QUEEN'S BENCH DIVISION
B e f o r e :
|on the application of|
|(1) EDWARD BEDFORD|
|(2) ELIZABETH CLARE||Claimants|
|- v -|
|LONDON BOROUGH OF ISLINGTON||Defendant|
|ARSENAL FOOTBALL CLUB PLC||Interested Party|
Smith Bernal, 190 Fleet Street, London EC4
Telephone No: 020 7421 4040
(Official Shorthand Writers to the Court)
(instructed by Messrs Earthrights Solicitors, Essex CM22 6PJ)
appeared on behalf of THE CLAIMANTS
MR ROBIN PURCHAS QC and MISS KAREN McHUGH
(instructed by London Borough of Islington Legal Services
Department) appeared on behalf of THE DEFENDANT
MR DAVID ELVIN QC and MR DANIEL KOLINSKY (instructed by Messrs Gouldens, London EC4M 7NG) appeared on behalf of the INTERESTED PARTY
Crown Copyright ©
MR JUSTICE OUSELEY:
A Public Inquiry
"(1) The local planning authority shall, within such period (if any) as the Secretary of State may direct, prepare for their area a plan to be known as a unitary development plan.
(2) A unitary development plan shall comprise two parts.
(3) Part I of the unitary development plan shall consist of a written statement formulating the authority's general policies in respect of the development and use of land in this area.
(4) Part II of a unitary development plan shall consist of --
(a)a written statement formulating in such detail as the authority thing appropriate (and so as to be readily distinguishable from the other contents of the plan) their proposals for the development and .... use of the land in their area ....
"(1) A local planning authority may at any time prepare proposals --
(a)for alterations to the unitary development plan for their area; or
(b)for its replacement.
"The statute requires that a local plan shall formulate in such detail as the council thinks appropriate their proposals for the development and use of land: section 11 and Schedule 4, paragraph 11(2) of the Act of 1971. If a local planning authority has proposals of policy for the development and use of land in its area which it chooses to exclude from the plan, it is, in my judgment, failing in its statutory duty. An attempt was made to suggest that the non-statutory guidance in this case went only to detail, as to which the council is given a discretion. But the council provides the answer to this point; it speaks in its guidelines of its non-statutory policies. In the Court of Appeal, Dillon LJ demonstrated by his quotations from paragraphs 3.2, 3.3 and 3.4 of the non-statutory guidelines that they do indeed, as the council itself says, contain matters of policy relating to the control of office development outside the central activities zone.
It was the duty of the council under Schedule 4 of the Act of 1971 to formulate in the plan its development and land use proposals. It deliberately omitted some. There was therefore a failure on the part of the council to meet the requirement of the Schedule. By excluding from the plan its proposals in respect of office development outside the central activities zone the council deprived persons such as the respondents from raising objections and securing a public inquiry into such objections."
"It is implicit in the argument for the Minister that there are only two possible interpretations of this provision -- either he must refer every complaint or he has an unfettered discretion to refuse to refer in any case. I do not think that is right. Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. So it is necessary first to construe the Act."
"Thanks to Graham H for forwarding Richard Buxton's letter on behalf of ISCA threatening to Judicially Review the Ashburton Grove Planning Brief unless we revoke it in 14 days -- on the grounds that the Brief is inconsistent with UDP policy (ie nature Conservation, Design and Employment policies for Ashburton Grove which may be breached by the proposals). RB points to PPG 12 which advises that Briefs should be consistent with the UDP, and he asserts that LBI used the Brief, rather than changes to UDP policy, to 'promote' the Arsenal relocation proposals in order to avoid public scrutiny.
I have prepared a draft response which I attach. I understand the point RB makes. Our Leading Counsel advised in Nov 1999 that 'There is absolutely no doubt that proposals of this scale should normally evolve through the development plan process .... SPG is normally intended to supplement or elaborate on UDP policies -- what is proposed here is wholly different'. However, bearing in mind the advanced stage of the UDP Review when the Arsenal relocation proposals emerged, and the fact that other arrangements for full public participation could be made, Counsel advised that the best course would be to proceed by way of a Planning Brief and planning application, not via the UDP. The UDP Inspector agreed with this approach when objectors raised Arsenal related issues during the UDP Inquiry (but he did not have much detail about the proposals or the UDP policies affected in reaching this conclusion). In the circumstances I think it is very unlikely that a JR seeking revocation of the Brief will succeed. Even if it does, it will not debar the Council from considering all the issues in the Brief in determining the applications, although they will carry less weight.
"This proposal presented a dilemma from the UDP point of view, particularly as the loss of employment land at Ashburton Grove would be a departure from the Plan. It was decided not to include Arsenal's proposals in the Plan for the following reasons.
*inclusion of the proposal would amount to an endorsement of the scheme, and this would be premature without knowledge of full details of the club's proposals.
*inclusion would tend to sideline consideration of other important planning issues, and would delay adoption of the new plan.
*the best way to judge a scheme of this complexity is to carry out a comprehensive assessment of its benefits and disadvantages, as measured against the policies and objectives of the UDP. This will help the Council (or the Secretary of State if the scheme is called in) to make an informed decision."
