BERMONDSEY VILLAGE ACTION GROUP

BVAG
INFORMATION OFFICE 14 CRUCIFIX LANE SE1 3JW ADMIN@BVAG.NET 25 May 2012

PROPOSED CLAIM FOR JUDICIAL REVIEW LETTER BEFORE CLAIM

1.
1.1

TO
Mr Simon Bevan Acting Director of Planning Southwark Borough Council London Borough of Southwark P O Box 64529 London SE1P 5LX The Solicitor to the Council London Borough of Southwark DX 136146 London Bridge 7

1.2

Mayor of London Greater London Authority City Hall The Queens Walk London SE1 2AA General Counsel Greater London Authority Windsor House 42 50 Victoria Street London SW1H 0TL

1.3

Secretary of State for Communities and Local Government John Oakes Senior Planning Manager Department for Communities and Local Government Eland House Bressenden Place London SW1E 5DU

Treasury Solicitor One Kemble Street London WC2B 4TS 1.4 Baroness Andrews Chair The Historic Buildings and Monuments Commission for England 1 Waterhouse Square 138 142 Holborn London EC1N 2ST The Legal Department English Heritage 1 Waterhouse Square 138 142 Holborn London EC1N 2ST

2.

THE CLAIMANT

Bermondsey Village Action Group (BVAG) Russell Gray Information Office 14 Crucifix Lane London SE1 3JW James Tillyard Information Office 14 Crucifix Lane London SE1 3JW

3.

REFERENCE DETAILS

Southwark Borough Councils Planning Application References: 11-AP-1987, 11-AP-2079, 11-AP-2080, 11-AP-3423 Secretary of States Reference: Mr John Oakes DCLG Claimants reference: Russell Gray BVAG Information Office

4.

DETAILS OF THE MATTERS BEING CHALLENGED

4.1 The matters being challenged are the grant of planning consents, including listed building consents and conservation area consent for demolition of various heritage assets as part of the proposed redevelopment by Network Rail of London Bridge Station (the proposed redevelopment). The planning application references and their descriptions are:

11-AP-1987 Application made under the provisions of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 2011 seeking demolition of listed train shed, part of St Thomas Street wall, 64-84 Tooley Street, and arches together with closure of Weston Street and Stainer Street in order to provide a new station layout including: construction of a new street-level station concourse, new replacement facades on Tooley Street and St Thomas Street, new roof canopies, landscaping and other works associated with the station. Land use is to comprise station concourse, station ancillary space, operational car park, station loading bay, Class A retail uses, and leisure (Class D1, D2 and sui generis uses). 11-AP-2079 Demolition of train shed over platforms 9-16 at London Bridge Station, including main roof structure and supporting walls, in connection with the Thameslink Programme and associated development of London Bridge Station (11/AP/1987) 11-AP-2080 Demolition of 64-84 Tooley Street (former South Eastern Railway Office Building) in connection with the Thameslink Programme and the associated redevelopment of London Bridge Station (11/AP/1987) 11-AP-3423 Works associated with the repair, refurbishment and re-use of the railway viaduct arches on St Thomas St, including the creation of new shopfronts and service openings, in connection with the Thameslink Programme and redevelopment of London Bridge Station 4.2 (a) In relation to each of the defendants BVAG complains of the following: Southwark Borough Council

The decision by Southwark Borough Council on 29 March 2012 to grant planning consent for each of the applications relating to the proposed redevelopment. BVAG is an unincorporated association and a recognised local community group with the objectives of protecting the character and heritage of an area designated by SBC as Bermondsey Village by, among other things, producing a local community plan under the provisions of the Localism Act. BVAG has in various correspondence and representations to SBC consistently objected to the proposed redevelopment and the process of its consideration. Specifically it has maintained that much of the heritage loss entailed by the proposed development is unnecessary and thus not in conformity with established planning law. (b) The Mayor of London

The Mayor of Londons decision on 1 March to neither refuse consent nor to direct that he should take over the role of the local planning authority in respect of the proposed redevelopment. BVAG made various representations to The Mayor to make him aware of the shortcomings in the process by which SBC had considered the proposed redevelopment.

