England and Wales High Court (Administrative Court) Decisions

MR ALTARAS: My Lady, yes.

MRS JUSTICE PATTERSON: Sorry, just before you start or we start generally on the list; this matter is listed for half an hour. Is that a realistic estimate?

MR ALTARAS: I am tempted to say it really depends on upon your Ladyship.

MRS JUSTICE PATTERSON: Well, it is an area of law with which I am very familiar, as you know --

MR ALTARAS: I know it is.

MRS JUSTICE PATTERSON: -- so I am sure we can cut through the area. Obviously, you will want to direct me, I assume, to certain things and documents. It is fair to say, due to circumstances outside my control, I have not had these papers for as long as I should have, but I have been able to go through what I have. I have a fair grasp of the issues.

MR ALTARAS: To some extent, I am in your Ladyship's hands. I know that there is a case waiting to come on --

MRS JUSTICE PATTERSON: Yes. Well, that is why I am asking you --

MR ALTARAS: -- a substantive matter.

MRS JUSTICE PATTERSON: -- whether I can release Mr Southey and Mr Barr for however long we can arrive at.

MR ALTARAS: It is rather, my Lady, in this; if your Ladyship told me, "Get on and present your case", it would probably take more than half an hour. If, on the other hand, your Ladyship was saying, "Well, I understand that point, I do not need that point, I really want you to concentrate on this point," it would take --

MRS JUSTICE PATTERSON: Right, which is what I am proposing to do at the moment.

MR ALTARAS: That is understanding is what you are proposing to do.

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: Very well.

MRS JUSTICE PATTERSON: Let us just put it this way then. If I say to Mr Southey and Mr Barr they can be released until 11.15 am, does that sound --

MR ALTARAS: That sounds quite reasonable, yes.

MRS JUSTICE PATTERSON: I am sorry.

MR ALTARAS: My Lady, I was introducing the parties.

MRS JUSTICE PATTERSON: Yes, you were.

MR ALTARAS: I am for the Applicant --

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: -- the Resident's Association.

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: My learned friend Mr Giles Atkinson is for the defendant --

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: -- the London Borough of Camden.

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: There is no appearance from the interested party.

MRS JUSTICE PATTERSON: No.

MR ALTARAS: Your Ladyship should have before you a skeleton argument --

MRS JUSTICE PATTERSON: I have, yes.

MR ALTARAS: -- served in accordance with the rules 7 days before today's hearing and also a short skeleton from my learned friend served yesterday.

MRS JUSTICE PATTERSON: Yes, I have that.

MR ALTARAS: You should also have before you the second witness statement of Mr Harley Atkinson.

MRS JUSTICE PATTERSON: I have.

MR ALTARAS: That is two exhibits. Since that evidence was not served with the claim form, I believe that I need permission from the Court to rely upon it. It was served on Camden on 26 September. That was two weeks ago.

MRS JUSTICE PATTERSON: I am sorry. Let us just cut through this.

MR ALTARAS: Very well. There is no objection.

MRS JUSTICE PATTERSON: You are not seriously objecting to this, are you, Mr Atkinson?

MR ATKINSON: No, no objection at all.

MRS JUSTICE PATTERSON: Right. So let us just move on then.

MR ALTARAS: My Lady, can I respectfully begin by reminding the Court of the four propositions required to constitute proper consultation? Originally --

MRS JUSTICE PATTERSON: Yes. Well, sorry. I said I was going to cut through it, so I am just about to.

MR ALTARAS: It is all right.

MRS JUSTICE PATTERSON: It seems to me this case really turns on the consultation point. Your first three points, as you put them in your skeleton, they are all shades of consultation, are they not?

MR ALTARAS: Yes, they are.

MRS JUSTICE PATTERSON: Yes, right.

MR ALTARAS: In fact, I am not sure that all four of them are. The first four are not. In other words, if there is no obligation on Camden to consult, then there is no requirement for them to have adjourned --

MRS JUSTICE PATTERSON: Absolutely not.

MR ALTARAS: -- the application.

MRS JUSTICE PATTERSON: Quite right. Yes, right. Fine. As we are just proceeding in this way, well, 5 is an argument of prejudice and 6 is the issue of promptitude, is it not?

MR ALTARAS: Well, I do not think that arises.

MRS JUSTICE PATTERSON: I was not sure whether it did or it did not. Hickinbottom J says he was not determining that. You seem to be sort of hoisting up a white flag, Mr Atkinson.

