CO/8936/2010

Neutral Citation Number: [2011] EWHC 2220 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Wednesday, 8 June 2011

B e f o r e:

MR JUSTICE LINDBLOM

Between:

THE QUEEN ON THE APPLICATION OF GODFREY

Claimant

v

LONDON BOROUGH OF SOUTHWARK

Defendant

BARRATT HOMES (EAST LONDON) LIMITED

Interested Party

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MR J BURTON (instructed by Richard Buxton) appeared on behalf of the Claimant

MR D KOLINSKY (instructed by London Borough of Southwark) appeared on behalf of the Defendant

MR N KING, QC and MR R WALTON (instructed by Richard Max & Co) appeared on behalf of the Interested Party

J U D G M E N T

(As Approved by the Court)

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MR JUSTICE LINDBLOM: This is a renewed application for permission to apply for judicial review of the decision of the London Borough of Southwark Council ("the Council") to grant planning permission on an application submitted by Barratt Homes (East) London Ltd ("Barratt Homes") for a large mixeduse development on a site known as "Downtown" on the Rotherhithe Peninsular.

The claimant contends that he has the support of the local community in pursuing his claim and I see no reason to doubt that. A substantial statement of facts and grounds has been provided. It is supported by evidence in the witness statements of Miss Vickie Green, Mr Steve Cornish, Miss Cath Whittam and Councillor Lisa Rajan. Both the Council and Barratt Homes have appeared today to oppose the grant of permission. Permission was originally refused on the papers by Sir Michael Harrison on 27 October 2010. Argument today, full though it has been in an application for permission to apply for judicial review, has nevertheless focused on the main issues in dispute.

The claimant contends that the Council made the local community a promise that a community centre would be provided when the site came to be redeveloped and that the new community centre would at least replicate the one which had stood on the site before. The Council's Planning Committee was not told of this promise when it came to make the decision now under challenge. Both the Council and Barratt Homes deny that any such promise was made.

For the claimant, Mr James Burton submits that the Council has sought to shift the argument to the question whether it had promised a community centre of any particular size. But this, says Mr Burton, is to misrepresent the true issue. There is, he says, no need to put a gloss on the promise that the community centre which once stood on the site would be reprovided, in terms of a particular floor area being specified.

Mr Burton submits that the Council has itself produced documents which show that it actively involved the local community in shaping the redevelopment of the site from the outset through the Downtown Advisory and Assessment Panel, the DAAP. Having done this, the Council promised the DAAP and the local community that the community hall would be reprovided. Mr Burton points to the evidence of Mr Cornish in his second witness statement, to the effect that the Council told him, in his capacity as a member of the DAAP, that the new community centre would be some 50 per cent larger than the old one. This, says Mr Burton, accords with Mr Reid's understanding of what the Council had promised. Mr Burton also refers to the evidence of Cath Whittam and in particular to paragraph 10 of her witness statement, in which she says:

"In all we must have met at least 12 times over the course of at least a year, and we were always told by the Council quite clearly that any development would reprovide a new, larger Health Centre to take account of the growing population brought about by any development, and a new Community Centre to replace the established one which was being allowed to run into the ground through a laissezfaire policy of abandonment. When the heavily damaged building was finally destroyed by arson and the remains cleared away, we were always led to believe a replacement building would be provided, and detailed discussions took place as to its exact location, which we felt would be best nearby to the school, so both facilities could benefit from each other, and complement each other."

Mr Burton submits that the creation of the DAAP, which comprised not only members of the local community but also members and officers of the Council, reflected commendable efforts on the part of the Council to involve the local community in the redevelopment of the site. This, says Mr Burton, went well beyond normal statutory consultation on a planning application, but was appropriate because the local community faced the prospect of losing the Downtown District Centre as well as the community hall itself when the site came to be redeveloped. Mr Burton submits that as a matter of "ordinary fairness", it cannot be right for the Council to have established the DAAP as the body representing the local community, guiding the development and protecting community interests, only then to ignore commitments made to that body in the course of a public process.

In refusing the application for permission on the papers, Sir Michael Harrison observed that the Council was entitled to conclude that the proposed development was not contrary to Policy 7P of the Southwark UDP which, he said, does not require a community centre of any particular size. Nor, he said, was the proposed development arguably contrary to Policy 2.1 of the UDP. He noted that the community centre which had stood on the site had already been demolished; that took place in 2003. Sir Michael observed that the development brief and the preferred bidder report had been concerned with securing the appointment of the preferred developer, respectively in 2002 and 2003. They were not, he said, documents containing promises of the kind contended for by the claimant, which needed to be brought to the Council's attention as the local planning authority when it determined Barratt Homes's application. So, Sir Michael concluded, the circumstances of this case did not give rise to a legitimate expectation, as the claimant had contended.

