Royal Courts of Justice
Strand,
London, WC2A 2LL
Before :
The H on MR Justice COLLINS
Between :
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R(Prokopp) |
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- and - |
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(1) London Underground Limited (2) London Borough of Hackney (3) London Borough of Tower Hamlets |
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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Richard Clayton Q.C., Richard Harwood & Christiaan Zwart (instructed by Richard Buxton Solicitors) for the Claimant
Michael Barnes Q.C., Eian Caws & Julian Greenhill (instructed by London Underground Ltd) for the First Defendant
Peter Harrison (instructed by LB Hackney) for the Second Defendant
Philip Petchey & James Periera (instructed by LB Tower Hamlets) for the Third Defendant
Judgment
Mr Justice Collins:
This claim was launched on 31 March 2003 against London Underground Limited (LUL) seeking to prevent it commencing work to demolish any part of the Bishopsgate Goods Yard (BGY). The work in question had been due to start on 3 April 2003. Maurice Kay, J granted an interim injunction. LUL applied to discharge that injunction. That application was fixed for 15 April 2003. By that time, the two boroughs in whose areas the BGY was situated (the borough boundary runs through the yard) had decided not to take enforcement action against what LUL proposed to do notwithstanding that it had no planning permission. Accordingly, the claimant (as he had forecast in his claim) sought leave to amend to add both the boroughs (whom I shall refer to as LBH and LBTH respectively) as defendants so as to challenge those decisions. Since it was clear that there was an arguable claim and it was important that the matter be decided as soon as possible, counsel agreed that it would be sensible to grant permission and to treat the hearing on 15 and 16 April 2003 as the hearing of the claim for judicial review. I made the necessary order accordingly.
This is the second challenge in an attempt to preserve the BGY. It follows from Hammerton v LUL [2002] EWHC 2307 (Admin) decided by Ouseley J on 8 November 2002. The BGY is to be affected by the proposed construction of the East London Line Extension (ELLX) which will extend the line at present running from New Cross and New Cross Gate to Whitechapel to link with the North London line at Dalston Junction. LUL applied for an order under s.1 of the Transport and Works Act 1992 and for deemed planning permission under s.90(2A) of the Town and Country Planning Act 1990 for the ELLX as long ago as 1993. There was a public enquiry before an Inspector assisted by a listed building assessor in 1994. The inspector recommended in favour of the applications and on 20 January 1997, the necessary order under the 1992 Act and deemed planning permission were granted by the Secretary of State. In addition, on 14 January 1997 listed building consents were granted as necessary. The order and grants were all subject to a number of conditions and work had to be commenced within 5 years of the grant of permission.
Negotiations followed, initially involving Railtrack who owned the BGY and the disused viaduct running from the old Broad Street Station to Dalston along much of which the new line was to run. Those negotiations involved the putting together of finance for the new line. By July 2001, but not until then, initial funding was agreed and notices to treat were served to enable various properties to be obtained compulsorily. One such notice was in respect of the BGY against its owners, Railtrack. In December 2001 there was what is described as a ‘Start of Construction Ceremony’, attended by, among others, the then Secretary of State for Transport and the Mayor of London. This underlined the importance attached by central and local government to ELLX. Indeed, there is no opposition to ELLX and the claimant himself has said that he does not wish to stand in the way of it; he is only concerned to protect the BGY and believes, in company with others including now English Heritage and the Prince of Wales, that ELLX can proceed without demolishing any of the BGY.
The scheme is recognised to be of the greatest importance for the rejuvenation of a very deprived part of London. It is a key element of the transport strategy for London. The anticipated value of the regeneration in north and east London is as much as £10 billion. There has already been delay resulting from litigation by some tenants in the BGY, from attempts to list the BGY culminating in a decision in March 2002 to list what is known as the Braithwaite Viaduct in the BGY and from the Hammerton case. The project has been programmed in four stages, the first of which was due (after having already been delayed by the matters already mentioned) to be concluded in August 2003. That phase, which is concerned with acquisition of all necessary land and site preparation, including demolition of part of the BGY, has already cost large sums. About £74 million has been committed or has already been spent. Contractors have been employed and the delay has already cost over £1 million and is running at at least £30,000 per day. A statement produced by Mr. Alan Thornton, LUL’s project manager, paints a gloomy picture of the effects of any further delay. It will, he says, jeopardise the project as a whole. The costs already incurred are irrecoverable and contractor’s costs will inevitably be increased. There is at best a real risk that the whole scheme will be lost and with it the benefits which all recognise will flow from it.
Unfortunately, when LUL commenced the development it did so without complying with a condition attached to the planning permission. The condition in question was number 21 which read:-
“The development shall not commence until the exchange land described in Article 30 of the Order has been made suitable for use as open space by [various specified means]”.
In Hammerton it was alleged that there had been failures to comply with two other conditions, but Ouseley, J found only a relevant breach of Condition 21. He also rejected claims that breaches of conditions attached to the listed buildings consents rendered those consents of no effect.
Condition 21 was in fact largely otiose. There was as things turned out no need for LUL to take most of the open space for which Condition 21 was designed to provide compensation. Such as was to be affected would only be temporarily. Further, it did not seem to have been appreciated that the implementation of Condition 21 would involve the closure of Shoreditch Station, a huge inconvenience for the 300,000 who use it each year. There seems little doubt that an application for permission to proceed without Condition 21 pursuant to s.73 of the 1990 Act would have succeeded. However, no such application was made. It was suggested that that was a deliberate decision by LUL because it was appreciated that an Environmental Impact Assessment would have been needed and consideration would have been extended to other conditions. Mr. Barnes Q.C. denied this. It was, he said, an oversight. I have no reason to doubt his word.
Nevertheless, there was a clear breach of Condition 21. Ouseley J was unable to find that the circumstances enabled him to say that, notwithstanding that breach, the development was begun lawfully. Authority in the form of P G Whitley & Sons v Secretary of State for Wales (1992) 3 PLR 72 and cases considering it precluded him from so deciding. He did however take the view that a principle emerged from the cases, notably Whitley itself, that:-
“where it would be unlawful, in accordance with public law principles, notably irrationality or abuse of power, for a local planning authority to take enforcement action to prevent development proceeding, the development albeit in breach of planning control is nevertheless effective to commence development” (Paragraph 127(5)).
Mr Clayton Q.C. submits that this is inconsistent with the decision of the Court of Appeal in Henry Boot Homes Ltd v Bassetlaw DC [2002] EWCA Civ 983 which was handed down on 25 November 2002. Keene LJ, giving the only reasoned judgment, noted at paragraph 50 that s.73 had the important purpose of providing safeguards for third parties and the public generally and in Paragraphs 55 and 56 he said:-
“The interests of third parties and the public in such matters also greatly reduce the potential for a legitimate expectation, such as is contended for in the present appeal, to arise. One of the reasons is that it is difficult to see how a legitimate expectation, said to derive from the conduct of the local authority, could operate to so as to prevent an interested third party from questioning whether development has validly begun, and whether planning permission is still extant …”
Mr Lowe invited us to say that legitimate expectation could never operate so as to enable the developer to begin development validly and effectively in breach of condition. I am not prepared to adopt so absolute a proposition. It is possible that circumstances might arise where it was clear that there was no third party or public interest in the matter and a court might take the view that a legitimate expectation could then arise from the local authority’s conduct or representations. But … one suspects that such cases will be very rare”.
These observations were made in the context of legitimate expectation resulting from something said or done by the local planning authority. But the public interest in planning decisions will generally apply to prevent it being irrational for a planning authority to decide to take enforcement action. Equally, it will be open to the authority rationally to take the view that it would not be expedient to enforce. It seems to me that Henry Boot does suggest that Ouseley J has expressed the principle too widely, certainly where the unlawfulness of a decision to enforce is said to flow from a breach of a legitimate expectation.
The result of Ouseley J’s decision in Hammerton was that, since development had been commenced in breach of Condition 21, there was no lawful commencement within the permitted 5 year period and so the planning permission was no longer extant. Since there was no suggestion by anyone that work commenced or the development of ELLX anywhere other than at the BGY should be enforced against, this was only of importance in relation to BGY. The object of the claimant’s challenge was to try to preserve the BGY and so, if it could lawfully be demolished, there would be no purpose in taking any enforcement action. Ouseley J decided that the listed building consents were still in force and so he stated (at Paragraph 143):-
“If … the rest of the Goods Yard could be demolished without the need for any further planning permission (and, as I have already concluded, the listed buildings consents have not lapsed), it would be irrational for enforcement proceedings to be considered with a view to a re-examination of the prospects of retaining the whole of the Goods yard and of the value in doing so. There is no other rational basis upon which it has been suggested that enforcement action could be taken … Indeed, these whole proceedings would be completely pointless if LUL could demolish the Goods Yard (save the Viaduct) anyway. There is otherwise seeming insensitivity as to the urgent need for ELLX, and no desire to review it on transport policy or other environmental grounds”.
The irrationality would arise from the futility of the exercise. Thus neither LPA could rationally conclude that it was expedient to take enforcement action. It does not seem to me to matter whether in such circumstances an exception within the Whitley principle applies or (as I believe is more consonant with Henry Boot) enforcement action could not be taken so that the development would go ahead.
Whether or not demolition could lawfully proceed depended on whether the BGY was to be regarded as a single building or whether the viaduct was a separate building. Either view was possible and Ouseley J refused to decide the issue: it was, he said (in my view clearly correctly) a question of fact to be decided by LBH and LBTH respectively. The reason why that question is determinative lies in s.55(2)(g) of the Town and Country Planning Act 1990 and in Paragraph 2 of the Town and Country Planning (Demolition – Description of Buildings) Direction 1995. Section 55 provides in s.55(1A) that demolition of a building constitutes a ‘building operation’ and so development which required planning permission, but s.55(2)(g) stated:-
“The following operations … shall not be taken to … to involve development …
(g) the demolition of any description of building specified in a direction given by the Secretary of State …”
Paragraph 2 of the Direction provides, so far as material:-
“ 2(1) … the demolition of the following descriptions of building shall not be taken … to involve development of land:
(a) any building which is a listed building …
(d) … any building other than a dwelling house or a building adjoining a dwelling house.
3. In this Direction –
“building” does not include part of a building…”
The effect of all this in the context of this claim is as I have indicated.
LUL have tried to persuade LBH and LBTH that the viaduct should be regarded as a separate building (‘building’ is defined to include a structure: see 1990 Act s.336). They have been unsuccessful. Mr. Barnes has recognised that, although LUL continue to contend that they are factually wrong, the decisions of the boroughs cannot be said to be wrong in law. The effect of these decisions is to mean that the demolition of such of the BGY as is needed to enable ELLX to be constructed cannot lawfully be carried out. Either a fresh planning permission is required or the councils must decide that it is not expedient to take enforcement action.
Following Ouseley J’s decision, there was much correspondence between the claimant’s solicitors, LUL and the two boroughs. Advices of counsel were disclosed and have been put before me. The officers of the boroughs were persuaded that they could properly advise that it was not expedient to take enforcement action subject to LUL entering into an agreement pursuant to s.106 of the 1990 Act whereby it would be bound by conditions which reflected those included in the lapsed planning permissions (with some modifications to take account of any changed circumstances including the removal of Condition 21). Having obtained that indication and mindful of the need to avoid delay, LUL decided to commence work on 3 April 2003. The claimant was anxious to preserve the position and so instituted proceedings against LUL and obtained the interim injunction.
It has been submitted that such action was not justified and that a private individual cannot act against a developer to enforce the law. The power to enforce is given and only given to the LPAs. That, as a general proposition, is clearly correct. However, it is also undoubtedly open to a private individual who has sufficient locus standi to compel an LPA not to act unlawfully. Accordingly, if for example there has been a failure to take enforcement action in circumstances where it was unlawful not to regard such action as expedient, a private individual can make the necessary claim to ensure that such action is taken.