MR ATKINSON: Well, I am rather.

MRS JUSTICE PATTERSON: If it helps you --

MR ATKINSON: Yes.

MRS JUSTICE PATTERSON: -- I am entirely of that view. So we do not need to go there.

MR ATKINSON: Right.

MRS JUSTICE PATTERSON: Right. Okay, so consultation.

MR ALTARAS: Well, then there are, I suppose, four fundamental points that I would want to start with putting before your Ladyship.

First, it is apparent from the papers that the Court is concerned with an area of great hydrological sensitivity. There cannot be any dispute about that, in our submission; if only from the number of reports before the local authority dealing with hydrology, geohydrology and soil mechanics. As your Ladyship knows, the application site lies on a slope leading to the Hampstead ponds --

MRS JUSTICE PATTERSON: Yes, I have seen that.

MR ALTARAS: And only metres away from the historic ponds.

MRS JUSTICE PATTERSON: Yes, there is some issue about hydrological flows between the site and the ponds, et cetera.

MR ALTARAS: That is right --

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: -- but that is a substantive matter. We are not dealing here with substantive matters.

MRS JUSTICE PATTERSON: No, it is simply whether it is arguable, yes.

MR ALTARAS: The second point I want to make is that the objectors for whom I appear were objecting to the grant of planning permission of the proposal. They were objecting simply because they were not and are not satisfied on professional advice that the basement can be constructed as designed without causing serious harm to the movement, distribution and quality of the water in the locality or the stability of neighbouring properties.

MRS JUSTICE PATTERSON: Can I just be clear about your clients? That is the Fitzroy Park Resident's Association. Fitzroy Park is a private road.

MR ALTARAS: Yes, it is.

MRS JUSTICE PATTERSON: The Association; are they all local? It is a local resident's action group, obviously. Do they all live on the road or in the same sort of area?

MR ALTARAS: In the vicinity.

MRS JUSTICE PATTERSON: In the vicinity.

MR ALTARAS: Yes.

MRS JUSTICE PATTERSON: Right.

MR ALTARAS: Near the pond; what is know as the Fitzroy Park area. It does not necessarily mean they live --

MRS JUSTICE PATTERSON: On the road, but in an area known locally as Fitzroy Park.

MR ALTARAS: Yes.

MRS JUSTICE PATTERSON: Right. Thank you very much.

MR ALTARAS: As I say, they were not alone in their objection on these grounds. The City of London, who are responsible for Hampstead Heath, were also objectors, as your Ladyship will see from the officer's report.

The third thing to note is that the Resident's Association were fully engaged in the application process --

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: -- to the extent that they submitted a series of expert's reports.

MRS JUSTICE PATTERSON: Yes, I have seen that.

MR ALTARAS: In other words, up to a point, the Resident's Association was being consulted in full. It is not one of those cases that your Ladyship would be so familiar with where there is a simple or complex proposal and where consultation may, in those circumstances, simply consist of notifying the local residents and receiving his or her letter of objection. This is a local Resident's Association that was very, very closely involved in the application process and recognised, my Lady, by Camden as being very closely involved in that process.

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: At the very end of the process when Camden were in possession of four extremely material reports; two commissioned by Camden themselves --

MRS JUSTICE PATTERSON: Yes, these are the ones by Arup.

MR ALTARAS: Two by Arup.

MRS JUSTICE PATTERSON: Those, as I understand it, were of advice to the Council.

MR ALTARAS: There is no doubt about that.

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: But one has to go behind that simple explanation of the purpose of the reports and look at the letter or the e-mail by which Camden were instructing Arup to see that what Camden were asking were a series of questions. Basically, they were saying, "Given the fact that we have these conflicts between these engineers, how should it be resolved? Has the interested party submitted a proper basement impact assessment; one that complies with policy DP27?"

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: On that basis, Arup reported that the interested party's submissions were not full, were not sufficiently full and there were lacuna in the interested party's submissions.

MRS JUSTICE PATTERSON: Well, that was in their first report, was it not --

MR ALTARAS: That is in the first report.

MRS JUSTICE PATTERSON: -- and the second report?

MR ALTARAS: Then that report --

MRS JUSTICE PATTERSON: They changed.

MR ALTARAS: That report was then sent to the interested party.

MRS JUSTICE PATTERSON: The first one.

MR ALTARAS: The first report.