"LB Islington Response The Council accepts that proposals of this scale should normally evolve through the development plan process, in accordance with advice in PPG1 and PPG12. However, AFC's proposals are unique for Islington, in terms of both their scale and complexity, and first emerged last November (after proposed changes were first put on deposit at the First Deposit Stage). The Council, therefore, took the view that it would be inappropriate to introduce these major proposals at such a late stage in the UDP process. In the circumstances, the only ways in which the proposals could emerge properly through the UDP process would appear to be by (a) abandoning the review and starting again or (b) incorporating AFC's proposals in the next review of the UDP. The Council takes the view that either of these courses of action would be highly undesirable. Abandoning the review would prevent the Council from having an up to date development plan. Waiting for the next review in five or six years time would be too late for the Club, which, as the Council understands, has a strong business case for a larger stadium to be open by August 2004. Without knowledge of full details of the proposals, which are only now emerging, it would continue to be difficult for the Council to promote the proposals via the development plan process."
"A possible relocation of the Arsenal FC stadium to Ashburton Road and the associated 'knock on' effects that may have on the Lough Road/Eden Grove area would provide a common linking theme to those three parts of the larger area referred to as the 'Holloway Transverse'. This possible relocation and associated development has not however been included in the review of the UDP for reasons set out in the Council's responses (see paragraphs 49-50 of IS/C/General/1, paragraphs 16-19 of IS/R/Proposals/2, paragraph 15 of IS/R/Implementation/2 and paragraph 20 of IS/O/Closing/3). Given the interim nature of the stadium relocation proposal, I concur with the approach the Council has taken on this matter in the review Plan."
"7. PLANNING POLICY
7.1Unitary Development Plan Islington's Unitary Development Plan (UDP) was adopted in 1994. It is the Council's development plan. Section 54A of the Town and Country Planning Act requires that planning applications shall be determined in accordance with the Plan, unless material considerations indicate otherwise.
7.1.1The Council is currently reviewing its UDP. Arsenal's proposals emerged in the summer of 1999, after the proposed changes to the UDP were first placed on deposit for formal objection in June 1999. The Council did not know whether or not the proposals should be supported in principle. Furthermore, it was advised that should LBI have wanted to promote the proposals through the development plan process, it would have had to either abandon the review process and start again or wait for the next review of the UDP in around five years time.
7.1.2Sometimes unexpected proposals emerge that are not provided for in the Plan, and in these cases the UDP provides the best (indeed, only) policy framework by which these proposals should be judged. Officers consider that, in the circumstances, the best way of responding to the Club's proposals is within the policy framework set by the UDP. This approach was endorsed by the Inspector who presided over the Local Public Inquiry into objections to the proposed changes to the UDP, when he accepted that the uncertainties that apply to the proposed development package justify not having made it a proposal of the Plan.
7.14The review of Islington's UDP has reached an advanced stage, having had objections to the proposed changes considered at a Public Local Inquiry, and the subject of an Inspector's Report, which recommends further modifications to the Plan. The Environment and Conservation Committee agreed responses to the Inspector's report at its meeting on the 25th June 2001 and modifications were placed on deposit over the summer. The Policy Committee is being recommended to adopt the revised UDP at its meeting on the 13th December 2001 and it expected that the Council would adopt the revised UDP in mid January 2002.
7.16A number of the UDP policies reflect the Council's corporate priorities and strategies. These strategies are referred to, as appropriate, throughout this and the other reports."
"That, he thought was common ground between counsel in this case, except that Mr Wilkie submitted that a local authority should never override an objection, that was to say, override or make impracticable the carrying out or enforcement of an objection to a development plan or part of it, except in circumstances of real urgent necessity. For instance, if this was a dangerous structure requiring to be pulled down for the safety of people, that would be a reason which would justify the council in doing what it did; but something of that sort it was argued, was required before a council acting in one capacity would deprive itself of the power to give effect to an objection made to it in another capacity.
However, Mr Ouseley had submitted for the respondent council that there was no such exception, no such special requirement and, for his part, he agreed with him. It could not be said that because this decision was not a requirement of urgent public safety, it could not be justified and must be so unreasonable that no reasonable authority could have come to it. The decision must be considered in the light of the existence of the objections being made at the local inquiry, but if those objections were considered it did not follow that the decision was perverse or unreasonable and, this decision taken, as Woolf J had gone on to find, for economic reasons, was not unreasonable and he agreed with the learned judge's decision on that part of the case."
"Local planning authorities should, however, bear in mind, and I would respectfully underline, Lord Scarman's comments in Westminster, reflected in paragraph 3.17 of PPG 12, the effect of which is that SPG must not be used as a device to avoid legitimate public scrutiny of local planning policies in accordance with statutory procedures. It follows from the Westminster decision that what section 36 of the 1990 Act requires to be in a local plan must be in a local plan, and subject to the local plan review procedure. I consider this to be a continuing duty in the plan-led system and not one which applied only at the point of adoption, an expression used at one stage by the judge (paragraph 67). The definition of supplementary planning guidance in PPG 12, which has a statutory status by reason of Regulation 20(2) of the 1999 Regulations, supports that conclusion."
"61. I do not accept Mr Holgate's submission, assuming for present purposes that the contentious parts of the SPG are policies to which section 36(2) applies. I accept that the Local Plan as altered or as replaced must satisfy the requirements in section 36(2) to 36(11) as to its content. I also accept that a requirement that the plan shall contain the planning authority's policies, carries with it necessarily the negative requirement that planning policies must not be omitted from the plan.
62. Of course the statutory procedures for deposit draft, objections and independent consideration of those objections at an Inquiry, the independent Inspector's Report on those objections, the consideration of his recommendations and the modification of the plan in consequence, indeed the adoption itself, all envisage that the plan at its various stages complied with the section 36(2) as to its contents, and that the planning authority did not have other policies kept away from that scrutiny. The existence of such policies other than in the plan, would be the subject matter of legitimate objection during the plan making process. Where the council adopts a Local Plan but fails to include in it all of the council's policies, there is a breach of the statutory requirement contained in section 36(2) and the plan is liable to be quashed under section 287 as in the Westminster City Council and Kingsley cases.
