Mayor of London argues that Harrow School planning application and associated costs order was wrongly decided at judicial review
By John Brace (Editor)
Leonora Brace (Co-Editor)
ED – 12.5.2020 – The decision resulting from the hearing reported below and other later hearings in the same judicial reviews  EWHC 1176 (Admin) has since been published and can be read by following that link.
Due to the coronavirus pandemic the hearing was held (see Civil Procedure Rule Practice Direction 51Y) not in person but virtually as a video hearing. It was a two day hearing in a judicial review of a planning application and an associated costs order (linked cases CO/4849/2019 and CO/4851/2019) in Mayor Of London v Secretary Of State For Housing Communities And Local Government. It should also be pointed out that Harrow School was the applicant (for planning permission) and that during this long-running issue, the Mayor of London changed in 2016 from Boris Johnson (who is now Prime Minister) to Sadiq Khan.
The planning application is for the demolition of the existing sports building, Peel House, Museum Cottage, gardeners compound, Boyer Webb Pavilion and pavilion next to the athletics track. The application is also for the construction of a new sports building over 3 levels (7,269 sqm), a new science building over 3 levels (3,675 sqm), a new landscaping core from the existing chapel terrace to the athletics track at the base of the hill, new visitors car parking, rerouting and regrading of the private access road, alterations to landscaping and servicing for a dining hall and relocation of a multi-use games area for Moretons Boarding House to the south west of the dining hall.
The 56 A4 pages of decision letter and inspector’s report published on 31st October 2019 can be read by following that link. The 2 page decision letter on costs (also dated 31st October 2019 can be read here (which requires the Mayor of London to pay in full Harrow School’s legal costs (the amount is not specified) relating to the planning inquiry (see paragraph 5) on grounds of alleged unreasonable behaviour.
The current Policy 7.17 on Metropolitan Open Land can be read by following this link.
This planning application also deals with the very special circumstances balancing test as essentially Metropolitan Open Land and greenbelt are treated in very similar ways.
Holgate J welcomed people to the hearing and asked if people could hear him please? A person replied stating that Holgate J could be heard.
Another stated that they were speaking on behalf of the Claimant’s Counsel that they were having technical difficulties and the computer was being rebooted.
Holgate J stated that at the moment he could hear nobody at all.
Two further people replied that they could hear Holgate J.
An automated message stated not available at the moment.. followed by when you have finished recording press the hash key for more options.
Holgate J asked for someone to mute their microphone, he believed everyone was present. The hearing would be recorded for the Court’s purposes, in cases CO/4849/2019 and CO/4851/2019, the Claimant was the Mayor of London. The Defendant was the Secretary of State for Housing, Communities and Local Government. Holgate J also mentioned the Keepers and Governors of Harrow School and the London Borough of Harrow. He reminded everyone involved to be in a private, quiet area so that people could hear what was said.
Interrupting Holgate J was “1, 2, 1, 2”.
Holgate J stated that those present should not be distracted and mobile phones…
Again interrupting Holgate J was “1, 2, 1, 2”.
Holgate J continued that mobile phones should be switched off, that it was being recorded by HMCTS and there should be no other recording, to make such a recording would be a criminal offence. His name was Mr Justice Holgate and he asked for counsel to identify themselves now, firstly for the Claimant?
Douglas Edwards QC introduced himself and that he could hear and see and by way of explanation, he was in Chambers and using Miss Sackman’s computer.
Holgate J referred to the Secretary of State and then for Harrow School John Steel QC.
Miss Hudson who described herself as John Steel QC’s junior stated that he couldn’t see or hear anything and she had suggested that he might sign in and out again. Holgate J stated that there might be one or two adjustments he needed to make to his laptop.
Miss Hudson stated that she would get in touch via email to see if he could be patched in.
Holgate J stated that one of the things they had to get used to was being careful about muting the microphone when not talking otherwise there would be feedback, Holgate J would try to remember to do the same, he asked how John Steel QC was getting on?
At this point (as the writer of this has hearing problems) my disability support described the reply as similar to the Doctor Who theme tune.
Holgate J asked if they had John Steel QC on earlier?
Again there was the strange Doctor Who theme tune type noise.
Douglas Edwards QC stated that he was having a wifi problem at the Francis Taylor Building which they were seeking to resolve as quickly as they could.
Holgate J again commented on contact with John Steel QC. Miss Hudson stated she had sent him an email and a WhatsApp message. Holgate J stated that he hadn’t been on the trial call, just the solicitors. Miss Hudson stated she could pop out and call his landline and that she would love to do that now. Holgate J stated that it was a good idea and the rest would sit tight sitting at the Royal Courts of Justice.
