Ellson v London Borough of Greenwich & Anor

LORD JUSTICE MOSES: This is an application for permission to appeal from a decision of Burton J which was given on 25 September 2006. In that decision he refused an interim injunction pending the hearing of judicial review proceedings relating to a development in Deptford but he granted a temporary injunction pending an appeal. Permission to appeal was refused in writing by Keane LJ and this case comes before me as an emergency in circumstances which will appear.

The development in question involves a proposal to demolish Borthwick Wharf in Deptford and seeks permission to erect a mixed development of both commercial and residential property. Borthwick Wharf is of note because it is the only industrial building designed by Sir Edwin Cooper. It is also of note because it forms part of what has been described as the final chapter in Deptford’s history as a victualling yard and of late as a cattle market. It is an example about which tastes differ; but, it is not surprising, it gives rise to strong emotions amongst those who, for wholly admirable reasons, wish to see such inter-war industrial buildings, ever rare as they become, preserved as part of the cityscape. One such amongst those is Mr Ellson.

When Mr Ellson realised that buildings were about to be demolished, he took proceedings as an emergency with emergency legal aid which, as I understand it, has been extended to prevent the continuing demolition of that building. He was, however, in difficulties.

The demolition itself is not subject to any control. It is exempt from planning control because it is a commercial building, in consequence of section 55 of the Town and County Planning Act 1990. It is important to appreciate that as a result of directions given by the Secretary of State to local planning authorities pursuant to section 55(2)(g) of the 1990 Act there are no reasons of planning legislation or regulation which can restrain those who own the building from demolishing it. Consideration was given back in 2005 as to whether it should be listed or not. In particular, consideration was given as to whether the Secretary of State should issue a notice pursuant to section 6(2) of the Planning Listed Buildings and Conservation Areas Act 1990 precluding the listing of the building for a period of five years. Views, as one would expect, differed. But once English Heritage had taken the view that the building was of such little architectural significance as not to justify its preservation, it was small wonder that the Secretary of State issued a letter stating that listing would be precluded for a period of five years from 14 September 2005.

Those seeking to preserve this building therefore faced the difficulty that there was no law preventing the demolition of the building. However, an impartial observer reading section 55 would not have expected or taken account of the legal ingenuity of Mr Richard Clayton QC, ably supported by the well-known solicitors in this field Messrs Richard Buxton, and the resolution of Mr Ellson himself. They have hit upon an argument that the development is an integral part of a proposed planning application advanced by the developers. The planning application still survives in circumstances to which I shall turn shortly. It has not been resolved. No permission has been given and in those circumstances it is argued that it would be a breach of planning control not to restrain the demolition until the application has been considered by the relevant planning authority the London Borough of Greenwich, who appears today before me through Mr Timothy Straker QC. The planning history is not straightforward. An application to develop this site has already been made and considered. It was approved by the council following an environmental impact assessment, which included provisions relating to the environmental impact consequential upon the demolition of Borthwick Wharf. The council, as I have said, approved the development, taking no issue in relation to the development other than making conditions pursuant to section 81 of the Building Act 1984.

Unfortunately one of the members of the planning committee was in a position which led the council to take the view that there may be a sustainable allegation of bias. The council did not seek to contest that issue and agreed that the planning permission should be quashed. The developers were, then, left in the position that they had to start again with, be it noted, the same planning application. It is in those circumstances that Mr Clayton QC submits on behalf of Mr Ellson that the demolition remains an integral part of the planning application. No planning permission has been given in relation to that application and it is necessary to prevent the demolition pending the resolution of the application. It is necessary, submits Mr Clayton QC, because of the provisions of the Directive 1985/337/EEC as amended by Directive 1997/11.

It is necessary, therefore, to consider for a moment the provisions of that Directive, transposed as they are into domestic legislation by the planning regulations to which I need not refer. A project in respect of which permission must be given in pursuance of the Directive is defined within article 1 as meaning the execution of construction works or of other installations or schemes or other interventions in the natural surroundings and landscape, including those including the extraction of mineral resources. The nature of a project is given a wide meaning and wide scope, as demonstrated and illustrated by the provisions of Annexe 2. The requirements of the Directive in relation to such a project are extensive, requiring, amongst other things, pursuant to articles 5, 6 and 7 consultations to be taken. information to be gathered and all of the products of those consultations and information to be taken into consideration pursuant to article 8 of the directive.

