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 | MR JUSTICE WILKIE |
| Judgment Date | 20 September 2012 |
| Neutral Citation | [2012] EWHC 2653 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 September 2012 |
| Docket Number | CO/5799/2012 |
[2012] EWHC 2653 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Wilkie
CO/5799/2012
Mr Stephen Whale appeared on behalf of the Claimant
Mr Daniel Kolinsky appeared on behalf of the First Defendant
Mr Douglas Edwards QC appeared on behalf of the Second Defendant
Mr Jonathan Moffett appeared on behalf of the Third Defendant
Mr David Forsdick appeared on behalf of Fourth Defendant
Mr Timothy Mould QC appeared on behalf of the First Interested Party
Second Interested Party was not represented
Quotations not checked against documents
This is a renewed application by the claimant seeking judicial review against various public bodies in respect of decisions concerning proposed substantial redevelopment of London Bridge Station and the area surrounding it. The principal decisions sought to be reviewed were taken by the Local Planning Authority, the London Borough of Southwark, on 29 March 2012, namely to grant planning consent for the proposed redevelopment and for listed building consent and for conservation area consent.
In addition, judicial review is sought against the Mayor of London for a declaration that his alleged failure either to direct refusal for planning permission or to act himself as planning authority was unlawful. An order is sought quashing the Mayor's decision not to direct refusal or to act as planning authority in respect of those applications.
Permission to seek judicial review against the Secretary of State for Communities and Local Government is also sought in the form of a declaration that his failure (1) properly to consider the applications for call-in against the published criteria, and (2) to require the London Borough of Southwark to refer the applications to him under Section 12 (3) (a) of the Planning (Listed Buildings and Conservation Areas) Act was unlawful. Judicial review is also sought to quash those two decisions of the Secretary of State.
Finally, a declaration is sought against English Heritage that it acted in breach of its statutory duty under Section 33 of the National Heritage Act.
In addition there are two interested parties: Network Rail, which was the applicant for planning permission and the various ancillary consents - Network Rail have attended and made both written and oral submissions; and the Department for Transport which has not, as far as I am aware, participated actively in these proceedings.
Judicial review was sought on the bases of claim and grounds filed on 1 June 2012. They were considered on the papers - the various defendants having submitted acknowledgements of service and summary grounds of defence - by Mr Justice Collins on 9 July 2012. He refused permission for the reasons which are set out in nine short numbered paragraphs.
On 16 July there was a renewed application for permission, annexed to which was an amended statement of facts and grounds which entirely re-casts the form of the original application and repeats a number of the allegations made against the various parties. It does not pursue certain of the others which were originally made. Those amended grounds have now been supplemented by a re-amended statement of facts and grounds, for which an application for leave has been lodged on 10 September. In order that those matters may also be considered in this application for permission hearing, I intend to give leave to the claimant to further amend this statement of facts and grounds in the form set out in the document dated 9 September 2012. The form of that document substantially replicates the amended grounds, save that there are a few additional factual paragraphs and certain additional specific grounds which have been added.
I have been greatly assisted by the provision of skeleton arguments by the claimant, each of the defendants and Network Rail as interested party, and also by the way in which Mr Whale has, in addressing me, focused on the nub of the issues he wished to raise and counsel for the other parties have followed his lead.
I, first, deal with the application against the London Borough of Southwark. The history of the matter can be set out insofar as it is relevant very briefly. There was a pervious application for planning permission by Network Rail in respect of redevelopment of London Bridge. That previous application required listed building consent and conservation area consent because the redevelopment plan as then envisaged would require the substantial demolition of a listed building, namely the Rail Shed, save that one wall (the southern wall) would not require to be demolished.
Furthermore, in respect of a particular building in the conservation area, namely the South- East Rail Office ("SERO") Conservation Area, consent was sought and given for partial demolition of that building. In 2008 certain nominal works were undertaken in order to secure that that permission was acted upon, thereby keeping it alive but, in effect, the new application is for a different redevelopment which requires the whole of the Rail Shed including that southern wall to be demolished save for a small part of it and calls for the demolition of the entirety of the SERO building.
The first ground with which I have to deal is one which concerns the obligations of the council in respect of environmental impact assessment. Those obligations originate from Europe but are given effect to in English law in particular by means of the Town & Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. Those Regulations set out, in Schedule 4, requirements for the inclusion of certain information in Environmental Statements. There is an obligation on applicants for planning permission to submit Environmental Statements and on planning authorities to have regard to them. Within Schedule 4 Part II, one of the pieces of information required is -
"An outline of the main alternatives studied by the applicant or appellant and an indication of the main reasons for his choice, taking into account the environmental effects."
Regulation 19 of those Regulations empowers the relevant planning authority (in this case London Borough of Southwark, to which the applicant has submitted a statement which it refers to as an environmental statement for the purposes of these Regulations), that if the relevant planning authority is of the opinion that the statement should contain additional information in order to be an Environmental Statement, the planning authority -
"shall notify the applicant in writing accordingly, and the applicant shall provide that additional information."
That seems to be the statutory scheme whereby assessing whether information provided is sufficient - that it can reasonably be described as an Environmental Statement - is, in the first instance, for the Local Planning Authority to form a view about. The role of the courts in judicial review in respect of this aspect of the legislation seems to be to review decisions of Local Planning Authorities not to require further information by reference to whether such decisions can be impugned on traditional judicial review grounds. Therefore it is very much a back-stop.
Some guidance has been given in the authorities as to how one should approach the task of considering whether information provided is such that it enables the document properly to be described as an Environmental Statement. I have been referred to the case of R (on the Application of Edwards v The Environment Agency [2008] UKHL 22, paragraph 38, where Lord Hoffmann cited approval of a passage from the judgment of Mr Justice Sullivan (as he then was) in R (Blewett) v Derbyshire County Council [2004] Env LR 29, paragraph 44, in which he said as follows:
"38 ….. 'In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant's environmental statement will always contain the 'full information' about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting 'environmental information' provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations ….. but they are likely to be few and far between.'"
In paragraph 68 Mr Justice Sullivan said that there was -
" ….. a tendency of the part of claimants opposed to the grant of planning permission to focus upon deficiencies in environmental statements ….. and to contend that because the document did not contain all the information required by Schedule 4 it was not therefore an environmental statement and the local planning authority had no power to grant planning permission."
He went on to say:
"Unless it can be said that the deficiencies are so serious that the document cannot be described as, in substance, an environmental statement for the purposes...
To continue reading
Request your trial
-
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)
...EWCA Civ 1738 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT MR JUSTICE WILKIE [2012] EWHC 2653 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Lord Justice Pill Lord Justice Etherton and Sir David Keene Case No: C1/2012/2524 Betw......