MRS JUSTICE PATTERSON: Yes, so this is 20 December.

MR ALTARAS: That is right. The interested party then submitted two further reports; one of them from the structural engineers, known as the structural engineering notes, which dealt with the question of the drainage of the excavation during construction. Originally, they decided that it should be drained by means of an external sump which Arup said was very risky indeed.

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: So they moved the sump internally into the excavation which meant that the excavation had to go down a further 2 metres in order accommodate the sump. So that was one of the matters that they were dealing with.

The other matter that Arup were very concerned about was the question of the soil/ground movement, because obviously there is going to be or there may well heave, subsistence, problems caused when the piling is done --

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: -- all of which are likely to cause some ground movement which in turn is likely to effect the neighbouring properties and in --

MRS JUSTICE PATTERSON: Well, it might do, but anyway, those were the concerns, were they not?

MR ALTARAS: Those were the concerns and that matter --

MRS JUSTICE PATTERSON: Two reports were submitted from Elliottwood and Terrain.

MR ALTARAS: Terrain. Terrain's report, as your Ladyship will see, is very technical indeed.

MRS JUSTICE PATTERSON: Yes. Then Arup commented on those two reports.

MR ALTARAS: Arup commented on those two reports and said, in effect, "It is not a very rigorous undertaking, but we will do."

MRS JUSTICE PATTERSON: They felt it was sufficient, as I have understood it, to grant permission with conditions.

MR ALTARAS: That is what they thought.

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: But with the caveat that they were addressing these matters as engineers, not as planners.

MRS JUSTICE PATTERSON: Yes. Well, that is what you would expect them to say, is it not?

MR ALTARAS: They make the point specifically. They did not need to make the point, but they made the point specifically.

Two other matters arise from the first Arup report. That is no consideration whatsoever was given to cognitive assessment. Now, this is not the only basement that is being developed in this highly sensitive area. There are at least two other basements. If I can take the story forward a few weeks, the first Arup knew of the other basements were when the Resident's Association informed them. On the first report, as your Ladyship will see, Arup simply said, "On the information before us, we have no information about cumulative development and we assume that it does not arise." So that is the first point.

The second point that arises on the first Arup report was they said, "The method of drainage post construction could work, but it really depends upon the quality of the design."

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: So these matters, I submit, were extremely pertinent to the grant of permission. Certainly, the subsequent reports prepared by the interested party; the second --

MRS JUSTICE PATTERSON: What; the Elliottwood and the Terrain reports?

MR ALTARAS: The Elliottwood and Terrain reports. Put it this way, my Lady; if those had just suddenly appeared by the interested party, of course, Camden would have put them on their website and given them to the Resident's Association. I do not think there can be any doubt about that.

They are not given any specific immunity by the reason of the fact that they arose as a result of criticisms made by Arup. As far as Arup's report is concerned, they touched on matters of great interest and great concern to the Resident's Association.

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: You could not actually understand the Terrain report or the Elliottwood report unless you understood the process and the report from Arup that had given rise to it.

MRS JUSTICE PATTERSON: No, but they were given to your clients, as I understand it.

MR ALTARAS: Well, they were given to my clients.

MRS JUSTICE PATTERSON: One of the issues you raise is whether they had sufficient time to absorb and digest. As I understand what you are saying, they did, but they felt they needed longer to instruct experts because they were technical matters.

MR ALTARAS: Because they are very technical matters.

MRS JUSTICE PATTERSON: Is that right?

MR ALTARAS: Yes.

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: Really. That should have been obvious to everybody. One only has to read the Terrain report to understand how technical that is.

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: These are people living in a vicinity. It is their properties that are likely to be affected.

MRS JUSTICE PATTERSON: Just help me with this. As I understand it, your clients were able to and did put in a response on Arup number two, did they not?

MR ALTARAS: No. I am choosing my words carefully because they did not put in a response to Arup number two. What they did was to write to Camden --

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: -- asking Camden to adjourn the DCC meeting --

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: -- in which they made certain comments on the Arup number two. Also --

MRS JUSTICE PATTERSON: Yes, you are right. I thought so, yes.

MR ALTARAS: Also --

MRS JUSTICE PATTERSON: Sorry, can you just remind me of the date of that letter, Mr Altaras?

MR ALTARAS: Yes, I can. We think it is 28 February.

MRS JUSTICE PATTERSON: 28 February.