There was an environmental impact assessment relating to the previous application but submits Mr Clayton it is arguable that whatever the result of that, the matter has to start again as tabula rasa. The representations may be different. The result of the consultations may also prove different and in those circumstances it is nothing to the point that the application was previously approved. No point was taken as to whether there was any breach of the considerations identified in the Directive when considering the earlier environmental impact assessment.

I agree that it is arguable that the mere fact that no point was taken by the council previously in relation to the environment impact assessment insofar as it related to demolition provides no warranty for taking the view that the same conclusion will be reached. Thus the fact that no point was taken as to demolition in the past, in my judgment does not necessarily lead to the conclusion that no point could be taken in the future.

However, that does not grapple with what I perceive to be the essential difficulty in this application. It is necessary to start with the proposition with which I began: the realisation that there is no law which can prevent this developer from demolishing that building. But, submits Mr Clayton, so integral is it to the planning permission that is sought it cannot be considered in isolation. He relies in support of that proposition on dicta of Brown J, as he then was, in R v Swale District Council ex parte the Royal Society for the Preservation of Birds [1991] PLR 6, in which Brown J observes that it is necessary to take a view as to the objective reality of what was proposed. It is no good a developer seeking artificially to separate two aspects of the same development in the hope that individually they will receive a more favourable consideration. As he said:

In the instant case, in my judgment it is not possible by the use of that almost self-evident proposition to say that this demolition can be controlled and restrained because it is made with a view to a proposed development of mixed residential and commercial use. It is not possible to say that for two reasons. Firstly, evidentially there is clear evidence from Mr Avery of Lane Castle, who are the contractors and who have let the demolition contract, who points out the expense of maintaining this building without demolition and says in that statement in terms that it is the intention of the developer to carry out the demolition whether the planning proposal goes ahead or not. To make good the bona fides of that suggestion, he sets out the costs inherent in maintaining this building. In those circumstances, he says that the demolition will go ahead.

There is no basis upon which Burton J or the Court of Appeal could say that that was untrue and asserted in order to succeed in relation to the objection to the injunction. In any event, it is necessary to consider the effect of the application for planning permission still outstanding and still to be considered by the local planning authority: if planning permission in relation to the proposal is obtained, then Borthwick Wharf will be demolished, but if planning permission is refused, as Mr Ellson and those for whom he stands wish, why then the building can still and will be demolished.

There is, in short, nothing the planning authority can do to preserve this building unless it were compulsory to purchase it consistent with its statutory powers. It has not chosen to do so. It is highly questionable as to whether it would be lawful for it to do so. Still less would it be lawful for the local planning authority to announce that it will refuse any permission unless that planning proposal, in respect of which permission was sought, includes the preservation of that building; that, too, would not be a lawful declaration for the local planning authority to make. It must just look at the planning proposal on its merits. Thus the hope, which Mr Clayton QC frankly conceded, that the delay occasioned by any injunction granted by the court would give time for the local planning authority to change its mind and only grant planning permission on the basis that the building is preserved, can remain only a hope. The developer is entitled in law to dig its heels in and to determine that, come what may, that building will be demolished.

Unless there was evidence that what is said about that by the contractor at the moment lacks good faith and is untrue, that is an attitude that the developer is allowed to take as a matter of law. In those circumstances it is quite wrong for the court to grant permission to pursue any challenge to the failure of the local planning authority to take enforcement proceedings to restrain demolition. The reality is, as a matter of law, that the local planning authority is powerless to restrain this demolition. What is more, it is quite wrong for this court to go further and to grant an injunction to restrain that which the law allows this developer to do.

In my judgment there is no prospect whatever of Mr Ellson -- sympathetic though I am to his desire to preserve this building -- being able to persuade the Court of Appeal to the contrary and in those circumstances this application is refused.