Bermondsey Village Action Group (Bvag), R (on the application of) v London Borough of Southwark & Ors

The proposed appeal is based on four discrete grounds. The first is that the environmental statement provided by Network Rail was deficient and unlawful in failing to provide information in relation to alternative schemes considered.

Council Directive 95/337/EEC of 27 June 1985 is concerned with the assessment of the effects of certain public and private projects on the environment. Under article 5, a developer is required to supply the information specified at Annex IV. That includes, at paragraph 2, a requirement to supply “an outline of the main alternatives studied by the developer and an indication of the main reasons for this choice, taking into account the environmental effects.” That requirement is given effect in the Town & Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 at Schedule 2, Part II, paragraph 4.

Network Rail submitted, in October 2010, a lengthy Environmental Assessment Scoping Report and in June 2011 an Environmental Statement. Under the heading “Cultural Heritage and Townscape” the impact of the proposal and the significance of its environmental effect were considered. Part II of the submission, entitled Project Information, included a section heading “Planning Policies and Alternatives”. It is stated that “in this instance the consideration of alternatives and the application of planning policy are inextricably linked because of the national policy objective of improving public transport.” It is stated that Government policy identifies a clear need to promote sustainable development and transport including seeking to promote transport accessibility “and establish high quality, reliable routes, with good interchanges, and maximise the potential usage of public transport.”

Under the heading “Alternative arrangements on site” it is stated:

“5.5

Network Rail have been constantly reviewing the operational requirements at London Bridge and it was apparent that the previous Masterplan scheme would not provide for the capacity requirements and projections required.

5.6

The design of the Station has been re-assessed and Network Rail has spent some time preparing an operationally led design for London Bridge Station.

5.7

The scheme which Network Rail now wish to proceed with is driven by a requirement to deliver a significantly increased level of capacity and to ‘future proof’ the Station to 2076.

‘No Scheme’ Option

5.8

In the event that the development does not proceed, the overriding policy objective to improve public transport, specifically the Thameslink programme, promote sustainable development and transport (including minimising overall emissions) would not be met.”

In the following paragraphs, the importance of improvements to London Bridge Station is stated. Paragraph 5.11 provides:

“5.11

If there were to be no changes to London Bridge Station other than the minor ones proposed as part of the Shard Development, the station would reach unacceptable levels of congestion by 2018 and there would be no capacity for any future passenger growth.”

Mr Whale, for the applicant, referred to the statement of Sullivan J in R (Blewett) v Derbyshire CC [2004] Env. L.R. 569, at paragraph 41, endorsed by Lord Hoffmann in R (Edwards) v Environment Agency [2008] UKHL 22, at paragraph 38:

“In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant’s environmental statement will always contain the ‘full information’ about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting ‘environmental information’ provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations (Tew was an example of such a case), but they are likely to be few and far between.”

Mr Whale submitted that the environmental statement is so deficient that it could not reasonably be described as such. Paragraphs 5.5 to 5.7 were brief in the extreme and there was no outline of any of the “main alternatives studied”. The developers were expected to provide “as full a picture as possible” and the obligation was not met.

Complaint is also made of the lack of reference to environmental effects but, considering the documents as a whole, I cannot accept that submission. In any event, that is a different point. A failure to take environmental considerations into account in decision making is a different complaint from the failure to refer to alternatives. In any event, not only Network Rail’s documents but the lengthy report to the Planning Committee by the Planning Officer gave every opportunity for the decision makers to consider effects on heritage and the environment before making their decision.

