R Hetherington v London Borough of Lambeth
| Jurisdiction | England & Wales |
| Judge | JUDGE,Rodger QC |
| Judgment Date | 25 July 2018 |
| Neutral Citation | [2018] EWHC 2205 (Admin) |
| Docket Number | CO/1215/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 July 2018 |
[2018] EWHC 2205 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
UPPER TRIBUNAL JUDGE Martin Rodger QC
(Sitting as a Judge of the High Court)
CO/1215/2018
and
APPEARANCES
Mr D Stedman-Jones (instructed by Richard Buxton Environmental & Public Law) appeared on behalf of the Claimant.
Ms H Sargent (instructed by Director of Corporate Services London Borough of Bromley) appeared on behalf of the Defendant.
THE FIRST INTERESTED PARTY did not appear.
THE SECOND INTERESTED PARTY did not appear.
THE THIRD INTERESTED PARTY did not appear.
This is a renewed application for permission to apply for judicial review, permission having been refused on the papers by Mr Neil Cameron QC, sitting as a Deputy High Court judge.
The application is brought by the Claimant, Mr Barry Hetherington, who is a resident of Edward Henry House in Lambeth, and a member of a neighbourhood housing co-operative which manages that building. Mr Hetherington lives about 100 metres from a Site in the Waterloo area on the south bank of the Thames (“the Site”) for which the defendant, the London Borough of Lambeth, granted temporary planning permission on 26 January 2018 for the erection of a temporary show venue on the Site for a period of up to 5 years. The applicant for that planning permission was the first Interested Party, MM — The Party! (Property) Limited.
Mr Hetherington seeks permission to challenge Lambeth's decision to grant the planning permission.
The intention of the first Interested Party was to use the Site as an “Abba themed immersive experience nightclub-styled restaurant” where enthusiasts will dine in the style of a Greek island taverna and listen to live performances of Abba's music before, all inhibitions discarded, dancing the night away in the manner popularised by the recently successful Mama Mia films (hence the Interested parties' name, MM – Mama Mia – The Party!).
The Site is owned by the Coin Street Builders Limited (“Coin Street”), the third Interested Party, and is situated on the corner of Stamford Street and Cornwall Road in the Coin Street area immediately to the South East of Waterloo Bridge, behind the National Theatre. It has been largely vacant since the late 1980s, following the demolition of an office building which had formerly occupied the greater part of it.
The Site, together with other extensive land in the vicinity, was acquired by Coin Street from the former Greater London Council on 23 July 1984, pursuant to a Transfer of that date. The acquisition was the culmination of a campaign by local people who wished to secure the use of land in the Coin Street area for social housing and community purposes.
The Transfer was entered into simultaneously with the grant of a planning permission for the development of a total of eight parcels of the land transferred for housing and community uses. The Site was not one of these parcels but it was the apparently the desire of the GLC that the office building then standing on the Site should be pulled down and that the whole Site should then be used for housing.
To give effect to that desire, the Transfer from the GLC to Coin Street included a covenant at clause 6(b)(1) not to use the Site (referred to as “the Property”) or permit it to be used otherwise than for the “Permitted Use”; this restriction was subject to a proviso that “prior to the carrying out of a relevant part of the Development thereon, any part of the Property may be used by the transferee or those authorised by it for such temporary purposes as requisite consents therefore may have been obtained”. The Permitted Use of the Site, as defined by the Transfer, was for residential accommodation which was further defined to mean social or public housing. The “Development” to which clause 6(b)(1) referred, was the development of the eight parcels of land in accordance with the planning permission granted simultaneously with the Transfer.
Since the demolition of the former office building on the Site it has remained vacant. Occasional temporary uses have been made of it for parking or in connection with the development of other land in the vicinity but it has not yet been used for the residential purposes for which the GLC had hoped and intended it should be used.
The Transfer recites explicitly on its face that it was entered into by the GLC in pursuance of s.123 of the Town and Country Planning Act 1971, which, so far as material, provides:
“(1) Where any land has been acquired or appropriated by a local authority for planning purposes, and is for the time being held by the authority for the purposes for which it was so acquired or appropriated, the authority may dispose of the land to such person, in such manner and subject to such conditions as may appear to them to be expedient in order to secure the best use of that or other land and any buildings or works which have been, or are to be, erected, constructed or carried out thereon, whether by themselves or by any other person, or to secure the erection, construction or carrying out thereon of any buildings or works appearing to them to be needed for the proper planning of the area of the authority.”
Section 123(1) thus gives a local authority power to dispose of land which it has acquired for planning purposes where it appears to the authority to be necessary to do so for the proper planning of its district.
The GLC transferred the Site prior to its abolition in 1986. The enforceability of covenants such as clause 6(b)(1) was one of the matters dealt with in the legislation winding-up the GLC. Pursuant to a 1992 Order the benefit of the covenant is now held by the London Borough of Bromley for the benefit of the 33 London boroughs. Any proceeds or sums realised by Bromley in consequence of its rights under the covenant have to be distributed to the other boroughs.
The planning status of the Site, as designated by the relevant unitary development plan, was varied in 1988 to permit its use for wider community facilities. After the benefit of the covenant in the Transfer had passed to Bromley, it was the subject of a variation by a Deed of Variation dated 27 August 1998, to which both Bromley and Coin Street were parties. The Permitted Use of the Site changed from residential accommodation was widened to allow the construction of an underground car park, as well as residential accommodation with ancillary gardens and facilities and a community and training centre.
A community and training centre has already been constructed on land adjoining the Site, but evidence filed by Coin Street suggests that its intention is that the Site itself should eventually be used for the second phase of this community centre, which has been designed with such an expansion in mind.
The planning application with which these proceedings are concerned was made on 23 July 2017. It was supported by a statement from Coin Street explaining that, due to limited resources, it had so far been unable to develop the Site for housing. It therefore wished to make a temporary use of the Site to provide an income to service the cost of housing already provided neighbouring sites and with a view to the expansion of the neighbourhood centre.
The claimant was one of a large group of local residents who objected to the application. Amongst the grounds of objection they pressed most strongly was that the proposed use would frustrate the expectation which had existed since the 1980s that the Site would be used for affordable housing, for which as is well known, there is an acute need in Lambeth and in the rest of London.
The officer's report to the planning committee considered the issue of land use and said this:
“The land was not given planning permission to replace the previous commercial building that existed on site and has not been allocated for housing. The site and the adjacent neighbourhood centre were excluded from the original master planning permissions in 1983 and 1986, when it was originally intended to refurbish the commercial building that had previously stood in front of the now cleared commercial site and the neighbourhood centre.
Whilst part of the Stamford Street frontage included housing this is not in the location of the site. It is the intention of the landowner, CSCB, to develop the site as phase 2 of the neighbourhood centre and, until such time that they are able to bring forward the redevelopment of...
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