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England and Wales High Court (Administrative Court) Decisions
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Camden Lock (London) Ltd. v London Borough of Camden [2007] EWHC 495 (Admin) (16 March 2007)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/495.html
Cite as:
[2007] EWHC 495 (Admin)
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Neutral Citation Number: [2007] EWHC 495 (Admin) |
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Case No: CO/6637/2006 |
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
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Royal Courts of Justice Strand, London, WC2A 2LL |
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16 March 2007 |
B e f o r e :
Mr Justice Collins
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Between:
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Camden Lock (London) Ltd
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Claimant
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v
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London Borough of Camden
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Defendant
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(Transcript of the Handed Down Judgment of
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Mr Robin Purchas, Q.C., (instructed by Messrs Bircham, Dyson Bell) for the Claimant
Mr Peter Harrison, Q.C., (instructed by the Solicitor to the London Borough of Camden) for the Defendant
Hearing dates: 15 & 16 February 2007
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
Mr Justice COLLINS :
- This claim is brought under Section 287 of the Town & Country Planning Act 1990. The claimant seeks to quash an entry in the Camden Replacement Unitary Development Plan 2006 (the UDP). That entry relates to a plot of land which includes a market owned by the claimant. Putting the matter very broadly, the claim is based on the contention that the defendant has unlawfully failed to identify the desirability of the continuation if possible of the market use in the UDP's indication of the uses appropriate on the land.
- The claimant's land lies in a triangle of some 0.5 hectares in Camden town centre, which is a conservation area. The triangle should be viewed as inverted and at its apex (or southern end) is Camden Town underground station. The claimant's land is at the left hand side of the base (which is the north). The claimant was first granted planning permission for the open market use in 1979 on appeal to the Secretary of State. It was for a temporary period and could only operate at weekends. Further temporary permissions were granted over the following years, sometimes as a result of an appeal to the Secretary of State, and the operation of the market was extended. In 2002, the Secretary of State lifted a restriction to 4 days a week, which had applied since 1991, so that since then the market has traded for 7 days a week.
- The market is an open market. However, the claimant has, since it acquired part of the land in 1979, wanted to construct a building to house the market. Various applications for mixed use development have been refused by the defendant over the years but finally in 1999 the Secretary of State granted permission for a two-storey building for retail and restaurant use. The scheme was designed to house the market. In 2004, the permission was renewed.
- It has not been implemented because London Underground Limited (LUL) were known to intend to improve the station and had indicated that they would seek powers to acquire the whole site, including the claimant's land, to enable such improvement to take place. In November 2002, LUL applied for planning permission to provide a new station and mixed use development above and for conservation area consent to demolish and remove all buildings presently on the site. In addition, in March 2004 LUL applied for an order under the Transport and Works Act to enable them to carry out the necessary works of improvement to the station. Those applications were directed by the respective Secretaries of State (the First Secretary of State for the planning applications, the Secretary of State for Transport for the Transport and Works Order) to be considered at a joint inquiry. That inquiry, at which the claimant appeared as an objector, was held in early 2004. The inspector reported in December 2004. The respective Secretaries of State gave their decisions in June 2005.
- The inquiry into the UDP was held between December 2004 and February 2005. It therefore closed before the result of LUL's applications was known. The inspector learnt of the Secretaries of States' decisions 'through reports in professional journals' and, as will become apparent, since they were highly relevant, he took them into account in reaching his decision, which he gave in December 2005. His decision to do so without seeking any further observations from any of the interested parties is not criticised. But the claimant contends that he has failed to apply the conclusions and, indeed, the reasoning of the inspector properly so that his ultimate decision in relation to the claimant's land is flawed.
- In 1997, there was an inquiry into what became the 2000 UDP. That focused on the claimant's site together with an adjoining church. That was because at that time no concrete proposals from LUL existed, but the claimant had produced proposals for development of the market site. One question was whether the market use should figure in the schedule to that UDP. At paragraph 14.181 of his report, the inspector said:-
"There is no dispute that the present market, in combination with others in the vicinity, is a significant focus for tourism, and makes a considerable contribution to the vitality of retail and business activity in Camden Town, as well as being an important source of ancillary local employment. The Council seeks to draw a distinction between a market operating from within a building, which it would regard as permanent retail, and therefore in line with the Proposals Schedule, and an open market, which it would regard as a sui generis use, and therefore excluded by the Schedule. To my mind the distinction is less clear cut, and thus more on matters of fact and degree, but I infer, in either event, that there is no objection in principle to market activity continuing, provided other requirements are met. Given the wishes of the site owner and of the present occupiers, I am therefore of the opinion that market use should figure in the Proposals Schedule, alongside the currently specified retail use."
