Judgment – 21/12/2012

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Case No: C120122524 – 15 November 2012 – Judgment – 1738

APPEAL COURT
JUDGMENT RELEASED

Neatly pitched into the Christmas shut-down was the Court of Appeal’s refusal of our Judicial Review of the London Bridge heritage wipe-out. Echoing Southwark Council’s 20 December planning consent last year, the timing of the judgment on 21 December made sure it was old news before anyone could scrutinise it. The full Judgment can be read above. But for those without the inclination to read the whole 13 pages, here is our summary.

It is probably no coincidence that only two days after the November Court hearing David Cameron told a selected baying audience that environmental challenges to Government projects should now be stamped out. Just as when Hitler threatened, he reasoned, ‘rules should be circumvented’ as we are now on an ‘economic war footing’. In other words, his desperate bid for re-election with a building free-for-all should trump the environment. Court of Appeal Judges L.J. Pill, L.J. Etherton and Sir David Keene might as well have been briefed in advance on the new order.

Following the shake-down along the way there remained four grounds for our JR application. All grounds in the end came down to the fact that the historic environment was being sacrificed for money. The money is to come from a £250 million shopping centre and replacing monumental historic structures with ‘high quality’ concrete replacements.

Ground 1 was based on the failure of Network Rail and Southwark Council to comply with European environmental law enshrined in the Aarhus Convention and the EIA Directive. The Judge (Pill) had already shown his hand on European Law when he refused our application for disclosure of evidence withheld by Network Rail and the Government (DfT & DCLG). No evidence – no case. That works.

The EIA Directive required Network Rail to come clean on how the environment – including the historic environment – had figured in the decision to promote the London Bridge proposals they adopted. This was simply dismissed with the acceptance of Network Rail’s own submission that they never considered heritage at all. He thus ruled that if they had considered the historic environment they would have been obliged to say why they had decided to sacrifice it. As they never considered it at all they were entitled to stay silent and the public had no right to know why they were losing their history. Difficult to imagine that this is what the authors of the Aarhus Convention had in mind for public participation in development decisions affecting the environment. So, in line with the Cameron initiative, the Court of Appeal’s advice is: Developers, be careful to ensure you don’t consider the environment at all, otherwise you could fall foul of the UK’s take on environmental protection law.

In fact, even this required L.J. Pill to turn a blind eye to the evidence. Contrary to his factual finding, some of the alternative schemes before the DfT actually preserved the South Eastern Railway Offices – albeit no doubt as an accidental by-product of other objectives.

Ground 2 required another strained interpretation of the facts and the law to find in favour of Network Rail and the planners. When a judge describes a disputed statute as ‘plain and obvious’ it is a fair bet that the reverse is the case.

We argued that the London Bridge applications were referable to the Secretary of State under the Listed Buildings and Conservation Areas Act. The Court ruled that this was wrong and that Southwark could deal with the matter in-house. Eric Pickles of course wanted nothing to do with hot potatoes. L.J. Pill’s reasoning to spare him was that the reference was required because otherwise historic building consent would be automatic and need no application at all. This is untenable as the Act says: ‘An application for listed building consent shall, without any direction by the SoS, be referred to the SoS ….’. On Pill’s analysis there would be no application to refer.

Ground 3 was that the CEO of Network Rail, David Higgins had directed a pack of lies to tell the public about the real plans for London Bridge – namely a shopping centre with a cheaply built Railway Station annexe. Boris has enough friends in central government that he was either in on the deception or unbelievably environmentally oblivious. Southwark council were partly in, but also, as ever, partly duped.

The Court was shown conclusive evidence that Network Rail had falsified figures for existing retail space to conceal the shopping-centre motive for the whole scheme. They were shown similarly conclusive evidence that Network Rail had lied about the move of the London Dungeon – pretending that the whole concept of the station was dictated by preserving a tacky tourist attraction in situ. In fact Network Rail had already been given undisclosed millions of UK tax-payers’ money by the DfT to pay the Luxembourg tax-shelter company, Merlin Entertainments, compensation for moving the Dungeon to County Hall at Waterloo.

Even the most steadfast stooges balked at defending this. In Court barristers for Southwark and for Network Rail both stuttered and squirmed some embarrassing gibberish in defence of the lies. Even the stiff-lipped judges cringed. Graciously, L.J. Pill in his judgment concedes the ‘force in our argument’ about falsified retail figures and acknowledges that the Dungeon story was a lie.

But no fear, a competent judiciary can always find an excuse for its executive and legislative establishment friends. So the Judge substitutes himself for the public and the planning committee and concludes: Lies or no lies, it would make no difference. Everyone would have been happy to swap the heritage of the world’s oldest station for another mini Lakeside anyway, he reasons.

Ground 4 focused on Boris’s role. Specifically that he bowed to pressure to sacrifice the heritage to save money for the Treasury. When we ‘ambushed’ him in February it was obvious that he realised that there was a real heritage issue that could reflect badly on him. (He may have even cared about the buildings being lost.) As a result he asked a few questions of Higgins to at least have an arse-covering position. In response he was given take-your-pick figures of £100m, £245m and £500m as the cost of saving the SERO building alone. These figures were obvious nonsense, as Boris knew, but they gave him his cover. The real cost was still being investigated hours before he rolled over and did what was best for his more important political contacts – and career – and approved the destruction.

In the face of this evidence the GLA’s lawyers obviously advised them that the Court couldn’t be guaranteed to be subservient enough to swallow their primary submission that the decision was nothing to do with money. So they backed it up with the claim that case law permitted them to rely on cost to justify heritage demolition anyway (The Covent Garden Opera House case).

Faced with getting them off the hook on one basis or the other L.J. Pill found the strained interpretation of the demolition reasoning more plausible than the Opera House case – which he acknowledges could not be applied to London Bridge. The Judgment concludes that, despite the evidence, money was not an issue when it came to heritage loss. After all, politicians and planners would never tell lies – as they said in their witness statements. QED.

Hardly surprising that the planners behave with such astonishing arrogance: Both Southwark and GLA case officers sat in the Court of Appeal as they received its blessing for putting their names to reports they both knew were peppered with lies.