R Gray v London Borough of Southwark (First Defendant) Mayor of London (Second Defendant) Secretary of State for Communities and Local Government (Third Defendant) English Heritage (Fourth Defendant) Network Rail (First Interested Party) Department of Transport (Second Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill :,Lord Justice Etherton :,Sir David Keene : |
| Judgment Date | 21 December 2012 |
| Neutral Citation | [2012] EWCA Civ 1738 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2012/2524 |
| Date | 21 December 2012 |
[2012] EWCA Civ 1738
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE WILKIE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Etherton
and
Sir David Keene
Case No: C1/2012/2524
and
Mr Stephen Whale (instructed by Public Access) for the Applicant
Mr Daniel Kolinsky (instructed by London Borough of Southwark) for the First Respondent
Mr Douglas Edwards QC (instructed by TFL Legal) for the Second Respondent
Mr Tim Mould QC (instructed by Bircham Dyson Bell LLP) for the First Interested Party
Hearing date : 15 November 2012
This is an appeal against a decision of Wilkie J dated 20 September 2012 whereby he refused an application for permission to apply for judicial review by Mr Russell Gray ("the applicant"), as representative claimant on behalf of Bermondsey Village Action Group ("BVAG"). The applicant seeks to quash decisions of the London Borough of Southwark ("the Council") whereby the Council on 29 March 2012 granted permission for substantial redevelopment of London Bridge Station and the area surrounding it. The Council's grant, at the same time, of listed building consent and conservation area consent is also sought to be challenged.
It is also sought to quash a decision of the Mayor of London ("the Mayor") not to direct refusal of permission or to act as planning authority in respect of the applications for planning permission. A declaration is sought that his failure either to direct refusal of planning permission or to act himself as planning authority was unlawful. Before the judge, declarations in relation to the alleged failure of the Secretary of State for Communities and Local Government ("the Secretary of State") and English Heritage, and an order against the Secretary of State were sought. Those applications are not pursued in the present application.
Collins J refused permission to apply on 9 July 2012, on a consideration of the papers. On a renewed application to Wilkie J in the Administrative Court, application to amend the grounds for relief was granted but, in each case, permission to apply for judicial review was refused.
The applicant has exercised his right to renew the application in this court. On a consideration of the papers, I directed that the application be heard orally today by a three judge court with the appeal to follow if the application was granted. I also heard an oral application by the applicant for further disclosure of documents by the proposed respondents. In limited respects only, that application was granted and some further material has been disclosed.
Narrative
Network Rail have embarked on a major programme of upgrading the rail facility known as Thameslink and the stations on its route. These include London Bridge Station, which opened in 1836. The basic structure is Victorian and the train shed and associated railway viaduct arches are listed Grade II. Adjacent to the station in Tooley Street are the South Eastern Railway Offices ("SERO"), within a conservation area and described as "an important landmark building within the conservation area."
Network Rail gave notice that it was applying to the Council:
"For planning permission for Provision of a new Station layout at London Bridge, including construction of new Station Concourse, together with the demolition of existing arches; the demolition of Listed train shed and part of the wall on St Thomas Street; and the demolition of 84 Tooley Street and the construction of new replacement facades on Tooley Street and St Thomas Street; landscaping and other works associated with the station."
Listed building consent was also required for the demolition of the listed train shed and main roof structure and supporting walls, works associated with the repair, refurbishment and re-use of the railway arches on St Thomas Street. Conservation area consent was required for the demolition of the SERO office building.
The applicant has lived or worked in the area around the station, Bermondsey Village, for 25 years. He is the co-ordinator of BVAG which aims to influence policies relating to the preservation of the character of the area. There has been no challenge to his standing to make the present application.
Network Rail described the improvements to the station as the final major component of its Thameslink Programme. Track and platform re-alignments are claimed to be required and also major reconstruction of the station including a new station concourse. An application for planning permission was submitted on 27 June 2011 supported by plans, statements and an Environmental Statement pursuant to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (SI 1999 No.293). On 14 July 2011, the Mayor was notified of the planning application in accordance with the requirements of the Town and Country Planning (Mayor of London) Order 2008 (SI 2008 No. 580) ("the 2008 Order"), as being a planning application of potential strategic importance.
On 1 March 2012, the Deputy Mayor notified the Council that the Mayor was content to allow the Council to determine the application itself and on 29 March 2012, the Council granted the required planning permission, and listed building and conservation area consents. Network Rail entered into agreements under section 106 of the Town and Country Planning Act 1990 ("the 1990 Act") with both the Council and Transport for London.
The Council's Head of Development Management ("the Planning Officer") submitted a very detailed report to the Planning Committee, together with an addendum, and the Committee resolved to grant planning permission, listed building consent and conservation area consents on 20 December 2011. Consent was given for the demolition of the SERO building "in connection with the Thameslink Programme and the associated redevelopment of London Bridge Station." Decision notices were issued on 29 March 2012 following the decision of the Mayor not to intervene.
Permission for the development, along with listed building consent and conservation area consent, had been granted in 2003 but that proposal involved only partial demolition of the listed structures and the SERO. The Network Rail (Thameslink 2000) Order 2006 ("the 2006 Order") made under the Transport and Works Act 1992 ("the 1992 Act") had authorised certain works and that gives rise to one of the grounds of appeal. The consents were renewed in 2008 but the present scheme is a different one and fresh applications were required.
The major operational change proposed was that instead of there being nine terminating platforms and six through platforms at the station there would be six terminating platforms and nine through platforms. A comprehensive remodelling of the station was also proposed.
Grounds of appeal
Ground 1
The proposed appeal is based on four discrete grounds. The first is that the environmental statement provided by Network Rail was deficient and unlawful in failing to provide information in relation to alternative schemes considered.
Council Directive 95/337/EEC of 27 June 1985 is concerned with the assessment of the effects of certain public and private projects on the environment. Under article 5, a developer is required to supply the information specified at Annex IV. That includes, at paragraph 2, a requirement to supply "an outline of the main alternatives studied by the developer and an indication of the main reasons for this choice, taking into account the environmental effects." That requirement is given effect in the Town & Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 at Schedule 2, Part II, paragraph 4.
Network Rail submitted, in October 2010, a lengthy Environmental Assessment Scoping Report and in June 2011 an Environmental Statement. Under the heading "Cultural Heritage and Townscape" the impact of the proposal and the significance of its environmental effect were considered. Part II of the submission, entitled Project Information, included a section heading "Planning Policies and Alternatives". It is stated that "in this instance the consideration of alternatives and the application of planning policy are inextricably linked because of the national policy objective of improving public transport." It is stated that Government policy identifies a clear need to promote sustainable development and transport including seeking to promote transport accessibility "and establish high quality, reliable routes, with good interchanges, and maximise the potential usage of public transport."
Under the heading "Alternative arrangements on site" it is stated:
"5.5 Network Rail have been constantly reviewing the operational requirements at London Bridge and it was apparent that the previous Masterplan scheme would not provide for the capacity requirements and projections required.
5.6 The design of the Station has been re-assessed and Network Rail has spent some time preparing an operationally led design for London Bridge Station.
5.7 The scheme which Network Rail now wish to proceed with is driven by a...
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