Mr Whale rightly referred, in both his written and oral submissions, to the Network Rail GRIP (guide to railway investments projects) reports of 2009 and 2010. They support the view expressed by Mr Langley, for Network Rail, that the preservation of heritage assets did not at that stage “form part of the criteria”. It is stated, at paragraph 2.1 of the 2010 report, that the Thameslink programme “is required to provide a significant increase in railway capacity through Central London”. It is stated, at paragraph 2.2 that “the objective of Grip 3 designed development of London Bridge Station is to select a single option that meets requirements and is technically feasible. Further to this, the design must meet the high level requirements set out by the Department of Transport, who have set requirements for the Thameslink programme as a whole . . .” There is reference to a London Bridge Environmental Mitigation Schedule but all options considered required removal of the listed roof structure and the driving force was “the required functionality criteria.” The design was “operationally led”.

It is clear that Network Rail were not unaware that the decision maker, the Council, would balance their operational requirements with heritage and environmental considerations. At 14.3 of the Design Development Overview of September 2010, it is stated:

“New applications for planning permission, listed building consent and conservation area consent would be required. In order to justify the loss of the listed train shed such applications would need to demonstrate achievement of planning and regeneration benefits equivalent to Masterplan. There is a high risk that the current design will need to be amended to achieve planning permission.”

It is stated in section 6 of the 2010 report that “do nothing” and “do minimum” options were developed but had not been presented in the document. They were “not proposed by the project as options that could meet the base line functionality.” That statement is followed by a setting out of what are described as “mandatory criteria” with which “options must comply . . . to warrant further consideration.” These are cost, station capacity and ability to achieve Thameslink’s 2015 timetable.

Options which made unnecessary, or substantially minimised, the damage to heritage were not seriously considered at that stage. It cannot be a surprise that the environmental statement did not refer to such options and it would have been somewhat duplicitous to do so. A scheme which met the applicant’s objections had not seriously been considered. Network Rail faced the risk of their proposal being rejected on environmental or heritage grounds but that is a different point and not put as a ground of challenge. Given the comprehensiveness of the Planning Officer’s report to the Planning Committee, I am not surprised that the ground is not being advanced.

It cannot in my judgment seriously be argued that, in the circumstances of this case, the environmental statement is so deficient for failure to consider alternatives that it could not reasonably be described as an environmental statement.

The second ground of appeal turns on statutory construction. Under the 1992 Act, the Secretary of State may, under section 1, make an order relating to, or in matters ancillary to, the construction or operation of a transport system, including a railway. Pursuant to that power, the Secretary of State made the 2006 Order, Article 9 of which is headed “Further works at London Bridge”. It states:

“Network Rail may, at London Bridge in the London Borough of Southwark, in the construction of Works Nos. 13 and 14 or either of them and within the limits of deviation for those works form, alter or extend platforms at Network Rail’s London Bridge station with all necessary works and convenience connected therewith, including the alteration of the station footbridge, the train shed and the bus interchange.”

A schedule of works is set out in Schedule 1 to the Order and the relevant work concerned configuration of the railway lines in order to enable through-traffic through London Bridge Station.

Section 12 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Conservation Act 1990”) provides for the reference of certain applications to the Secretary of State. Subsection (3A) provides:

“An application for listed building consent shall, without any direction by the Secretary of State, be referred to the Secretary of State instead of being dealt with by the local planning authority in any case where the consent is required in consequence of proposals included in an application for an order under section 1 or 3 of the Transport and Works Act 1992.”

The submission is that the listed building consent for demolition of the train shed was required “in consequence of proposals” included in an application for an Order under section 1 of the 1992 Act. The application for listed building consent should have been referred to the Secretary of State. The subsection cannot be construed as if it reads in consequence “only” of proposals included in the earlier application. The demolition of the train shed was required in consequence of proposals included in the application for the Order.

Section 1 of the 1992 Act must be read with section 16. That provides, at subsection (1):

“(1)

In section 90 of the Town and Country Planning Act 1990 (which gives power to deem planning permission to be granted in certain cases where development is authorised by a government department) after subsection (2) there shall be inserted—

(2A) On making an order under section 1 or 3 of the Transport and Works Act 1992 which includes provision for development, the Secretary of State may direct that planning permission for that development shall be deemed to be granted, subject to such conditions (if any) as may be specified in the direction.”