An automated message stated that only 15 seconds of recording time was remaining.
Holgate J stated that one of his colleagues down the corridor had had problems with Skype.
An automated message apologised that the recording time had expired, to press 3 to cancel and to hang up press 4.
Holgate J stated that they may have to switch to something else and does everyone have..?
What he said was drowned out by the noise like the Doctor Who theme tune again.
A message came up that a presenter had muted the audience.
Someone complained “My Lord, we’ve lost your audio”.
Holgate J stated thank you for telling him, was that better? The reply was that it was.
Holgate J stated that what he had said without being heard was that a colleague had had a problem with Skype for Business and that case had been dealt with by telephone and that they may have to switch to Microsoft Teams. He suggested that everyone have the app installed just in case it needed to be switched as even if they started there may be a problem during the course of the hearing.
Someone replied on behalf of the Secretary of State, “Yes, certainly”. The instructing solicitor for the Mayor of London stated that the solicitors had heard Your Lordship’s message.
Holgate J stated that they had got to have a plan B and asked about wifi and Douglas Edwards QC?
Douglas Edwards QC stated that it seemed to have been resolved, he could see and hear clearly so could Miss Sackman. Holgate J stated that he might need Skype or Microsoft Teams, then he referred to wifi and plan B. Douglas Edwards QC stated that the wifi in Chambers was working satisfactorily.
Holgate J stated that otherwise they would have to wait for John Steel QC. Miss Hudson stated that he was trying to sign in and out again. Holgate J stated that it may be a microphone or speaker issue. Miss Hudson stated that John Steel QC was very technologically adept.
It was pointed out that John Steel QC was now down as a participant. Holgate J asked if it was worth phoning him or messaging him? Miss Hudson replied, “Yes”. Holgate J stated that he needed to know what he was experiencing.
Again, “1, 2, 1, 2” was heard. Miss Hudson stated that she thought that would be John Steel QC. Holgate J stated sorry, was it John Steel QC doing, “1, 2, 1, 2”? Miss Hudson replied that that was his voice so she assumed the issue was he couldn’t hear them. Holgate J asked if she was in contact with him? Miss Hudson replied that she was just messaging now.
Holgate J stated that without telling what the problem was without that he didn’t see how they could go forward. The reply was no idea, but that he could see Holgate J and Douglas Edwards QC.
Holgate J asked if John Steel QC could hear and see Holgate J? Miss Hudson replied that the issue was no sound, John Steel QC had tried five times to connect in, people could hear John Steel QC, but John Steel QC couldn’t hear them.
Holgate J stated that his clerk Rachel Hallett had helpfully sent an email to everyone with the telephone number to ring in.
A loud “Oh fuck it” was heard followed by an automated message welcoming and asking for a conference ID number followed by a hash.
Holgate J stated that he suspected he heard the tapping of a telephone number and that the microphone may need to be muted.
A further automated message thanked the caller for their patience and that the meeting was being joined and that the meeting was being recorded.
Holgate J said hello and asked if he could be heard?
The reply was on the phone, but no picture but that they would try over the lunch adjournment.
Holgate J stated that the microphone may need to be muted so that the only one speaking was Douglas Edwards QC. He had gone through the opening formalities this morning, one of his colleagues had had problems with Skype for Business and there may be a need to go to Microsoft Teams and that it may be switched at lunchtime or tomorrow. He thanked all the participants for the help they had given the Court in the past few days with electronic bundles and hyperlinking which was useful. There was a Planning Court User Group on the 17th of May and he welcomed any feedback. Tim Mould QC would be there as would Tim Smith.
Holgate J referred to pre-reading of the report of the inspector and policies, Holgate J had dipped in where there were mentions in the skeletons and had read pretty thoroughly into the case, he inquired about the timetable for Douglas Edward QC’s opening submissions?
Douglas Edward QC stated that he hoped it would be by lunchtime.
Holgate J replied that there were things he would need to understand so that it may help to limit some of the issues, he was confident that subject to technological interruptions it would conclude within 2 days.
Holgate J asked for the two media representatives to confirm that they could hear? On that basis he would treat it as a public hearing.
Douglas Edwards QC was with Sarah Sackman for the Mayor of London. Harrow Council was not represented, but did have an observer in the hearing. He expressed his gratitude to those who had facilitated the hearing and the assistance of parties preparing in unusual circumstances. There were two claims for statutory review.