63. It is the Local Plan to which the statutory duties and remedies apply: breach of those duties leads to the plan being quashed, not some other policy documents.
64. However, the power to alter or replace a plan, coupled with the statutory provisions as to its content, cannot be transmuted into a negative obligation to produce nothing else. The duty is to include those policies in the plan. It is not a duty to forswear the production of policies in another document, whether on an interim basis or in parallel with the Local Plan, or instead of a replacement of alteration Local Plan.
65. Where a plan has been adopted and an authority promotes new policies without adopting a statutorily reviewed plan, it does not breach any duty as such; rather it merely has policies to which section 54A does not apply and to which the Secretary of State may decide to attach little weight. There would otherwise be an extraordinary fetter on the ability of a local authority to formulate or express its planning policies: it could not meet changed circumstances, a change of political complexion bearing on planning policy or new government policy other than by a review or alteration of its plan, however long that would take or however urgent the need. A planning authority could not even rely on consultation deposit or yet more advanced draft versions of its plan as policies for development control purposes. The statutory provisions simply do not support such a position.
66. Although a council might in certain circumstances act unlawfully in its approach to the exercise of its statutory discretion to produce a review, it is not alleged here that the City Council has acted unlawfully in the exercise of its power under section 39(1), although it seems to me that that is where a remedy would lie if it is contended at this stage that a local authority is seeking to develop policies in such a manner as to evade public scrutiny.
67. I do not consider that those conclusions are inconsistent with the decisions in the Westminster City Council and Kingsley cases. Those cases concern the content of plans at the point of adoption. They do not purport to deal with any discretion to produce a review plan or with a power of an authority to produce policies in advance of a review or indeed instead of a review; they do not preclude the production of policies in non Local Plan documents. The focus of those cases is the duty to include those policies in plans when they are produced."
"Both Claimants made representations to LBI, and supported those of others, opposing the development. Edward Bedford lives close to the proposed new stadium. He has particular concerns about the effects of crowds, congestion, noise and pollution on his own and neighbour's homes. He is Chairman of the Harvist Estate Residents and Tenants Association. He is a lifelong supporter of Arsenal as are many of the residents of the Harvist Estate. Elizabeth Clare lives on the Ring Cross Estate, next to which the new waste transfer station is to be built."
The Disclosure and Relevance of the DTZ Report
"(1) Subject, in the case of section 100C(1), to subsection (2) below, if and so long as copies of the whole or part of a report for a meeting of a principal council are required, by section 100B(1) or 100C(1) above to be open to inspection by members of the public --
(a)those copies shall each include a copy of a list, compiled by the proper officer, of the background papers for the report or the part of the report, and
(b)at least one copy of each of the documents included in that list shall also be open to inspection at the offices of the council.
(4) Nothing in this section --
(a)requires any document which discloses exempt information to be included in the list referred to in subsection (1) above; ....
(5) For the purposes of this section the background papers for a report are those documents relating to the subject matter of the report which --
(a)disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and
(b)have, in his opinion, been relied on to a material extent in preparing the report,
but do not include any published works."
"information relating to the financial or business affairs of any particular person (other than the authority)."
"Information falling within any paragraph of Part I above is not exempt information by virtue of that paragraph if it relates to proposed development for which the local planning authority can grant itself planning permission pursuant to regulation 3 of the Town and Country Planning General Regulations 1992 (SI 1992 No 1492)."
"Subject to regulation 4, an application for planning permission by an interested planning authority to develop any land of that authority, or for development of any land by an interested planning authority or by an interested planning authority jointly with any other person, shall be determined by the authority concerned, unless the application is referred to the Secretary of State under section 77 of the 1990 Act for determination by him."
"(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result, or after it is taken, with a view to procuring its modification; or both.
(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."
Unfairness at the Council meeting
Unfairness and the late supply of information
"The process of consultation must be effective. Looked at as a whole it must be fair. This requires that consultation must take place while the proposals are still a formative stage. Those consulted must be provided with information that is accurate and sufficient to enable them to make a meaningful response. They must be given adequate time in which to do so. They had adequate time for the response to be considered. The consulting party must consider the response with a receptive mind and in a contentious manner when reaching its decision."
"Neither of the Claimants, nor any other person on their behalf, ever sought or requested to inspect the documents. Specific documents were made available on request where appropriate.
All documents required to be made available pursuant to Regulation 20 of the 1999 Regulations were made so available.
As indicated in my First Witness Statement, during the Council's scrutiny of the proposals, detailed debate and analysis quite properly took place, some of which involved correspondence and memoranda. These documents did not form part of the Environmental Information required to be available for public inspection, but formed part of officers working files.
At the request of Islington Stadium Communities Alliance, and in its wish to be open and transparent in the context of the legal challenge raised, parts of Council Officers' internal working files were made available for inspection on request, as soon as the file documents could be collated in good order."
"It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this."