Thus there may be a deemed planning permission following an order under section 1 of the 1992 Act.

Mr Whale rightly distinguishes between an application for planning permission and an application for listed building consent but the section does throw light on the effect of section 12(3A) of the Conservation Act 1990. The requirement to refer is consequential upon a specific deemed permission under the Order.

The judge found, at paragraph 28, that the relevant planning application is “much more extensive” than Works 13 and 14 under the 2006 Order. The Judge accepted the submission on behalf of Network Rail that the listed building consent was not parasitic on something that had deemed planning permission. It was an integral part of a much wider application for which planning approval was necessary and the listed building issue was in consequence of the wider application.

The Judge stated, at paragraph 29:

“The purpose of Section 12 (3A) is to save for the Secretary of State's consideration alone the sensitive matter of listed building consent parasitic upon limited works identified in an order for which planning permission is deemed to have been given and thereby cutting out entirely the local planning authority and that whole statutory scheme. Where the local planning authority is properly involved, as it must be, in considering planning permission for a much more extensive scheme, albeit it may involve as part and parcel of it some such works as are the subject of an order under the Transport & Works Act 1992, it is plain and obvious, in my judgment, that the listed building consents which are required in respect of the whole scheme - not just or necessarily in respect of the limited part which had been covered by the deemed planning permission - should be considered by the Local Planning Authority.”

The judge held the applicant’s submission to be unarguable and I agree.

Under Ground 3, it is argued that the Planning Committee was misled as to the amount of additional retail space to be permitted in the development and, had they not been misled, they might have reached a different conclusion. Further, had there been more accurate information, there might have been further objections for the Committee to consider. The Committee should also have been told of London Dungeon’s proposed vacation of their premises close to the development. Network Rail must have been aware of the likely move, which would free up further potential retail space, and failed to inform the Committee.

London Dungeon is a visitor attraction located in Railway Arches underneath London Bridge Station and described by Network Rail as a key station tenant. The premises are not within the application site. Removal would release to Network Rail several thousand square metres of floor space connecting the main proposed shopping mall with Tooley Street.

The applicant has made substantial enquiries to challenge Network Rail’s figure for existing retail space at 6,666 m², slightly modified in the course of discussion to 6,590 m².

The applicant has sought strenuously to challenge Network Rail’s figure for existing retail space and has done so by reference to Valuation Office figures. Some of the applicant’s submissions are not without force. Included within existing retail floor space are premises (London Office Furniture Centre) which are used, probably on the strength of existing use rights, as a warehouse or repository. There could be an issue as to whether the premises are or could be used for retail. It is further claimed that Network Rail have been inconsistent in including the current main thoroughfare as retail floor space but failing to adopt that approach in relation to the proposed retail area. Other points are taken in relation to the Arches, concourse and bus deck areas and platform, the kiosks at Joiner Street and the premises of Fantastic Fried Chicken. The general submission is made that Network Rail have down-played the extent of proposed additional retail floor space so as not to reveal how strong is the commercial motivation for the proposal.

Mr Whale relied on a statement of Judge LJ giving a supporting judgment in Oxton Farms v Selby District Council (transcript 18 April 1997) a case in which planning permission was not quashed. Judge LJ stated:

“In my judgment an application for judicial review based on criticisms on the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken.”

It is most unusual for this court to entertain factual arguments about floor space on a renewed application for permission to apply for judicial review but I have been prepared at least to consider the written evidence, which is much in dispute, because of further documents made available by Network Rail and the Council since the earlier decision. Network Rail contend that the methodology by which the retail figures were reached is defensible.

For Network Rail, Mr Mould QC took issue with the applicant’s figures for retail space, referring to evidence submitted. The Committee’s attention was drawn to the agreement that “Western Passage to remain open”. That was a part of the disputed retail figure. Existing commercial users were listed in the Officer’s report. The submission that the heritage destruction is driven by the commercial retail potential of the site is denied.

