R Daniel Coleman (Claimant) The London Borough of Barnet Council (Defendant) The Trustees and Governors of Etz Chaim Primary School (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindblom |
| Judgment Date | 21 December 2012 |
| Neutral Citation | [2012] EWHC 3725 (Admin) |
| Date | 21 December 2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5670/2012 |
[2012] EWHC 3725 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lindblom
Case No: CO/5670/2012
Juan Lopez instructed by the Claimant
Alexander Booth (instructed by London Borough of Barnet) for the Defendant
Paul Brown QC (instructed by Berwin Leighton Paisner) for the Interested Party
Hearing dates: 24 October and 5 November 2012
Introduction
Did the London Borough of Barnet Council ("the Council"), as local planning authority, discharge the public sector equality duty in section 149 of the Equality Act 2010 when determining an application for planning permission for the development of a school on land that was once the Wyevale Garden Centre in Daws Lane, Mill Hill, London NW7? That is the central question in this claim for judicial review.
The claimant, Daniel Coleman, opposes the development. He lives near the site, at 1–2 Hillside Cottages, Milespit Hill. He is disabled; he suffers from Prader-Willi Syndrome, a chromosome abnormality, and is cared for at home by his mother, Ms Zoe Samuelson.
The development was proposed by the interested party, the trustees and governors of Etz Chaim Primary School ("the Trust"). Planning permission for it was granted by the Council on 30 March 2012. The claimant and many others had objected to the proposal because they wanted the site to be used, as it had been when the garden centre was there, to provide a recreational and educational facility for the local community, which was of particular benefit to people with disabilities and the elderly.
The claim for judicial review was originally based on nine grounds, two of which have now fallen away. On 11 October 2012, when he refused the claimant's application for an interim injunction to halt the construction of the school, Irwin J observed that he had "reservations about whether there is a serious issue to be tried". He ordered an oral hearing of the application for permission to apply for judicial review. When the case came before me on 24 October 2012 the parties agreed that I should conduct a rolled-up hearing of both the application for permission and, if permission were granted, the claim itself. That is what I did.
The evidence
The claim is supported by evidence provided by the claimant himself (in his witness statements dated 30 May 2012 and 28 September 2012), by Ms Samuelson (in her witness statements dated 21 August 2012 and 10 October 2012), by Mark Mackay, who had worked in the garden centre (in his witness statement, which is not dated), and by Michael Gilbert, a chartered surveyor specializing in garden centres (in his witness statement, which is not dated). Evidence has been provided by the Council in the witness statement of James Wills-Fleming, its Head of Commercial Programmes. The Trust's evidence is in the three witness statements of Adam Dawson, its Chair of Governors, (dated 21 June 2012, 7 October 2012 and 10 October 2012). Kier Construction Limited, which has a contract to build the school, gave evidence opposing the application for an interim injunction, in the witness statement of Richard Lines (which is not dated).
The claimant explains in his first witness statement why he and others deplore the loss of the garden centre. He says:
"
1. I live within walking distance of land that was formally known as the Wyevale Garden Centre….
…
4. Up until the closure of the centre I had been a frequent visitor to the Garden Centre, sometimes visiting as often as 3 times a week, for in excess of 24 years.
5. I am a 33 year old…Jewish sufferer of Prader-Willi Syndrome…, a rare genetic disorder arising from chromosome abnormality, the symptoms of which include cardiac deficiency, fatigue and learning disabilities and which, at a progressive stage, is life-threatening.
…
11. I was able to walk to the Garden Centre and would spend considerable time there partially because it had multiple uses, had plenty of open space, was a truly accessible meeting place for myself and my neighbours and it was under cover and heated in the winter—which is important because I cannot control my body temperature.…
12. Ever since the Garden Centre opened, when I was 10 years old, it has always been used by people like me so I never felt uncomfortable. I was then at [a] special school for people with learning disabilities as well as for the elderly and the staff taught me to garden because it was something that many people with learning disabilities could do on an equal level with people who do not have problems with learning. At the Garden Centre, I could chat to those with or without disabilities on an equal footing and my neighbours and I became friends.…
13. I am fully aware that the breadth of the facility offered at the Garden Centre for the disabled and elderly is unequalled within Mill Hill (including the town centre). No other facility within the local area comes even close to the nature of the facility provided at the Garden Centre. The Garden Centre incorporated many green spaces, indoor and outdoor horticultural areas, an aquatic centre and all-day café, all within an environment which proved fully accessible to the disabled and elderly. The openness of the Site enabled the accommodation of sizeable groups of disabled and elderly users. Prior to the closure of the Garden Centre, I regularly saw groups of 80+ disabled and elderly users and their carers for dedicated exercises, events and activities. Sometimes Jewish Care used to book out the whole café for the afternoon leaving the outside area for other visitors. Everyone was happy and it is not nice to now be at home with nowhere to go.