He went on to say that in his view an open market was inappropriate for such a prominent corner site within the heart of the shopping centre and so built development should be encouraged. That, of course, is what the claimant wanted to do. He also noted the concerns which had been raised about the suitability for residential or workshop use, but concluded that, provided they were expressed as acceptable rather than required uses, flexibility would be maximised and the ultimate selection of the most suitable development would not be compromised.
- In the result, the 2000 UDP for the site in the Proposals Schedule followed his recommendation, which read:-
"Current uses: Open market.
Proposal: Permanent building completing road frontages and containing market and/or retail uses.
Comment: Specific policies for Camden Town apply (Chapter 12). Archaeological Priority Area. Development may also incorporate other uses including residential, B1(*) and A3."
- The Deposit Draft of the UDP was published in June 2003. Somewhat unusually, it split the whole triangle site into two separate proposals in the Schedule. PS8 comprised the whole site while PS6 comprised the claimant's land together with the church, which was within PS8. The reason behind this was, it seems, that PS8 was to be the subject of an application by LUL whereas PS6 had been separately dealt with in the 2000 UDP and might, if LUL's development could not go ahead or would not necessarily involve PS6, require separate consideration. PS6 did not contain any explicit reference to market use. The claimant objected. In May 2004, a revised Deposit Draft was produced. The claimant's objections had not been incorporated. PS 6 read:-
"Current use: Open market, church (D1)
Preferred uses: improved transport interchange / station and mixed use including residential with other appropriate town centre uses.
Comment: the site forms part of Site 8. Appeal allowed 9/03/99 for development of retail and café use on 3rd floor, conditions attached outstanding. Located in Camden Town Conservation and Camden Town Centre. Expected to deliver affordable housing in accordance with Policy H2 and supplementary guidance."
PS 8 recorded the current use as 'mixed uses including station, market, church, D2, retail and B1. The comment referred to it being adjacent to the Cross River Tram proposed by the Mayor of London which might involve some infrastructure and support facilities. The comments included the expectation of affordable housing.
- For obvious reasons, the claimant concentrated on PS6. On 15 June 2004 a letter was written to the defendant stating:-
"Your amendment to what you originally proposed really must include continuation of the existing market uses. The last UDP inspector endorsed this and the justification for this has increased rather than otherwise."
In due course, the defendant indicated that it would be prepared to amend the preferred use to read:-
"Mixed use including residential with other appropriate town centre uses including market and / or retail uses in association with PS8."
and to refer in the comment to LUL's proposals, the decisions of the Secretary of State which would affect the nature of any future development options. It continued:-
"Major redevelopment proposals (which do not preclude the incorporation of a market at street level in an appropriately designed manner, subject to the outcome of the inquiry) would be expected to deliver affordable housing in accordance with Policy H2 and supplementary guidance …"
It was also suggested that PS6 might be deleted and all matters included in PS8 by adding to the preferred use of the words 'including market and / or retail uses' and referring in the comments to the northern section of the site for development which did not preclude the incorporation of a market at street level.
- The claimant's response, while welcoming the specific reference to 'market and / or retail' uses, was that it did not go far enough. It stood by what it had proposed for PS6. This was:-
"Preferred use: market use, with appropriate town centre uses at upper storeys, of such accommodation provided as part of a covered market development. Also church. See comments.
Comments: Site 6 together with site 8 was the subject of a major public inquiry into proposals by LUL for the comprehensive development of the site involving, inter alia, as new Camden Town Underground Station. The Secretary of State's decisions following that inquiry … are awaited and the appropriateness of developing the site (or part of it) for transport uses would fall to be considered in the light of the outcome of that inquiry."
In addition, it stated that it recognised the case for separating PS6 and PS8, but objected to the deletion of PS6 on the ground that it was an important site in its own right and should be treated separately from PS8.
- Before coming to the UDP inspector's report, I should refer to the relevant conclusions of what I shall call the TWO inspector's report and the decisions of the respective Secretaries of State.