For the Council, Mr Kolinsky referred to the Planning Officer’s report for the meeting of 20 December 2011. The main issues were listed. These did not include the alleged increase in retail space which had not been raised as an issue. It is accepted that the report did refer, at paragraph 71, only to a “slight increase” from existing floor space. There was an issue as to the amount of leisure floor space to be provided and that was resolved, to the Council’s satisfaction, by the allocation of an additional 500 m². At paragraph 87, it was stated that “the mix of uses provided within the development is acceptable given the constraints of the new concourse.”

While there is room for argument as to whether the proposed development provides significantly increased retail floor space over existing, I do not consider it arguable that, had the Committee had further information and argument, such increase would have influenced their decision. There is no suggestion that planning policies for this area involved limitations upon retail floor space and the evidence is to the contrary. The London Bridge District Town Centre is an opportunity area and there is evidence that the provision of new retail floor space was an acceptable, and indeed desirable, land use in planning policy terms. The Planning Officer’s report, at paragraph 70, stated that at London Bridge “the provision of new shopping space will be supported.” There were issues for the Committee to consider, including heritage arguments raised by the applicant, and others, but I cannot accept that arguments about existing retail floor space, did or would have played a significant part in decision-making.

I see no merit in the London Dungeon submission. The premises are not within the application site. If a planning application is made in relation to them, there is no reason to doubt that it will be considered on its merits.

Ground 4 is directed to the decision of the Mayor to allow the Council to determine the case itself. Complaint is made that the Mayor’s decision was based on costs and inconvenience to Network Rail and not to planning considerations. The Mayor wrongly took into account cost considerations.

In a letter of 1 March 2012, signed by the Deputy Mayor, it is stated that the environmental information made available has been taken into consideration in formulating the decision.

In a planning report dated 24 August 2011, it was concluded, at paragraph 123 that:

“On balance, the application does not comply with the London Plan.”

It was noted that changes, specified in the report, might lead to it becoming compliant. The Mayor’s decision was taken following a further report available on 1 March 2012. Following detailed consideration of the issues, it was concluded:

“The application for the redevelopment of the station is supported as realising the benefits of the Thameslink proposals. The heritage loss is regrettable but has been demonstrated as necessary in order to deliver the public benefits arising from the scheme in the context of PPS5 and the London Plan. The application is consistent with the London Plan.”

PPS5 states the requirement to demonstrate that “the substantial harm to or loss of significance is necessary in order to deliver substantial public benefits that outweigh that harm or loss.” (Policy HE 9.2(1))

Retention options had been considered. It was stated, at paragraph 62:

“As such GLA Officers are satisfied that it is not unreasonable to conclude the removal of the train shed wall as necessary in the context of PPS5.”

That conclusion is repeated at paragraph 65. At paragraph 67 it was stated that tests in the London Plan were satisfied “and that the approach is necessary to realise the public benefits arising from the proposal.”

In relation to the SERO, following a detailed analysis, the report had concluded, at paragraph 57:

“As such the harm arising to the heritage asset from the removal of the building has been justified and is outweighed by the public benefits arising through the delivery of a new station concourse and realising the Thameslink programme and the benefits associated with its delivery.”

Reliance is placed by the applicant on a letter from the Chief Executive of Network Rail to the Mayor, dated 27 February 2012. It was written in response to points raised by the Mayor at a meeting on 16 February 2012 and the possible retention of 64-84 Tooley Street was raised. Mr Higgins, in his response, referred to the additional costs and delay involved and the need for “a wholesale redesign”. Retention would involve pedestrian congestion, impede passenger circulation and create a highways safety issue. Retention would negate specific design attributes, including architectural. That letter was a reasoned response to reasonable enquiries made. It suggests neither improper pressure on the Mayor nor his taking into account improper considerations.