If a developer is about to take what may be irrevocable steps which are said to be unlawful but the LPA is not taking action, there must be a way in which the court can preserve the position. Thus I am satisfied that an individual can seek and, if appropriate, obtain interim relief to prevent such arguably unlawful action. His claim will initially be against the developer, but he must notify the LPA and add it (as has been done here) as defendant. The developer will then become an interested party and the claim will proceed against the LPA. The court will in such a case have imposed time limits on the LPA to ensure that it makes its decisions within a reasonable time. What a private individual cannot do, at least in a public law claim, is to obtain a permanent injunction the effect of which is to take the enforcement action which is the responsibility of the LPA and which contains safeguards for the developer in the form of rights of appeal on specific grounds. Clearly if an individual’s private law rights (for example in nuisance) are being infringed, different considerations apply, but that claim would be in private and not in public law. Now that LBH and LBTH have decided not to take enforcement action, this claim is against them and LUL is to be regarded as an interested party.
The claimant’s case is straightforward. The development which now needs a fresh planning permission is one which falls within Paragraph 10(h) of Annex II to Directive 85/337/EEC as amended (The Council Directive on the Assessment of the Effects of Certain Public and Private Projects on the Environment) which requires consideration of an Environmental Impact Assessment (EIA) to be provided for ….:-
“Elevated and underground railways … used exclusively or mainly for passenger transport”.
likely to have significant effects on the environment according to criteria set by member states. That Directive has been implemented in domestic law by the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 (S.I. 1999 No: 293). Schedule 2 paragraph 10(i) of the Regulations coincides with Annex II of the Directive and requires consideration of an EIA where the area of the works exceeds 1 hectare and such an infrastructure project is likely to have significant effects on the environment. The Directive specifies what information must be contained in an EIA. This is reflected in Schedule 4 to the Regulations. It includes an assessment of the effect of the proposed development on ‘cultural heritage’ (Directive Article 3) which covers architectural and archaeological heritage (Regulations Schedule 4 Paragraph 3).
An EIA was produced in 1993 for the original application. At that time, not only was no part of the BGY listed save for the entrance, but it was proposed that the whole should be demolished. It had been severely damaged by fire in 1964. At the inquiry in 1994 Mr. Prokopp was the only objector who was fighting for its retention and suggesting that the ELLX could be built without any demolition: it could run over the existing structure. The inspector rejected his case. He doubted that it would be practical to build a higher level line and station above it and continued (Paragraph 9.24.1):-
“Even if this were structurally possible, I think the resulting hybrid appearance would do little for the enhancement of the surrounding area”.
He also preferred LUL’s arguments that the existing buildings dated from the 1880s rather than the 1840s as Mr. Prokopp had contended. In fact, we now know that only the Braithwaite Viaduct (or rather the remaining 260 metres of it) dates from about 1840. the rest was constructed in the 1870s and 1880s.
Since then, Mr. Prokopp and other enthusiasts have managed to persuade English Heritage and other bodies and persons believed to carry some weight that the BGY is worth preserving. By a report dated 18 December 2001 inspectors considered whether there should be any additional listing. The report is not as clear as it might be since it states that the proposal to list the whole BGY as Grade II was “wholly appropriate for the bulk of the surviving fabric which dates from 1877 –1881”. It goes on:-
“The earlier work is of exceptional interest and rarity and requires a greater degree of management contro (sic). Consequently, we are also recommending that the 1839–1842 Braithwaite Viaduct be scheduled. The draft scheduling submission is attached”.
However, the Decision Precis at the end of the report says that the Braithwaite Viaduct was being recommended for scheduling and does not mention the whole BGY. Whatever may have been the recommendation, the decision from the Secretary of State conveyed by letter of 8 March 2002 was that only the Braithwaite Viaduct should be listed.
While this obviously represents a change of circumstances, it does not directly affect the proposed construction of ELLX since the demolition needed will not extend to the viaduct. However, s.66 of the Listed Building Act 1990 requires that regard should be had when considering an application for planning permission to the desirability of preserving the building and its setting.
Regulation 25 of the 1999 Regulations prohibits the Secretary of State from granting planning permission on an enforcement notice appeal for a development which requires an EIA unless he has first ‘taken the environmental information into consideration, and he shall state in his decision that he has done so’. But this is the only reference to enforcement and a failure to take enforcement action does not attract any such requirement.
It may be regarded as curious that the alleged need for an EIA stems from what has been described as a technical breach of a condition which had become (and perhaps was always) ineffective coupled with the finding that the BGY was one rather than more than one building. But for this combination of circumstances which has no direct bearing on whether the BGY should at this late stage be preserved the ELLX could go ahead with no delay and there would be no risk that it and the enormous benefits it will produce would be lost. But if that is what the law requires, I must decide accordingly.
Mr. Clayton submits that the 1999 Regulations have not fully implemented the Directive since a failure to enforce amounts to a development consent within the meaning of the Directive. Article 1(2) of the Directive defines ‘development consent’ as:-
“the decision of the competent authority or authorities … which entitles the developer to proceed with the development”.
A decision not to enforce against a development which has no permission is a decision which entitles it to proceed. This submission Mr. Clayton supports by reference to R v N. Yorkshire CC ex p. Brown [2000] 1 A.C. 397. That case concerned old mining consents given prior to 1947 and the need to obtain registration of such consents subject to conditions. The Regulations of 1988, which were those then in force purporting to implement the Directive, did not cover such cases. At p.405 Lord Hoffmann set out the principle which is applicable. He said:-
“The principle in this and similar cases seems to me to be clear: the Directive does not apply to decisions which involve merely the detailed regulation of activities for which the principal consent, raising the substantial environmental issues, has already been given. I express no view about the way in which this principle was applied to the different facts of the various cases which were cited. It seems to me clear, however, that it can have no application to this one. The procedure created by the Act of 1991 was not merely a detailed regulation of a project in respect of which the substantial environmental issues had already been considered. The purpose of the procedure was to give the mineral planning authority a power to assess the serious consideration of the environmental effects of old mining permissions which had been granted without, to modern ways of thinking, any serious consideration of the environment at all. It is true that the power to deal with these effects was limited to the imposition of conditions rather than complete prohibition. But the procedure was nevertheless a new and freestanding examination of the issues and could therefore, in my opinion, require the information provided by an environmental impact assessment. It was therefore a “development consent” within the meaning of the Directive”.
In R v Durham CC ex p. Huddleston [2000] 1 W.L.R. 1484, the Court of Appeal decided that a private individual could challenge a failure by the Council to reach a decision on an old mining consent application within the specified time the effect of which was to grant the application. The applicant was entitled to rely upon the direct effect of the Directive notwithstanding that it had not been implemented fully to require the Council as an emanation of the State to comply. This was so even though the council could not have required the mining company to submit an EIA and so itself enforce the Directive. Sedley LJ’s judgment contains a learned disquisition on how Directives can be given effect and the prohibition against what is called horizontal direct effect.
Mr. Barnes sought to distinguish these cases because a failure to enforce was a negative action and could not therefore be properly regarded as the giving of consent. In addition, on the facts, the only enforcement action that could, consistently with Ouseley J’s judgment, be taken was in relation to the BGY, itself a small part of the whole development and one which would not have fallen within the terms of the 1999 Regulations and so of the Directive. He draws attention to the observations of Lord Hoffmann in Brown’s case at p.404, where he said:-
“The position would be different if, upon a proper construction of the United Kingdom legislation, the determination of conditions was merely a subsidiary part of a single planning process in which the main decision likely to affect the environment had already been taken”.
This leads him to submit that in this case the main decision had indeed been taken in 1997 and all the necessary environmental information had been provided.
The Directive is to be given a purposive construction. So much is clear from Brown’s case. Its purpose is to ensure that decisions entitling developers to proceed with projects which might affect the environment are made on the basis of full information. A decision not to take enforcement action against a development will allow that development to proceed. As Huddleston’s case makes clear, a failure to act which has the effect of allowing a project to proceed is within the Directive. If a decision not to take enforcement action were not within the Directive, there would be a real possibility of avoiding the requirement to provide an EIA in a particular case. Accordingly, I am satisfied that in principle a decision not to take enforcement action is a development consent within the meaning of the Directive.
While I see the force and indeed the attraction of Mr. Barnes’ submission that the main decision had been taken in 1997, the reality is that because of the breach of condition the whole planning permission has lapsed. That means that the project now needs a fresh consent if it is to proceed. It is clear that if s.73 had been used to seek to remove Condition 21 an EIA would have been needed, albeit consideration of the matter would have been limited to conditions. Furthermore, although focussing on the BGY alone, the fact is that unless the relevant consent can be obtained, the whole project cannot go ahead. In these circumstances, the requirement of the Directive cannot be avoided. However, even though a fresh consent is needed, when it comes to considering what information is required, the whole history must be taken into account. If as a matter of fact the relevant information was indeed given at an earlier stage, then, notwithstanding the lapse of the former permission, no more will be required.
The use of a decision not to take enforcement action coupled with conditions to be imposed in a s.106 agreement as a means of permitting a development to proceed is not unlawful. But it cannot avoid the requirement to provide an EIA if the development falls within the Directive and an EIA is required.
At a late stage, LUL introduced what purported to be a planning permission granted by LBH to Railtrack on 29 August 1997 which permitted demolition of the ‘majority of the BGY adjoining and excluding the listed gates and associated structures to the west of the site’. This had not been put before Ouseley J. Apparently, LUL had only learnt of its existence in the course of discovery of documents by Railtrack in proceedings before the Lands Tribunal relating to compensation payable for the compulsory purchase of the BGY. Mr. Barnes submitted that since a planning permission runs with the land, the document in question was on its face such a permission and LUL was in no way involved in obtaining it, it could not be challenged.
Those submissions I do not accept. Investigations have established that on 21 May 1997 Railtrack made an application to LBH for listed building consent to demolish the ‘vast majority’ of the BGY on the basis (which was almost certainly incorrect) that ‘the Goods Yard adjoins a listed structure and is therefore technically listed’. The document it received is entitled ‘Permission for Development (Conditional)’ and purports to ‘permit the development referred to in the under mentioned Schedule’. The Schedule refers to an un-numbered plan and the application letter of 21 May 1997. it contains a number of conditions. The reasons for the first (that the development must be begun within 5 years) is said to be:-
‘In order to comply with the provisions of Section 18(a) of the Planning (Listed Buildings and Conservation Areas) Act 1990’.
Railtrack regarded what they had as a listed building consent. They had not sought planning permission and so planning permission could not lawfully have been granted. When they drew LUL’s attention to the document, they described it as a consent. It contains an ambiguity on its face in the reference to s.18(a) of the Listed Buildings Act, which is not consistent with conditions attached to a planning permission. The application letter was annexed to the ‘permission’ on LBH’s file. In all the circumstances, it is in my view quite impossible to regard it as what it clearly was not and could not lawfully have been. LUL is not in any way prejudiced. It never relied on it nor was it misled by it. It is not a planning permission and does not avail LUL.