- The TWO inspector recorded that 92% of the stalls in the market were devoted to fashion or fashion accessories, which filled a gap that was a feature of the conventional shops in the town centre. This, together with the draw of the markets, led him to conclude that the markets were a fundamental element in the vitality and viability of Camden town centre as a whole as well as being an important tourist attraction. The scale on offer together with the attraction to tourists meant that the markets acted as an anchor at the northern end of the town centre making a significant contribution to its overall strength. He concluded:-
"The loss of a significant proportion of the total stalls within the markets, particularly the high proportion of fashion stalls, would in my opinion have a particularly detrimental impact on the vitality and viability of the town centre, and its function as a tourist attraction, contrary to national and local planning policy objectives."
- In the result, he decided that the displacement of many traders and the adverse social consequences of that coupled with the fact that the markets made a vital contribution to the health of the town centre as a whole, meant that the LUL proposal, since in addition it made no provision for a temporary market use in the area, would have a significant adverse impact on the vitality and viability of Camden town centre. He concluded:-
"On balance, I consider that the housing, suitability and transport benefits would be far outweighed by the detrimental impact on the vitality and viability of the town centre and the character and appearance of the Conservation Area."
- His decision was based on two disadvantages of the proposal. First, the loss of the market would have an unacceptable adverse impact on the vitality and viability of the town centre. Secondly, the scheme had a detrimental effect on the Conservation Area. The first objection did not depend on the nature of the development but only on the loss of the market. The second was based on the impact of the proposed development on the Conservation Area.
- The TWO inspector also had to consider whether the market site had to be acquired to enable the improvement of the station to be achieved. The claimant put before him an alternative scheme, supported by Ove Arup, which would, it was said, produce the necessary improvements without using the claimant's land, whether temporarily or permanently. The inspector decided that the whole site would be needed while the works were being carried out in order to provide a temporary entrance to the station. The station improvements would be underground, providing a new ticket hall and access to the platforms. But there would be no need to use the claimant's land once the work was completed, albeit the temporary use might be for a number of years. Thus the site in his view need not be acquired compulsorily since only temporary acquisition was necessary.
- The Secretary of State for Transport accepted that no alternative scheme would produce an acceptable station for 21st century standards and that the construction period would last for 8 to 9 years. He was concerned at the loss of the market, both because of its impact on the health of the town centre and its effect on the lives of those employed there, but he was not persuaded that the detrimental effects would, on their own, outweigh the strong public benefits of the proposed new station, the rebuilding of which required the market site: He was doubtful whether temporary possession would be appropriate having regard to the long time involved, but he invited LUL to consider the inspector's views on the need for permanent acquisition when formulating any later revised application. A revised application would be needed because the First Secretary of State rejected the application on planning grounds. The Secretary of State for Transport concluded:-
"Since a compelling need to modernise the station in the public interest has been established, the Secretary of State expects that LUL will wish to review this redevelopment scheme with a view to formulating revised proposals in due course. In so doing, they will no doubt wish to give very careful consideration to the various concerns expressed by the inspector in his report."
- The First Secretary of State agreed with the inspector that the proposed above ground development would neither enhance nor preserve the character and appearance of the Conservation Area. The below ground station improvements would justify the demolition of existing buildings on the site. He said that the benefits of the new station would outweigh the social and economic effect on the traders. He noted the inspector's conclusion in respect of the particularly detrimental impact on the vitality and viability of the town centre, and stated that he agreed:-
"… that there would be a detrimental impact…, to which he gives some weight, although he considers that the extent and nature of that impact is uncertain." (Paragraph 22).
However, in paragraph 24 he referred to the detrimental impact which would result from the loss of a significant proportion of the fashion retailing and said that he agreed with the inspector that:-
"… the detrimental impact of the proposed above ground development on the character and appearance of the Conservation Area and on the vitality and viability of the town centre would outweigh the benefits delivered by the scheme."
It is thus clear that the Secretary of State refused to allow the development to go forward because of the effect of the loss of the market on the town centre and because the particular proposals had an adverse impact on the Conservation Area. He did not disagree with the inspector's positive finding that the loss of the market would be unacceptable.
- In the covering letter enclosing his report, the UDP inspector said:-
"A matter of substantial controversy at the inquiry was the area which includes Camden market in the Camden Town Tube Station block in Camden High Street. In the event, the matter has been settled to a degree by decisions on an application under the Transport and Works Act, a called in planning application and an application for conservation area consent. In determining the application made under the Transport and Works Act 1992, the Secretary of State for transport accepted that a compelling need to modernise Camden Town Station in the public interest had been established. He did, however, conclude that he should not make the Order since the First Secretary of State was determining that the important public benefit of the station below ground level would not justify the above ground development as proposed, since this would neither enhance nor preserve the character and appearance of the Conservation Area. But the decisions of both Secretaries of State made it clear that they considered there to be a strong prospect of a new proposal from London Underground Limited for a new Camden Town Underground Station, together with a mixed-use scheme above which is designed to enhance or preserve the character and appearance of the Conservation Area. In the Plan, reflecting the terms in which these decisions were expressed."