MR ALTARAS: It is at 165, yes. In the second paragraph, you will see --

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: -- that Mr Barber writes they have substantial new information provided by the Applicant. It was posted on the Camden website; this complex engineering information. Arup analysis includes details for increasing the basement depth of approximately 2 metres --

MRS JUSTICE PATTERSON: Yes, right.

MR ALTARAS: -- and so on and so forth.

At the same time, Mrs Beare, who is the secretary, I think I am right in saying, of the Resident's Association, wrote to Arup and said, "Well, look. You said in your first report that cumulative assessment does not arise in this case. That is quite wrong. It does arise because there are these other properties."

As a matter of common sense, had Arup known that at the time, they would have undoubtedly included it within their first report. As it was, they were up against the time limit of the second of the DCC meetings which was due to take place only the same day.

So they had a look at some of the data which came from the other basement developments and came to the conclusion, obviously together with Camden, that this is a matter which could be, as it were, kicked into the long grass and dealt with by means of a section 106. We say really that should have been dealt with as part of the basement impact assessment in accordance with DP27.

MRS JUSTICE PATTERSON: So what are you saying then? That is a slightly different point to consultation, is it not?

MR ALTARAS: Well, it is not really because if Mr Baxter's firm had had the opportunity of being instructed or Dr Heycox's firm had been instructed, these are points that would have been made from the point of view of an expert.

MRS JUSTICE PATTERSON: Yes, but they were before the Committee in any event, were they not?

MR ALTARAS: Well, they were before the Committee, but it is dealt with before the Committee by Dr Morrison of Arup. If I can take your Ladyship to page 237 of the bundle.

He says part of building basements in Camden; there is no requirement to look at the development. Also the fact that development besides development to see how this effects build up on top of each other. So what needs to be done in this area is to take a look at the catchment area that is coming down the hill to see what basements are in the way.

So we have heard of 53 today, obviously 51 that has planning consent and Water House, I think, is going through the system; these basements, if there is anything within two or three houses downhill, potentially with basements, then you need to consider them.

Now, you can only consider what you know of, obviously. So if in the future other things come along, then they will look back at what has happened in the past. So we are looking at that scale of things. We do not have figures here. There are lots of rivers running down from Highgate towards the Hampstead Heath. There are all tributaries to a larger river. Each of these relatively small catchment areas, so the area is not significantly larger, but it does occupy modern building plots.

Then the Council are asked a question. Dr Morrison said Arup had no brief whatsoever to look at what is going to happen in the future. He had not been asked to do so in discussions with the officer. This is the approach that should be taken to ensure that when development is carried out, it is carried out and not going to have a detrimental effect on the environment.

MRS JUSTICE PATTERSON: That is the right approach, you would accept, would you not?

MR ALTARAS: I would not accept that. This what would be argued, I would submit, had the Resident's Association had the benefit of expert's advice. I would submit that the correct approach would be to say, "This is so important." The importance of the matter can be judged from the second Atkinson witness statement which exhibits a further note from the residents --

MRS JUSTICE PATTERSON: Yes, I read that.

MR ALTARAS: -- which really sets out the complexity of the cumulative assessment.

So what I would say is that the Committee on that basis alone should have said, "No, we cannot decide this case until we know more about this; until we know more about the way that this proposed development, taken with the other developments in the area, is going to effect those matters which are called out in policy DP27 as requiring attention."

Ultimately, one comes back to this --

MRS JUSTICE PATTERSON: Sorry. Can you just take me to the section 106 agreement?

MR ALTARAS: Yes, I can. Right at the back.

MRS JUSTICE PATTERSON: Right at the end. I apologise.

MR ALTARAS: Will your Ladyship look first of all at --

MRS JUSTICE PATTERSON: 262 is where it starts, is that right?

MR ALTARAS: If you look first of all at page 266. There you see the draining plan is defined; a detailed plan for the land drainage system at the property --

MRS JUSTICE PATTERSON: Yes, and any other schemes.

MR ALTARAS: Then if your Ladyship then goes to 270, you will see under the rubric "drainage plan" some rather bizarre numbering, I seem to remember. Prior to the implementation date, submit to the Council for approval the drainage plan. Then they shall arrange to have a draft drainage plan independently assessed by a suitably qualified drainage engineer --

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: -- and so on and so forth.

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: They will --

MRS JUSTICE PATTERSON: So that is how the local authority say they would, I imagine, deal with cumulative impact.

