Fitzroy Park Residents Association, R (On the Application Of) v London Borough of Camden

MRS JUSTICE PATTERSON: This is a renewed application to bring a claim for judicial review against the London Borough of Camden in respect of planning permission granted on 16 November 2012 for the construction of a new dwelling house, including a large basement, at 53 Fitzroy Park, London, N6 6JA. The planning permission that was issued was a conditional one and was accompanied by a section 106 agreement of the same date.

Fitzroy Park is a private road. The Claimants are a local resident's action group who live in the vicinity of the road itself and in an area which I am told is generically referred to as Fitzroy Park.

The application for judicial review was lodged on 31 December 2012. The matter of permission was considered on the papers by Hickinbottom J on 8 July 2013 when, in a detailed decision, Hickinbottom J refused permission to proceed. The matter comes before me as a renewal, agreed in the main, to focus upon the issue of consultation.

It is agreed that the Claimants had a legitimate expectation that it would be consulted throughout the application process. That agreement is based upon the revised Statement of Community Involvement published by Camden in July 2011. That document makes it clear that the local authority will aim to involve local people in how they consider planning applications. It includes at paragraph 4.25 the fact that:

In relation to the proposed development at 53 Fitzroy Park, the Claimants were actively interested and concerned with it. They commissioned and submitted to the planning authority various reports on the application, such that on the 20 December 2011, the local authority instructed the firm of Arup on their behalf to consider the reports which had been submitted by the developer in the light of representations which had been received from the Claimants.

The Arup report concluded that the reports then submitted by the developer were insufficient and that no planning permission should be granted until further information was received. In response, the developer/interested party in these proceedings submitted further reports dealing with, firstly, structural engineering, which was a report by a firm known as Elliottwood, and secondly, slope stability and ground movement by a firm appropriately known as Terrain.

Arup were then instructed again by the local authority to give them advice on those reports and as to their adequacy. Arup gave advice, which was that it was appropriate to grant planning permission subject to the imposition of conditions and a section 106 agreement. That advice was given in a communication dated 8 February 2012 and continued to be given up to and including 28 February 2012 when the Committee met to determine the application.

By 28 February, the Claimants had had sent to them all the further reports; those reports being sent to the Claimants some 7 days before the Committee met. The Claimants accept that that gave them sufficient time to adequately read through and digest, but they submit that it was totally inadequate, because of the technical detail contained within those reports, for them to instruct and obtain a detailed response from their own experts in relation to the two further reports submitted by the interested party and the views being expressed by Arup.

In fact, the Claimants were able to put in by e-mail a letter dated 28 February which referred to the reports and the consequences of them in terms of hydrological flows and in particular referred to the absence of any proper assessment by way of a cumulative impact of the developments that were taking place, including that at 51 Fitzroy Park as well as that which was proposed at 53 Fitzroy Park. It was said that was a fundamental omission.

The letter then proceeds, giving detailed evidence about the levels of the medieval ponds and the presence of the aquifer in the vicinity. That communication was placed before the Committee which, it is fair to say from the minutes of its meeting which are before the Court, considered the issue of cumulative impact. It determined that through the imposition of conditions and the section 106, the issue of cumulative impact was appropriately dealt with.

There had been an application by the Claimants that the meeting be adjourned. Mr Altaras on their behalf submits that far from it being a matter which was at large within the discretion of the Defendant, provided it exercised its discretion reasonably, the Defendant's discretion was fettered by the view expressed, which was that the Council thought it could only adjourn if there were exceptional circumstances.

Against that background, it seems to me that so far as the consultation exercise is concerned, the Defendant proceeded on the basis of its Statement of Community Involvement and indeed, properly consulted the Claimants throughout the process. That extended to the forwarding on by the Defendant of the reports received from the interested party and from Arup to the Claimants some 7 days before the Committee met.

As the documentary trail demonstrates, the Claimants, contrary to the submissions before me, were able to deal with matters contained within those reports and submitted their concerns to the Committee which clearly took them into account. In those circumstances, the issue of consultation up to that stage was properly and lawfully dealt with by the Defendant.