It is to be noted that he referred only to the failure of LUL's scheme to enhance and preserve the character of the Conservation Area and not to the impact on the viability and vitality of the town centre. In his report, he referred to and purported to summarise the conclusions of the two inspectors and the Secretaries of State. But he did not refer to the adverse impact on the town centre. His conclusions were set out in Paragraphs 11.8.7 to 11.8.9 as follows:-
"11.8.7 Drawing my own conclusions from these decisions together with the evidence at my inquiry, it seems to me that my recommendation in respect of the Land Use Proposals for sites 6 and 8 in the Replacement UDP must be based on the following:
- There is a need for a new Camden Town Underground Station.
- The Secretaries of State and Camden council acknowledge that the new station must be constructed on the site of the existing station where the existing tunnels intersect.
- The use of the whole site is required in order to have sufficient space for the construction of a temporary station to ensure that the station remains operational.
- This includes the site of the Trinity United Reform Church which should therefore be kept within site 8 of the Land use Proposals Schedule.
- The important public benefit of the station below ground level is sufficient to justify the demolition of all buildings on the site.
- Specifically in relation to the Camden Market and Electric Ballroom, the benefit of the new station justifies the loss of both, at least during the course of development works, with the possibility that either or both might be replaced in some form in the final above ground scheme.
11.8.8 Thus there is the strong prospect of a new proposal from London Underground Limited for a new Camden Town Underground Station, together with a mixed-use scheme above which is designed to enhance or preserve the character and appearance of the Conservation Area. To meet that prospect it is right that the Plan should set out guidance as to the uses for the site in the above ground part of the development. This guidance needs to be established in respect of the whole of site 8 on the Schedule. It also seems to me that, but for the proposals for a new station, site 8 would not be included in the Schedule (as it was not in the Schedule within the current UDP), and therefore the guidance should only relate to the uses in a comprehensive, station led, scheme. Even if it is thought that the gestation on a new scheme go beyond the time frame of the Replacement UDP (which will be saved for a 3 year period by provisions relating to the introduction of the new local development documents under the Local Development Framework scheme of the Planning and Compulsory Purchase Act 2004) there will necessarily be pre-application discussions and design guidance matters which will necessitate a firm development plan basis to give confidence to all parties as to the parameters of the revised scheme. In the absence of a such a comprehensive scheme, with an abandonment of proposals for a new station, any proposals on the site (which would almost certainly be piecemeal) would need to be considered on their merits, in the light of development plan policies and other material considerations.
11.8.9 As to site 6, I understand that Camden Lock (London) Ltd, the owners of Camden Market, have not implemented planning permissions granted in 1999 and 2004 because they considered them blighted by the prospect of the new station development. That, it seems to me, will be the overriding consideration governing any decision on land covered by site 6 for the life of this Plan. That being so, in the absence of London Underground Limited formally abandoning plans for a new Camden Town Underground Station, there is no point in site 6 being identified as a separate land use proposal. In the event of an abandonment of the new station development, which seems to me to be unlikely, the Plan provides robust policies against which proposals would be considered."
- He accordingly recommended the deletion of PS6 in its entirety. The defendant decided to accept his recommendation, but to use the language of the revised draft deposit of May 2004, which did not contain any reference to a market in its preferred use. This was despite its knowledge of the claimant's concerns and its agreement at least to include market use in the relevant scheme. The result was that PS8 (renumbered as PS4) reads:-
"Current Use: mixed uses including station, market, church, D2, retail and B1.
Preferred Use: Improved transport interchange / station and mixed use including residential with other appropriate town centre uses.
Comments: located in Camden Town Conservation Area and Camden Town Town Centre. The indicative route of the Cross River Tram included in the Mayor of London's Transport Strategy and the London Plan runs adjacent to this site. Intermediate steps, passenger interchange and other infrastructure and support facilities may involve some land outside the highway boundary in this area. Expected to deliver affordable housing in accordance with Policy H2 and supplementary guidance."
