PREVIOUS CLAIM NO CO/5799/2012 ‘QUEEN'S BENCH DIVISION BETWEEN: THE QUEEN on the application of RUSSELL GRAY as representative Claimant on behalf of BERMONDSEY VILLAGE ACTION GROUP (BVAG) Claimant (1) LONDON BOROUGH OF SOUTHWARK (2) GREATER LONDON AUTHORITY (3) COMMUNITIES AND LOCAL GOVERNMENT. (4) HISTORIC BUILDINGS AND MONUMENTS COMMISSION FOR ENGLAND Defendants and (1) NETWORK RAIL (2) DEPARTMENT FOR TRANSPORT Interested Pa GROUNDS OF APPEALSouthwark Council Ground 1; Environmental impact assessment ih The Judge held that it was unarguable that what appears at paragraphs 5.5 to 5.8 of Part Two section 5 of the document purporting to be an environmental statement is insufficient to comply with the requirements imposed by EIA Regulations in relation to alternatives considered by the developer, taking account of environmental effects. ‘The Judge was wrong to so find. The following was all common ground: (@ () (© Network Rail did study alternatives to its preferred scheme (Option 6B(3)) in its assessment of 5 High Level Options and 8 Design Options (as set out in two reports running to over 140 pages, disclosed on 31 August 2012, but which were not included in the purported environmental statement); Network Rail’s proposal for redevelopment of London Bridge Station was subject to the environmental impact assessment regime pursuant to Directive 85/337/EEC, as transposed into domestic law by the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999, SI 1999/293 (“*the 1999 Regulations” Pursuant to paragraph 4 of Part II of Schedule 4 to the 1999 Regulations, the information for inclusion in the environmental statement included: “An outline of the main alternatives studied by the applicant..and an indication of the main reasons for his choice, taking into account the environmental effects.”(4) Determination as to whether or not this information had been provided turned on an assessment of Part Two section 5 of the purported environmental statement (Network Rail bundle 1, pages 393P-Q) and paragraphs 5.5 to 5.8 in particular. It is plainly arguable that the information in paragraphs 5.5 to 5.8 is so deficient, having regard to the requirements of paragraph 4 of Part II of Schedule 4 to the 1999 Regulations, that the document purporting to be an environmental statement does not constitute a sufficient environmental statement such that it was lawful of the London Borough of Southwark to reach its decision. ‘The Judge did not consider the corollary of the above: that the Council failed to afford the public concerned early and effective opportunities to participate in the environmental decision making process. (Contrary to article 6, paragraph 4 of the ELA Directive 85/337/EEC, as transposed into domestic law) Ground 2: section 12(3A) Planning (Listed Buildings and Conservation Areas) Act 1990 6. Section 12(3A) of the Planning (Listed Buildings and Conservation Areas) Act 1990 provides as follows: “An application for listed building consent shall, without any direction by the Secretary of State, be referred to the Secretary of State instead of being dealt with by the local planning authority in any case where the consent is required in consequence of proposals included in an application for an order under section 1 or 3 of the Transport and Works Act 1992."It was common ground below that the section 12(3A) issue is purely a matter of statutory construction. ‘Network Rail did apply for an order under section 1 of the Transport and Works Act 1992, ‘The order made in consequence of this application is the Network Rail (Thameslink 2000) Order 2006 (“the 2006 Order”). Article 9 provides as follows: “Network Rail may, at London Bridge..., in the construction of Works Nos, 13 and 14 or either of them and within the limits of deviation for these works form, alter or extend platforms at Network Rail’s London Bridge station with all necessary works and conveniences therewith, including the alteration of...the train shed...”. Work No. 13 is a railway 928 metres in length through Borough Market and Network Rail’s London Bridge station, Work No. 14 is a junction railway 133 metres in length at Network Rail’s London Bridge station On 27 June 2011, Network Rail applied to the London Borough of Southwark for listed building consent for demolition of the train shed over platforms 9-16 at London Bridge station, including its main roof structure and supporting walls, in connection with the Thameslink programme and associated development of the station. It is plainly arguable that the listed building consent for demolition of the train shed ‘was required “in consequence of proposals included in an application for an order under section 1 or 3 of the Transport and Works Act 1992,” such that the application for listed building consent had to be referred to the Secretary of State. The Judge was wrong to hold otherwise.Ground 3:Commercial floorspace 13. 14, 16. 17, The Court was required to consider the Claimant’s allegation that Network Rail had concealed the real driver for the scheme adopted by Network Rail for the redevelopment of the station, namely commercial development opportunity. The Claimant cited the assertion in the planning officers’ report that (1) The London Dungeon would not be moving from it’s current premises and (2) The new station would provide only an additional 223m? of retail floorspace, representing a growth of 3% over the existing. Network Rail does not deny that the London dungeon are in fact not remaining in their current premises but are relocating to County Hall at Waterloo. Neither do they deny that this fact was known to them when the contrary was reported to the Planning Committee. When applying for planning permission, Network Rail attached to the application form a Floorspace Schedule asserting that the existing amount of retail floorspace (Use Class “A”) is 6,666m?. Network Rail’s case is that this relates to the entire red