MR ALTARAS: That is how they would deal with it --

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: -- but, my Lady, this is the important point about that; the Resident's Association are given no right of consultation on that important issue. They cannot do anything about it. If the local authority, for whatever reason, decide that the drainage plan is sufficient, that is it. It will ahead. The Resident's Association may kick and scream. It does not make any difference. They specifically have been given no right to be consulted on the implementation of that particular 106 obligation.

MRS JUSTICE PATTERSON: Well, I think I am right in saying, and tell me if I have misremembered this, but on the Statement of Community Involvement what seeks to be agreed is the foundation for legitimate expectation as well as the practice here. There is nothing, is there, which indicates that third parties will be involved in section 106s?

MR ALTARAS: No.

MRS JUSTICE PATTERSON: There is not, no.

MR ALTARAS: No.

MRS JUSTICE PATTERSON: Than you.

MR ALTARAS: Can I go back to the Statement of Community Involvement?

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: It is an important point. Yes, it is the foundation, but it does not end there because one has to look at all the circumstances.

MRS JUSTICE PATTERSON: No. Well, that is why I said that is the foundation together with the practice, yes.

MR ALTARAS: Even if one looks at the Statement of Community Involvement by itself, one sees that the Statement of Community Involvement does indicate that consultation is not limited in the way that Camden itself seems to suggest.

MRS JUSTICE PATTERSON: Which part are you referring to?

MR ALTARAS: If you look at page 19, I think you will see --

MRS JUSTICE PATTERSON: Page 19.

MR ALTARAS: -- paragraph 2.4. Well, starting at 2.3:

"In addition to the council-wide principles above, we want to ensure local communities are better informed about planning and more involved in delivering the planning service."

Then 2.4:

"To achieve this we aim to follow these additional principles..."

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: "Seek views at the earliest possible stages and throughout the planning process."

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: Of course, the important thing to note is that these two reports from the interested party themselves formed part of the application for planning permission to the extent --

MRS JUSTICE PATTERSON: Well, there is some discussion about that, is there not?

MR ALTARAS: Well, to the extent, my Lady, that --

MRS JUSTICE PATTERSON: They are not part of the original application that was validated, is my understanding.

MR ALTARAS: But that is --

MRS JUSTICE PATTERSON: They are further information which is submitted in response to considerable questions raised by the first report by Arup.

MR ALTARAS: By Arup, yes.

MRS JUSTICE PATTERSON: Right.

MR ALTARAS: But they still form part of the overall submissions made to Camden to persuade Camden to grant planning permission. They are still incorporated expressly into the planning permission itself.

MRS JUSTICE PATTERSON: Right.

MR ALTARAS: I can take your Ladyship to that if your Ladyship wishes.

MRS JUSTICE PATTERSON: I will look at it if you think that is important.

MR ALTARAS: No.

MRS JUSTICE PATTERSON: I am quite happy to do that for you. Mr Atkinson is not objecting. He is not on his feet, so I am sure that is agreed then. All right.

So you are saying in relation to consultation, it was inadequately carried out both in terms of further consultation in relation to the second Arup report and the solution adopted by the local authority; namely, the 106; cuts you out in terms of consultation at that stage.

MR ALTARAS: Well, that is one way of putting it. I think I would prefer to put it in this way. Proper consultation would have included us having been given sight of the four reports of which we only had sight very late in the day --

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: -- the two Arup reports, the Terrain report and the structural engineer's further notes.

MRS JUSTICE PATTERSON: Yes. Obviously you saw them, but you are saying you should have seen them earlier.

MR ALTARAS: We saw them.

MRS JUSTICE PATTERSON: Right.

MR ALTARAS: We should have seen them earlier.

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: Having been shown them really at the last moment, we should have been given time to obtain our own expert's report in order to counter the matters set out in those reports bearing in mind that the case officer himself in his report to the Committee relied, I would say, a hundred per cent on the Arup reports. That is not a criticism, but it is the reality. If there is something in the Arup reports that these objectors wish to challenge on expert evidence, they were deprived of the opportunity of doing so.

MRS JUSTICE PATTERSON: Yes, all right. I have that point.

MR ALTARAS: They having been disclosed at the last minute and they being very technical reports, Camden ought to have adjourned the meeting of the DCC or adjourned consideration of this matter to the next meeting of the DCC. There could have been no conceivable --

MRS JUSTICE PATTERSON: But you accept, clearly, that the decision on the part of Camden is a matter for their discretion.

