Legard, R (On the Application Of) v The Royal Borough of Kensington and Chelsea, Court of Appeal - Administrative Court, January 12, 2018, [2018] EWHC 32 (Admin)

Resolution Date:January 12, 2018
Issuing Organization:Administrative Court
Actores:Legard, R (On the Application Of) v The Royal Borough of Kensington and Chelsea
 
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Neutral Citation Number: [2018] EWHC 32 (Admin)

Case No: CO/399/2016

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 12/01/2018

Before :

MR JUSTICE DOVE

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Between :

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Richard Wald (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the Claimant

Hereward Phillpot QC and Isabella Tafur (instructed by The Borough Solicitor of the Royal Borough of Kensington and Chelsea) for the Defendant

The First Interested Party did not appear and were not represented

Stephanie Hall (instructed by Direct Access) for the Second Interested Party

Hearing dates: 12th & 14th July 2017, 28th September 2017, 11th & 12th October 2017

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Draft 12 January 2018 10:34 Page 2

Mr Justice Dove:

Introduction

  1. This claim concerns the defendant's decision of 10th December 2015 to permit the St Quintin and Woodland's Neighbourhood Plan (``The Neighbourhood Plan'') to proceed to a referendum. The Neighbourhood Plan had been promoted by the second interested party. It contained as one of its most controversial proposals the designation of a parcel of land off Nursery Lane (``The Site'') as a ``Local Green Space'' (``LGS'') pursuant to paragraph 77 of the National Planning Policy Framework (``the Framework''). The claimant is the owner of the site and the first interested party are in a contractual relationship with the claimant for the purposes of pursuing residential development of the site. The designation of the site as LGS is inconsistent with the promotion of residential development, and thus the second interested party's proposals through the Neighbourhood Plan to designate it as such were controversial.

    Procedural History

  2. On 17th March 2016 Lang J granted permission to apply for judicial review on five Grounds which were initially pursued by the claimant. Those Grounds were that the defendant had failed to address a principal controversial issue in their decision, namely whether the designation of the site as LGS satisfied the necessary criteria for designation. It was further contended that inadequate reasons had been provided for concluding that the site served the local community so as to satisfy the requirements for designation which were contended for by the claimant and further failed to address the inconsistency between the decision which was reached in relation to the site and the defendant's earlier view that designation was inappropriate. It was submitted that the site was in a lawful use for unconstrained commercial purposes and that was a factor that had not been taken into account. Furthermore, it was alleged that the defendant had taken into account the factor that the site might facilitate a future communal recreational use to which it was not currently put, and which was immaterial and an improper purpose in relation to the designation of the land as an LGS.

  3. As a consequence of further information coming to light in respect of the factual background, which is set out below, the claimant obtained permission on 10th June 2016 from Ouseley J to amend his Grounds. The amended Grounds relied upon allegations of apparent bias and breaches of the requirements of fairness which are set out in greater detail below. Ouseley J further ordered that the hearing of the matters should be postponed until the outcome of the decision of the Court of Appeal in DLA Delivery Limited v Lewes DC [2017] EWCA Civ 58. That judgment was handed down on 10th February 2017 leading to the matter being brought on for a hearing on 12th and 13th July 2017. During the course of the hearing in July 2017 the parties determined that there was a need for consideration to be given as to whether or not there was further documentation and evidence that should be disclosed as a consequence of the issues which had been raised. A further Order was made addressing the potential disclosure of further material and making provision for the receipt of further submissions in relation to that material with the opportunity for a resumption of the hearing if necessary. In the event, a substantial amount of further evidence was disclosed, leading to the introduction of extensive new submissions and the need for a further hearing.

  4. At the hearing on 28th September 2017 concerns were expressed by the parties as to whether or not it was appropriate for the hearing to commence. Concerns were expressed as to the adequacy of the time estimate and, on behalf of the defendant, a need to respond to matters contained within a further chronology provided to the court by the claimant. A need to rationalise the extent of the further documentation was also identified. As a consequence, the further hearing in relation to the additional disclosure occurred on 11th and 12th October 2017.