In Berkeley v Secretary of State for the Environment [2001] 2 AC603, the House of Lords emphasised the importance of an EIA and made it clear that if but only if there had been substantial compliance with the requirements of the Directive would a permission be granted in the absence of an EIA. It was not sufficient that the court was persuaded that the outcome was inevitably going to be the same. In Berkeley there had been no EIA and it was necessary to trawl through various documents in order to obtain the information which should have been provided in an EIA. At p.608, Lord Bingham said:-
“By virtue of regulation 25 of the Regulations the grant of planning permission in contravention of regulation 4 is to be treated for purposes of section 288 of the Town and Country Planning Act 1990 as action which is not within the powers of the Act. Even in a purely domestic context, the discretion of the court to do other than quash the relevant order or action where such excessive exercise of power is shown is very narrow. In the Community context, unless a violation is so negligible as to be truly de minimis and the prescribed procedure has in all essentials been followed, the discretion (if any exists) is narrower still: the duty laid on member states by Article 10 of the EC Treaty, the obligation of national courts to ensure that Community rights are fully and effectively enforced, the strict conditions attached by Article 2(3) of the Directive to exercise of the power to exempt and the absence of any power in the Secretary of State to waive compliance (otherwise than by way of exemption) with the requirements of the regulations in the case of any urban development project which in his opinion would be likely to have significant effects on the environment by virtue of the factors mentioned, all points towards an order to quash as the proper response to a contravention such as admittedly occurred in this case. For reasons given in more detail by Lord Hoffmann, I do not in any event agree that there was substantial compliance with the requirements of the Directive and the Regulations in this case. It is quite true that consideration was given, over many years, to various schemes for developing this site and that the scheme for which permission was given was the subject of detailed, careful and informed consideration and wide consultation. But the cornerstone of the regime established by the Regulations is provision by the developer of an environmental statement as described in Schedule 3 to the Regulations, setting out (among other things) the data necessary to identify and assess the main effects which the development was likely to have on the environment. The developer provided no document which, in my view, met the requirement”.
There was a proper EIA provided in 1993. It is true that the Directive was amended in 1997 so that there is now an obligation to consider alternatives. But those were considered in the EIA and the amendments do not make any material difference. The inspector at the inquiry and the Secretary of State considered the relevant matters when deciding to grant planning permission. However, none of the BGY was then listed apart from the entrance gates and only Mr. Prokopp was prepared to put forward a case that it merited preservation. English Heritage has since come out in his support and has commissioned a report from Alan Baxter, engineers, which asserts that it would be possible to construct the line without demolishing any of the BGY. But English Heritage’s approach to this claim has seemed to blow hot and cold. On the one hand, it has written to LUL a letter of 3 April 2003 in the following terms:-
“English Heritage has now seen the application for judicial review which was placed before the Administrative Court on 31 March. That application led to the granting of an interim injunction restraining the demolition of Bishopsgate Goodsyard until a further hearing.
I wish to make absolutely clear that English Heritage took no part whatsoever in the preparation of that application for judicial review. Neither were we consulted in any way about it. English Heritage was not a party to the proceedings brought by the London Railway Heritage Society. Nor will it take any part, or offer any support for the proceedings which are now being initiated by Mr Prokopp.
English Heritage’s position on Bishopsgate Goodsyard is clear. We wholeheartedly support construction of the East London Extension and do not wish to see the project delayed in any way. Equally, we believe that the Goodsyard is a structure of considerable historic, engineering and architectural interest which offers a tremendous opportunity for reuse. The study which English Heritage commissioned from Alan Baxter and Associates and Urban Initiatives demonstrates how the twin objectives of building the railway whilst retaining the existing structure could be achieved to create a development of real interest and value.
English Heritage continues to believe that it is not necessary to demolish the Goodsyard in order to build the East London Extension. Nevertheless, we are unwilling to take any action, including support for others, which might delay or prejudice the new railway. For that reason I wish to entirely disassociate English Heritage from the proceedings which are now being brought before the High Court.”.
On the other hand, on 8 April 2003 the same person on behalf of English Heritage was writing to a Mr. Derbyshire who was actively supporting the retention of the BGY stating:-
“Demolition is completely unnecessary, hugely wasteful of resources and would seemingly blight the area for years to come. That cannot be an acceptable way of developing valuable inner city areas in the 21st century. Given that we support these views, English Heritage is happy to support the Trust’s Newsletter”.
It does appear that, despite its belief that demolition is not appropriate, English Heritage takes the view that ELLX’s importance overrides that belief and further delay cannot be countenanced
In considering whether there has been substantial compliance with the Directive, it is proper to consider the whole history and to take account of the previous planning permission. The issue is one of balancing the benefits of the ELLX against any environmental damage to be caused by it and an endeavour to ensure that all reasonable steps are taken to keep such damage to a minimum. In this context, preservation of architectural heritage is important. Since there has been an EIA, it is important to identify what changes have taken place since. Essentially they amount to a burgeoning support for Mr Prokopp’s campaign and an expert’s report that in engineering terms the demolition is unnecessary. Largely as a result of the increased pressure to preserve the BGY, the decision has been made to list the Braithwaite Viaduct and so any impact on it of the development is now to be considered.
Mr. Clayton makes the point that the existing EIA does not address the issues which in accordance with the matters prescribed by Schedule 4 to the 1999 Regulations it should address. LUL itself states that to deal with the Baxter report a detailed engineering conditions survey would be needed and this would take at least 9 months to carry out. One of the important objectives of an EIA is to enable there to be informed input from the public: that cannot occur and the public attendance at the LBH or LBTH meetings when consideration is given to whether it is expedient to enforce is no adequate substitute.
I see the force of all this, but in my view it does not address the realities. The question whether the line could be made to run over the existing structures was raised before and considered by the inspector in 1994. He decided that even if it could it would not be beneficial in visual terms. It is true that more detailed evidence is now available of the feasibility of doing what Mr. Prokopp was suggesting, but that is not usually a good reason to reopen a decision. In any event, when the listing of the viaduct took place in March 2002, it was specifically stated that the BGY was not worthy of listing. It is in those circumstances difficult to see how it could conceivably be said that the desirability of retaining the BGY should outweigh the need for an immediate progression of ELLX. There can be no justification for any further delay.
Mr. Clayton’s arguments are based on the technical requirements for an EIA. They do not take proper account of the purpose of an EIA, namely that full information should be provided of the relevant environmental effects of a development. True it is that such information must be provided by means of an EIA. There has been one. What is left is the effect on a listed building (or part of a building ), since the decision not to list the balance of the BGY means that to demolish it cannot be regarded as detrimental to our cultural heritage.
It follows that I am satisfied that it would be open to LBH and LBTH to decide that there had been substantial compliance and that no new EIA was required. LBTH have not as yet considered that in terms since they were advised that Huddleston’s case precluded them from requiring an EIA and so they would not take enforcement action since to do so would be to give direct effect to the Directive in a prohibited way. That advice I believe to have been erroneous. In deciding whether or not to exercise their discretion to enforce, they had to comply with the law. They had therefore to consider whether the Directive required them to enforce if no EIA was produced. They are in my view entitled for the reasons I have given not to and to take the view that the delay outweighs other factors.
LBH have considered the issue more widely. But neither they nor LBTH seem to have considered what conditions should be included to deal with the listing of the viaduct and to protect it. Further, I am satisfied that it was wrong to make the decision not to take enforcement action before all conditions were in place.
I have carefully considered whether I should exercise discretion against granting relief. I know that both LBH and LBTH are anxious that ELLX should proceed as soon as possible and will in my judgment be acting lawfully if they decided that it would not be expedient to enforce. Not only has there been substantial compliance with the Directive but, to quote again Lord Hoffmann, this decision may be said to involve the ‘detailed regulation of an activity for which the principal consent, raising the substantial environmental issues has already been given’. Thus to quash the decisions would be to require unnecessary delay. I have decided, however, that, largely because I am clearly of the view that the decision should not have been made which enables demolition to take place before all appropriate Conditions under s.106 were in place, I should not refuse relief.
It follows that I think the decisions cannot stand. But they can and should be speedily reconsidered. What further information (if any) is required from LUL is a matter for the boroughs, but I am satisfied that they would be acting lawfully in deciding that it was not expedient to take enforcement action without a further EIA.
I will hear counsel on the relief which is appropriate.
MR JUSTICE COLLINS: You have all, I think, seen a copy of the judgment. There is one error which I spotted in paragraph 34 in the fourth last line, the sentence beginning "It is in those circumstances difficult to see". It should be "how it could conceivably be said", rather than "would". I am grateful to you all for spotting some other typing errors. That is the judgment. So, I had better see what relief there should be.
MR CLAYTON: My Lord, I hope your Lordship has seen a document which is called "Third Draft Order".
MR JUSTICE COLLINS: I have the second. I am not sure if I have the third.
MR CLAYTON: Can I pass it up? Can I also explain that this order comes about -- I will take you through it in a moment. Just in terms of where we are --
MR JUSTICE COLLINS: You have obviously passed it round.
MR CLAYTON: I have, but unfortunately some people have seen it late. It reflects discussions that I have had with Mr Petchey for Tower Hamlets, but no one else. Can I just explain the structure of the order first of all? The order recites at the outset various matters, including the application for the declarations, which is in the skeleton. The quashing order has been basically designed, certainly in relation to Tower Hamlets, to reflect the actual council resolution. I am not sure, actually, looking at Hackney, that due to time, whether that has been done. It may be preferable for the order to precisely reflect the resolution. And, as I say, there has not been enough time. The third part, part (iii), the declaration there, is to reflect the terms of your Lordship's judgment in terms of paragraphs 37 and 38 of the judgment.
MR JUSTICE COLLINS: Did you say (iii)? Do you not mean (ii)?
MR CLAYTON: I am sorry, I am getting increasingly short sighted. It is (ii). So the position, my Lord, really comes to this. In our respectful submission --
MR JUSTICE COLLINS: Would it be to resolve not to take any course of action?
MR CLAYTON: It should be. Just dealing with the issues of principle first. In our respectful submission, the appropriate quashing orders are the ones that we have set out, subject to the Hackney order being more precisely formulated to reflect the resolution. And in terms of the suggestion about a declaration, the reason why we do that is that there may be -- it would just facilitate a clarity, given the general position we are in, if the court made a declaration to reflect the terms. I am not sure I have to say anything more than that in relation to the order itself.
MR JUSTICE COLLINS: I am slightly concerned about the quashing order that you seek against LUL. I am not sure that the court necessarily has jurisdiction to make a quashing order against LUL. It is not a public body, is it?
MR CLAYTON: Leaving that --
MR JUSTICE COLLINS: It may be that an injunction is an appropriate remedy for the short term, but I do not think a quashing order is the correct --
MR CLAYTON: In terms of -- there are a number of different points one can make about that. I think -- cutting through all of it, the position is that I have had discussions with Mr Barnes --
MR JUSTICE COLLINS: All you want is either an undertaking or an order which holds the position so that London Underground will not start any demolition work until there is a decision by each authority not to enforce. Obviously, if there is a decision to enforce, they will have to go through the --
MR BARNES: We would accept that.
MR JUSTICE COLLINS: Yes.
MR CLAYTON: In this case I accept that. That is what I was going to say. I think you --
MR JUSTICE COLLINS: Do you want an order, Mr Barnes, or do you want to --
MR BARNES: We would prefer an order from the court.
MR JUSTICE COLLINS: As I say, I do not think it should be in the form of a quashing order. If you could re-draft that to make it in the form of an interim injunction.
MR BARNES: Yes. The interim injunction already granted be continued.
MR JUSTICE COLLINS: That may be the best decision.
MR BARNES: (inaudible) the decision of the authorities either to enforce or not to enforce. If they decide to enforce, then it goes into the planning procedures. It they decide not to enforce, then that is the end of it. That is our position.
MR JUSTICE COLLINS: That may be the sensible way of doing it, simply to direct that the existing injunction be extended, or to repeat it as part of this order.
MR CLAYTON: My Lord, we would be content with that. So far as we are concerned, we would then just simply have the quashing orders against the LPAs, and the declaration which --
MR JUSTICE COLLINS: The full terms of the declaration, there may be some argument about that.
MR CLAYTON: I understand that.
MR JUSTICE COLLINS: But subject to that -- we will argue about costs shortly -- it seems in principle unobjectionable. I do not know who wants to go next.
MR HARRISON: I have only just seen this third draft order, 30 seconds ago.
MR JUSTICE COLLINS: Whether it substantially changes what (inaudible).
MR HARRISON: I did not see the second draft order either. Straight away, item (b), on the second page, the London Borough of Hackney's decision was not, in fact, to refrain from a course of action, but to give discretion to officers to refrain if appropriate section 106 obligations were forthcoming. It may simply be better to refer to the decision on 1st April 2002 or to put the full wording in.
