.
The Council and its development partners, the Interested Parties, reject these arguments and in addition say that permission or relief should be refused because of delay and prejudice.
As against the Secretary of State, the fifth Claimant says that his refusal to call in the applications was unlawful because first, it was only by calling them in for factual disputes to be resolved by an Inspector that the right to the determination of her civil rights by an independent tribunal could be secured, and because second, his policy unlawfully prevented him calling in applications in circumstances such as these. In so far as primary legislation prevented the call-in, it was incompatible with the Human Rights Act.
The Secretary of State opposes those contentions, together with the Council and the Interested Parties.
The Claimants are three local children of varying ages who use the sports and other facilities presently on site, and the Treasurer of a sports club for disabled children which also uses those facilities. The fifth Claimant lives in a local flat and claims that her view from it will be affected by the new residential development, which will also overlook and block direct sunlight to the playground by the flats where her children play.
This is an application for permission to apply for judicial review, ordered to be heard at the same time as the substantive application so that the issue of delay can be considered at the same time as the merits and prejudice.
Facts
The Claimants’ case in relation to the blurring by the Council of its development control function and its leisure services and land-owning functions involved a detailed analysis of the way in which the proposals for the sports and leisure centre and related developments had been promoted and considered within the Council over a number of years.
I shall not set out all the detail upon which Mr Wolfe for the Claimants relied, but rather enough to give the essence of the material.
The Swiss Cottage development site occupies a large part of the street block on the east side of Avenue Road, close to the well known “Ye Olde Swiss Cottage” public house. The block includes a three storey public library listed Grade 2 and built in the early 1960s, an unlisted sports centre by the same architect, Sir Basil Spence, and of the same era, which provides a swimming pool, sports hall and fitness facilities, also the existing Hampstead Theatre soon to move to a new building being constructed in a different location on the site, but which has already taken up some of the open space on site, together with a sunken all-weather pitch, and an adventure playground operated by the Winch, which is a project for young persons more formally called the “Winchester Project”, a hard surfaced square sometimes used for markets, and other buildings and spaces.
The specific sporting facilities on site are a 5 badminton court sports hall converted from a swimming pool, 2 indoor swimming pools each of 33.3 metres length, 4 squash courts, a large indoor fitness area, an all weather pitch of the size of 3 tennis courts and a few lesser facilities.
The site has suffered from many problems over a number of years. In 1997 the Council, conscious of its problems and the advantages of improving the facilities, embarked upon an extensive public consultation process to obtain views about possible ways of regenerating the site.
In March 1997, a “Jury” of 16 citizens, a representative cross section from the surrounding area, set up by the Council as part of a public consultation exercise over the future of the Swiss Cottage site, reported that the worst aspects of the site were that it was ugly, dirty, concrete built, of poor layout and failed design, broken up by the all-weather pitch, and lacking in safety and signage. The Jury wanted the overall site radically improved and to see the “preservation of current services within a quality environment.”
The state of the buildings and land was described in the Planning Brief adopted in February 1999 in damning terms. I shall have to return to the background to that document in view of submissions made by Mr Wolfe but it was not contentious as a description of the existing problems, which lay behind the Council's actions from 1997 onwards.
The site was “split in such a way that none of the pieces relate to the other”. The entrances to the Sports Hall and library were poorly located, uninviting and of poor quality; the former provided inadequate disabled access and parking; the physical fabric of the library and sports hall had deteriorated with cracking, pigeon fouling and graffiti. There was a lack of defensible space. The square was surrounded by walls, was cold and harsh in appearance, daubed in graffiti and contributed to a feeling of insecurity. The all-weather pitch broke up the site and was one of the main reasons for the site's lack of integration. Its illicit use caused a nuisance to nearby residents. The adventure playground, unused and physically deteriorating, added to the air of dereliction. The grassed areas were small and of poor quality, as was the whole central area. The theatre needed immediate replacement. The interior of the sports centre contained...
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