Unfairness and the Officers' Reports
Errors in the Officers' Reports
"Counsel for the Secretary of State suggested in the course of his submissions that in the practical application of the section two distinct stages should be identified. In the first the decision-maker should decide whether the development plan should or should not be accorded its statutory priority; and in the second, if he decides that it should not be given that priority it should be put aside and attention concentrated upon the material factors which remain for consideration. But in my view it is undesirable to devise any universal prescription for the method to be adopted by the decision-maker, provided always of course that he does not act outwith his powers. Different cases will invite different methods in the detail of the approach to be taken and it should be left to the good sense of the decision-maker, acting within his powers, to decide how to go about the task before him in the particular circumstances of each case. In the particular circumstances of the present case the ground on which the reporter decided to make an exception to the development plan was the existence of more recent policy statements which he considered had overtaken the policy in the plan. In such a case as that it may well be appropriate to adopt the two-stage approach suggested by counsel. But even there that should not be taken to be the only proper course. In many cases it would be perfectly proper for the decision-maker to assemble all the relevant material including the provisions of the development plan and proceed at once to the process of assessment, paying of course all due regard to the priority of the latter, but reaching his decision after a general study of all the material before him. The precise procedure followed by any decision-maker is so much a matter of personal preference or inclination in light of the nature and detail of the particular case that neither universal prescription nor even general guidance are useful or appropriate."
"7.1Unitary Development Plan
Islington's Unitary Development Plan (UDP) was adopted in 1994. It is the Council's development plan. Section 54A of the Town and Country Planning Act requires that planning applications shall be determined in accordance with the Plan, unless material considerations indicate otherwise.
7.1.8 Departures from Adopted UDP Policies Arsenal's proposals raise a number of fundamental policy issues. These are a number of general policies where arguably it could be said that the proposals do not comply and there are assessed in this report and Reports B, C and D. However, officers consider that they depart from the specific adopted (ie 1994) UDP policies outlined in the table below.
7.1.9 Departures from Proposed UDP Policies Government advice makes clear that where there is both an adopted plan and an emerging plan (as in this case), the decision whether an application is a departure must be considered against the adopted plan. Nevertheless, given the decision to assess AFC's proposals against the UDP as proposed to be adopted, officers wish to draw attention to those proposed policies which they consider the proposals would depart from. These are set out below.
"7.1.10 Making Decisions on Departure Applications
The fact that the applications depart from the Plan does not mean that the Council could not make exceptions and resolve to grant planning permission for the proposals. However, before doing so, Members would need to satisfy themselves that other material planning considerations justified such a decision. If Members do resolve to grant planning permission, the departure applications would need to be referred to the Secretary of State for his consideration."
"Ashburton Grove Area
The stadium, Queensland Road and Northern Triangle proposals would change the use of the whole of the Queensland Road/Ashburton Grove Industrial Warehousing Area into a mixed commercial/residential area. This would represent a wholesale departure from UDP Policy E11. Proposals for this area also do not accord with UDP Policy E4 or the advice in the SPG on Business to Residential in that they would result in the loss of B1 (office/light industrial) floor space. Proposals for these development parcels, together with Drayton Park, are also not in accordance with UDP Policies E8 and E11 in that they would result in the loss of B2 (general industrial) and B8 (storage and distribution) uses."
"40.1.8My conclusion is that the application fails to meet a number of the policy tests of the SPG and the UDP and to that extent I am in agreement with ISCA and the other objectors.
40.1.9The applicants have, however, put forward a number of reasons, based on policy, as to why the failures are not significant in the circumstances of these cases. The first of these is that existing businesses are re-located."
"47.2.4Four parts of this application break the UDP rule: the stadium itself, part of the northern Queensland Road blocks, the block to Benwell Road and the building at the northern triangle. I discuss these in turn but it is quite clear that each amounts to a departure from the UDP.
47.2.18I am therefore satisfied that an exception to the Council's tall buildings policy is acceptable and, equally important, approval would not set a precedent for further tall buildings."
"Following discussions at the Arsenal Review Group meeting on 6th December, I would like to emphasise that the identified departures from policy in the proposed unitary development plan, which is set out in table A6 in the Overview Report, are in addition to the identified departures from the policies in the adopted UDP, so the two tables should be read together as an indication of where the proposals depart from both the adopted unitary development plan and the proposed revised unitary development plan.
These are large and complex proposals relating to three sites. Officers have carefully considered them, both in terms of the proposals for each site and their overall cumulative effect. The proposals depart from a number of policies in both the adopted UDP and the proposed, revised UDP, as outlined in tables A5 and A6, as I have just referred to.
Section 54A of the Town and Country Planning Act requires that planning applications shall be determined in accordance with the unitary development plan unless material considerations indicate otherwise. Hav[ing] considered all other material considerations, including the comments made from interested third parties, officers consider that there are material considerations that outweigh policy breaches."
"The objectors raise a large number of concerns but a number of their issues have kept coming time and time again. These are included in the Executive Summary at the head of the Report. This makes explicit the issues. What I should make clear here, however, is that whilst the scale of comment can be material consideration, this is not a referendum, not a simple count of numbers in favour or against. The Development Plan has primacy here."
"Graham is also deeply concerned that it is yet another erosion of planning policy that will make what is already a marginal scheme (in planning terms) that much more marginal."
"The proposals do represent clear departures from the UDP (Policies E4, E8 and E13A). However, there are potential economic benefits associated with the proposals which, when considered along with the other benefits of the proposals, officers consider justify permitting the proposals."
"I believe that you are aware of much of the nuances and issues surrounding this application. In particular the current position whereby there is probably a £50 m funding gap based on the level of financing that can [be] secured for the new stadium and associated developments.
AFC frequently express their view that the gap can be reduced by minimising S106 requirements. Indeed it can be, but not to any significant level, unless one is prepared to reduce the 'biggies' which are Affordable Housing & Transport."