MR JUSTICE COLLINS: I appreciate that Hackney's decision was more founded on what I have found to be correct. On the other hand, I still think -- as you can appreciate -- that the council ought to be satisfied of the 106 conditions before, rather than leaving it to the discretion of the officers.
MR HARRISON: The second point is this. It relates to what may happen hereafter. Your Lordship has not yet, as I understand it, given permission either to amend the claim form to declarations --
MR JUSTICE COLLINS: If I have not, I will do so now.
MR HARRISON: In that case, that takes my second point away.
MR JUSTICE COLLINS: It is really a non-point because in theory you do not need a declaration. You can simply rely on the terms of the judgment. But it is obviously convenient to have a declaration because that is something which everyone can focus on and know exactly what they have to do or not have to do.
MR HARRISON: Subject to those points, those are my submissions, although I would like to spend a little more time just reading the actual wording of the declaration.
MR JUSTICE COLLINS: You can come back if you want to.
MR HARRISON: I am grateful.
MR PETCHEY: If your Lordship has discretion to make a declaration in terms of (i) and --
MR JUSTICE COLLINS: You are happy with those, are you?
MR PETCHEY: It is clear from the terms of your Lordship's judgment. We are happy that that declaration should be made if your Lordship feels it appropriate.
MR JUSTICE COLLINS: You are happy with the terms of that?
MR PETCHEY: Yes.
MR JUSTICE COLLINS: That is no problem then. Yes, Mr Barnes?
MR BARNES: Obviously, there should be in the circumstances an order which quashes in appropriate words the present decision of the local planning authorities. We say nothing as to that. As regards our position and the order relating to our decision to begin demolition, I hope that would be, as I have just indicated, superseded by the continuation of the interim injunction.
MR JUSTICE COLLINS: Whether you simply direct the interim be continued or repeat it --
MR BARNES: Our only reason for that is this. As your Lordship appreciated, following the judgment of Ouseley J it was five months before we got decisions, and, if necessary, if there is an interim injunction continued or given, we can always apply to the court to discharge.
MR JUSTICE COLLINS: Indeed.
MR BARNES: I am not saying we need to, but --
MR JUSTICE COLLINS: It is obviously -- I have made it clear, I think, in my judgment that it is desirable -- I will put it no higher -- that the matter should be dealt with as speedily as possible. And having regard to what I know are the attitudes of the local authorities, I would be surprised if they do not deal with the matter exceedingly speedily, or as speedily as they are able to, having regard to their obligations under the law as I have declared it to be.
MR BARNES: My Lord, I am grateful for that. I think we have dealt with that. The remaining matter really is one of principle. The order of the court will, therefore, in the appropriate words be quashing the two decisions of the local planning authorities. The question is: should the order of the court further make precise declarations as to what is to happen? Whether it does or not, your Lordship's judgment stands as the law, subject to any appeals and so forth. The question is: should that be repeated in the form of declaratory relief or not? Our submission is that it is unnecessary to do that because the law which the authorities and ourselves and everyone now has to observe is set out in your Lordship's judgment. Why, therefore, should one repeat it particularly?
MR JUSTICE COLLINS: I must confess that I am slightly concerned with the wording in any event, with an undertaking -- I am not quite sure whether that is an appropriate word -- containing conditions in respect of environmental effects et cetera. I mean, it seems to me that it is, as you say, quite clear that what I have said ought to be considered. It is up to the authorities to decide what conditions are appropriate. I suppose, God forbid, if they were thought to have fallen down on the extent of the conditions, someone might challenge.
MR BARNES: The declaration will not help that.
MR JUSTICE COLLINS: It will not help that, and I do not think it is desirable that it should be tightened. I would be prepared to say that it would be unlawful for the boroughs to resolve not to take enforcement action without there being in place a section 106 agreement.
MR BARNES: I would not object, but if your Lordship -- the only difficulty in that is a very technical one. Under section 106, what technically is given is what is called "planning obligations". You can give those unilaterally.
MR JUSTICE COLLINS: Without there being -- in that case, if one wants a declaration, the best thing would be to use that form of words, without there being in place --
MR BARNES: A planning obligation under section 106.
MR JUSTICE COLLINS: -- sufficient planning obligation under section 106. I would be inclined to leave it at that because I do not think that it would be appropriate, in my view at the moment, to narrow it in any way. The judgment, I hope, is clear as to what is required.
MR BARNES: Indeed. I am grateful. On that point -- there may be other points -- I would leave my submissions at that.
MR CLAYTON: My Lord, the only reason why, in fact, we sought -- I am afraid I have not actually looked at this particular document as fully as I was looking at the other things. If I could just take your Lordship to the judgment. The reason for the declaration was really what is contained in paragraph 37 of your Lordship's judgment. It is the second and third lines, consideration of those conditions. We thought it would be valuable if that was reflected in a declaration. It is a matter for your Lordship.
MR JUSTICE COLLINS: I do not think it is necessary. That is the declaration. What should be contained is, as I say, a matter for the authorities. They know that that is the gap, at least that is the apparent gap at the moment which has not yet been settled. But, of course, there will be other conditions which deal with some of the other matters, which are still necessary conditions under the old planning permission.
MR CLAYTON: My Lord, in the light of that, I do not want to press the point further. Can I suggest that all counsel, having heard the discussions, simply -- a draft is produced which reflects --
MR JUSTICE COLLINS: That would be sensible. You can pass it by me. I am sure there will be no problem.
MR CLAYTON: Can I then move on to the next topic? It is costs. I hope your Lordship has seen a brief written submission from us.
MR JUSTICE COLLINS: On costs? Yes, I have. Let me just find it. I had it this morning. I am sure I have it somewhere.
MR CLAYTON: I will pass one up.
MR JUSTICE COLLINS: I have it. I also have one from Hackney.
MR CLAYTON: We hope we have taken a realistic approach to this. Basically, what it comes to is this. We obviously accept that we lost on the issue which was addressed by written submissions. The point we make, which is in accordance with the views now expressed in the CPR, is that a partial costs order is appropriate. At paragraph 4 of the skeleton we set out some of the issues. One can go into it in rather more detail, but the long and the short of it, in our respectful submission, is that on -- certainly, the most important and also the lengthy submissions, I am thinking, for example, of the Hackney planning commission, which, if I may say so, took a lot of time over a weekend to --
MR JUSTICE COLLINS: I can believe that.
MR CLAYTON: So, what our submissions to your Lordship are in relation to that, is that we are entitled to a substantial bulk of the costs. At paragraph 5 I have suggested 80 per cent, but I qualify that by saying, of course, it really is a matter for discretion. I just thought, since I might be asked what I thought it was, I would actually --
MR JUSTICE COLLINS: You pitch it high. It is the old quantum argument, is it not?
MR CLAYTON: Maybe so. The other point -- there are two other points, I suppose, which are of some slight importance to make. The first is in terms of allocations of costs between the respective defendants. In our respectful submission, that really is a matter for the cost judge. It is not -- otherwise I will leave it to your Lordship because there is obviously plenty of --
MR JUSTICE COLLINS: It does not worry you. All you want is someone to pay. This is not a case where any of them are likely to go bust.
MR CLAYTON: No.
MR JUSTICE COLLINS: At least, that is what we hope.
MR CLAYTON: I think what we would like, my Lord, is this. We would want something which is easily enforceable. If your Lordship made a costs order against the defendants jointly and severally, they could then sort out their respective contributions.
MR JUSTICE COLLINS: That may be a way. We will see.
MR CLAYTON: What I am anxious to avoid doing, particular complications because of the way the legal aid system now works, about how one is supposed to collect the costs. I would like to avoid a situation where one would have to be looking to three separate defendants for --
MR JUSTICE COLLINS: I understand that. One wants to make it as simple as possible, to avoid unnecessary further costs in enforcement. I totally understand that and I am sure everyone would agree in principle that that is desirable. What I might do, assuming I was in your favour on the costs order at all, is to suggest that one of the parties should pay, and then should recover the balance from the others, ie there should be a lead payer. But that may not fall on receptive ground.
MR CLAYTON: My Lord, I can quite see why there might be a certain amount of disagreement amongst the defendants about how the burden should fall, but from our point of view, assuming in my favour, we want to be able to enforce against one person because otherwise it is very difficult.
MR JUSTICE COLLINS: I see the force of that. I will consider that if it arises.
MR CLAYTON: The final point, for what it is worth, is that there seems to be a constant theme in this case that somehow because we are publicly funded, it is -- it is not a relevant consideration, as your Lordship will know, and we just thought it worthwhile to try ---
MR JUSTICE COLLINS: We will need the usual certificate, which you can obviously have in any event.
MR CLAYTON: My Lord, unless there are any specific points, our submission to your Lordship is -- which we expressly accept -- that, obviously, how the partial costs order should be allocated is very much a matter for your Lordship. But we do say that -- one way of testing the position might be this, I suppose. Had the environmental statement not been put in, and therefore had that whole issue not been ventilated, what would be a proper costs order in those circumstances? And then given that it was, how should that be discounted to reflect it?
MR JUSTICE COLLINS: I suppose you can say that if you had not sought the interim injunction, the deed would have been done.
MR CLAYTON: Yes. We certainly needed -- perhaps I could just pick that up. Although the way in which the case has developed before your Lordship from LUL has been clear, the fact -- and it may be that they were simply anxious to get the matter in court -- was that we were put in a position where we did need to seek immediate relief.
MR JUSTICE COLLINS: I appreciate that the point on which you eventually succeeded was a point which had not really been raised very substantially before. Equally, the substantial compliance point was one which had not been particularly foreshadowed. On the other hand, that is not perhaps altogether surprising because the whole case came on at a considerable rush, for obvious reasons.
MR CLAYTON: I might make two points about that. Firstly, we would say that the main contest was about whether there was an issue of the Directive --
MR JUSTICE COLLINS: You have certainly won on that.
MR CLAYTON: We would also make this point. Although the case came on quickly, your Lordship had the advantage -- or disadvantage, depending on how one looks at it -- of seeing copious advice from counsel. So these issues were --
MR JUSTICE COLLINS: But you know as well I do, Mr Clayton, that quite often until you actually come to court and the issues get discussed and crystallised, you do sometimes miss the point which turns out to be an important one.
MR CLAYTON: My Lord, I entirely accept that. My only point in response is to say that whilst, obviously, that is true -- and indeed seems to have occurred in this case -- there is a limit on how far the defendants can press that because they had plenty of time to think about it and, indeed, to put the evidence in, but they chose not to for one reason or another.
MR JUSTICE COLLINS: I follow that.
MR CLAYTON: Unless there is anything else?
MR JUSTICE COLLINS: I will come back to you, obviously, if there is. Yes, Mr Barnes?
MR BARNES: In my submission -- I speak, of course, only for London Underground -- we should not be ordered to pay any costs in relation to this matter. In relation to us, there should be no order for costs against anybody, for these reasons. In the first place, we have, as a body, done nothing wrong in the light of your Lordship's judgment. We have offered a section 106 obligation, and still do so. We have offered to provide any information, other than a full environmental impact assessment, which has been required by the boroughs, and have done so since the beginning.
The main theme or thesis of the case against us on behalf of Mr Prokopp is that it would be unlawful for the boroughs not to enforce, and for us to proceed without an environmental impact assessment. On that point, at the end of the day, we have succeeded, and, in my submission, that is the substantial point.
My Lord, the only things that are quashed, and properly to be quashed, are the decisions of the local planning authorities. Although, of course, we have assisted in those decisions in providing information, ultimately that is matter for them and they must speak for themselves in relation to costs on that.
MR JUSTICE COLLINS: True, but I think one is entitled, is one not, to look at the realities of the situation. The situation was created by an error on the part of LUL initially.
MR BARNES: Undoubtedly, my Lord.