MR ALTARAS: Well, it is --

MRS JUSTICE PATTERSON: Your test is whether they arguably exercised their discretion unreasonably or irrationally.

MR ALTARAS: I think they went further than that. I think that they improperly fettered their discretion by saying that they could only adjourn if exceptional planning matters came to light. I cannot remember the exact words, but it is in my skeleton.

MRS JUSTICE PATTERSON: You say exceptional circumstances in your skeleton.

MR ALTARAS: That is what Camden were saying; where exceptional planning circumstances exist. That is page 10 of the skeleton.

MRS JUSTICE PATTERSON: Right.

MR ALTARAS: Their discretion was not so fettered. They were entitled to consider all matters. One of the matters that they should have considered is the question of lowly delivery of the four disputed reports.

MRS JUSTICE PATTERSON: To your plans.

MR ALTARAS: It is interesting, is it not --

MRS JUSTICE PATTERSON: Right.

MR ALTARAS: -- that two counsellors were specifically concerned about this matter? Counsellor De Souza was one of them.

MRS JUSTICE PATTERSON: Yes, I know, but counsellors, as we all know, express all sorts of views at various stages.

MR ALTARAS: Yes, but these were helpful views.

MRS JUSTICE PATTERSON: Yes, of course. They are helpful to you. Right. I have that then. You are saying it is not just discretion and that they fettered their discretion. Well, that is it then, is it, on your case?

MR ALTARAS: Just, I think, probably two more matters I want to touch upon.

One of them is the question of whether the 106, as it were, cures the procedural defects. I say it does not cure the procedural defects. First of all, it does not cure the procedural defects because really this is a matter that should have been investigated by the interested party and should have been included in its basement impact assessment. Secondly and importantly, it does not cure it because we have no input into the matter now.

The final point that I make, and I make it with great respect knowing that your Ladyship --

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: -- has enormous experience in these sorts of applications, I do remind your Ladyship that I do not have to win the argument at this stage. All I need to demonstrate --

MRS JUSTICE PATTERSON: You just have to show it is arguable.

MR ALTARAS: Well, I have to show the case is not hopelessly unarguable. In my submission, that is a fairly low hurdle to overcome and one which, on the papers before your Ladyship, your Ladyship can say I have done so.

MRS JUSTICE PATTERSON: Right. Thank you very much. Mr Atkinson, what do you want to say?

MR ATKINSON: My Lady, unless you would direct me to a particular point, if I may begin with some general --

MRS JUSTICE PATTERSON: Well, forgive me. I do not want to hear too much on the general. If you would just direct yourself in the particular to the specific points that are made on consultation and the adequacy of the section 106.

MR ATKINSON: Certainly, my Lady. Forgive me. The first point on the consultation is to bear in mind what the SCI actually specifically says in respect of third parties. That can be seen, my Lady, at page 33 paragraph 4.25 of the SCI where it is set out:

"There is no statutory requirement --"

MRS JUSTICE PATTERSON: Yes. Well, I have read that, yes.

MR ATKINSON: So it is very much within the spirit, I would say, of consultation in this case, which is accepted is a complex one and has involved exchange of a number of reports. It is within the spirit of paragraph 4.25 of the SCI that, as is agreed, all the four reports, the two Arups plus the Elliottwood and the Terrain, were, in fact, sent to the Claimants a week before.

MRS JUSTICE PATTERSON: Yes.

MR ATKINSON: It is also within the spirit, and this is a point which was not touched upon by my learned friend, in respect of the section 106. There is no requirement either in the SCI or statutory that the Claimants could be a party to that --

MRS JUSTICE PATTERSON: No.

MR ATKINSON: -- but by a special arrangement in this case, bearing in mind the history, the Council has undertaken to share information so that at the very least, the Claimants, unusually, are fully aware of developments.

MRS JUSTICE PATTERSON: Sorry. When you say share information, that is looking prospectively, is it?

MR ATKINSON: Yes, as the section 106 is being negotiated further between the IP and the Claimant, the Council undertook to share that information to keep the Claimants up to speed, as it were, so that they would understand what is --

MRS JUSTICE PATTERSON: Yes, but is that undertaking going to subsist whilst, for example, the drainage plan is being considered?

MR ATKINSON: Well, the drainage plan is defined itself in the section 106.