14. There are many other charities and Social Service groups, nearing 15 in number I would estimate, who regularly used the Garden Centre that I would see and others have written in support[,] including Barnet Adult Social Services, Barnet College and Flower Lane Autism (catering for adults). I exhibit some of these letters as Exhibit DC/1.
…
19. There are housing estates within walking distance[,] for example where 76 people with an average age of 85 [are] located[,] with a further estate housing many more elderly and disabled residents also within less than a mile of the site.
20. The Garden Centre was not just 'useful', but vital for the disabled and elderly. Certainly I and many other disabled friends simply have nowhere else to go and are left isolated. I no longer see my neighbours except those immediately either side of me and they don't know me.
…
28.…[The garden centre] was not just a place for individuals. [It] served as an educational resource for disabled and elderly users, offering bespoke services and activities not accessible to these groups elsewhere and which include…restorative visual and tactile services, water-life experiences, lessons in horticulture and flower and vegetable cultivation.…
…
30. I have tried to explain why this is a unique site due to its association with the community for over 80 years. Therefore, it is not the case that any and all Garden Centres or other large open space, multiple occupancy businesses [require] protection from the court. However, this specific Garden Centre in this specific location is unusually rare.…
…
37. No comparable facility is located within reasonable walking or public transport distance of the homes of a high proportion of the disabled and elderly visitors to the Garden Centre.…
…
53. I am bringing this action because someone has to stand up for more than 1,000 elderly and disabled residents who are being told by [the] Council that their views are less important than a Policy on Free Schools.…I don't understand this and nor do almost 1,000 elderly and disabled people in our area and I am asking the court to assist and give me justice on behalf of all the elderly and disabled.
54. I wish to emphasise that this is not about a 'much loved facility' but a place that was essential to my quality of life.…".
In her first witness statement (in paragraphs 24 and 25) Ms Samuelson contests the need for the Trust's proposed school. She refers (in paragraph 25 v)) to a report to the Council's Cabinet dated 3 November 2011, which had identified a shortfall in capacity for reception classes. Ms Samuelson goes on to assert (at paragraph 25 v) a)):
"The November 2011 report provides a strategy that will address the 60 expanding to 90 child shortfall of school places…. The strategy does not include Free Schools as they do not come under the Council's authority…. Therefore, the shortfall is satisfied by other school place provision. In other words, there was no necessity for the School to fill the shortfall as plans were already in place in November 2011 to permanently resolve any shortfall which excluded the School [.]".
Background
The proposed development
The Trust is a charity established in 2011 under the Government's "free schools" programme. With a temporary planning permission granted by the Council in May 2011 it set up its school in accommodation at 80 Daws Lane. The school has 76 children in three classes. Another 28 are expected to join in September 2013, if by then the school has been moved to the site once occupied by the garden centre.
Mr Dawson describes in his evidence how the Trust came to take a long leasehold interest of the site. The Trust acquired the site in September 2011. The garden centre closed in the same...
To continue reading
Request your trial
-
Whitstable Society v Canterbury City Council
... ... Royal Courts of Justice Strand, London, WC2A 2LL ... Mr Justice Dove ... : Whitstable Society Claimant and Canterbury City Council Appellants ... Daniel Stedman Jones (instructed by Richard Buxtons ) ... City Council Legal Services ) for the Defendant ... Hearing dates: 12 ... , but who are representatives of the interested party, confirm the general position in relation ... 103 In Hotak v London Borough of Southwark [2015] UKSC 30 , Lord Neuberger ... public sector equalities duty (see R (Coleman) v London Borough of Barnet [2012] EWHC 3725 ; ... law entities and their activities, is a primary source of the principles applied in ... ...
-
Ldra Ltd and Others v Secretary of State for Communities and Local Government and Others
...the subject of detailed consideration by the courts over the years. Mr Whale referred me to R (Coleman) v London Borough of Barnet [2012] EWHC 3725 (Admin), in which Lindblom J. (as he then was) held that the local planning authority had due regard to the statutory equality duty which had b......
-
R Sunilkumar Bansilal Patel v Secretary of State for Communities and Local Government Billy Johal and Another
...has in substance had due regard to the statutory needs, which depends on the decision and its reasoning; R (Coleman) v Barnet LBC [2012] EWHC 3725 (Admin), [66]. They submitted that the Inspector had done so in her consideration of the adequacy of provision in [9 – 12] of the decision lette......