R (Governing Body of Langley Park School for Girls) v Bromley London Borough Council
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE WYN WILLIAMS,Mr Justice Wyn Williams |
| Judgment Date | 25 February 2009 |
| Neutral Citation | [2009] EWHC 324 (Admin) |
| Date | 25 February 2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/10206/08 |
[2009] EWHC 324 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Honourable MR Justice WYN Williams
Case No: CO/10206/08
Mr Richard Langham (instructed by Messrs Kingsley Smith Solicitors LLP) for the Claimant
Mr John Steel QC and Mr Andrew Sharland (instructed by Director of Legal Services of the Defendant) for the Defendant
Mr Thomas Hill (instructed by Messrs Trowers and Hamlins Solicitors) for the Interested Party
Hearing dates: 5 th-6 th February 2008
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Wyn Williams :
In these proceedings the Claimant seeks an order quashing the planning permission which was granted by the Defendant to the Interested Party on 5 August 2008. The Claimant proceeds by way of judicial review. By order dated 9 December 2003 Sir Michael Harrison directed that there should be a “rolled-up” permission and substantive hearing to be held as a matter of urgency. The Claimant relies upon two discrete grounds of challenge.
At the conclusion of the hearing before me I told the parties that I intended to refuse permission on ground 1, grant permission on ground 2 but dismiss the claim. I took that course because there is indeed a degree of urgency attached to this case and it seemed to me to be appropriate that the parties should know my decision, once reached, at the earliest opportunity. I also explained, however, that since the grounds raised questions of law which required careful consideration of earlier authorities I proposed to give judgment in writing.
Background and Relevant Facts
The Interested Party (hereinafter called “the Boys School”) is the governing body of a comprehensive school which caters for boys between the ages of 11 to 16 and for both boys and girls in the sixth form. The school is situated on a site to the south of the town of Beckenham which lies within the Defendant's administrative area. The site comprises some 6.9 hectares. The buildings upon and open spaces within the site are shown in aerial photographs within the trial bundles (see page 426 in particular). As I understand it, the Boys School has existed in this location since the 1960s. It was designed to cater for 600 to 650 pupils; it now has 1600 pupils on its roll.
The Claimant (hereinafter called “the Girls School”) is the governing body of a comprehensive school which caters exclusively for girls to the age of 16 but which is also co-educational in the sixth form. The Girls School is situated on an area of land which adjoins the Boys School. Its position is also shown, clearly, in the aerial photograph to which I have referred. It lies to the east of some of the buildings of the Boys School and to the south of a large open area within the Boys School which is currently used for rugby pitches.
On 15 June 2006 the DfES/DCSF wrote to the Defendant setting out an offer to fund the rebuilding of one school in its administrative area pursuant to a scheme known as “The Building Schools for the Future/One School Path Finder Programme.” The Defendant sought a relaxation of the mandatory requirement (that is, one school) so that other secondary schools with pressing capital needs could be involved but this request was declined. Thereafter, a process to identify the school to benefit from this initiative was undertaken. All secondary schools were invited to submit an “expression of interest”. A bid was received from the Boys School. There followed what is described as a robust selection process and at the end of that process the Boys School was chosen by the Defendant to receive funds for the building of a replacement school.
Formal approval for the capital project to substantially or predominantly rebuild the Boys School was given by the DfES on 23 January 2007.
The next step of some significance was the selection of an architectural practice to undertake a feasibility study. On 7 March 2007 Frankham Consultancy Group was chosen to undertake a feasibility study for the new school. Frankham produced its feasibility study in November 2007.
The study identified three possible options for the new school all of which, essentially, envisaged using the site of the existing school. In the feasibility study the options were referred to as “front of school option; rear field option and middle site option”. In these proceedings, indeed for some time before, these options were referred to, respectively, as options 1, 2 and 3. Frankham recommended, unequivocally, that option 3 should be chosen and the Boys School accepted that recommendation.
It is right to say that one of the factors which influenced the decision of the Boys School was that option 3 would cause the minimum disruption to educational provision. The Defendant, as the local education authority, had informed the Boys School that it would not be possible to maintain the education of the school pupils by relocating to buildings away from the school or by housing the pupils in temporary buildings within the confines of the existing school site. Option 3 did not require such relocation; the existing school buildings could be used during the time that the new school was being built. For reference, option 3 is illustrated on page 575 of the trial bundles. Its advantages and disadvantages are assessed at page 574 of the trial bundles.
The Boys School suggests that from around October 2006 it had been careful to take account of the views of the Girls School since, of course, they were near neighbours. That is not a point which is necessarily accepted by or on behalf of the Girls School, but, as it happens, in my judgment nothing turns upon the details of such consultation process as did occur. What does seem clear is that on 11 February 2008 a meeting was held with some of the governors of the Girls School to discuss the Boys School preferred option namely option 3. Notes of the meeting were produced in evidence. The notes contained the following record:—
“After an examinations of the plans, the governors of the Langley Park School for Girls expressed the view that they were generally satisfied with the plans as presented although this will need to be further discussed and agreed with the full Governing Body of the School. The Governors agreed to share and discuss the plans with the Governing Body”
The Boys School submitted an application for planning permission in April 2008. The supporting documentation referred to the three options considered at the feasibility stage. The documents demonstrated, clearly, that three options had been considered at feasibility stage but that two had been rejected by the Boys School.
On 22 May 2008 the Girls School put in written objections to the planning application. The objections were contained within a long and detailed letter (12 pages closely typed). The letter made various detailed criticisms of the planning proposals and, in my judgment, raised the possibility of an alternative scheme on the site. I need not dwell on the contents of the letter, given the nature of the grounds. I should however refer to those parts of the letter which suggested an alternative scheme on the site was to be preferred. I quote from paragraphs within the letter and identify which pages within the trial bundles these paragraphs appear.
“The proposal in fact constitutes the least efficient use of the site…… The existing buildings include those that are three actual storeys or three storeys in height…… When combined with the footprint that must be taken into account …… it is apparent that there is adequate land within the existing built part of this site….. to provide new buildings (in what is the dismissed option 1 called “front of school”) without increasing the height from that of existing buildings. When one expunges the irrelevant planning considerations and adds the relevant planning considerations, “front of school” is the only siting option which could potentially be in accordance with the development plan, PPG2 and PPS1.”(see page 224)
“More specifically in respect of the “front of school” option 1, it was rejected for unjustified reasons which can be given no material weight. Schools routinely have building works undertaken. The alleged need for four storeys is not made out by reason of the conflation of defective calculations ………….The alleged flexibility of siting in the potential configuration of built form of option 3 compared to option 1 is not accepted………. The 'front of school' option was the only approach that, with significant modification, might have been in accordance with the development plan.” (see page 225)
“It is noted that Frankham 02 drawing admits “front of school” / “Option 1” represents the “least impact upon residential areas” yet fails to mention that this equally applies to the girls' school and, incorrectly under “option 3” contends “least impact on…… the girls' school …..” (see page 226)
In June 2008 the Council's Chief Planning Officer prepared a detailed report to the Development Control Committee scheduled for 17 June 2008. I do not attempt to summarise the report at this stage. In so far as its contents are relevant to the grounds of challenge they are discussed in a...
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