MR JUSTICE COLLINS: That was the lapse of the planning permission. The question then was how to try to get out of the problem created by that error? You sought to persuade the LPAs that there was no need for any enforcement because of the building point, ie that the planning permission was still in existence. That failed. I appreciate that you say that as a matter of fact that was a wrong decision, but it is not one that could be challenged before me.
You then sought to persuade -- and successfully -- the LPAs that they could deal with the matter speedily by not enforcing and accepting conditions under section 106. It seems to me in those circumstances that since it was really you who had the major interest -- although I appreciate they also had an interest -- in ensuring, if they could, that this matter went ahead, it is artificial to exclude you from any liability -- if there is any liability -- for the situation that has resulted.
MR BARNES: We were major participants in bringing the situation which exists today into being. It is plainly so and it would be absurd to suggest that that is not so. My only point is that ultimately we are but persuaders. The statutory decision has to be made by the local planning authority.
MR JUSTICE COLLINS: I understand that.
MR BARNES: But undoubtedly we were major players in bringing that about.
MR JUSTICE COLLINS: One has to some extent to adopt a rather broad brush approach on costs, as you will appreciate. I think most people, quite honestly, would consider it unfair that the whole costs -- if there was an order of costs -- should fall on the local authorities in the situation that has arisen. I personally think it would be unfair too.
MR BARNES: I have made my point. I will leave that to your Lordship ultimately.
MR JUSTICE COLLINS: What is the appropriate division is another matter.
MR BARNES: I put (a) what is the amount of the costs; should it be the whole of the claimant's costs, and (b) what division should there be of the amount? I have made my point.
MR JUSTICE COLLINS: Do you have any submissions on whether there should be an order at all and, if so, what?
MR BARNES: My initial point is whether there should be an order at all.
MR JUSTICE COLLINS: Look at it more generally now.
MR BARNES: If there is to be an order against the defendants in the proceedings --
MR JUSTICE COLLINS: Looking at it globally.
MR BARNES: We are, in a sense, all participants in it. It is difficult to say. We put our point of view, as any landowner and developer does. The planning authorities took their decision. I would find it very difficult as a matter of submission to say that it is 33 per cent and not 43 per cent. So much has to be broad brush at this stage.
MR JUSTICE COLLINS: This is the problem. It does. I think that is right. Assuming it is appropriate to make a global order for costs, and looking at it, as I say, globally at the moment, what proportion or what amount of the claimant's costs do you say would be appropriate?
MR BARNES: We should say in those circumstances, there being three defendants, we should not pay more than one third.
MR JUSTICE COLLINS: No, no. You, I appreciate. I mean assuming he is entitled to an order for costs.
MR BARNES: My learned friend says 80 per cent. I say that is wrong. It should be more in the order of 20 or 25 per cent, something of that sort. But the remaining -- I am a pretty poor haggler. Could I mention one point on it? It is not right to say that we did not take the point in relation to substantial compliance. We took the primary point that there was no development consent because it was a negative decision. We lost on that, certainly. What we did is paragraph 80 of our long argument. It is a single sentence. May I just read it? It says:
QUOTATION UNCHECKED
"It is therefore submitted that as regards the Directive and the law of enforcement of planning control, a combination of the provisions of the 1990 Act and the regulations and principles of law, does ensure that, in the words of Lord Hoffmann in Bartby(?), substantial compliance with the Directive is achieved."
So we had, prior to coming to court, taken the point.
MR JUSTICE COLLINS: Are you flagging up?
MR BARNES: I agree that we are flagging, but not as prominent as our argument.
MR JUSTICE COLLINS: Well, I think in fairness, Mr Barnes, you have, perhaps, received judicial inclination that that particular point might be a good one.
MR BARNES: That is an advocate's job.
MR JUSTICE COLLINS: It occurs to me -- I remember some years ago when one went to the cinema there was a standard advertisement for a firm of bookmakers: "You win when you lose with Margolis(?) and Ridley". You would say that you are somewhat in that position.
MR BARNES: My Lord, on that, I continue to make the submission -- and your Lordship will consider it -- that we should not be obliged to pay any costs. If there is to be an order for costs in general principal in favour of the claimant against the defendants, I say it should not be more than the order of a quarter, 20 to 25 per cent. I agree with my learned friend that legal aid has nothing to do with it. We are on common ground there. As between the defendants, I submit that we should not be obliged to pay more than one third, if we have to pay anything.
MR JUSTICE COLLINS: Mr Barnes, Mr Clayton's suggestion that if there is to be an order, there should be a single person to enforce against, and that person can then claim the necessary contributions from the co-defendants, how does that strike you?
MR BARNES: That is reasonable, my Lord, since we are all going to be in existence for some time, despite the activities of Rail Track in the past.
MR JUSTICE COLLINS: Do you mind being the lead?
MR BARNES: I do not think we do, my Lord, no. As long as it is understood that we will get our --
MR JUSTICE COLLINS: Of course. You will get such contribution as I consider to be appropriate.
MR HARRISON: I think, my Lord, you have my submissions on costs.
MR JUSTICE COLLINS: Yes, I do.
MR HARRISON: If I can summarise them by saying that the reality as we say is set out at paragraphs 4, 5, 6 and 7. We were joined late to these proceedings. We have had our decision quashed on very narrow grounds, which were not in any way foreshadowed. We say that we are in the position of the bookmaker in the advertisement, that on the costs, although your Lordship has quashed our decision, we should be regarded as the successful party.
MR JUSTICE COLLINS: You are, I suppose, the lesser party in the sense that the viaduct is not in your part of the yard. And you did consider more the substantial compliance point. You did not do it directly --
MR HARRISON: We took matters more in the round.
MR JUSTICE COLLINS: That may be.
MR HARRISON: We stress particularly, as I set out in our submissions, that had Mr Prokopp come to us before the proceedings started and said, "Simply consider what is going to happen to the viaduct and then I will be satisfied" -- of course, he was not going to do that, but if he had -- and, of course, your Lordship has postulated that -- it was inconceivable that we would have said we were not going to do that. We would have been perfectly prepared to take those matters into account. Because throughout these proceedings --
MR JUSTICE COLLINS: But you should have done anyway. It is what I have said.
MR HARRISON: My Lord, yes. But taking the broad brush approach, our involvement in these proceedings has been, in what we see as the public interest, to keep the ELLX project alive. In our submission, we have succeeded on that and should be regarded as the successful party for CPR part 44. I do not think I can add on that principal point. If there is going to be a division between the defendants -- one obviously does not want to squabble in court -- we do say that we should be seen as very much the minor party in all of this, largely for the reasons which I have set out in my basic submission.
MR PETCHEY: My Lord, we are in a similar position to the London Borough of Hackney, but there are differences in essence. A major issue in the proceedings was whether a decision not to take enforcement action was a development consent, and the London Borough of Tower Hamlets has taken a clear view about that.
MR JUSTICE COLLINS: The borough accepted that it was.
MR PETCHEY: In that context, my Lord, the substantial compliance issue arose. We flagged up in our skeleton something the court would have to address, and we made helpful submissions on that matter when it came to it after the conclusion of the hearing. Of course, we have lost on a very narrow issue, so that, as my learned friend says, the project clearly goes on. On that basis, it would be inappropriate, in my submission, for any substantial order for costs to be made against us.
Your Lordship has floated in argument the thought that one way through all this could be that there be no order for costs at all. That your Lordship has considered. That would be one way of addressing this matter.
MR JUSTICE COLLINS: It would be one way from your point of view, I do not doubt.
MR PETCHEY: All I am saying principally is that I should recover some part of my costs from Mr Prokopp. One sees this argument the other way, and your Lordship considers that. If your Lordship is going down that path, one way of reflecting that sort of broad justice is to --
MR JUSTICE COLLINS: I think what you are entitled to submit -- I will come back to Mr Barnes, perhaps, on this if necessary -- is that the major arguments were arguments that you did not support. That is the --
MR PETCHEY: The development consent issue was a major, major issue in the two days that we had. Also in that was the question of the planning permission that was not a planning --
MR JUSTICE COLLINS: The Hackney planning permission. That was a good try. Again, you should not be saddled with the costs relating to that.
MR PETCHEY: If one is looking at responsibility between LUL and the planning authorities, we say that the major responsibility lies with LUL.
MR JUSTICE COLLINS: I see the force of that. Mr Barnes?
MR BARNES: I resist that most strongly, particularly against the London Borough of Tower Hamlets. The decision of Ouseley J was given on 8th November. It was five months, apart from a few days, when ultimately this borough decided what to do. It is, in my submission --
MR CLAYTON: That is not very impressive.
MR BARNES: -- scarcely a creditable performance for a local planning authority, and that ought to be taken into account. In relation to the other matters, who has won on various points and so forth, one can argue and say, "Have we scored five goals, and the other scored four?"
MR JUSTICE COLLINS: You have to do that a bit now.
MR BARNES: At the end of the day, surely it is for your Lordship's overall view how to divide it. It is not an exact arithmetical basis.
MR JUSTICE COLLINS: It never can be.
MR BARNES: Apart from that observation in relation to the London Borough of Tower Hamlets, I do not have anything further.
MR JUSTICE COLLINS: Feel rebuked, Mr Clayton.
MR CLAYTON: My Lord, your Lordship has been confronted with two unsurprising submissions. Firstly, that really we should not be getting anything at all. Secondly, it is nothing --
MR JUSTICE COLLINS: You will get something.
MR CLAYTON: And also that it is nothing to do with me particularly, it is all someone else's fault. But what I would like to make clear are two particular points. One is that your Lordship's decision that the regulations do not correctly implement the Directive is, in fact, an important matter to be resolved. The point that I understood the London Borough of Tower Hamlets to be making is that they, of course, took that view as well as us. The second point is -- and I am now just reading from the commentary which I briefly referred to --
MR JUSTICE COLLINS: Which page is that?
MR CLAYTON: It is page 995 of the current edition.
MR JUSTICE COLLINS: Is it volume 1?
MR CLAYTON: Yes. If your Lordship -- it is the commentary at 4431, which really -- do you have the old one? I have the old one as well and someone has kindly lent me the new one. The old one is at 937.
MR JUSTICE COLLINS: What is the date of the new one?
MR CLAYTON: The autumn one is the old one, which I have. There is a new one called 2003. The old one is at 937. That is the one I actually have.
MR JUSTICE COLLINS: Yes?
MR CLAYTON: The basic point is that it is clear from reading the first four paragraphs of that commentary that effectively this is made very clear.
MR JUSTICE COLLINS: One thing that seems to me to be clear from this is that, so far as the Hackney planning permission is concerned, that is an issue which obviously involved you or your side in specific work, and one should reflect that against LUL. I have no doubt that that issue -- what proportion it will form in due course is another matter, but that issue, I think, LUL will have to pay for.
MR CLAYTON: The only point I am really making is the last sentence of the third paragraph, that the issue-based approach requires the court to consider it issue by issue. Your Lordship effectively made that point to my learned friend. I accept that one has to look at the thing in the round as well, but what I would say is that --
MR JUSTICE COLLINS: You cannot look at it in too much detail. It has, in the end, to be broad brush.
MR CLAYTON: I would make the point nonetheless -- and this is also borne out in the commentary -- that the fact that one has lost on a point -- I am not minimising its importance -- is not decisive either. This is no criticism of anyone, but when we got into figures the disparity seemed to be quite striking, and, in my respectful submission, if one looks at the balance of play, although obviously we did not succeed on everything, we did succeed on the two points of importance: the planning permission, and also the fact that the regulations do not correctly implement the Directive, which is a point of some substance. I have nothing further to add.
MR JUSTICE COLLINS: Thank you. As I have indicated in the course of argument, it is necessary, in deciding the appropriate proportion of costs that should be ordered to be paid, to adopt a somewhat broad brush approach. On the other hand, as a result of CPR 44.3, the court has to consider more carefully the issues which have been before the court, and how they have been decided. Here the main issue as to the application of the Directive in the circumstances has been lost by LUL. The boroughs essentially supported the approach that was adopted by the claimant. Mr Barnes, I think, accepts that so far as the Hackney planning issue is concerned, that was a matter which was raised by him. It was a matter which had to be investigated by the claimant. He lost on that issue, and that took, obviously, a substantial time.
