Three days of horsehair wigs — The Judicial Reviews
Three days of horsehair wigs — The Judicial Reviews
On Tuesday 14, Wednesday 15 and Thursday 16 October 2014 I had my day(s) in court. It was the legal team’s chance to make the case that Hackney’s two grants of planning permission for identical schemes were legally flawed.
We assembled in Court 2 of the Royal Courts of Justice. On one side of the room, stage right, I sat with my solicitor, as the formal “claimant” in our case, and in front were our three highly experienced barristers.
Hackney Council’s in-house solicitor, the planning officer and representatives of developer Newmark sat on the other side, behind their three barristers (two “juniors” for the Council and a QC for Newmark). Behind them, on two benches, Stokey Local supporters, law pupils, interested parties and the odd tourist came and went throughout proceedings.
In these enlightened times, the public still cannot record or take photographs in court but is encouraged to use social media. So I tweeted throughout the case under the @stokeylocal feed (and occasionally, and perhaps irreverently, on my own account).
At the start and end of each day, clerks for the barristers wheeled massive trolleys with copies of the court papers and reference documents that were cited during the case. I’d brought one copy of each of the court “bundles” to date — around 50kg of paper organised in eleven lever arch files — in what can best be described as a shopping trolley, acquired from Ridley Rd. And that excluded the 90 “tabs” of historic legal cases the barristers had submitted to support their respective cases.
We were sitting under the auspices of the new “Planning Court” which puts Judicial Reviews (JRs) of planning matters before High Court Judges with planning experience. In our case Mrs Justice Patterson, a relatively new High Court Judge but a very experienced planning lawyer. This is something of a double edged sword. On the one hand the judge will understand the planning regime and its issues and won’t need to grapple with an unfamiliar area of law. But on the other, it might be harder to persuade her that aspects of the well-established planning system are at fault. Aspects of our case — particularly those about bogus confidentiality — relied on arguments not heard in planning cases very often. That doesn’t mean they are wrong or doomed to failure, just rarely challenged in planning JRs.
We had on our side one of the leading authorities on the issue. Mr Philip Coppel QC. He (literally) wrote “the book” on Information Rights and was leading (presenting) our entire case. It was no surprise that Mr Coppel spent the whole of the first day in Court arguing on his specialism — it is the basis of one of the most important “grounds” of our claim. He submitted that the Council was wrong to keep the various viability reports, secret. It’s become common practice to do so in planning, but it has no legal basis, as Mr Coppel said: “Private communications have no part in the planning system. The fact that it has become so, is no answer.” Councillors on the Planning Sub-committee — the very people who made the decision — weren’t even allowed to see the report and they were the ones making the decision.
These reports are crucial, because they present the developer’s justification for providing only 17% affordable housing when Hackney Council’s target, enshrined in policy, is 50%. The law allows the developer to miss the target if they can prove that to do so would render the scheme “unviable”. That is to say, give them less than 20% profit. The reports comprised those of the developer and those of an independent outside consultant. The latter might have been highly critical of the former or it may not have exhaustively tested it, and it’s not uncommon for that to be the case. Dave Hill wrote about a similar case at Earl’s Court last week for The Guardian. If there were anomalies, neither we nor the councillors who voted to approve the scheme knew about them. And we said that it is wrong in law.
On day two, Mr Coppel covered our other grounds more swiftly. They were more familiar territory for the Court and easier to argue. They included the submission that the Council had made a poorly-justified decision not to require the developer to submit a comprehensive Environmental Impact Assessment.
We also complained that we were not allowed to see the draft “section 106 agreement” whilst it was being finalised. The “section 106 agreement” is a formal agreement between the developer and Hackney Council which stipulates certain conditions and financial contributions that must be made to compensate for aspects of a planning application that would otherwise be unacceptable. If we’d have seen the draft, we might have been able to argue that the mechanism for reviewing the level of affordable homes ought to have been triggered if 12 months elapse before the site is cleared, and if 12 months elapsed before a trench is dug. The latter is common ploy by developers to signify the “start of development” and to stop any time-sensitive review mechanisms from being triggered.
Heritage figured strongly too. Mr Coppel submitted that Hackney Council had failed to properly apply national, regional and local policy. He also argued that the Planning Sub-committee were mis-directed by officers when they sat in December 2013 to consider the identical application that was supposed to undermine our first JR.
With our arguments set out, Hackney Council’s barrister, Mr William Upton with his colleague Emmaline Lambert alongside presented the defence, largely through reciting case law. Judges rely heavily on case law but it can be very hard for a lay observer to penetrate the weight and relevance of the cases cited. Mr Upton also cited guidance from the Royal Institute of Chartered Surveyors (RICS) which recommends all viability appraisals are submitted confidentially. But guidance — especially that laid down by an industry whose purpose is to protect its members’ interests — is not the law, and we say, runs contrary to it.
