DD2223 Howbury Park planning appeal – Public Inquiry legal costs
Following a planning decision by the Mayor to direct Bexley Council to refuse a planning application, the applicant (Roxhill Development Ltd) appealed the Council’s subsequent refusal and the Secretary of State decided to determine the appeal himself. The public inquiry closed on 28 September 2018. The planning application was for a rail freight interchange facility that was referable to the Mayor under the Mayor of London Order 2008, and found to be contrary to the London Plan, as it represents inappropriate development in the Green Belt and very special circumstances have not been demonstrated to outweigh the harm. This Director Decision asks that the Executive Director of Development, Enterprise and Environment approves the expenditure up to £150,000 on legal representation received to support GLA and TfL officers in expanding on and presenting the Mayor’s planning case at the Public Inquiry.
That the Executive Director of Development, Environment and Enterprise approves:
Expenditure up to £150,000 on legal representation received to support GLA and TfL officers in expanding on and presenting the Mayor’s planning case at the Public Inquiry following the Mayor’s direction that Bexley Council refuse planning permission in respect of an application by Roxhill Development Ltd.
Part 1: Non-confidential facts and advice
On 20 November 2015, Roxhill Developments submitted planning applications to Bexley Council and Dartford Borough Council for a strategic rail freight interchange comprising a rail freight intermodal facility, warehousing, and new access arrangements. The Bexley Council application was referred to the Mayor under the Mayor of London Order 2008 for his Stage 1 consideration in April 2016. The Mayor initially considered the Bexley planning application in June 2016 and advised Bexley Council that the application did not comply with the London Plan, details of which are set out in the attached at Appendix 1.
Bexley Council resolved to grant planning permission for the development on the 16 February 2017. In accordance with article 5 of the Town and Country Planning (Mayor of London) Order 2008, the application was referred back to the Mayor for Stage II consideration.
The Mayor of London formally directed Bexley Council to refuse the planning application on 17 July 2017 because he found it was contrary to the London Plan given that the ‘very special circumstances’ argument presented fails to justify the proposed development, which is considered to be inappropriate, in the Green Belt (see attached letter dated 17 July 2017 at Appendix 2). The stated reason for the direction was:
“The proposal is inappropriate development in the Green Belt and very special circumstances have not been demonstrated which would clearly outweigh the harm to the Green Belt by reason of inappropriateness, and any other harm. The development is therefore contrary to Policy 7.16 of the adopted London Plan 2016 and the National Planning Policy Framework.”
The applicant subsequently appealed Bexley Council’s decision to refuse planning permission to the Planning Inspectorate. The Secretary of State decided to determine the appeals himself. As the Mayor directed Bexley Council to refuse the planning application, the Mayor has been a principal party in the appeal and as such the GLA has prepared and presented detailed technical information and opinions in support of the Mayor’s position; most notably in respect of Green Belt and the application of ‘very special circumstances’, in terms of whether the need for, and benefits of, the strategic rail freight interchange in this location outweighs the harm caused to the Green Belt. Legal representation by Leading Counsel (Dan Kolinsky QC at Landmark Chambers) has assisted the preparation and presentation of the Mayor’s position at the Public Inquiry. The Public Inquiry lasted for 5 weeks and closed on 28 September 2018.
The expenditure in relation to legal representation received totals £150,000 and comprises:
Brief fee: £60,000
Daily Refresher of £4,500 for 9 days: £40,500
Daily Refresher of £4,000 for 7 days: £28,000
Conferences, preparation, drafting/amending of documents up to: £21,500
No current budget allocation exists to cover the cost of these legal fees. It is therefore requested that the Executive Director approves a budget and authorises expenditure up to this figure. This figure is based on a fee quote from a barrister chambers, Landmark Chambers.
Legal representation from Leading Counsel enabled preparation for, and presentation of a robust Mayoral case at, the Public Inquiry in 2018.
Under section 149 of the Equality Act 2010, in making these decisions “due regard” must be had to the need to eliminate unlawful discrimination, harassment and victimisation as well as to advance equality of opportunity and foster good relations between people who have a protected characteristic and those who do not. Protected characteristics include age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, gender, sexual orientation (and marriage or civil partnership status for the purpose of the duty to eliminate unlawful discrimination only). This duty has been taken into account, but no additional equality impact assessments are required beyond those considered in the relevant planning documentation for the Mayor to make these decisions.
Approval is sought for the Executive Director of Development, Enterprise and Environment to approve expenditure up to £150,000 on legal representation received to support GLA and Transport for London officers in expanding on and presenting the Mayor’s planning case at the Public Inquiry following the Mayor’s direction that Bexley Council refuse planning permission in respect of an application by Roxhill Development Ltd.
The legal costs of up to £150,000 are to be funded from Revenue Grants Unapplied Reserve and is to be spent in 2018-19.
Section 30 of the Greater London Authority Act 1999 (as amended) (‘GLA Act’) gives the Mayor a general power to do anything which he considers will further one or more of the principal purposes of the GLA. The principal purposes, as set out in section 30(2), of the GLA Act are:
i. Promoting economic development and wealth creation in Greater London;
ii. Promoting social development in Greater London; and
iii. Promoting the improvement of the environment in Greater London.
In formulating the proposals in respect of which a decision is sought, officers confirm that they have complied with GLA’s related statutory duties to:
i. pay due regard to the principle that there should be equality of opportunity for all people;
ii. consider how the proposals will promote the improvement of health of persons, health inequalities between persons and to contribute towards the achievement of sustainable development in the United Kingdom; and
iii. consider consulting with appropriate bodies.
Section 34 of the GLA Act, which allows the Mayor to do anything which is calculated to facilitate or is conducive or incidental to the exercise of any of his functions, and the Mayor’s powers under section 38 of the GLA Act to delegate to any member of staff functions of the GLA that are exercisable by him, and the foregoing sections of this form indicate that the decision requested falls within the above statutory powers of the GLA exercisable by the Executive Director – Development, Enterprise & Environment.
Preparation of case and evidence
March – June 2018
June – September 2018