"Can we please meet at 3.30 to discuss this. It has to be resolved in the next two days. Are Arsenal really going to potentially let this all unravel for want of an additional £2 million towards transport? (notwithstanding David Cooper's continuing mantra about the £50m 'gap')."
"8. Officers were concerned to ensure that the planning evaluation was robust. They were also concerned to ensure that negotiations in respect of proposed planning obligations should deliver the most comprehensive obligations that could be properly sought from the developers, and obligations that would be compatible with the viability and deliverability of the project. The emails should also be read in the context of the Council's attempts to seek further concessions from the developer, which process required the Council to press its case as robustly as it could be argued. All outstanding concerns were resolved to the satisfaction of officers."
"23. As indicated in my First Witness Statement, the contents of the emails to which the Claimants refer were not, in my view, material considerations which it was necessary or helpful to report to members. Rather, what was material to members was the advice of officers arrived at after those deliberations had taken place and after any issues of concern had been raised and satisfactorily resolved. In all instances the final views of officers were accurately reported to Members and all relevant considerations were before them when they made their decisions. Given the detailed and extensive scrutiny of the proposals, much of which took place at meetings and via e-mail exchanges, it would be wholly unworkable if Members were required to examine each and every detail of the entirely proper debate between applicants and officers, and every element of negotiations about planning obligations. It is officers' definitive views at the end of the evaluation and negotiation process which are important and relevant."
"5.1Inter-dependence The overall development of the three sites is inter-dependent. Building a stadium at Ashburton Grove is dependent on building replacement facilities for displaced services at Lough Road, and both these elements are dependent on money generated from the sale of land for housing at Highbury, Ashburton Grove and Lough Road. Indeed, in submitting its June 2001 applications, AFC make clear that it has sought to ensure that in combination, the proposals will provide sufficient resources to contain the financial losses of the scheme to a level which the Club is prepared and able to fund so that development will be achieved.
5.1.1In other words, the proposed housing and other commercial uses at all three sites is, in financial terms, 'enabling development' in that funds secured from the sale of these development parcels would generate money which would be used to help fund other elements of the proposals. The Council's property consultants (DTZ) and the Mayor (GLA, TfL and LDA), after undertaking separate analysis of AFC's business case, agree that AFC needs to develop all three sites to ensure that the overall proposed development is deliverable and capable of being funded."
"The e-mails should also be read in the context of negotiations to ensure that the proposed S106 Agreement should deliver the most comprehensive obligations that could be properly sought from AFC and that would be compatible with the viability and deliverability of the project. The e-mails were written within the context of the Council's attempts to seek further concessions from AFC, which process required the Council to present its case as robustly as could be argued even if, in the course of negotiations, a modified final stance on some aspects was eventually adopted."
"If the EA had provided evidence that in the locality of the new stadium Sundays and bank holidays are no quieter than other days of the week (unlikely) there may have been a case to support use of the stadium on these days. However because the EA is so lightweight there is no such information or consideration of the impacts of use of the stadium on Sundays and bank holidays. Therefore we have insufficient information to be able to properly assess the impacts of use of the stadium on Sundays and bank holidays and therefore our advice is to refuse this request. If AFC come back with a proper EA study of the impacts of use of the stadium on Sundays and bank holidays for sports, pop concerts or other uses we can then re-assess the issues and come to an informed decision.
Again the EA does not address the issue of hours of operation for major non-sporting events/pop concerts etc, and little information is provided regarding noise impacts both from the stadium or crowds leaving late at night etc. Therefore we have insufficient information to be able to properly assess the impacts of use of the stadium late at night and therefore our advice is to refuse this request. If AFC come back with a proper EA study of the impacts of use of the stadium late at night for non-sports major events, pop concerts etc we can then re-assess the issues and come to an informed decision."
"The noise and vibration impacts of use of the stadium on Sundays, bank holidays and in the late evening has not been adequately addressed in the ES accompanying the application. My view is that we should follow the advice of paragraph 51 of the DETR guidance note 'Environmental Assessment -- a guide to procedures: Nov 1999' (copy attached) which states that
'if the developer fails to provide enough information to complete the Environmental Statement, the application can only be determined by refusal'
Pointing the above out to AFC may motivate them to actually do something about the defects with the ES and provide us with the information we need to assess the impacts of use of the stadium on Sundays, bank holidays and in the late evening."
"My view is we should not be preparing noise conditions for consent for the stadium whilst there are still major problems with the noise and vibration elements of the ES. We have repeatedly asked for extra information and AFC have chosen not to provide it. We therefore can not properly assess the noise and vibration impacts of the stadium (or WRC) development or draft meaningful conditions, and should therefore recommend refusal of planning permission. (see paragraph 51 of the attached DETR guide to EIA procedures)"
"I am therefore cautious of referring to the need for surveys in the conditions in case we are criticised for not requiring these up front. Perhaps we could just ask for protective schemes to be agreed -- or if we really do need to ask for surveys, call them 'further detailed surveys'."
"30. While the ES variously identifies that further investigations are required prior to remediation (this point being made in the Witness Statement of John Dunkley), I do not consider that it was necessary for the planning conditions to explicitly require such investigations. Officers were simply concerned with the end result, and not the process necessary to achieve it. This is consistent with UDP police Env 16 of the 2000 UDP ...."