Mr Upton also said the proper route for determining if information held by a council ought to be released to the public is via the regime set out in the Freedom of Information Act, and the Environmental Information Regulations. But that process — which involves complaining to the Information Commissioner’s Office — can take two years. A large planning decision should be taken in thirteen weeks. By way of a defence, Mr Upton observed that “Parliament has not chosen to marry the planning and the environmental information regimes”
On the final day, Mr Upton wrapped up for Hackney Council before Mr Reuben Taylor QC for the developer, Newmark Properties, put forward his arguments in support of the Council’s defence. His style was more dramatic, and perhaps more engaging for the lay observer. His arguments weren’t always the same as those put forward by the Council. He submitted that the viability documents should remain secret because the public and councillors would “be swamped by masses of information that they wouldn’t understand”. He also parroted an oft-heard threat of developers — that planners need to be soft on the demands they make of developers otherwise they won’t build anything at all.
Mr Taylor’s case was relatively brief, and was followed by an opportunity for our QC, Mr Coppel, to rebut and wrap up proceedings, which he did with aplomb and flair.
Feathers were ruffled when he pointed out to the Court that the redacted viability statement that we had been allowed to see wasn’t the right version. The other side of the court quietly erupted in confusion as files were checked and notes passed before they confirmed we had been given the older report, but that the correct one was identical apart from the redacted figures. Rather neatly proving the pointlessness of it in the first place.
With three days of pleadings by lawyers in horsehair wigs and black gowns all over, the clerks appeared for the last time to wheel away the documents. I packed my lever arch files in to my Dalston shopping trolley and wheeled it out of the back entrance of the Courts, on to the relative quiet of Carey Street. I thanked my lawyers with bottles of wine, conscious of the fact they make a poor substitute for fees, but they were received with warm thanks, and I repaired with stalwart supporter Sean, to the local Weatherspoon’s.
Mrs Justice Patterson had an expert poker face. It’s was not easy to tell where she was heading. It will take her a while to consider the points raised, along with all the case law, and write up a thorough judgement. We don’t expect her judgment for another six weeks or more.
As the last Stokey Local email outlined, there are three possible outcomes:
We win — Mrs Justice Patterson finds that the Council made mistakes in its process and quashes both planning decisions. Our barristers and solicitors will be able to recover some costs from the other side and crucially Newmark won’t have its planning permission. What Newmark, Sainsbury’s and the Council do next will depend on the judgment, but it seems likely there will be yet another planning decision to be made and we’ll probably need to get some expert advice to rebut the viability claims in particular.
We lose — If the Court dismisses our claims in their entirety, Newmark will have two permissions and can start building straight away. I’ll be faced with a pretty large legal bill of around £22,000, and although an appeal might be possible it would expose me to a further £10,000.
A pyrrhic victory — The Court might agree on one or more of the legal arguments but say that had the Council not made those mistakes, the outcome would have been the same so at least one of the planning permissions will stand and Newmark will be able to begin building. Quite what happens to costs in that case is up to the Court.
All outcomes are all up for grabs at this point. It’s now just a waiting game — we’ll just have to wait and see and hope for an early Christmas present.
Thanks to everyone who has supported me and the campaign — including those fighting other, similar campaigns across London and those who turned up in Court last week to show their support.
My personal thanks to each and every person and business who has contributed to the Stokey Local Community Fund. I’m at arms’ length from the Fund, but crucially it has been set up to fund this fight and prevent me going to prison for non-payment of costs should we lose! The fund still needs at least £5,000 to cover a shortfall should we lose, so please continue to give generously!
Special thanks must go to our highly professional and experienced legal team. Philip Coppel QC led the case at trial and has been providing his peerless expertise throughout its preparation. His junior barrister colleague Richard Clarke has been invaluable in preparing the case and in Court — thanks Richard. Above all, thanks to Alex Goodman, a local resident, and planning barrister, who first took on this case and persuaded Richard and Philip to work with him on it at no cost to me or the campaign. These charming people have a vast amount of time spent on this case which we first anticipated as one Judicial Review — not two, joined together along with a trial in the Court of Appeal!
Also key to the management of the legal case have been my solicitors, Richard Buxton and Carolyn Beckwith. They came highly recommended by those in the know and are experts in this field of Environmental and Public Law. Crucially, their fees are very modest, and designed to be affordable to community groups. Carolyn’s guidance to me as I prepared huge bundles of planning documents and visited Court and other solicitors to lodge claims and serve papers, has been particularly helpful.
I hope that in a few weeks you’ll be able to join me and raise a glass to them, and to all of our supporters at a victory party. Or if not, a commiserative get together.
22 Oct 2014