(c)

The Secretary of State for Communities and Local Government

The SoSs decision of 29 March to issue a non-intervention letter having failed to properly consider call-in of the applications for his consideration despite BVAG and others specifically drawing his attention the fact that the proposed redevelopment clearly satisfies several of the established criteria for call-in. The SoSs failure to exercise his power to demand a referral to him of the applications by the local planning authority where he knew or should have known that the LPA was under a statutory obligation to do so but had elected to disregard that obligation. (d) The Historic Buildings and Monuments Commission for England (English Heritage)

English Heritages decision, last reaffirmed on 2 May, to suspend its obligation to act objectively in its role as government adviser on heritage buildings to help all three planning authorities to facilitate the proposed redevelopment. BVAG, The Victorian Society, Save Britains Heritage and other conservation interests had consistently made representations to English Heritage about the deficiencies in its approach to heritage assets threatened with demolition by the proposed redevelopment.

5.

ISSUES/PROPOSED GROUNDS OF CHALLENGE

5.1 At this stage we identify the following issues / proposed grounds of challenge but we reserve the right to refine amend or add to these proposed grounds in any claim for judicial review. (i) Southwark Council

Consent in respect of planning applications 11-AP-1987, 11-AP2079,11-AP-2080,11-AP-3423. 5.2 These approvals had to be considered by reference to national planning policy PPS 5 and/or its predecessor/successor PPG 15/PPF in so far as heritage assets were proposed for demolition. Similarly, and further, the decision had to be made with regard to the EIA Directive (as transposed into domestic law by statutory instrument 1999/293). These instruments require a planning authority to: 1. consult with the public and interested individuals at a stage where alternatives are possible. (EIA Directive, Article 6, para. 4: The public concerned shall be given early and effective opportunities to participate in the environmental decision making procedures and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority) 2. fully consider all alternatives to loss of heritage assets (EIA Directive, Article 5 para. 3.(d): The information to be provided by the developer shall include at least . an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects)

3. not to give consent for demolition of, or significant harm to, heritage assets other than under specified exceptional circumstances: (PPS 5 HE9: Where the application will lead to substantial harm or total loss of significance local planning authorities should refuse consent unless it can be demonstrated that: (i) the substantial harm or loss of significance is necessary in order to deliver substantial public benefits that outweigh that harm or loss) and hence not to permit the demolition of heritage assets on financial grounds. 4. to test reasons being advanced by the applicant for demolition of heritage assets on the basis of PPS 5 HE9.2 (i), particularly where they are prima facie false. The Council failed to comply with these requirements in the following respects: 1.&2. BVAG consistently sought to engage both the Network Rail and Southwark Council in discussions of alternative treatments for the entrances of the proposed new station concourse that would not require demolition of the heritage assets (or most of them). These efforts included production of photoshop images to illustrate the alternative treatments that would save the train shed wall and the SER Offices. These images were presented to the Council through various channels, including a personal briefing given to the Leader of the Council, Peter John, when he attended the opening of the BVAG Information Office on 17 October 2011. BVAG also assembled a group of conservation and railway architecture experts for a meeting with Network Rail and their architects, Grimshaws, (scheduled for 10 June 2011) for the express purpose of considering alternative design proposals that would avert the environmental damage entailed in the Network Rail proposals. At the last minute Mr Chris Drabble of Network Rail refused to proceed with that meeting on a trumped-up pretext and refused to reschedule it until after all details of their application had been agreed with the Council. All efforts by BVAG to engage with the Council on alternative design treatments and evaluation of arguments being advanced by Network Rail for heritage loss were rebuffed. 3. Numerous documents disclosed to BVAG under FOIA/EIR show that behind the scenes, Network Rail were pleading financial consitraints to gain acceptance of their proposals for demolitions. These documents include several emails disclosed to us by Southwark Council themselves as well as the other planning authorities. (Exhibit A) 4. The GLA sought reasons for the demolition of the train shed wall in an email from the Head of Planning Decisions, Giles Dolphin, to the applicants dated 12 January 2012. No sound justification was provided in response (Exhibit B). English Heritage have maintained that there is no adequate justification for the demolition of the SER Offices. Southwark Council failed to even properly consider these shortcomings, identified by the GLA, and certainly did not apply the statutory policy test of whether the demolitions were necessary to deliver the substantial public benefits of a new station. The public benefits of the new station are not disputed but the necessity for the proposed demolitions to achieve those benefits has not been established and Southwark Council failed to demand that they were established.