As to the suggestion that the Defendant was under an obligation to adjourn the Committee, it had a discretion to exercise. It was satisfied that on all of the information that it had that there was no need to do so, it being aware of the information which expressed the views on behalf of the Claimants and therefore, that there was no exceptional planning circumstance and no prejudice, in fact, suffered by the Claimants through the Defendant proceeding to determine the application on that day.

Further, in relation to the imposition of conditions and the progress of the section 106, by which I mean how matters contained within the 106 will be dealt with as the development proceeds, if it does, the Claimants have been told that they will be informed about the report of the independent assessor, which is required by the Council to assess a drainage plan which will be submitted by the interested party or appropriate developer at that time which will include not only the land drainage system for the development site, but also has to have regard to the neighbouring property to the north, which is 51 Fitzroy Park, and any other schemes which involve excavation works within the immediate vicinity of the property that are approved immediately prior to the approval of the drainage plan to ensure that there is no material increase in risk of flooding or of change run off profiles at the property or in the immediate vicinity of the property.

Cast in that way and in conjunction with the conditions which have been imposed upon the planning permission, it seems to me, and in my judgment, it is the case, that the Defendant properly considered matters relating to cumulative impact and put in place an appropriate system of control that will deal with those matters.

Further, as Mr Atkinson has confirmed to the Court, by reason of the Claimant being informed about the contents of any reports of the independent assessor required to assess the contents of the drainage plan, the Claimants will be kept up to date as to the present position. Of course, if there is a material flaw as a result of the drainage plan or the independent assessment, then there is the further prospect available to it in terms of legal recourse should it think it appropriate to do so.

In all of those circumstances, in my judgment, the Defendant throughout properly considered policy DP27 within its development plan, which sets out the policy approach for development which includes basements. That cannot be said to be subject in any arguable way to a legal flaw.

I should add also that not only did the Committee have the written communication from the Claimants, but the Claimants also attended and addressed the Committee, including on cumulative impact.

In all of those circumstances, in my judgment, the Defendant not only exercised its policy on consultation entirely lawfully, but also came to the correct decision in relation to failing to adjourn the meeting on 28 February and further, dealt with the issue of planning permission and accompanying section 106 agreement in a way which satisfied all material planning considerations.

For all of those reasons, this application for renewal is dismissed.

MR ALTARAS: Thank you.

MR ATKINSON: My Lady, the only outstanding matter is costs. The judge below --

MRS JUSTICE PATTERSON: Yes, I saw that. He made no order, but said that it was appropriate to consider it again.

MR ATKINSON: My Lady, yes. In those circumstances, I do apply for the costs, not obviously of today, but of the --

MRS JUSTICE PATTERSON: Acknowledgement of Service.

MR ATKINSON: Yes, I have a schedule.

MRS JUSTICE PATTERSON: How much is that?

MR ATKINSON: £2,100 in total.

MRS JUSTICE PATTERSON: Has that been shared with the --

MR ALTARAS: It has not been shared. I have not had it for 24 hours in advance of today's hearing.

MRS JUSTICE PATTERSON: So you have not had it until just now.

MR ALTARAS: I have just been shown it now.

MRS JUSTICE PATTERSON: Literally just been shown it, right.

MR ALTARAS: If I may say so, my Lady, it is not right that this is the procedure adopted --

MRS JUSTICE PATTERSON: No.

MR ALTARAS: -- because in other cases --

MRS JUSTICE PATTERSON: No, it is quite all right, Mr Altaras. Certainly, if you have not seen it until now, in principle, presumably you accept that you should pay the costs of the Defendant's Acknowledgement of Service.

MR ALTARAS: I do.

MRS JUSTICE PATTERSON: Right. What I propose to do then is to order that the Claimants do pay the costs of the Defendant's Acknowledgement of Service; such costs to be assessed, if not agreed.

MR ALTARAS: £1,500.

MRS JUSTICE PATTERSON: You have agreed at £1,500.

MR ATKINSON: We have agreed now, my Lady, yes.

MRS JUSTICE PATTERSON: Right. Sorry, can you revise the order so that the Claimants do pay the Defendant's costs of the Acknowledgment of Service agreed at £1,500. Thank you both very much.

MR ALTARAS: Thank you, my Lady.