What led to my decision in favour of the claimant in due course was a somewhat narrow one, namely that there had not been a full consideration and putting in place of the necessary conditions in accordance with section 106. But the issue which was of real importance to the claimant was the issue as to whether there had been substantial compliance because even though they won on the application of the Directive, if they lost on that issue, that win availed them very little. In those circumstances, one has success on a considerable number of the issues which were argued, but a failure on a very important -- and it may even be a decisive -- issue, looking at the whole history of the matter.
It seems to me in those circumstances that it is clearly right that there should be an order for costs in favour of the claimant, but that it should be a proportion only of their costs. Having regard to the importance of the various issues on which they won and lost, it seems to me, doing the best I can, that the appropriate order would be one that they receive half their costs.
Now, from who? I am quite satisfied that the major contributor must be London Underground. I appreciate, as Mr Barnes says, that they have not done anything which has resulted in the need for the decision to be quashed. On the other hand, they have clearly done a lot to raise the issues on which the claimant has succeeded, and indeed they have taken the lead in those issues. It seems to me that the appropriate order is that they pay 90 per cent of the amount that is ordered, with the balance of 10 per cent to be divided between the two boroughs. That means that it is obviously sensible that there should be an order that the whole of the costs that I have ordered to be paid should initially be paid by London Underground, and that they should then receive the 10 per cent contribution from the boroughs.
Now, Mr Petchey and Mr Harrison, I am inclined to think that the fair thing, probably, is to say that each of you pay 5 per cent, 50/50. If you want to quarrel with that, either of you, now is the time.
MR HARRISON: I shall take instructions. We do not wish to quarrel with that.
MR JUSTICE COLLINS: In that case you will contribute your proportion as to 50 per cent each, and LUL will obtain those sums from you. But, as I say, the primary order will be that LUL will pay all the costs against the defendants.
MR CLAYTON: My Lord, may I move to the next matter? In a sense it is foreshadowed by your Lordship's observations about the importance of the point that was lost. My Lord, we do have an application for leave to appeal.
MR JUSTICE COLLINS: Can you appeal against a success?
MR CLAYTON: Yes. So that we are clear, it is actually leave to appeal against the refusal of the declarations which would have been awarded had the issues of substantial compliance --
MR JUSTICE COLLINS: You did not apply for a declaration.
MR CLAYTON: We did. I would invite your Lordship to look back at the order. The amended -- so that we are clear --
MR JUSTICE COLLINS: Just remind me about the rights of appeal where you have lost on an issue, but you have succeeded in obtaining the relief which you sought: namely, that the orders of the local authority should be quashed. Because you would not have got any order against London Underground in the public law proceedings. I have decided it is not appropriate for a private individual to obtain relief against a developer in these circumstances. The only appropriate relief is a temporary one.
MR CLAYTON: I actually did not say a lot about that because that seemed a practical way round the problem. But, in fact, your Lordship may recall the Hammerton judgment, which was brought by way of judicial review proceedings. It was accepted that in relation to the construction of (inaudible), LUL, which was a statutory body, was subject to judicial review, and indeed, Ouseley J expressed a view about that. It has not been a point taken at any stage --
MR JUSTICE COLLINS: That may or may not be right, but I still -- whether or not it is a public body -- have the gravest of doubts whether it is appropriate for a private individual to obtain relief against that sort of a body, where the Parliamentary process is that it can be dealt with through enforcement, which has its built-in safeguards which do not exist in judicial review.
MR CLAYTON: My Lord, in relation to the point which I am making and leave to appeal, firstly, the mechanics of the appeal are premised on the declarations which are primarily against the public authorities, and I put them in the skeleton precisely because that eventuality has been covered. There is no objection in principle to an appeal proceeding where an important part of the case has been unsuccessful. One only need think of Barry(?), for example. Your Lordship may recall that in the case of Barry, the community care case, the judge at first instance decided that the reassessment should be made under the community case legislation because (inaudible) done properly, but the issue of principle, which was how they should be carried out, went to the Lords. In our submission, just to move on to the actual point, there is a real and important point involved in this case because the fact is that substantial compliance has only been argued successfully in one case. That case is radically different from the situation here, particularly because in the commission in Germany it was common ground -- which it is not here -- that all the requirements of the Directive had been met. My submission to your Lordship, really, comes to this. We would submit -- I am afraid I have not set out, but I am happy to do so, the various grounds why there is an argument about the prospect --
MR JUSTICE COLLINS: I can see that there is an argument. Of course there is.
MR CLAYTON: Beyond that, we would actually submit on the basis of the special reasons, because of public interest, because the question of substantial compliance is an important one. We would, in the natural course of things, look for some guidance from the ECJ because having spent, really, quite a lot of time --
MR JUSTICE COLLINS: Mr Clayton, what you are telling me sits ill with your express concern that this should go ahead without any unnecessary delay. If you are talking about the ECJ, that is a two year delay.
MR CLAYTON: Your Lordship is ahead of me, and I apologise. My point is not that we should be inviting your Lordship, and that is certainly not the point I am trying to make. The point I am, however, trying to make is that the issue of substantial compliance, which has only been considered in a single case which is very different from this one, is of real importance, and that --
MR JUSTICE COLLINS: It is a question of fact.
MR CLAYTON: Well, your Lordship did not treat it as a question of fact because your Lordship applied a number of legal tests.
MR JUSTICE COLLINS: Of course, there are legal tests which are clearly set out in Berkeley, and it is a question of applying them to the facts.
MR CLAYTON: My Lord, your Lordship applied different tests in addition to Berkeley. That is one of the -- can I make that good? If your Lordship, for example, turns -- just on that part of it, if your Lordship looks, for example, at paragraph 32 of the judgment, the second sentence:
"The issue is one of balancing the benefits of the ELLX against any environmental damage to be caused by it and an endeavour to ensure that all reasonable steps are taken to keep such damage to a minimum."
That statement is very different, and indeed involves a balancing exercise, which is not the same as Lord Hoffmann's test.
MR JUSTICE COLLINS: That is the whole purpose behind an EIA; at the end of it you identify the potential damage to whatever in the environment. You set out possible alternatives which would not cause, it is said, so much damage. Then you assess against the benefits in the proposed development the adverse effects, and you reach a conclusion based on all that information.
MR CLAYTON: That is the end process.
MR JUSTICE COLLINS: That is all I am saying.
MR CLAYTON: With respect, my Lord, in fact it is important to note that there are three issues which would have been part of an environmental statement, and which would have been subject to consultation, where the House of Lords has said categorically that that purpose of consultation must be satisfied. Your Lordship has, in effect, foreshortened that analysis, and precisely because your Lordship has foreshortened the analysis -- I can demonstrate that in the next paragraph as well. It is always difficult, this sort of application. The short point is -- and the important one is -- that what one cannot say is that the decision in this case was dictated by the approach taken in Berkeley. Therefore, I do say that -- I can point to other instances of this, and I can perfectly understand why your Lordship has approached it in the round.
MR JUSTICE COLLINS: I follow that. It may be said that this is a slightly benevolent, if that is the right word, application of the Berkeley principle.
MR CLAYTON: Just putting it in that way, the point is, that being so, I think I can make that good by looking at other elements of the judgment. We do say -- and this is not, if I may say so, a point that can be made against us, without being pernickety, because the European Directive is there --
MR JUSTICE COLLINS: I know, Mr Clayton, but you know delay is a very important aspect of this, is it not?
MR CLAYTON: With respect, my Lord, whilst one quite understands why delay is an important aspect in the context of the project, it is difficult to identify, in terms of substantial compliance and the scope adumbrated before it by Lord Hoffmann, precisely where that concern, entirely understandable as it is, fits in the scheme. With respect, my Lord, our submission is -- and there really are quite a number of points we could make -- that by cutting through it in the way that your Lordship has to meet the urgency of the situation, that does not accurately reflect the Berkeley decision, and we would like the opportunity of testing that.
I would say -- and I have canvassed this as well, at least with Mr Barnes -- we would obviously accept that any appeal would have to be expedited, if there were an appeal, and, relatively confidently, that if there were an appeal, it would be expedited. Therefore, what we say to your Lordship is that, really, on the two separate grounds upon which permission is to be granted -- firstly, prospects, because we do say that the benevolent approach taken has done some distortion to the principles of Berkeley. Secondly, we say that in any event because the issue involved is one which goes to the heart of the application of a Directive and its effect on the UK, that it is an issue which is fit for the Court of Appeal to consider. Indeed, they might take the view, because of the unusual nature of the case, that it might be fit for the ECJ to consider. I am not suggesting that necessarily --
MR JUSTICE COLLINS: I should certainly hope not because then the project would simply disappear.
MR CLAYTON: I accept that. My own view, for what it is worth, is that it is quite possible for the higher courts to deal with this important issue without the need to make a reference.
MR JUSTICE COLLINS: Some of them will no doubt apply for a reference if they see that they are losing.
MR CLAYTON: Your Lordship will know that the circumstances in which references are granted now are rare because the courts discourage it.
MR JUSTICE COLLINS: I know. You see, Mr Clayton, you cannot get away from the reality, can you, that the listing has been on a specific basis that there is no need to preserve the balance of the (inaudible). That is what the relevant minister has decided.
MR CLAYTON: There are two difficulties, at least, with that proposition, probably more. First, the fact that it is listed means that there is an immediate practical problem, which your Lordship identified in paragraph 37 of the judgment, which is how do you preserve what is listed with what is not?
MR JUSTICE COLLINS: Why do you not wait and see what the conditions are?
MR CLAYTON: The second point is -- and this is a point of some substance in law -- that the mere fact that a building is listed, and a decision is made not to list another part, does not mean that it falls outside of the scope of the Directive, or indeed the regulations.
MR JUSTICE COLLINS: But it makes it rather difficult to argue that it is part of the cultural heritage that needs to be protected, if the decision is that it is not part of the cultural heritage.
MR CLAYTON: With respect, my Lord, if one looked at the logic of that, that would basically mean that it would be open in every case for a developer to say, "If the building has not satisfied listing requirements, then it is not meeting its cultural standards".
MR JUSTICE COLLINS: That is probably right in many cases in so far as the impact of the scheme on the cultural heritage is concerned. There may be other impacts which are important to take into account. But if the decision has been made that a particular building or series of buildings which are said to be going to be affected adversely by an development, and that it is part of a cultural heritage, and if there has been a positive decision that it is not to be regarded as part of the cultural heritage by the domestic body which has that responsibility, it seems to me exceedingly difficult to see how it could reasonably be suggested that it was -- assuming an environmental impact assessment was needed -- to be regarded as such. It makes a nonsense of the thing, does it not?
MR CLAYTON: One could test it in this way: is the fact that the town of Cambridge -- a point made by those instructing me, who reside there -- is listed mean that it could be knocked down because --
MR JUSTICE COLLINS: Mr Clayton, you can always use absurd examples.
MR CLAYTON: But there is a real point, which is that, in fact, although I accept --
MR JUSTICE COLLINS: Are the Cambridge (inaudible) listed, as a matter of interest?
MR CLAYTON: It is a conservation area.
MR JUSTICE COLLINS: That would be in itself a possible reason. But this is not a conservation area. As I say, there was a specific decision that this was not worth preserving.
MR CLAYTON: But the point, my Lord, I would make, with respect, is that I quite accept that. But in my respectful submission the difficulty with it is that if -- as a proposition, the suggestion that listing a building takes it outside the scope of the --
MR JUSTICE COLLINS: It depends on the circumstances. I am looking at what happened here.