5.3

Material misrepresentations occurred in the planning applications for demolition of the listed train shed and part of the separately listed viaduct arches to St Thomas St. The applications falsely stated the extent of the listed structures (drawing No.N420-WSP-DRG-AR-500173, 11-AP-3423 ) and unlawfully omitted the proposed partial demolition from the application relating to the arches in the listing of the application (Works associated with the repair, refurbishment and reuse of the railway viaduct arches on St Thomas St, including the creation of new shopfronts and service openings, in connection with the Thameslink Programme and redevelopment of London Bridge Station). We suspect this was part of a knowing strategy for circumvention of the planning authoritys obligation not to permit demolition of heritage assets other than in exceptional circumstances and where public interest dictates. At the very least, Southwark Council mis-stated the application for consultation purposes and relied upon such false representations in reaching its decision. The works that are the subject of the applications are also the subject of a TWA Order (The Network Rail (Thameslink 2000) Order 2006). Applications for listed building consent relating to such works must be referred to the SoS instead of being dealt with by the local planning authority pursuant to the Planning (Listed Buildings and Conservation Areas) Act (s.12. 3A) The Council unlawfully declined to make such a referral. On complaint from BVAG that the Council proposed to ignore this legal obligation to refer to the SoS the Council responded with a justification which is unsound in fact and law (email from Bridin OConnor to DCLG (Exhibit C) The Mayor of London

5.4

(ii)

Decision to allow Southwark Council to determine the Applications 5.5 The Mayor was obliged to exercise his discretion to oversee the planning authoritys decision-making process. Prior to his retirement in January, the Head of Planning Decisions at the GLA had written to Network Rail calling on them to provide a justification for demolition of the train shed wall but only false justifications were submitted in reply. Despite being put on notice by BVAG that false justifications were being advanced for demolition of heritage assets he adopted and relied upon such reasons in his Stage 2 report declining to refuse permission or to intervene. The Mayor was aware through personal meetings with senior executives of Network Rail and/or meetings between his senior advisers and Network Rail executives that budgetary constraints were the reason for Network Rails refusal to consider alternatives to demolition of heritage assets and why the GLA would have to make do with false reasons to put before the public to justify permitting the demolitions. The Mayor was also aware of the failings of the Local Planning Authority to properly assess the justifications being advanced for demolition of heritage assets and that there were fatal flaws in the applications for listed building consent in that they included material misrepresentations as to the extent of the listed buildings and to the proposed demolition of them.

5.6

5.7

5.8

Further, the Mayors Stage 2 report cites Financial considerations as a reason for not directing refusal. Financial considerations are not admissible grounds for nonintervention. BVAG was notified of the Mayors decision on 2 March. SoS DCLG

5.9 (iii)

