R Janine Sachs v London Borough of Camden
| Jurisdiction | England & Wales |
| Judge | Timothy Mould |
| Judgment Date | 24 May 2019 |
| Neutral Citation | [2019] EWHC 1570 (Admin) |
| Date | 24 May 2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | No. CO/5135/2018 |
[2019] EWHC 1570 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Timothy Mould QC
(Sitting as a Deputy Judge of the High Court)
No. CO/5135/2018
Mr T. Jones (instructed by Richard Buxton) appeared on behalf of the Claimant.
Miss M. Ellis QC (instructed by the London Borough of Camden) appeared on behalf of the Defendant (for the hearing but not the Judgment).
Mr R. Warren QC appeared on behalf of the Interested Party (for the hearing but not the Judgment).
( )
THE DEPUTY JUDGE:
This is an application to renew an application for permission to apply for judicial review.
The claimant seeks to challenge the validity of a section 106 discharge notice issued by the defendant, as the local planning authority, on 22 November 1918. The discharge notice noted the defendant's approval of a Construction Management Plan to govern the construction traffic arrangements for the delivery of major residential-led, mixed use development scheme on land at 100 Avenue Road, London NW3.
The approved Construction Management Plan to which that discharge notice relates was dated 22 October 2018. It was version 9 of that document, signed by the interested party's Development Executive on 22 November 2018. The interested party is the developer who is the beneficiary of the planning permission for the development to which I have referred.
The claimant, Miss Janine Sachs, seeks permission to apply for judicial review to challenge the discharge notice on the two grounds set out in her amended statement of facts and grounds dated 24 January 2019. Permission to bring the claim was refused on the papers by Thornton J on 13 March 2019. Notice of renewal was filed on 20 March 2019.
Factual Background.
In the light of the way in which the claim is put, it is necessary to go into the background in quite some detail. That is what I turn to now.
The claim relates to a very substantial mixed use development scheme on a site at 100 Avenue Road. Planning permission was granted on appeal by the Secretary of State on 18 February 2016. In his decision letter, the Secretary of State said this at paragraph 46:
“The Secretary of State agrees with the Inspector for the reasons given that the Construction Management Plan is necessary, fairly and reasonably related to the development.”
In that paragraph the Secretary of State was referring to paragraph 379 of a report prepared by an Inspector on 23 September 2015, in which the Inspector recommended that planning permission be granted subject to conditions. In paragraph 379, the Inspector said that
“… the development site is a tight site, with busy roads adjacent an active park, civic buildings and residential properties nearby. It is therefore essential that the construction at the site is actively managed and that subsequent traffic movements are also actively managed. Therefore, the construction management plan, service management plan and the travel plan are necessary, fairly and reasonably related to the development.”
It was those conclusions that the Secretary of State accepted in the paragraph to which I have referred.
The production of the Construction Management Plan is governed by the terms of an agreement entered into between the interested party and the defendant on 24 August 2015. That agreement was made under the aegis of section 106 of the Town and Country Planning Act 1990. Amongst the covenants undertaken by the interested party under the terms of that agreement are those set out under clause 3.5 on page 27 of the agreement, headed “Construction Management Plan”. They are in these terms:
“3.5.1 On or prior to the implementation date to submit to the Council for approval a draft Construction Management Plan.
3.5.2 Not to implement, or permit implementation of the development until such time as the Council has approved the Construction Management Plan as demonstrated by written notice to that effect.
3.5.3 The owner acknowledges and agrees that the Council will not approve the Construction Management Plan until it demonstrates to the Council's reasonable satisfaction that the construction phase of the development can be carried out safely and with minimal possible impact on and disturbance to the surrounding environment and highway network.
3.5.4 To ensure that throughout the construction phase the development shall not be carried out otherwise than in strict accordance with the requirements of the approved Construction Management Plan and not to permit the carrying out of any works comprised in demolition or building out the development at any time when the requirements of the Construction Management Plan are not being complied with and in the event of non-compliance with this sub-clause the owner shall forthwith take any steps required to remedy such non-compliance.”
Those elements of the Construction Management Plan that relate to highway measures are identified in the second schedule to the section106 agreement. The preamble to that schedule is in the following terms:
“A Construction Management Plan outlines how construction work will be carried out and how this work will be serviced, for example delivery of materials, set down and collection of skips, with the objective of minimising traffic disruption and avoiding dangerous situations and minimising the impact on local amenity. The Construction Management Plan should cover both demolition and construction phases of development. Details of the Construction Management Plan will relate to the scale, kind and location of the development, and they should assess the impact on transport, and on local amenity, including road user amenity. Should any one of these criteria be considered not to be relevant then specific justification as to why that particular criterion is not relevant will need to be provided. The Construction Management Plan should demonstrate that the following has been considered and, where necessary, the impacts mitigated.”
I shall draw attention to those of the menu of matters to be considered which appear to me to be relevant to the present claim. They are:
“….
(b) Proposed start and end dates for each phase of construction.
….
(d) The access arrangements for vehicles …
(e) Proposed routes for vehicles between the site and the Transport for London network. Consideration should also be given to weight restrictions, low bridges and cumulative effects of construction on the highway …
….
(n) Details of how traffic associated with the development will be managed in order to reduce congestion.
….
(q) Details of consultation on a draft Construction Management Plan with local residents, business and local groups, e.g. residents, tenants and business associations, and ward councillors. Details should include who was consulted, how the consultation was conducted, and the comments received in response to the consultation. In response to the comments received the Construction Management Plan should then be amended where appropriate and where not appropriate a reason should be given why not. The revised Construction Management Plan should also include a list of all the comments received. You are advised to check your proposed approach to consultation with the Council before carrying it out.
(r) Details of any Construction Working Group that will be set up addressing the concerns of surrounding residents, as well as contact details for the person responsible for the community liaison on behalf of the developer and how these contact details will be advertised to the community.
….
(w) The Construction Management Plan should also include the following statement: 'The agreed contents of the Construction Management Plan must be complied with unless otherwise agreed with the Council. The project manager shall work with the Council to review this Construction Management Plan if problems arise in relation to the construction of the development. Any future revised plan must be approved by the Council and complied with thereafter.”
The claimant is a local resident and acts as Chair of the residents' group ‘Save Swiss Cottage’, which is supporting her in the prosecution of the present claim. As that name implies, the claimant and those supporting her do not favour the development scheme at 100 Avenue Road. Nevertheless, she is realistic and accepts that, planning permission having been granted, the scheme will most likely be built out. However, the main construction programme of the scheme, including demolition, is expected to last for some 36 months (or three years). The claimant is understandably concerned to ensure that the provisions of the Construction Management Plan that is approved by the defendant, and governs the management of construction traffic during that period, are as robust as possible and, in particular, that the impact of construction traffic on local residential streets is...
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