"In my e-mail of 27 November 2001 I advised of my concern that conditions on contamination should not require surveys, in case such conditions should give the erroneous impression that such surveys ought to have been provided at the Environmental Assessment stage. Following my e-mail, I was advised that all necessary initial assessments had been carried out by AFC in their Environmental Statement to the general satisfaction of the planning officers. (This view was reported to Members at paragraph 28.16 of the Overview Report.) AFC's assessment of Contamination issues together with the Council's own evaluation, was summarised in Appendix A5 of the Overview Report. In the light of that advice from officers, I took the view that the advice in my e-mail had been over-cautious, and the 1999 Regulations had been met."
"The situation at Holloway Road and other neighbouring underground stations could be somewhat easier if AFC were to accept the need for a major role for Drayton Park with regular services around major events. This station could be very important with respect to relieving pressure on the southbound Piccadilly Line and also provide for Northbound movements beyond Finsbury Park. Negotiations are continuing with the club but as yet there is no agreement with respect to funding for improvements at Drayton Park Station."
"SDG have finally accepted that post-match southbound services from Drayton Park have a useful role to play, and can help to reduce the high level of demand for LUL stations.
.... A full development of Drayton Park would provide as much as 10% additional capacity and provide operational benefits to LUL. LUL could suffer by association if it claims that it can make the SDG demand scenario work. If the SDG demand forecasts prove to be an underestimate and system is seriously overloaded, many will perceive only that LUL said that their station could cope.
SDG argue against Drayton Park that in the northbound direction spectators may not be able/ allowed to get on trains because they would be packed with commuters...."
"3.22.... It is [the] officer's opinion that due to the station's proximity to the proposed stadium, Drayton Park could have a pivotal role in reducing spectator usage of other underground and surface rail stations....
3.24.... Such provision would provide as much as 25% of the required rail/ underground capacity required by the stadium in the post match hour if the Club's levels of crowd retention are accepted."
"NLWA intend that the proposed WRC would be licensed to take commercial waste. However, they expect that municipal waste would consume all or nearly all of the expected licensed capacity (1,100 tonnes per day). AFC has yet to identify suitable alternative sites for the private sector waste management and skip hire operations currently based at Ashburton Grove (Brewsters and McGoverns). Officers acknowledge that the loss to the Borough of these facilities would reduce overall waste transfer capacity and disadvantage some small businesses. However, AFC has submitted a plan as part of the November 2001 revisions which demonstrates that there are 7 private waste facilities/skip hire businesses within approximately 3 miles of the Ashburton Grove site. Whilst this would inconvenience some businesses that use the existing facilities and lead in some cases to longer journeys, it would appear that reasonable alternative provision is currently available."
The Environmental Statement
"The relevant planning authority or the Secretary of State or an inspector shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so."
Part IV of the Regulations deals with the preparation of Environmental Statements and scoping opinions. A scoping opinion was sought here and was formally given after extensive public consultation. The purpose of it is to enable the planning authority and the developer, with the benefit of public assistance, to identify those issues which it is necessary for an Environmental Statement to address.
"When an applicant making an EIA application submits to the relevant planning authority a statement which he refers to as an Environmental Statement ...."
"19 Further information and evidence respecting
(1)Where the relevant planning authority, the Secretary of State or an inspector is dealing with an application or appeal in relation to which the applicant or appellant has submitted a statement which he refers to as an Environmental Statement for the purposes of these Regulations, and is of the opinion that the statement should contain additional information in order to be an Environmental Statement, they or he shall notify the applicant or appellant in writing accordingly, and the applicant or appellant shall provide that additional information; and such information provided by the applicant or appellant is referred to in these Regulations as 'further information'.
(2)Paragraphs (3) to (9) shall apply in relation to further information, except in so far as the further information is provided for the purposes of an inquiry held under the Act and the request for that information made pursuant to paragraph (1) stated that it was to be provided for such purposes."
"'Environmental Statement' means a statement --
(a)that includes such of the information referred to in Part I of Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but
(b)that includes at least the information referred to in Part II of Schedule 4."
"4. A description of the likely significant effects of the development on the environment which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative effects of the development, resulting from:
(a)the existence of the development;
(b)the use of natural resources;
(c)the emission of pollutants, the creation of nuisances and the elimination of waste,
and the description by the applicant of the forecasting methods used to assess the effects on the environment.
5. A description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment."
Agreed there is a risk that if approval is recommended on the basis that it is likely/ highly likely that 80:20 will be achieved, the ES will be challenged as having failed to assess the impact of 80:20 (it assesses the impact of 88:12).
Agreed that on the basis that the risk is accepted, LBI could accept the current ES and proceed to determine the application using the above formula for assessing traffic modal split issues, without a further supplement to assess the impacts of 80:20.
Agreed that the risk of proceeding without an ES supplement on the 80:20 impacts would be reduced if it was considered by SW that the 88:12 was likely to be achieved albeit not immediately and without prejudicing the CPZ consultation exercise or prejudging committee's decision on the CPZ (this is because the ES Regs require the 'likely' env effects be assessed, not the 'worst case' env effects. However, the Regs also require the 'short, medium and long term effects' to be assessed, and it may be that the effects of 88:12 are only likely to occur in the long term.)
The upshot is that if AFC are not prepared to provide a supplement to the ES to assess the effects of other likely mode splits, LBI need not insist on this, but this gives rise to a risk of any decision being quashed on the basis of a flawed ES. This is a risk LBI could decide to take."