Decision to issue NI letter to SBC 5.10 The SoS was obliged to properly consider by reference to the published criteria the question of call-in of the applications. BVAG had requested call-in along with others, including the MEP for the East of England, David Campbell Bannerman. Evidence had been submitted of the applications being caught by the following Caborn criteria: Important conflict with national planning policy Important urban design issues Significant national and local controversy Following limited disclosure under FOIA/EIR there is evidence that the SoS failed to genuinely consider the applications against these criteria. Instead he pre-judged the call in question in response to representations from Network Rail and the DfT and for the purpose of releasing Network Rail from the financial obligations that would attach to the proposed development if the LPA could not issue the decision notice before 1 April, on which date the Community Infrastructure Levy (CIL) came into effect. The SoS resolved, for appearances sake, and in consultation with Southwark Council that the decision notice would be issued on the last working day but one before CIL came into effect, 29 March. 5.11 In order to achieve the deadline for issue of his NI letter the SoS also had to disregard a further reason for consideration of Call-in, namely the failure of Southwark to refer the applications to him under the provision cited at 5.4 above. The SoS has redacted his internal legal advice on this subject in his FOI disclosures to BVAG and we seek full disclosure of that advice on the grounds that there is a clear public interest in such disclosure The Historic Buildings and Monuments Commission for England (English Heritage)

(1) (2) (3)

(iv)

Advice on heritage assets 5.12 5.13 English Heritage is governed by the National Heritage Act (1983). Under s.33 of that Act It shall be the duty of the Commission (so far as practicable) (a) to secure the preservation of ancient monuments and historic buildings situated in England (b) to promote the preservation and enhancement of the character and appearance of conservation areas situated in England.

5.14

The Commission is financed pursuant to s.38: Finance. (1) The Secretary of State may out of money provided by Parliament (a) pay to the Commission such sums towards their expenditure as the Treasury may approve; (b) defray such expenditure of the Commission as the Treasury may approve. (2) The payment may be made on such conditions as the Secretary of State imposes with the Treasurys approval. English Heritage offered ongoing support to the three planning authorities in relation to heritage assets that they knew to be for the purposes of underpinning those authorities circumvention of national planning policy (PPS 5) on historic buildings. This advice included the deliberate obscuring of the relationship between two listed structures that are in fact continuous, namely the train shed and associated viaduct arches to St Thomas St. It also includes advice given to the SoS at DCMS on the quality of the South Eastern Railway Offices building in Tooley St and advice not to list it. This advice was objectively unsustainable and given in deference to pressure applied by Network Rail on the basis of financial considerations. The Victorian Society requested a review of EHs decision not to recommend listing of the SER Offices in August 2011 on the basis of further information on the history of the building. The review failed to revise EHs recommendation not to list. Further information on unique features of the building and its interior (that had been ignored in EHs review) and new information on the role of the building in air defences in the first world war were submitted by BVAG in February, March and April this year and a further review of the listing recommendation requested. A response, continuing to maintain EHs previous untenable position was obtained from Mr Andrew Doidge at DCMS on 2 May.

5.15

5.16

6.
6.1 6.2 6.3

THE DETAILS OF THE ACTION THAT THE DEFENDANTS ARE EXPECTED TO TAKE
We recognise that SBC, The Mayor of London and the SoS at DCLG are now functus officio as regards the grant of planning consents. In the circumstances, we consider that BVAG has no option but to issue proceedings claiming judicial review. We invite Southwark Borough Council (and all other parties) to consent to an order quashing its decision to grant planning permission for the Proposed Development. The interested party, Network Rail, will be invited to engage in the genuine consideration of alternatives and consultations with the public concerned that they refused to undertake contrary to the EIA Directive (Article 5.3(d)). Specifically, they will be asked to collaborate with engineers, architects and conservation specialists working with BVAG to properly examine the possibility of preserving the heritage buildings at the entrances to the proposed new station concourse.

6.4

7.
7.1

COSTS
BVAG is an unincorporated association. It holds no assets. Accordingly, and given the public interest issues that arise in this case, BVAG at the time of filing its Claim Form, will be making an application pursuant to CPR 44.18 for a protective costs order to the effect that it not be liable to pay the costs of any other party in these proceedings. That it would be appropriate for the Court to make a protective costs order is clear given the EIA Directive issues in this case and the decision of the Court of Appeal in R (Garner) v Elmbridge BC [2010] EWCA Civ 1006. In the circumstances, in addition to the actions set out in section 6 of this letter above we require each of the recipients of this letter to indicate in their response that they consent to such a protective costs order being made. Alternatively, if that consent is not forthcoming a full explanation should be given as to why they they will resist such an order.