- The defendant was not bound to accept the inspector's recommendations. If it did agree with any proposed modification, it was required to give an opportunity for objections to be made. If it decided not to comply with any objection, it had to give reasons for its decision. The claimant did object. In a letter of 6 March 2006, the omission to refer to the impact on the town centre was pointed out. It was also said that the inspector had not explained why he had not agreed that market use should be specifically mentioned as a preferred use. In addition, concern was expressed that the inspector and so the defendant had failed to take account of the defendant's witness's evidence in which he accepted in cross-examination that future redevelopment plans would take a considerable time to be formulated and so the policy in the UDP should recognise the need to provide guidance in case the station improvements were delayed for a number of years. The letter concluded:-
"A fair and proper evaluation of the evidence now available can only lead to one possible conclusion, namely that the UDP should make clear that a market use of our client's site is an acceptable use. Given that the Council has accepted that out client's market plays an important role in sustaining the vitality and viability of the town centre, and maintaining the role of Camden as one of the most popular visitor attractions in London, the policy should be framed so as to protect the market and seek to ensure its survival. There is no sensible reason for the policy to be less welcoming of market use than the policy in the adopted UDP, particularly as it is now clear that our client's land is not needed permanently in order to redevelop Camden Town Underground Station."
- The defendant's response was no more than in effect to say that the inspector's reasoning was satisfactory and the Council had accepted his recommendation. Mr Purchas has not sought to rely on any shortcomings of the defendant in giving reasons for rejecting the claimant's objections. Rather, he relies on the failures of the inspector to apply the TWO inspector's and the Secretaries of States' decisions based on it properly, to apply the concessions made by the defendant's witness in cross-examination and to explain why it was not appropriate to refer specifically to the market use.
- The claimant also attacked the deletion of PS6. However, Mr Purchas very sensibly accepted that that in itself would not affect the claimant adversely provided that it was made clear (as the defendant had suggested in its proposed amendments following the claimant's letter of 15 June 2004) that market use was a preferred use of the northern part of PS 8, namely on the present site. This could easily be achieved in the preferred use column read with the comments.
- Mr Harrison submits that the inspector was entitled to conclude that the benefit of the new station justified the loss of the market, at least during the course of the works, and that the bullet points he sets out in Paragraph 11.8.7 were open to him. That may be so, but it does not necessarily justify the failure to include the market use as a preferred use. Even if there was to be a development which required temporary closing of the market, it was clear from the TWO inspector's report and was generally accepted that the loss of the market would have a seriously detrimental effect on the town centre. It is said that the reference to 'other appropriate town centre uses' would include retailing and market use. The defendant's grudging acceptance over the years of the benefits of the market did not inspire confidence in the claimant's mind that it would have an easy passage in seeking to develop for market use in the future. That was an understandable concern. Furthermore, the town centre uses are not put in the forefront of the preferred uses. In the context of the station development, pride of place is given to residential.
- The inspector's failure to refer to the detrimental impact on the town centre is in my view an important omission. It is difficult to see that it was proper for him, at least without some very convincing reasons, to fail to include the market use as a preferred use. Indeed, on the claimant's site it seems clear that it should be the preferred use if any use other than for the station is possible. And the TWO inspector and the First Secretary of State make clear that the possibility of returning to that use, at least after any necessary temporary break, is regarded as important.
- There is some dispute as to what the defendant's witness conceded in cross-examination. In the light of my conclusions that there was a failure to apply properly the decisions of the TWO inspector and the Secretary of State, it is not necessary to resolve the issue. I am bound to say that if I had had to do so, I would have preferred the evidence of Mr Phillpot, counsel who cross-examined the witness, supported by his own cross-examination notes and those of his instructing solicitor. The recollection of the witness may well be clouded by a degree of wishful thinking, although I make it clear that I do not doubt for a moment that he has entirely honestly put forward his recollection. However, the point that is made is that the inspector should not have assumed that a LUL development would necessarily be presented within the timescale to be covered by the UDP. There was no evidence that it would and it seems the inspector must have been relying on the recognition that a compelling need for modernisation of Camden Town Station had been recognised. It is not the only station on the London underground network which is in need of modernisation. It seems to me that there is considerable force in the submission that there should have been included a recognition that, if the station improvement was not to materialise or if it could be carried out without using the claimant's land, market use and development preserving that use was included within the preferred use.
- Mr Harrison accepted that if I found the inspector's decision or reasoning to be flawed, the defendant had not independently expanded on it or taken any further matters into account. For the reasons I have given, they were in my judgment flawed and so the relevant entry in the schedule must be quashed.