The first was for a quashing order for the decision of the Secretary of State that granted planning permission at Harrow School and the second was for a quashing order of the award of costs against the Claimant, permission had been granted by Lang J.
Douglas Edwards QC intended to deal with this under four headings, firstly the factual background to the dispute, secondly the legal approach, the statutory review and fourthly in respect of the costs decision.
He stated that the factual background was expanded upon in the skeleton argument. Holgate J referred to the skeleton argument.
Douglas Edwards QC stated that the factual background first was the form of development and the policy constraints on the Mayor of London’s decision making process, followed by the appeal process but first the subheadings of development and constraints on development. Harrow School sought planning permission as set out in paragraph 1 of the decision letter in the core bundle at page 5. Holgate J stated he had read that.
Douglas Edwards QC stated that it was for demolition and included the sports hall as well as the construction of buildings, landscaping, car parking and reconfiguration of routes.
Holgate J pointed out that the Mayor of London had objected to the sports building.
Douglas Edwards QC stated that it set the scene, but to turn within the core bundle to page 151 using the pagination in the top right hand corner. The Mayor’s stage 1 report had an aerial photograph of the school estate as it was now with the existing sports building on the right hand side. The expanse of roof that was the existing sports building was to be demolished. On the proposed site the sports building to the right or east of the existing sports building, the land was presently trees and open grassland and a small pavilion. The next page of the core bundle at page 162 there was an image at the bottom of the page of the proposed new development. The largest building by density was immediately behind or to the left of building number 2 the science building. As far as appearance was concerned that was in core bundle at page 177. Holgate J confirmed he had looked at it.
Douglas Edwards QC stated that these were not final elevations, Holgate J reminded Douglas Edwards QC that it was not a planning inquiry.
Douglas Edwards QC stated that the Mayor of London’s concern was the sport building on Metropolitan Open Land, the sports building was a 3 storey building of 7,269 sq metres on a footprint of 4,923 square metres. Holgate J referred to it as the proposed building.
The QC stated that the existing building was 3,095 square metres on a footprint of 1,515 square metres. The proposed sports building on Metropolitan Open Land lay outside but to the immediate south of the Harrow School Conservation Area and was to the south of the Harrow Park Conservation Area. There were a number of listed buildings in the vicinity of the site. Towards the top was Harrow Hill Chapel and Vaughan Library and he referred to those listed by the Planning Inspector. The second matter was the Mayor said the decision-making…
Holgate J stated that he wanted to cover the policies at some stage. He wanted to at this early stage deal with the purpose of Metropolitan Open Land.
Douglas Edwards QC stated that the purpose of Metropolitan Open Land included within that designation the great parks of central London, the Royal Parks, commons such as Hampstead Heath and the boundaries of Metropolitan Open Land were identified in the Borough’s Local Plan.
The background to Metropolitan Open Land was a strategic policy in the London Borough of Harrow and had been designated as Metropolitan Open Land since 1986, policy 7.17 was the current London Plan which was in the authorities’ bundle.
Holgate J referred to pages 295/395 which was policy 7.18, he was having trouble but had come up with it now.
Douglas Edwards QC stated that the relevant parts were parts (a), (b) and (d). Part (a) as Holgate J will have read set out the status of Metropolitan Open Land and the adverse impact on openness. He invited Holgate J to reread it.
Holgate J answered that it was similar to greenbelt policy. Douglas Edwards QC stated that it incorporated the test that applied to green belt. (D) designated the test that the boroughs needed to establish and then set out… Holgate J referred to this as the Metropolitan Open Land purposes.
Douglas Edwards QC stated that in general terms that was the position adopted by the Mayor and Harrow School did not take a dissimilar position. Holgate J referred to the 2012 version of the National Planning Policy Framework (paragraphs 79-92) and asked which paragraphs was it now? Douglas Edwards QC answered 133-146.
Holgate J stated that it gave the five purposes of greenbelt, which he had been told apply equally to Metropolitan Open Land. He wanted to take it in two stages as any part of Metropolitan Open Land wouldn’t serve all four purposes in (d). Douglas Edwards QC replied, “absolutely”.
Holgate J stated that it potentially served one or more of the (d) factors and one or more of the greenbelt factors in the National Planning Policy Framework? Douglas Edwards QC stated that that was one interpretation of it. Holgate J asked whether that was the right interpretation of it? Douglas Edwards QC stated that as far as the Metropolitan Open Land purposes, as the Mayor of London saw it those set out in (d). Holgate J asked if it was only those? Douglas Edwards QC answered that that was the Mayor of London’s position at the public inquiry.