7.2

8.
8.1

THE DETAILS OF ANY INTERESTED PARTIES

David Higgins CEO Network Rail Kings Place 90 York Way London N1 9AG General Counsel Bircham Dyson Bell LLP 50 Broadway London SW1H 0BL

8.2

Department for Transport Great Minster House 33 Horseferry Road London SW16 4DR Treasury Solicitor One Kemble Street London WC2B 4TS

9.
9.1

THE DETAILS OF ANY INFORMATION SOUGHT

From Southwark Council:

Details of why planning officers were persuaded to progressively abandon their position regarding each of the heritage assets whose protection or preservation as part of the consents fell away during the pre- and post- application consideration of the proposed redevelopment. Specifically: The Train Shed ironwork columns, roof and flank wall and associated single-tier viaduct arches and the South Eastern Railway Offices. 9.2 From the Mayor of London

Details of all interactions between the Mayor himself and/or his advisers and colleagues with senior personnel at Network Rail in which any discussions took place regarding the financing of the proposed redevelopment and any constraints such financing placed on the design and heritage issues that arose from the proposals. 9.3 From SoS at DCLG

Details of how and by whom the Caborn criteria were applied to the call-in request for the proposed redevelopment from BVAG. 9.4 From English Heritage

Details of how English Heritage formulated its responses to the proposed demolition of the various heritage assets to be lost as a result of the proposed redevelopment and how it came to believe that the degree of protection of these assets that had been applied in previous applications for the redevelopment of London Bridge Station should be diluted or abandoned. Details of any meetings or briefings from Network Rail or others that contributed to the formulation of such responses. 9.5 From Network Rail

Details of all discussions and agreements between Network Rail and the respective defendants and its funding bodies/partners or Government departments that address the constraints that the funds available to it for the proposed redevelopment place on the design and conservation options available to Network Rail. Details of all negotiations with the operators of The London Dungeon regarding their relocation from their present premises together with all instructions to Grimshaws/WSP regarding the use to which the premises can be put by Network Rail in the event of their being vacated by the London Dungeon.

10.
10.1

THE DETAILS OF ANY DOCUMENTS THAT ARE CONSIDERED RELEVANT AND NECESSARY
From Southwark Council

Minutes of the meeting between the Leader of the Council, Peter John, and the Chief Executive of Network Rail, David Higgins, held on 25 October 2011 as well as those of any other contacts between them. 10.2 From SoS at DCLG

The legal advice obtained by the SoS in respect of the local planning authoritys obligation to refer the matter to the SoS as referred to at (5.11) (Exhibit D) 10.3 From English Heritage

All documents and internal correspondence/emails that relate to any of the listed and unlisted heritage structures affected by the proposed redevelopment. All documents and internal and external correspondence/emails relating to the proposed redevelopment and the financing of it, including all communications with DCMS, DCLG, DfT and Network Rail. 10.4 From Network Rail

All drawings produced so far by architects or engineers on behalf of Network Rail for the purposes of re-use of the London Dungeon premises if they become vacant. A copy of the lease upon which the London Dungeon occupies the premises.

11.

THE ADDRESS FOR REPLY AND SERVICE OF COURT DOCUMENTS

Russell Gray BVAG Information Office 14 Crucifix Lane London SE1 3JW Russell@BVAG.net

12.

PROPOSED REPLY DATE

12.1 Because of the nature of the public infrastructure plans that stand to be affected, and the potential costs involved (as stressed to us by Network Rail in recent correspondence) we now propose to issue our claim with maximum haste. Please therefore reply to this letter before claim by close of business on Thursday 31 May 2012.

Yours sincerely

Russell Gray (BVAG Coordinator)