MR CLAYTON: In any event it comes within the scope of the Directive and regulations because it is a material asset. So it is not, in fact, confined solely to the point that I am making. But I would, with respect, suggest to your Lordship that you have applied (inaudible) with some vigour when it comes to dealing with substantial compliance. Whilst one quite understands the rationale for that, the fact is that the issue is one of some considerable importance, and in my respectful submission this is a matter which is fit to be dealt with by the Court of Appeal on an expedited basis. I am not sure I can add any more, but I would say that, in our respectful submission, the position is more than just arguable. We would, respecting as we do your Lordship's approach, invite your Lordship to see that --
MR JUSTICE COLLINS: You do not have to respect it.
MR CLAYTON: The point I am making is that there is room for other views --
MR JUSTICE COLLINS: Of course there is.
MR CLAYTON: -- and that the issue involved is one, as I say, of some importance, which goes beyond this case. Because the long and the short of it is that if substantial compliance in a long project can be achieved by reliance on -- as, in fact, in this case -- an environmental statement made ten years earlier, on the face of it, that is a slightly striking state of affairs.
MR JUSTICE COLLINS: It could have been, but for the chance that they failed to comply with what everyone accepts is a condition which has no real purpose, and the fact that it was decided that this was a single building as opposed to a number of buildings.
MR CLAYTON: It was not, with respect, accepted by everyone that the conditions did not have a purpose. Actually, they had a very important purpose.
MR JUSTICE COLLINS: No doubt. But in due course its purpose disappears.
MR CLAYTON: My Lord, you may recall, because I certainly do, that when I sought to point out to your Lordship that had a section 73 application been made, it would have raised much wider issues and conditions --
MR JUSTICE COLLINS: It would have raised other conditions, but not beyond other conditions. That is what the Act says. It is limited to conditions.
MR CLAYTON: Powergen says otherwise, and that is --
MR JUSTICE COLLINS: Powergen says that you can consider all other conditions or any other conditions. I do not think Powergen actually construes the Act contrary to the wording of the Act, does it? I know that the Court of Appeal has been innovative in certain respects, but I do not think it has yet rewritten that particular thing.
MR CLAYTON: The issue, my Lord, is that in Powergen, what they in fact said was that one had to visit the question of the variation in terms of the position that applied as at the time of variation.
MR JUSTICE COLLINS: You still look at conditions, and not at the principle of the planning permission itself.
MR CLAYTON: We were never disputing the principle. What we would have been dealing with -- the submission to your Lordship and in front of Ouseley J was that had the section 73 application been made, the (inaudible) would have been looked at, and that is the point.
MR JUSTICE COLLINS: Not necessarily because if I am right, it would not have been necessary.
MR CLAYTON: To step back, I accept your point about substantial compliance, but in terms of -- your Lordship began by saying it was a narrow point, the failure to list condition 21. In fact, it did mean that the --
MR JUSTICE COLLINS: I follow that, but all I am saying is that but for that, and but for the single building point, there would have been no argument whether this could have gone ahead.
MR CLAYTON: Obviously, that is right but, with respect, one can always say that of any case. But for the fact that we won on one point and then the court decided in our favour, we would not have been here. But that was what happened. And we cannot be faulted for the fact that we made a point in front of Ouseley J which succeeded, and that point was then confirmed by the local authority. So I accept that the route by which you arrived at it is fortuitous, but this could be the only case --
MR JUSTICE COLLINS: I fully recognise that.
MR CLAYTON: My Lord, as I say, I am not sure I can improve on the submissions by repetition. But the point in a nutshell is that your Lordship has, in our respectful submission, taken the benevolent view of substantial compliance, effectively a very novel application to an exceptional principle which can be derived from one case only. Because it has such a narrow jurisprudential foundation, and because the point is, in our respectful submission, of some importance, there are matters which are fit for the Court of Appeal. I have nothing further to add.
MR JUSTICE COLLINS: Mr Barnes?
MR BARNES: My Lord, there is very little I can say on behalf of the defendant in relation to the appeal. The rules provide that your Lordship only give permission to appeal if your Lordship feels that there is a real prospect of success of the appeal.
MR JUSTICE COLLINS: Do you accept that there can be an appeal, even though they have won on a point on which they have not succeeded?
MR BARNES: In principle, yes. I think that is right because I think -- the way my learned friend put it is that he sought further declaratory relief, which he has not got, but he can say, "I should have got that and I have not got it in the light of your Lordship's judgment". I think that is probably the position in relation to that. Given that there is in principle the possibility of an appeal, should permission be given, of course, it is whether your Lordship thinks it has a real prospect of success. We, of course, simply uphold the reasoning behind your Lordship's judgment. It is not for me to reiterate our reasons for that. No one can take it any further.
The other ground is that there is some special reason, even if your Lordship felt that there was no reasonable prospect of success. I suppose the only one that could be put is the whole question of the relationship between the Directive and enforcement in this country. But on the other hand, they have won on that point.
MR JUSTICE COLLINS: If there were any question of appeal, you would obviously cross-appeal on some of those issues. And if I thought it right to grant them leave on that point, I would obviously grant you leave to cross-appeal on the other points.
MR BARNES: I think the only thing I can say is that if your Lordship is to grant them leave, then we would seek leave to cross-appeal (a) on the relationship between development consent and the Directive and the decision not to enforce, and (b) also in relation to the principle to be applied in respect of what I call the "Hackney document".
MR JUSTICE COLLINS: I am not sure I will give you leave on the Hackney document. I think you would have to persuade the Court of Appeal.
MR BARNES: In that case, we would have to persuade the Court of Appeal. The other point --
MR JUSTICE COLLINS: The other point, I would certainly -- if I was minded to grant Mr Clayton leave, I would grant you leave to cross-appeal. I do not imagine he would object to that.
MR CLAYTON: No.
MR BARNES: So I think I will simply leave it as to whether your Lordship feels there is a realistic prospect of success or not. Obviously, if there is to be leave to appeal, we are both agreed it should be expedited and be on as quickly as possible.
MR JUSTICE COLLINS: That is essential. Mr Harrison?
MR HARRISON: My Lord, I do not accept that the claimant has a right to appeal in this case. Can I take your Lordship to paragraph 52.013? It is page 1257, but I am not sure whether it will be that page in your Lordship's copy.
MR JUSTICE COLLINS: 52.013? "Terminology used in this commentary"?
MR HARRISON: I am in the 2003 edition.
MR JUSTICE COLLINS: I am afraid you are ahead of me. Does anyone have a spare 2003 edition which I can borrow for the moment? Someone at the back has very kindly produced one.
MR HARRISON: It is page 1257.
MR JUSTICE COLLINS: You will get it back, do not worry. Thank you very much indeed.
MR HARRISON: It is the first paragraph on that page. I make the submission -- I would ask your Lordship to read that paragraph.
MR JUSTICE COLLINS: You need a declaration from me, do you not, before you can appeal?
MR HARRISON: My Lord, there is no declaration sought in the amended grounds of claim against Hackney or any other parties. Section 6 of those, where the details of remedy are set out --
MR JUSTICE COLLINS: Let me remind myself of --
MR CLAYTON: My Lord, can I cut through this just to remind -- because we are chasing hairs now. Look at the third draft order. It sets out in the recital the declarations and --
MR JUSTICE COLLINS: These are what you sought, were they?
MR CLAYTON: Yes, they were the ones I sought in the skeleton. They were put in to protect ourselves from this very eventuality, which is that what would happen is that they, having been amended -- the claim form would set out the recital, those declarations would have been refused by your Lordship's order, and there is, therefore, something to appeal against.
MR JUSTICE COLLINS: I am not sure, because declaration A does not actually take you anywhere very much, does it? Because they are to take environmental information into consideration.
MR CLAYTON: With respect, my Lord, it is to decide against taking enforcement proceedings without first taking environmental information into consideration. That is the way which, on our case, leaving substantial compliance to one side, it would work. They would be obliged to do that. That is why the declaration was put in, because I appreciated that it was necessary to give effect to the submission. This is how one would give effect.
MR JUSTICE COLLINS: I understand.
MR CLAYTON: And your Lordship was against us. Fair enough, but the one thing I would emphasise is that it is not a strong point to say there is nothing to appeal against because the declarations were put in there for that purpose. No declaration has been granted. It is part of the order. That is the point.
MR HARRISON: My Lord, I did not interrupt my learned friend when he was on his feet, but there is nothing in the claim.
MR JUSTICE COLLINS: I was just going to say -- I did give leave to amend at some stage, did I not? I cannot remember.
MR HARRISON: That is why I sought to check that point when I first --
MR JUSTICE COLLINS: Where do I find the claim? Which bundle is it in?
MR CLAYTON: It is bundle 1, about page 16. It is not in the claim form, my Lord.
MR JUSTICE COLLINS: There was an amended claim form.
MR CLAYTON: It was not in that either.
MR JUSTICE COLLINS: I did not give you leave to amend, to claim those declarations. I only gave you leave to raise the matters in the amended grounds. I said, rather cavalierly, this morning --
MR CLAYTON: My Lord, with respect --
MR JUSTICE COLLINS: -- that I would give leave to amend, but I am not so sure about that now.
MR CLAYTON: My Lord, it is a matter for your Lordship, but it is there, and --
MR JUSTICE COLLINS: It is only there because you now realise that you cannot appeal without it, and you have at the last minute sought leave to amend to include it.
MR CLAYTON: That, if I may say so, really is not fair. It was actually in the skeleton argument. It was in for a purpose, and the skeleton -- the case was done at some brisk pace, and there could not possibly, if I may say so, be an objection to seeking the amendment there and then, and to seek it now --
MR JUSTICE COLLINS: To be fair, you would have got it if you had sought it.
MR CLAYTON: Yes. I am sure I raised it.
MR JUSTICE COLLINS: Mr Clayton, you are right. It is not a fair point against you. You would have got leave had you raised it. But the fact is that you did not, and what flows from that is another matter.
MR CLAYTON: I did, actually. I did specifically say, because I was worried about it.
MR JUSTICE COLLINS: Did you? I had forgotten.
MR CLAYTON: We are not concerned with matters --
MR JUSTICE COLLINS: It did not seem to be important at that stage.
MR CLAYTON: It did not. We just got on with the merits. The only reason I am being awkward is that of all the points, that one is really not the most attractive one.
MR JUSTICE COLLINS: That stings you.
MR CLAYTON: A bit, yes, because we did try and get it right.
MR JUSTICE COLLINS: Fair enough, I withdraw that one. Yes, Mr Harrison?
MR HARRISON: If your Lordship is giving leave for those declarations to be sought, then it is impossible --
MR JUSTICE COLLINS: At this point, all the significance was not appreciated at the time. It is a fair comment that when we raised this issue in the argument, in his submissions, Mr Clayton -- indeed, you all assumed it was a live issue and might lead to some need to deal with it in the question of relief. Now, it was a defence, really, to the claim more than anything else, was it not? It was a matter raised by way of defence, which succeeded. I suppose in normal circumstances there would not be any need for a declaration to be sought in a negative form, it would merely be that that was a matter which was found against. So I think possibly the technical point is, or may be still, a valid one. Not because of anything done or not done by Mr Clayton, but merely because, as I say, this is a matter which was raised by way of defence, essentially. I would not have thought it necessary in Mr Clayton's position to seek a declaration that the defence was a bad defence. But I would not have foreseen, I think, in his position, the importance that might be attached to it in the circumstances.
MR HARRISON: My Lord, we are simply anxious to avoid unnecessary delay.