MRS JUSTICE PATTERSON: Yes, I know. That makes it clear, does it not, in the definition that it actually includes cumulative impact --

MR ATKINSON: Yes.

MRS JUSTICE PATTERSON: -- because it talks about "and any other schemes, including excavation works within the immediate vicinity." Once the draft drainage plan is complete, that is then going to be assessed by a suitably qualified drainage engineer.

MR ATKINSON: Yes.

MRS JUSTICE PATTERSON: Right. Now, in other words, I am not talking about before you have agreed both the section 106, but at that stage and going forward, does your undertaking to share information and keep the Claimants up to speed, as you put it, continue?

MR ATKINSON: My Lady, to be frank, I do not know the answer to that, but I dare say that we could undertake to make sure that the Claimants are informed of the content of the independent assessor --

MRS JUSTICE PATTERSON: Yes.

MR ATKINSON: -- when he or she or that consultancy decides about the best way to drain.

MRS JUSTICE PATTERSON: Right.

MR ATKINSON: Now, my Lady, a further point has occurred to me. The complaint is, broadly, that cumulative impact has not been properly considered. Surely in a case such as this, the best time to consider the detail of cumulative impact is as late as possible, i.e. when the development actually being implemented. It is better to consider it then than many months before when, of course, the cumulative impact, i.e. what else is happening --

MRS JUSTICE PATTERSON: Yes, so it is less developed.

MR ATKINSON: -- may well have changed.

MRS JUSTICE PATTERSON: Yes, right. Okay. Is there anything else then?

MR ATKINSON: My Lady, the other point I wish to draw attention to by way of general, but I think it answers a lot of the points made by my learned friend, is the detail of what policy DP27 itself actually says. That can be found at page 41.

MRS JUSTICE PATTERSON: Page 41. Yes, I have that.

MR ATKINSON: Yes. What it says, you will see, is the first introductory paragraph --

MRS JUSTICE PATTERSON: Yes.

MR ATKINSON: -- which ends with a sentence, "We will consider whether schemes..." Then --

MRS JUSTICE PATTERSON: Yes, then a series of criteria.

MR ATKINSON: Generally, the bigger the scheme, the more of those criteria are required.

It does not say, as is put by the Claimants, that a full and complete basement impact assessment must be before the decision maker when determining an application for basement development. It is simply those points must be considered insofar as they are relevant to the particular scheme.

In my submission, that has been properly considered at the Committee on 1 May at which, in fact, the Claimants themselves were, it is no dispute, attendant and indeed, addressed the meeting and did raise the points about cumulative impact. So there can be no suggestion that that point went unconsidered.

In consequence of that, indeed, the last minute advice, if you like, from Arup on the morning of the inquiry to the Council --

MRS JUSTICE PATTERSON: Well, they were present at the Committee meeting, were they not?

MR ATKINSON: They were also present, my Lady, yes.

MRS JUSTICE PATTERSON: Yes.

MR ATKINSON: It is a consequence of that conditions numbers 14 and 17 were imposed --

MRS JUSTICE PATTERSON: Yes.

MR ATKINSON: -- to deal with the ground movement. I forget what the detail was. The section 106 was imposed so that those points could be considered, in my submission, at a better time physically.

MRS JUSTICE PATTERSON: Yes, later on. Right. Thank you very much.

Right, Mr Altaras, is there anything else you want to say? You seem to have secured --

MR ALTARAS: Three things.

MRS JUSTICE PATTERSON: -- a helpful sort of concession on the 106.

MR ALTARAS: Three things. Your Ladyship wants to know the position of Camden on the 106. It is set out in the letter which is at Mr Atkinson's second witness statement at HA3 starting at 292. It is 294 where you see just the penultimate paragraph:

"Assessment of approval of drainage plan, CMP and other plans. Other than the CMP, the documents required pursuant to the obligations in the section will not be consulted on. These documents will be formally assessed by the Council prior to being discharged."

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: "Copy will be sent to you."

MRS JUSTICE PATTERSON: Yes.

MR ALTARAS: That is the first thing I wanted to invite your Ladyship to look at.

The second matter is this. The question as to whether the cumulative impact should be, as it were, put back to the later date is not consistent with the approach suggested in the SPG that your Ladyship has in front of you where it is suggested, in my submission, that all these matters should be dealt with in a basement impact assessment.

I said there were three. In fact, there were only two.

MRS JUSTICE PATTERSON: Thank you very much.