"However, to summarise my concern and assist our thinking about the acceptability of 'reasonable endeavours' in relation to achieving the 80:20 modal split, I have tried to do an audit trail as to how we reached the 'best endeavours' obligation which Graham H and I thought we were recommending to ctee. My recollection is as follows:
We originally prepared the S.106 on the basis that the Stadium would not open until Holloway tube improvements and Match Day Parking Zone were in place. This was based on Leading Counsel's advice, and was the only fireproof way of securing the traffic restraint measures we all want and without which the 80:20 cannot be achieved. This is important because any more car use than 20% pushes the traffic impacts to an unacceptable level. This is important because any more car use than 20% pushes the traffic impacts to an unacceptable level. We reluctantly agreed to modify this for commercial reasons to assist AFC funding -- and replaced it with the 'best endeavours' clause.
At no stage has the possibility that 80:20 cannot be achieved, nor the impacts of failing to achieve this, been assessed. This is why it is so important (in order to defend the planning evaluation) that AFC go beyond the normal 'reasonable endeavours' in relation to achieving the threshold of acceptability in relation to the modal split...."
"26. As stated in my first Witness Statement:
*'In my e-mail of 19 October 2001 headed 'AFC Traffic Issues' I summarised the common ground which had been identified between Arsenal Football Club ('AFC') and the Council following a telephone conference with Leading Counsel. I had concerns, at that stage, whether sufficient information had been made available to evaluate the traffic impacts of the proposals.
*I was particularly concerned that AFC's assessment of traffic impacts had assessed those impacts on the basis that only 12% of visitors to the stadium would travel by car, whereas the Council's traffic consultants were concerned that a higher proportion of visitors to the stadium might travel by car (20%), at least initially, with more travelling by sustainable models in the long term.
*A further evaluation was carried out by both AFC and the Council's traffic engineers and consultants. The Council's Head of Planning and Transportation, Graham Loveland, explains in his Witness Statement how that evaluation was carried out and what conclusions were reached. Following that Review, the Council's Head of Planning and Transportation took the view (which I considered reasonable) that the environmental assessment carried out was sufficiently robust to satisfy all statutory requirements, and to identify all significant impacts.
*In the light of the analysis carried out by the Council and explained in the Witness Statement of Graham Loveland, I was satisfied that my concerns had been met.
27.The e-mail exchange referred to represents a part of the consideration and not the final view reached by officers after proper scrutiny. I would in particular confirm that in the light of the further examination that I supported the view of officers that the environmental impact assessment provided in this respect, was sufficient information to identify the key environmental impacts for their consideration."
"Council officers considered whether an assessment based on the 80:20 mode split should also be carried out. However, having considered the matter further with AFC and its consultants I was satisfied that the environmental assessment did in fact identify the likely environmental impacts."
"In reaching this judgment I had regard to the fact that a 20% mode share for car travel to the proposed new stadium would equate to 5000 cars, this being equal to the numbers of vehicles currently driving to the existing stadium. Given that an Event Day Parking Scheme (albeit incomplete) would be operational by the time of Stadium opening, vehicles seeking access to the Stadium would be expected to be more widely dispersed, than with the limited Match Day Parking Scheme currently in operation."
"Whilst the potential loss of waste handling capacity in the area was not specifically addressed, I should add here that my main concern, and that of other officers, related to the capacity for waste handling of the public facilities run by the North London Waste Authority and the Council. Further, with respect to the private waste companies (as with all other directly affected private businesses that provide a useful service to other businesses and the public) the Council was concerned to ensure that appropriate relocation arrangements were put in place. In this context, I consider the information that was provided in the ES to be reasonably sufficient to enable the Council and others to come to a view on the loss of these private businesses. It is relevant that neither the North London Waste Authority nor the Greater London Authority raised concerns about the potential loss to the area of the waste management capacity provided by these firms. Similarly, the Islington Chamber of Commerce did not raise concerns on behalf of businesses within the Borough."
The Section 106 Agreement
"It is fundamental to section 106 that it must be used only for legitimate planning purposes. A variety of people may have an interest in these -- not only a potential financial beneficiary such as LSL but, for example, local people who want to be sure that their community is going to benefit appropriately from a development. It is only in the run-up to the entry into the section 106 obligation that these interests can have any worthwhile say, for they have no right of appeal if the authority's eventual resolution adopts an unsatisfactory agreement."
"The Overview Report was made available on request by a Press Notice which appeared in the local paper and which invited interested parties to contact the committee clerk for copies of the Reports. It was available on the Council's web-site, from the Planning Enquiries office, and was sent to all Review Group members including the First Claimant. The Report to February 2002 Planning Committee reporting the main settled terms was also available on request. While there is no requirement to consult on the detailed terms, nevertheless on 14th February 2002 the Planning Committee Report was sent under cover of an explanatory letter to Members of the Review Group, including the First Claimant. A copy of the covering letter and circulation list is exhibited at 'DC4'. The Report to 19th February Planning Committee was also available on the Council's web-site. Comments on the s106 Agreement were made by interested parties, including individuals and Members of the Review Group, and Members at the Planning Committee meeting. These were noted and, where appropriate, the final form was amended to reflect them. It is therefore wrong to suggest that there has been no opportunity for the Claimants and other interested parties to comment on the s106 Agreement."
Unlawfulness of the Involvement of an Expert
"9.1All reasonable endeavours shall be used to work with LBI to work towards achieving the Modal Split Target.
9.2The Stadium shall only be used in accordance with the Stadium Travel Plan and the approved Stadium Travel Plan shall be complied with.
9.3The Monitoring Programme shall be implemented and funded.
9.4All reasonable endeavours shall be used to ensure that upon commencement of use of the Stadium for a Major Event no more than 20% of all visitors attending a Major Event shall travel to the Locality of the Stadium by private car and measures intended to achieve this figure in the event that this figure is not met shall be secured.