line planning application site. ‘The London Borough of Southwark took this 6,666m* figure at face value. Its officer report to its Planning Committee reported that the new station would provide 6,889m? The claimant explained in a witness statement dated 17 September 2012 that he has looked at the existing retail space at London Bridge station and that he is unable to account for anything close to the claimed 6,666m*. Neither Network Rail nor the London Borough of Southwark has provided or put in evidence any witness statement or any plan showing where this 6,666m? of retail floorspace is supposedly located.18. The Judge was wrong to find that there is no evidence whatsoever to suggest that 6,666m? is an inaccurate estimate and he was further wrong to find that this part of the claim is based on a factual misconception that has been properly and fully explained. On the contrary, there is no evidence to suggest that 6,666m? is an accurate estimate and there is no factual misconception on the part of the claimant. 19. The extent of Network Rail’s commercial development ambition (and hence the design and concept of the whole scheme they proposed) at London Bridge would have become obvious if they had disclosed the documents that the Claimant had requested from them for many months. The Judge was wrong to conclude that the disclosure sought by the Claimant would not prove what he maintained it would. 20. In failing to bring to members’ attention the huge increase in proposed retail floorspace or the vacation of the London Dungeon premises (on which they had been misinformed) the overall effect of the officers’ report to the Plan ing Committee was seriously to mislead the committee about a material matter which was thereafter left uncorrected at the committee meeting. It follows that the Council's decision should be quashed: Oxton Farms v Selby DC [1997] EGCS 60, CA. ‘The Mayor of London Test for demolition of heritage assets 21. The Claimant maintained before the Court that the Mayor had regard to financial considerations when permitting the demolition of heritage assets - as he was not lawfully entitled to do.22. a3 24, 25. 26. In his Summary Grounds for Resisting the Claim the Mayor maintained that he was entitled to take account of financial considerations in permitting the demolition of heritage assets. As authority for this proposition he cited the cases of Regina v Westminster City Council, Ex parte Monahan and Another, 1988 and Regina (HSE) v Wolverhampton City Council, 2012, in which the Court found that certain financial considerations could, in certain circumstances, be admissible reasons for planning decisions, although they are not routinely. The Judge did not consider the effect of the cases cited with respect to the circumstances of this case. Had he done so he would have been obliged to conclude that in this case the financial considerations of the kind to which the Mayor had regard were not comparable to those that pertained in the two cases cited. The judge relied on a misconception of the scope of the cases cited to permit financial considerations to become material to the Mayor’s decision. He consequently failed to properly consider the evidence before him of how financial considerations had been taken into account by the Mayor when deciding whether to permit the demolition of heritage assets. There were two very substantial heritage assets proposed for demolition to be considered by the Mayor: The train shed (and in particular the south wall) and the South Eastern Railway Offices building (SERO), ‘The Claimant presented evidence that the Mayor was still investigating the financial implications of refusing to permit demolition of the SERO at 3pm on the day of his decision to allow the demolitions to go ahead. Despite this however the Judge concluded that the real reasons for the proposed demolition being approved were27. 28. those given in the Mayor's Stage II report ~ that made no reference to the financial implications. This was not logically impossible, The position was different on the train shed wall. The Mayor's stage II report, although less than succinct on the point, made clear that he relied on the fact that preservation of the south wall of the train shed would be costly and inconvenient for Network Rail as compared with demolishing it. The correct test for a planning authority minded to permit demolition of a listed building or a substantial part of it is necessity and hence costliness and inconvenience to the developer of preservation ‘were improper considerations for the Mayor to have taken into account. The authorities cited by the Mayor did not entitle him to make the leap from convenience and financial savings for Network Rail deriving from demolition of the shed wall to necessity for it. Disclosure 29. It is established law that claims for judicial review fall to take place with all the authorities’ cards ‘face upwards on the table’. The Claimant made an application to the Administrative Court for an order for disclosure on 16 July. Throughout, he maintained to the Court that fair consideration of his claim required disclosure from the parties (particularly Network Rail) that would not be forthcoming in the absence of an Order for disclosure. The Court was wrong not to have considered the Claimants application for disclosure or alternatively the Judge was wrong not to have made allowance for what the resultant disclosure would establish.Conclusion 30. ‘The appeal court is respectfully urged to exercise its powers under CPR 52.15(3)-(4) by giving permission to apply for judicial review and remitting the matter to the Administrative Court, The appeal court is also respectfully urged to grant the Claimant’s outstanding applications for a protective costs order and disclosure and to grant the appellant permission to rely upon a surveyor’s report as to existing retail floorspace. BVAG 26 SEPTEMBER 2012