Reliance is also placed on an email bearing the date 1 March 2012, the date of decision, in which it is recorded that an officer of Network Rail had declined to accept an amendment to the current scheme and had added that “resubmitting the application would result in an 18 month delay in obtaining planning permission.” The true position, it is submitted, was that cost was the main motivating factor in the Mayor’s decision.

For the Mayor, Mr Edwards QC referred to the statutory power of the Mayor under section 2A of the 1990 Act and the Schedule to the 2008 Order. Ministerial Guidance is that the power to issue a direction that he should assume jurisdiction should be used as a matter of last resort (GLO Circular 1/2008 paragraphs 5.4 and 5.46). In taking his decision, the Mayor, acting by the Deputy Mayor, had regard to the Stage 2 referral made by the Council on 17 February 2012. The decision was taken, it is submitted, on the basis of a report which set out the issues with conspicuous thoroughness. It was found that Network Rail had demonstrated that demolition works were necessary.

The decision not to intervene was based not on financial considerations but on material planning considerations, including regard for pedestrian movements and the provision of an evacuation area. The Mayor had to consider the proposal actually before him and weigh the claimed public benefits with the loss of heritage involved. The allegation that the decision had been taken for reasons other than those stated in the reports is a serious one and is strongly denied.

I do not consider that the Mayor needed to rely on R v Westminster City Council Ex parte Monahan [1999] QB 87 and I am doubtful whether the “enabling” principle established in that case applies in the present case.

On analysis, I see no merit in this ground of appeal. The Mayor’s power to assume jurisdiction over planning applications is not to be lightly or routinely exercised. The decision not to intervene was taken on the basis of a comprehensive report and evaluation. I see no basis for the suggestion that improper pressure was brought to bear upon the Mayor or that undisclosed motives were involved in his decision. I agree with the judge’s analysis.

Neither taken individually nor collectively do the grounds of appeal establish a real prospect of success. It was for those reasons that, at the conclusion of the hearing, the Court refused the application for permission to apply for judicial review and refused permission to appeal.

The members of the court have considered the question of costs, oral submissions having been made when the court stated that the application for judicial review was refused. The Council and the Mayor against whom claims were brought, apply for their costs. Network Rail does not. We conclude that costs should be awarded against the applicant. Having been refused permission in the High Court, he has pursued his application in this court.

An application for a protective costs order was before me when I heard the applicant’s application for specific disclosure on 26 October 2012. I deferred the application to the date of the hearing so that it could be considered by a three judge court. Mr Whale declined to make the application at the beginning of the hearing, preferring to defer it until the application for permission had been determined. He then submitted that the applicant’s liability should be capped at £10,000 overall, relying on the principles set out in R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600. It was submitted that it would be “prohibitively expensive, for the applicant to meet the entire costs of proceedings” (R (Garner) v Elmbridge Borough Council [2012] PTSR 250). The court has not been supplied with detailed evidence of means.

The Council and the Mayor have incurred substantial costs in responding to this application. They have accepted that there should be a limit and propose that the applicant should pay £10,000 to each of them. We were told that £2,000 has been paid to the Council and £1,500 to the Mayor following the hearing below and that a further sum was paid to the Secretary of State, who is no longer a party. We agree with the proposals made by the Council and the Mayor. They involve a figure for costs very much less than the costs actually incurred.

The applicant has acknowledged that, in the event, he must be expected to pay some costs. The sum proposed by the Council and Mayor does, in our judgment, give as much protection to the applicant as is his entitlement in the circumstances. If we are correct in our assumption that £2,000 and £1,500 have already been paid, it follows that there will be a further order for £8,000 in favour of the Council and £8,500 in favour of the Mayor. If the assumption about the sums already paid should not be correct, the sum to be paid to provide a total of £10,000 in each case can be amended in writing.

The applicant has been acting “as representative claimant on behalf of BVAG”, as stated in the notice of appeal. We do not propose to consider the potential liability of members of the Group but record that the question may be raised in other cases.