Spitalfields Historic Trust Ltd v The Mayor of London
| Jurisdiction | England & Wales |
| Judge | THE CHANCELLOR |
| Judgment Date | 10 November 2016 |
| Neutral Citation | [2016] EWCA Civ 1358 |
| Date | 10 November 2016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C1/2016/2211 |
[2016] EWCA Civ 1358
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(GILBART J)
Royal Courts of Justice
Strand
London, WC2
THE CHANCELLOR OF THE HIGH COURT
( Sir Geoffrey Vos)
C1/2016/2211
Mr R Harwood QC (instructed by Harrison Grant Solicitors) appeared on behalf of the Applicant
Mr R Walton (instructed by King & Wood Solicitors) appeared on behalf of the Respondent
Introduction
This is the renewed oral application for permission to appeal from the decision of Gilbart J, dated 10th May 2016, whereby he refused the appellant's application for judicial review of the Mayor of London's decision dated 23rd September 2015, which I shall call "the Decision". The Decision was to take over the role of planning authority from the London Borough of Tower Hamlets, which I shall call "LBTH", in relation to an application for planning permission and an application for Listed Building Consent made by British Land Property Management Ltd, which I shall call "BLL" on 18th December 2014 and sent to the Mayor on 6th February 2015. I shall call those applications together "the applications". The Listed Building Consent application was for works to the cobbled Fleur De Lis street. 2. The planning application was in respect of a site at Norton Foldgate bounded by Shorditch High Street to the west, Liverpool Street Station, railway cuttings to the north and Commercial Street to the east which I shall call "the site". The site is about 500 metres I think from Liverpool Street Station and the application provided for some 34,807 square metres of office floor space.
Gilbart J gave a detailed and lucid judgment that makes it unnecessary for me to repeat much of the detail that he has set out on the record. I will however mention the essential elements in the legal and factual background.
It is convenient to deal with the essential legal background first. The case turned on two provisions. The first is in Article 7 of the Town and Country Planning (Mayor of London) Order 2008 No 2008/580, which provides that the Mayor can give the local planning authority a direction, under section (2A) of the 1990 Act to the effect that he is to become the planning authority if he (the Mayor) considers that:
"(a) the development or any of the issues raised by the development to which the … application [of potential strategic importance —"PSI"] relates is of such a nature or scale that it would have a significant impact on the implementation of the spatial development strategy;
(b) the development or any of the issues raised by the development to which the application
relates has significant effects that are likely to affect more than one London Borough; and
(c) there are sound planning reasons for issuing a direction."
Article 7(3) provides that in deciding whether to give a direction the Mayor must take account of:
"…in relation to all applications, of the extent to which the council of the London Borough is
achieving, and has achieved any other targets set out in the development plan which are
relevant to the subject matter of the application."
The other relevant provision is the recently enacted section 31(2A) of the Senior Courts Act 1981 which provides:
"(2A) The High Court —
(a) must refuse to grant relief on an application for judicial review, and
(b) may not make an award under subsection (4) [damages] on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
(2B) The court may disregard the requirement in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.
(2C) If the court grants relief or makes an award in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied."
Factual Background
As I have said the applications were made to LBTH on 18th December 2014. On 21st July 2015 the officers of LBTH produced a 77-page report recommending approval to the Strategic Development Committee of the Council. The Committee did not accept the recommendation on that date or on 27th August 2015 when it met again. On 28th August 2015 the claimant wrote to the Mayor, urging him not to issue a direction under Article 7, on the grounds that LBTH had taken a proper and reasonable decision, and there was sound planning reasons for the refusal that they then enunciated. There was inadequate affordable housing in the scheme and the proposals would not have a significant impact on the objectives of the London plan or on the adjoining boroughs of the City of London and Hackney. It later turned out that the letter had been misreported to the Mayor as objecting to the applications rather than to the application of the Article 7 criteria.
On 10th September 2015, the day after LBTH had given written notice of the resolution to refuse, an officer of the Greater London Authority ("GLA") sent an email to BLL's consultant saying that the three conditions of Article 7 were satisfied and that "the Mayor will make a final decision on this following the meeting on the 23rd".
On 23rd September 2015 the Mayor did indeed direct that he be the planning authority for applications under Article 7 in terms that attached a detailed report explaining why he considered that the three conditions were satisfied. The judge has summarised the decision and the report at paragraphs 24 – 38 of his judgment, and I shall not repeat that comprehensive treatment in this short judgment this morning.
Before the judge the appellant challenged the Mayor's decision on four grounds which were as follows. First, that the Mayor failed to have regard to a material consideration, namely the letter from the appellant dated 28th August 2015 which had challenged the triggering of the criteria. Secondly, that the Mayor's conclusion was vitiated by misinterpretation of the first criterion in Article 7 (the significant impact on the implementation of the spacial development strategy), his having taken into account irrelevant matters and failed to have regard to relevant matters and the decision being inadequately reasoned in relation to that first criteria. Thirdly, the Mayor's conclusion was vitiated by misinterpretation of the second criterion in Article 7 (that is significant effects that are likely to affect more than London borough), his having taken into account irrelevant matters and failing to have regard to relevant matters, and the decision again being inadequately reasoned. Fourthly, that the officer's report was not an objective assessment because he had made up his mind before considering the referral from LBTH as demonstrated by 10th September 2015 e-mail.
The Judge's Decision
In the briefest of outline the judge did not reject out of hand each of the four grounds put forward in support of the application for judicial review, as I shall shortly explain. But he did refuse the application on the basis of the provisions of section 31(2A) of the Senior Courts Act 1981 which I have already set out. He held that it appeared to him to be "highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred", so that he was...
To continue reading
Request your trial