9.5Until completion of the proposed Holloway Road Underground Station Improvement Works on the occasion of a Major Event sufficient travel capacity shall be provided to ensure that no more than 20% of all visitors attending a Major Event shall travel to the Locality of the Stadium by private car including for example the provision of an additional sufficient number of coaches and buses.
10.Retention of Visitor Measures
10.1The Retention of Visitors Measures shall be complied with in accordance with the Stadium Travel Plan."
"Purpose: To identify measures to be taken by AFC to achieve the Modal Split Target for Major Events and to ensure that Retention of Visitors Measures are effective.
Measures: AFC shall liaise with all relevant bodies, including LBI (Planning & Transportation functions), Transport for London, London Underground Limited, relevant Train Operating Companies, the Metropolitan Police and British Transport Police to ensure that the purposes of the Stadium Travel Plan are achieved and implement such reasonable measures as may be required to achieve those purposes following consultation with the Liaison Committee.
In addition to the funding of an Event Day Parking Scheme (as set out in Clause 11), such measures may include:
(a) an approved 'Car Part Management Agreement' for the stadium car park;
"Save for matters of construction (which shall be matters for the Courts) any dispute or disagreement arising under this Agreement including questions of value or any question of reasonableness may be referred at the instance of any Party for determination by a single expert whose decision shall be final and binding on the Parties PROVIDED THAT nothing in this Clause shall fetter LBI in exercising its discretion in carrying out its functions."
"The Heads of Terms (No 9) required AFC to use 'best endeavours' to ensure that no more than 20% of all visitors coming to a Major Event at a new stadium travel to it by car. AFC is not willing to commit to this and the Director of Law and Public Services has advised that it would be unreasonable to insist that the Club uses 'best endeavours' and that 'all reasonable endeavours' is acceptable."
"18.2 In fact it became apparent that the key mechanism for achieving the 80:20 mode split lay with the Council: that is the Council could implement an Event Day Parking Zone. AFC had agreed to fully fund this as a planning obligation. I subsequently took the view that it would be unreasonable for the Council to insist on a 'best endeavours' covenant. This view was reported to Members in a Report seeking authority for the terms of the s106 Agreement to Planning Committee of 19th February 2002.
18.3 The views expressed during the consideration of the applications by officers referred to by the Claimants did not represent the final view of officers. The Report accurately reflected the final view of officers arrived at after careful and proper deliberation, as fully explained in my First Witness Statement."
"In my judgment the test must be: what would an owner of the property with which we are concerned in this case, who was anxious to obtain planning permission, do to achieve that end? The formula which has been suggested and which would commend itself to me is that the plaintiffs as convenators are bound to take all those steps in their power which are capable of producing the desired results, namely the obtaining of planning permission, being steps which a prudent, determined and reasonable owner, acting in his own interests and desiring to achieve that result, would take, and I would favour making a declaration in answer to question 2 in those terms."
"In P & O Property Holdings Ltd v Norwich Union (1994) P&CR 261 a developer and head lessor had each contracted to use 'reasonable endeavours to obtain' lettings of units in a shopping centre. The head lessor contended that in the circumstances the developer should have been prepared to pay to a tenant a reverse premium if a hypothetical reasonable landlord would regard such a premium as good estate management in current conditions, but the House of Lords, upholding the decision of the Court of Appeal, rejected that contention. In the Court of Appeal Steyn LJ said at p16A of the transcript:
'The concepts of (a) "reasonable endeavours" obligation placed on both parties, and (b) the judgment of the "reasonable landlord" are inherently in tension. As a matter of ordinary commonsense they convey different ideas. The "reasonable endeavours" obligation necessarily imports the idea that the endeavours of the parties may fail to result in a letting, but neither is necessarily in breach. The judgment and approach of the parties may be at odds, but measured against a yardstick of reasonableness neither may be in breach of the "reasonable endeavours" obligation. The reality is that the position of each party may be reasonably defendable. On the other hand, the standard of the "reasonable landlord" results in a single vindicated position.'
Similarly, in the House of Lords Lord Browne-Wilkinson trenchantly rejected the submission that by agreeing to use reasonable endeavours the parties intended to impose an objective standard as to what terms it would be reasonable to agree to obtain a letting. Mr Kentridge submits that precisely the same line of reasoning can be applied to the case with which we are concerned.
When the critical words in article 2.2 are read in their contractual setting, and with regard to the ensuing fall-back provision, I find it impossible to say that they impose on the buyer a contractual obligation to disregard the financial effect on him, and indeed everything else other than technical or operational practicality, when deciding how to discharge his obligations to use reasonable endeavours to agree to a commissioning date prior to 25 September 1996."
"For the avoidance of doubt after the Stadium shall have opened nothing shall thereafter prevent the Stadium from operating at its full capacity of 60,000 spectators for a Major Event for football and operating as a Stadium permanently providing only that a Safety Certificate issued pursuant to the Football Licensing Act 1989 (as may be replaced or amended) is in full force and effect."
*A new stadium at Ashburton Grove shall have opened before commencement of development pursuant to the Highbury consent.
*Once a new stadium at Ashburton Grove opens, (other than for a limited trial period to be agreed) Highbury shall not be used as a sports stadium."
"The stadium at the Highbury Site shall not without LBI's prior consent which it may give at its absolute discretion taking all material circumstances into account be used as a sports stadium after the date that the Stadium is open for permanent use of which date AFC and HHL shall give LBI 7 days previous notice in writing."