There were further exchanges between Holgate J and Douglas Edwards QC.
Douglas Edwards QC mentioned the Harrow School planning witness Mr Paterson. Metropolitan Open Land comprised the policy at 7.17(d) and the paragraphs of the National Planning Policy Framework. He referred to paragraph 134 of the National Planning Policy Framework “to preserve the setting and special character of historic towns” which had not been accepted by the Planning Inspector.
Holgate J stated that he had made that clear, the Plan may not be clear, but the Mayor of London’s position was clear.
Douglas Edwards QC stated that the policies were recited in the Inspector’s Report at paragraph 13 of the main report. He also referred to Core Strategy Policy 1 and Development Management policy DM16. Holgate J made a point about the overarching objectives and clarified whether Douglas Edwards QC had referred to the more detailed policy at page 333? Douglas Edwards QC directed Holgate J to the five or six pages of Core Policy CS1 and then when Holgate J stated he had got that page, pointed to the part about quantity and quality of greenbelt.
Holgate J made a point about reconfiguration of existing open space and that he thought what was proposed was subject to a s.106 land swap, the merits of which were judged against the Metropolitan Open Land purposes? Douglas Edwards QC stated that there was a s.106 obligation submitted by the school.
Holgate J stated that he understood. Douglas Edwards QC stated that it was pretty much the same policy test as the greenbelt, part (d) had the detail of the policy. Paragraph 5.7 preceding the policy and the relevant paragraph of the National Planning Policy Framework were both highlighted.
Holgate J raised the issue of the London Plan and the application of national greenbelt policy to Metropolitan Open Land as well as the reference to heritage assets. Douglas Edwards QC mentioned the National Planning Policy Framework and the other extracts of policies at tab 18 of the authorities bundle. Holgate J asked for paragraph references. Douglas Edwards QC answered paragraphs 133 and 134 on page 307 and stated that unless there was anything else that was his submission.
Holgate J asked about the decision making and asked a procedural point about the Mayor of London’s involvement at stage 1 – if it was considered contrary to policy the Mayor of London may direct the Local Planning Authority to refuse was the inherent statutory scheme but there may be a change of mind? Douglas Edwards QC answered “absolutely”. He added that the notification of the application to the Mayor of London took place at the very earliest stage following validation and before consultation.
Holgate J made a point about whether reasons for the Mayor of London’s decision had to be given. Douglas Edwards QC replied that there was no authority as far as he was aware of, but he went on to make a point about the Mayor of London’s power at stage 2.
There were further questions between Holgate J and Douglas Edwards QC about the reasons. The timeline of decision-making following the planning application made on the 20th April 2016 and the representation made by Historic England on the impact was also discussed.
Although Harrow Council’s Planning Committee had decided to grant conditional planning permission at a meeting on the 6th September 2017, Harrow Council refused planning permission on the 13th February 2018 following intervention by the Mayor of London.
Bulk, alternative sites, amendments and workshops were topics then discussed.
The planning inquiry had been over ten days, a chronology was given in relation to the judicial review of the costs. How the Planning Inspector and Secretary of State had taken into account heritage issues and the impact of the grant of planning permission on listed buildings was part of the argument as to why costs should not have been awarded in full.
Footprint and clarity on the wording in the statement of common ground were next.
Holgate J referred to  EWCA Civ 470 and whether there had been procedural unfairness which had materially prejudiced but also the test that had raised the threshold to substantial prejudice in (1979) 77 LGR 689.
Holgate J continued that whether it was material or substantial prejudice were much the same thing (see  UKSC 3) and asked if this was the submission that was advanced?
After a reply, Holgate J continued and mentioned a test in a Court of Appeal case by Lord Justice Lindblom and asked for it to be located overnight as to see whether it had any bearing on what was being looked at. Douglas Edwards QC replied that although that there was no reference in it to Metropolitan Open Land, that it did refer to greenbelt purposes.
Holgate J mentioned it as a possible drafting slip in the skeleton argument. Holgate J mentioned earlier decisions he had made.
Douglas Edwards QC responded to his points and pointed to  EWCA Civ 1386 and the approach in paragraph 25 to a heritage asset.
The purposes of the greenbelt and impact to openness were discussed and the greenbelt test in  JPL 1509 (paragraphs 65-67) at page 303 of the bundle of authorities. It was argued that the Secretary of State had left out of the balance harm to the historic environment as a constituency of other harm.
There were further questions and legal arguments before the lunch adjournment (including on very special circumstances).
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