MR JUSTICE COLLINS: This is what occurs to me. I do not know, obviously, what Mr Clayton's clients want to do, but the impression I get is that they are all raring to go further. Now, I cannot say that this is not a point which is arguable. It clearly is. But what concerns me is that if I were in those circumstances to say, "Go to the Court of Appeal", that inevitably builds in delay. It builds in delay on two grounds. First of all, they are going to have greater difficulty in getting legal aid to enable them to go to the Court of Appeal because the Legal Services Commission will no doubt say, "The judge has refused leave, you have to persuade us". Secondly, and more importantly, it provides a built-in delay because of the application to the Court of Appeal. It may be that if one wants expedition, and because the point clearly cannot be said not to be arguable, it might be more expeditious actually to grant leave to appeal. Even though I am very reluctant to do so, I am bound to say, and I do not think that it is -- I am quite satisfied that it is not desirable, and I am obviously persuaded that I am right. But I do recognise that the matter is arguable. I would put it on a very, very tight time limit.
MR HARRISON: Just on that issue of delay, my Lord. If our submission is correct, if it is not possible for appeal to be sought at this stage by the claimant --
MR JUSTICE COLLINS: That is a matter which you can raise before the Court of Appeal, is it not?
MR HARRISON: Assuming for one moment that that is right, what would be the realities? The reality is that the London Borough of Hackney will seek to take a decision in accordance with your Lordship's guidance from the judgment.
MR JUSTICE COLLINS: What I would suggest, seriously, is that -- it is going to take you, between you, a little bit of time to sort out what conditions are appropriate. Surely you can get on with that in the meantime, so that you have everything teed up by the time the Court of Appeal reaches its decision. Obviously, if the Court of Appeal decides I was wrong, and the whole matter has to go into the enforcement process or the planning process, I suppose on one view you will have done some work which has turned out to be wasted. But I would have thought between you it was much more sensible to approach it in that way, so you make use of the time before the Court of Appeal can deal with it.
MR HARRISON: My Lord, very much of that work has already been done.
MR JUSTICE COLLINS: I am sure that is right.
MR HARRISON: On the issue of timing, and judging between the two courses of action which are being considered, if there is no right of appeal -- as in my submission there is not -- then Mr Prokopp will have to decide again, and will have to ask himself again, whether it is appropriate and in the public interest to challenge any further decision by the London Borough of Hackney. He will have to persuade the Legal Services Commission that he --
MR JUSTICE COLLINS: That is the other way of playing it, that you make your decision, and then they can challenge that if they wish. They would be in difficulties because they would have my decision in the way.
MR HARRISON: My Lord, yes. They would also have to persuade the Legal Services Commission that they were on appropriate grounds. That is the reasoning behind my submission. They are not made simply to try and upset Mr Clayton.
MR JUSTICE COLLINS: I fully understand that. It may be that I ought to look at these authorities on rights of appeal where --
MR HARRISON: My Lord, I am afraid I do not have that authority with me.
MR JUSTICE COLLINS: I see the force of Mr Clayton's submission. On the other hand, section 16 of the Act has to be followed. Mr Clayton, I was at the outset concerned -- and I admit that I have not looked it up myself -- as to the jurisdiction.
MR CLAYTON: Can I deal with that? If I may say so, this is -- no disrespect -- a false point. The declarations sought are not a defence of (inaudible), although actually I did discuss with Mr Petchey whether it might be sensible to have a declaration where there was no substantial compliance. But on reflection, it seemed to me that that was not necessary because the declarations which we did seek in the skeleton argument would be the appropriate way of reflecting a victory in front of your Lordship, because they would have had the effect of those declarations, which is why they were put in. They were put in for that very purpose because, obviously, we appreciated it was important in the event we came unstuck that there was something there to take further. But the refusal to make a declaration in principle clearly generates --
MR JUSTICE COLLINS: A refusal to grant relief must be part of an order.
MR CLAYTON: That is where we are, with respect. I quite understand why importance is attached to this by the London Borough of Hackney, but it is not technically right. The fact is that when one has the order, one has the recital in the Crown Office case of the relief sought. You then have the orders your Lordship has made today. It is, therefore, clear that the relief sought precluded that -- just so we are absolutely clear, it is not defensive, it was actually that the declarations would have come into play if we had won. May I also say, and I hope -- I have discussed this with Mr Barnes and it did occur, certainly to me and, I think, to him, that if one was trying to deal with this speedily, the points that your Lordship has made in the course of argument were clear, because this case could get on really quite quickly. It is obvious that --
MR JUSTICE COLLINS: There is nothing else. All the papers are here.
MR CLAYTON: Absolutely. It is also obvious that we would get a quick listing. I have discussed with Mr Barnes, if we did get leave to appeal, obviously it would include his points that the Directive was not breached at all. I quite accept that.
MR JUSTICE COLLINS: I think on reflection, if I am persuaded that it should -- even though I think nothing of the Hackney point, it would be more sensible to give him leave to raise all the points so that the whole thing can be dealt with --
MR BARNES: We may or may not take it, my Lord, at the end of the day, but if we technically have leave --
MR JUSTICE COLLINS: I think it would be sensible to let -- otherwise you get possible built-in delays, although I suspect the Court of Appeal in that situation would deal with it as a leave and hearing to follow, if leave was granted.
MR CLAYTON: My Lord, I would respectfully submit that if one looks at the criteria, which I am going to invite you to turn up now, for permission to --
MR JUSTICE COLLINS: If there is jurisdiction, I think I am persuaded that in the circumstances of this case, albeit with a considerable reluctance, that actually the speediest thing is to grant leave to appeal and make it clear that it should be dealt with as speedily as possible. I will create a timetable. But I still have to hear Mr Petchey, if he wishes to make submissions on this point.
MR PETCHEY: I am very concerned, obviously, my Lord, about delay. What we are concerned about is that your Lordship takes the view that there is no jurisdiction. The matter then goes back to Tower Hamlets, termination is made. That then is challenged and then the thing comes back to the Court of Appeal.
MR JUSTICE COLLINS: I cannot stop anybody seeking to take any proceedings they see fit to take, but I would have thought that if my judgment stands, the chances of any challenge to a future action are nil. They can try, but they will get short shrift. The only danger, if the Court of Appeal does not deal with the matter now, is that someone will say, "I accept I cannot get leave from the Administrative Court, but I am going to apply to the Court of Appeal when I am refused".
MR PETCHEY: In which case, then, the jurisdictional point becomes particularly important because --
MR JUSTICE COLLINS: Yes and no.
MR PETCHEY: If it be the case that there is no jurisdiction, then --
MR JUSTICE COLLINS: What do you say on jurisdiction?
MR PETCHEY: Historically, the people would just refer to Lake v Lake(?) and say that that is it. But, of course, that decision has been whittled away in various ways, and one is reminded by Lord Steyn (inaudible). The generality would be that this would not be a point that would attract the court in determining what the merits of the question were.
MR JUSTICE COLLINS: Surely if I were persuaded that it is at least arguable that there is jurisdiction, and were to grant leave, that point is a point that you could raise before the Court of Appeal, and the Court of Appeal will decide. If the Court of Appeal decided there was no jurisdiction, they would immediately throw the appeal out. But I can see that it might be that the parties would think that it was desirable to get the Court of Appeal's decision to avoid any future attempt to litigate the matter to the Court of Appeal.
MR PETCHEY: That is right, my Lord.
MR JUSTICE COLLINS: So it may be -- obviously, if the Court of Appeal has no jurisdiction, it has no jurisdiction. But that is a matter for that court, I think. I am disinclined at the moment to enter into that argument. I see very much the force of what Mr Clayton says, and, as you rightly point out, the Lake v Lake approach has been somewhat modified. One does look at the substance, and the substance is that they have lost on what, on any view, may be the decisive point for them. It was the decisive point because they have won on the application of the Directive.
MR PETCHEY: I would much rather persuade your Lordship that this is not an appropriate case for the matter to be pursued further.
MR JUSTICE COLLINS: You are perfectly entitled to make that submission, but the difficulty is, I would have thought, that it is hard to say that this is not a point which is arguable because there is a paucity of authority. It is really applying Berkeley. Berkeley itself explains the commission and Germany, and I think that it is unarguable that I have, to some extent, applied Berkeley in a benevolent fashion. It seems to me that in the circumstances of this case it was right. I would not have done it otherwise.
MR PETCHEY: Your Lordship has taken the view that this was a technicality which should not succeed, and that is really at the heart of it, in my submission.
MR JUSTICE COLLINS: That is absolutely right. But the trouble is that Berkeley was, in one sense, a technicality because the information was there, although you had to grub around to find it, and actually at the end of the day Lady Berkeley failed anyway.
MR PETCHEY: There are obviously two ways of looking at the Berkeley case.
MR JUSTICE COLLINS: Planning permission was eventually granted.
MR PETCHEY: Another way of looking at that case --
MR JUSTICE COLLINS: Collins J approved it and the Court of Appeal upheld it.
MR PETCHEY: A very important principle was their -- but your Lordship has the point. I do not think there is anything further I can say to persuade your Lordship one way or the other.
MR JUSTICE COLLINS: Mr Barnes, is there anything you want to say about jurisdiction?
MR BARNES: Nothing. I think your Lordship can probably appreciate that in terms of timing, we can see the timing benefits of, in a sense, permission being given.
MR JUSTICE COLLINS: That is rather what I was coming to. Obviously, the jurisdiction point will have to be -- indeed, the court, if in doubt about it, would have to go to its own motion because it cannot decide matters over which it has no jurisdiction. I think I am persuaded that it is probably in the interests overall of everyone if I did that.
MR BARNES: As one knows, your Lordship's jurisdiction is to give or not to give permission. The giving of permission does not mean that an appeal necessarily follows. There are all sorts of -- the Legal Services Commission, and so forth. The only point I make is the interim situation as regards to the London Borough of Tower Hamlets. Because your Lordship gives permission to appeal, in my submission it should not mean in any way that the planning authorities in the meantime do not fully implement your Lordship's present decision.
MR JUSTICE COLLINS: It would obviously be foolish not to go ahead with deciding what the appropriate conditions are, so that the whole thing is teed up and ready, should the Court of Appeal uphold me.
MR BARNES: It will help the Court of Appeal, if nothing else.
MR JUSTICE COLLINS: I would urge you and the two boroughs, mainly Tower Hamlets, I suppose, to get on with things so that it is all ready to go.
MR BARNES: We will.
MR JUSTICE COLLINS: It is in the interests of the three of you that that should happen.
MR HARRISON: Can your Lordship clarify that the costs leave to appeal applies to all three defendants.
MR JUSTICE COLLINS: Yes, of course it does, in so far as you need it. As far as I am concerned, and obviously it is a matter for the Court of Appeal if you raise other matters, but you are entitled, each of you, to raise any point which you argued before me by way of cross-appeal, or whatever, even though I am bound to say that on, for example, the Hackney point, I would not normally have granted leave. I think it is, frankly, a point that has no prospect of success whatever. It is silly of me not to let you raise everything that you think it is right to raise before the Court of Appeal without giving any argument as to whether you should be able to or not. Now, the timescale.
MR CLAYTON: My Lord, I have provisionally discussed this with Mr Barnes. Seven days to lodge the notice of appeal --
MR JUSTICE COLLINS: That seems to me to be appropriate.
MR BARNES: I think technically we need a notice as well.
MR JUSTICE COLLINS: Yes, you do. If you both do it within seven days.
MR CLAYTON: I will obviously write a letter to the Lord Justices setting out the urgency in some detail.
MR JUSTICE COLLINS: Your best bet, I suspect, is -- whoever has taken over -- it is still Master Venne, is it not? You should get in touch with him directly. That, I think, is usually the first sensible step.
MR CLAYTON: He always says you have to write to a Lord Justice.
MR JUSTICE COLLINS: I would have thought to the Master of the Rolls. Do whatever you have to do. You have my blessing in the sense that I take the view that it is, for obvious reasons, very important that this matter be decided as soon as possible. I hope the Court of Appeal will be able to decide it within the month.
MR CLAYTON: Unless there is anything else, I just wanted to thank your Lordship on behalf of all of us for the fact that you have dealt with the case so speedily when you did and, indeed, apologise for the length of time taken this morning.
MR JUSTICE COLLINS: It gave me some work over my vacation. Thank you all very much.