That reasoning is not accepted on behalf of the claimant. Mr Burton submits that the statements in the development brief and the preferred bidder report, indicating that the Community Hall would be provided, represented in written form the promises the Council had made to local people in the process of community involvement. Mr Burton says that these are not the only examples of those promises, but they do serve to confirm them. The Council's statements in those documents to the effect that the community hall would be reprovided did not come out of the blue. They reiterated what had already been promised. That this was the Council's intention, says Mr Burton, is supported by the evidence of Miss Whittam, Mr Green and Mr Cornish, and also by Councillor Rajan in her witness statement. Indeed, Mr Burton submits, the Council's selection of the bid made by Barratt Homes, which had originally included an enlarged community centre, was further confirmation of the Council's promise, as was it's adoption of Policy 7P in the UDP.

It is necessary at this stage to focus on the terms in which the developer's brief and the preferred bidder report are expressed. The developer's brief, which was produced in 2002, states in section 4.0, "Factors for Consideration", at paragraph 4.1, under the heading "Requirements":

"The developer will also be expected to carry out improvements, or create new infrastructure necessary to development. This may include:

• To finance and build a new community hall on site if the existing hall is to be developed.

• Redriff Primary School playing field boundaries are to be adjusted to improve both the Downtown development site and to create more usable play space for the school which has plans for improved sports facilities."

The preferred bidder report, which is dated 29 July 2003, contains in paragraphs 1 to 5 the recommendations which were put before Council's Executive Committee. Then, under the heading "Background Information", it is stated at paragraph 6:

"The Downtown site is an area of approximately 4.78 acres net where the community buildings on the site became surplus to requirements over several years and have subsequently been vandalised and demolished".

The document goes on to refer to the final area of the site, at the tenants' hall, having been declared surplus to requirements by the Strategic Director for Housing in July 2003, and to the health centre on the land let to the NHS, which was to be replaced, it was envisaged, by an enlarged, improved facility in the comprehensive redevelopment of the site. Then in paragraph 10 it is stated:

"A new community hall will be reprovided within the comprehensive redevelopment".

Having set that background in place, I turn now to the particular submissions which Mr Burton has made on the claimant's grounds of challenge.

I turn first to ground 1. Mr Burton submits that the promise of the reprovision of the community centre cannot be understood as allowing the community centre to be reprovided by a room which measures 92 square metres within the new health centre in the development, 32 square metres of which is devoted to lavatories and a kitchenette. This, says Mr Burton, cannot, on any view, amount to a reprovision of the community centre, which was a hall measuring 413 square metres with a kitchen large enough to enable catering for groups, as well as lavatories and an area of open space around it.

Mr Burton submits that the Council's promise of reprovision was a material consideration when it came to consider Barratt Homes's application. The members were unaware of it and they had no regard to it. This, submitted Mr Burton, is a sufficient ground in itself for quashing the planning permission. Mr Burton goes further: he submits that the Council's promise informed the relevant site specific policy in proposal 7P. The members were also unaware of that. They did not have regard to it as a consideration when construing and applying Policy 7P, despite the fact that one of the members, Councillor Nardell, was asking officers in the course of the meeting to explain what Policy 7P required by way of community provision. Mr Burton submits that, as the Court of Appeal made clear in Petter and Harris v Secretary of State for the Environment Transport and the Regions [1999] EWCA Civ 975, a decisionmaker must strive to understand "the policy behind the policy".

So, says Mr Burton, the Council's approach to Policy 7P was unlawful for three reasons: first, the Council ought to have had regard to the context underlying the policy; secondly, had the Council done this, its approach to the interpretation of the policy and in particular the words "community centre" within it, would have been different; and, thirdly, the concept of a "community centre" cannot in any event be satisfied by provision such as was secured by this proposed development, namely:

"Part one, part fourstorey Health Centre (1535 square metres) including Community Centre (124 square metres) and residential building (block e)."

Thus, submits Mr Burton, the committee's ignorance of the context of the policy was enough to invalidate its decision.

I do not accept those submissions. It is clear, as has been pointed out by Mr Kolinsky for the Council and Mr King, QC, for Barratt Homes, that proposal 7P of the UDP contains no specific size requirement for the community centre. That proposal simply provides that the site is to be developed for Class C3 residential use Class D uses "including a Community Centre and a Health Centre." Thus the issue becomes a simple one: did the Council act rationally in forming the judgement it did that the community facilities provided in the proposal before it amounted to a community centre so as to comply in substance with the requirements of Policy 7P? As Mr Kolinsky has submitted, with several references to the committee report, this matter was dealt with clearly and carefully by the officers. The officers explained that the community centre proposed was fit for its purpose, and that several safeguards would be secured by a section 106 planning obligation, ensuring that the facility proposed would be available for use as a valuable and versatile community resource. It is not necessary to refer to the specific stipulations of the section 106 planning obligation. It is enough to say that Mr Kolinsky's submissions to that effect seem to me to be well founded.

I cannot accept Mr Burton's submission that the true construction of proposal 7P of the UDP must depend on an understanding of a policy behind a policy, namely that the provision should be at least as much as had previously existed on the site. That is not what proposal 7P says, and there is no hint of it in the UDP itself, either in policy or in text. Nor, indeed, is there any evidence that in the process of the adoption of the Southwark UDP that this was how the policy was intended to be understood and applied.

In simple terms, what the Council's Planning Committee had to do, and what it did, was to satisfy itself that the proposal before it contained a community centre that was good enough for the purposes for which it was to be provided.