  5. Prior to embarking on explaining the factual background to the case I wish to place on record my gratitude to all counsel and solicitors in the case. I am indebted to the care which has been exercised in the preparation of this complex case, and the quality of the written material and submissions which I received. All those involved are to be commended for the assistance which they have provided with the court's task.

    The early evolution of the Neighbourhood Plan

  6. On 2nd July 2013 the second interested party was designated as a Neighbourhood Forum for the purposes of the Town and Country Planning Act 1990. The second interested party had in fact, prior to designation, embarked upon consultation with the community and certainly by March 2014 started to formulate draft policies for inclusion within the Neighbourhood Plan. One such draft policy sought the designation of the site (amongst others), as LGS. The justification for that designation was described in the text provided as part of a newsletter in the following terms:

    ``The CAPS refers to the remaining backland open spaces behind Highlever Road, Barlby Road, and Kelfield Gardens and includes a clear policy statement `Some leisure and recreational activities have made good use of these spaces and proposals to develop them for more housing will not be permitted'.

    Local residents view these statements as being as important now as when first written and adopted by the council. The threat of residential development on the Nursery Lane site has prompted almost every one of the 50 households backing onto the site to come together to form the Nursery Lane Action Group and to support the proposal to acquire the site as shared communal green space.''

  7. It seems from the evidence that at some time in April 2014 the chair of the second interested party, Mr Henry Peterson, became aware of a marketing brochure from estate agents inviting offers for the site as an opportunity for residential development. On 6th May 2014 Mr Peterson wrote to Mr Jonathon Wade, the Head of Forward Planning for the defendant, to enquire whether there had been any discussions with the defendant to justify the description of the site as a residential opportunity. Mr Peterson had already written to Mr Angus Morrison at the defendant on 28th March 2014 asking where the Oxford Gardens/St Quintin's conservation area might sit in the Council's programme for updating ``very vintage'' conservation appraisals, bearing in mind the original version dated from 1979 having been updated in 1990. Mr Wade responded to Mr Peterson indicating there had been no pre-application discussion or advice and that the description must have been provided by Knight Frank.

  8. In the run up to local elections on 19th May 2014 Mr Peterson wrote to candidates in the relevant ward containing the site asking their views on how they saw its future. The two candidates who were ultimately successful in the election indicated, almost by return and prior to polling day, that they supported the designation of the site as LGS under the proposals in the Neighbourhood Plan. By 23rd May 2014 Mr Peterson was in correspondence with Mr Wade in relation to whether or not any informal discussions had occurred with the Council about the planning merits of the site. Mr Wade confirmed that they had not. On 9th June 2014 Mr Peterson wrote to Mr Wade copying in other officers including Ms Joanna Hammond who is the Neighbourhood Planning Team Leader for the defendant. In his email enclosing a letter seeking a meeting in relation to the first draft of the Neighbourhood Plan, which had been recently published on the second interest party's website for consultation purposes, he indicated that there was a second reason for writing, namely enquiring about the progress which had occurred in relation to the potential sale of the site. Mr Peterson noted that the claimant was pursuing sale of the site as swiftly as possible ``before the Neighbourhood Plan creates additional planning obstacles for them''. Mr Peterson wrote as follows:

    ``The planning history of the site is covered in the Open Spaces section of the Draft StQW Neighbourhood Plan, and the plan proposes that this (and other remaining `backland' sites in the St Quintin Estate) are designated as Local Green Space. My letter of May 6th to you, and copied to Knight Frank, explained that this was a probable step. An open meeting of the StQW Forum on May 29th, attended by over 60 local residents and 3 of the 4 recently elected councillors for Dalgarno and St Helens wards, confirmed the strength of local feeling on this issue.

    We wish to avoid a scenario in which the Legard family sell quickly to the highest unconditional offer, with the site being taken on by a residential developer who has done inadequate due diligence, and hence overpays for the land. We do not want a situation in which such a developer then spends years submitting a series of applications which are unacceptable to the council and do not conform with a (by then)...

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