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Bromley taken to court
Following the granting of planning permission for the multiplex development without Environmental Impact Assessment (EIA), local Crystal Palace resident Dianne Barker took Bromley Council to court for this perceived breach of a European Union Directive.

Important victory
On 6 December 2006, seven years and seven months and a dozen court hearings later, the House of Lords endorsed the European Court of Justice in Strasbourg who earlier this year ruled that Bromley was wrong in failing to require Environmental Impact Assessment.

Robert McCracken QC, counsel for Dianne Barker, said the House of Lords have endorsed the European Court of Justice Directive, in that:

1) Environmental Impact Assessment must be possible at the later and more detailed 'reserved matters' stage;
2) The English EIA regulations were unlawful and will need to be amended;
3) Bromley made a mistake of law when they approved reserved matters because they decided that EIA was not possible at that stage.

Robert McCracken said the House of Lords have ordered Bromley to pay Dianne Barker's costs in the High Court and the Court of Appeal and half her costs in the House of Lords and the European Court of Justice. They have ordered the Government to pay half of her costs in the House of Lords and European Court of Justice because of the Secretary of State's intervention in joining forces with Bromley Council.

As the planning permission for the multiplex development has expired the Lords did not need to make an order quashing it. The Government have now said that they will issue new regulations.

Lord Bingham, Lord Hope, Baroness Hale, Lord Carswell and Lord Brown, the five members of the Appellate Committee all found for Dianne Barker.

Law Lords judgement
In his judgement, Lord Hope of Craighead said, "If it is likely that there will be significant effects on the environment which have not previously been identified [i.e. at the earlier 'outline' stage] an EIA must be carried out at the reserved matters stage before consent is given for the development."

He found "the council misdirected itself in law when it decided that it had no power to require an EIA to be carried out in accordance with the requirements of the Directive at that stage" and that "these proceedings have resulted in a decision in the appellant's favour on an important issue of principle."

CPCA Member Mike Warwick said: "This House of Lords Decision is due in no little part to the courage and determination of Dianne Barker, and to her legal team, solicitors Susan Ring and Richard Buxton and barristers Robert McCracken QC and James Pereira, who were quite outstanding."

Stuart Macmillan, Bromley Chief Planning Officer, who at that time advised Council members and Officers present that "An environmental assessment is an irrelevancy", failed to respond when invited by the CPCA to comment on the unanimous finding of the Appellate Committee that he was wrong.

CPCA Chairman, John Payne, said "It is a clear warning to any in the future who would disregard the interests of the public, and trample underfoot those who would oppose plans for commercial development and exploitation at the cost of irreparable damage to the environment and which are likely to impact adversely on their lives. This ruling will allow public scrutiny and challenge to such schemes, ensuring that developers and planning authorities provide greater accountability for their proposals."

Editors Note:
This outcome is particularly satisfying as, at the 6 May 1999 meeting at Bromley Civic Centre, Mike Warwick of the CPCA told the full Bromley Council and Officers that "they could switch off the microphones and lights, but they could not switch off democracy, as they would learn to their cost."

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Regina v L.B.Bromley ex parte Diane Barker

Diane Barker's case against Bromley Council's failure to conduct Environmental Impact Assessment (EIA) for the multiplex cinema leisure development planned for Crystal Palace Park saw her case referred to the European Court of Justice (ECJ) by the House of Lords.

It took two years, but the ECJ found in Diane's favour on all matters referred by the House of Lords. The outcome of the judgment is that, in the UK planning system of 'outline' and 'reserved matters', EIA can be required at the later stage if necessary. This is contrary to the opinion of Bromley and the Government who argued that EIA could only take place at the beginning of the planning process during the 'outline' stage. If EIA was avoided then, that was too late for all time.

The public will now benefit from this ruling which will have significant implications for the manner in which developers proceed with their planning applications.

Diane's solicitor, Richard Buxton of Cambridge, issued the following statement:

"We have the judgment we were looking for from the ECJ, but the government is now saying that it does not apply in Diane's case because circumstances had not changed by the time the reserved matters came to be decided. The government are seeking clarification from the House of Lords. There is a hearing on 6 November. We will say that LB Bromley got it wrong as a matter of law in advising councillors that it was simply not possible to consider the question of EIA at the reserved matters stage.

LB Bromley are saying everything is now academic, and anyway what they did was not their fault, it was central government's fault.

A Court of Appeal judge in another case, 'White City', said in 1999 that the argument that EIA could be required at the reserved matters stage was unarguable and would 'turn our planning system on its head'. Diane has therefore achieved a notable success in turning the UK planning system on its head! Or as we would prefer to say, she has changed the law so that EIA is more likely to be carried out effectively on big projects, with greater environmental protection as a result. The Government will now have to revise the EIA Regulations to make clear the new position."

More details of the judgment of the European Court of Justice is on the website of Diane's solicitors at www.richardbuxton.co.uk - under 'reference', click on 'transcripts' and Diane's judgment is the most recent. There is also the related European Commission case in relation to Crystal Palace (C-508/03 Commission v United Kingdom) which is on the ECJ website - Enter C-508/03 under case number and press submit.

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But all three “choices” cut through the Park.

TfL probably prefers the “hybrid option”, which is “on-street” from the railway line at Hamlet Road, up Anerley Road and Anerley Hill, crossing right into Crystal Palace Station, then left up Ledrington Road, through the Park, “missing the Museum”, through the ornamental gardens, and terminating behind the bus station, on the Park.

The tram would run on double track through the Park, cutting a swathe of up to nine metres with its attendant overhead power lines on poles. The hilltop infrastructure would include a terminus with platforms, ticket office, and “overspill” sidings for “stacking” additional trains. Matthew Yates, Tramlink’s Project Manager, said that the Park route may involve compulsory purchase by TfL of one or two houses, perhaps more if a double track was required.

People surrounding the proposed route will receive a consultation brochure and TfL is holding exhibitions in the area. The consultation runs up to 18 December 2006.

(Thanks to Nick Goy for the photos)

Extra - see this letter to the South London Press that discusses the threats posed by TfL's tram plan in relation to public spaces and Southwark's Burgess Park in particular. 22nd December 2006

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The planning application was imprecise about future access for local schools. The two-phase plan would have resulted in the loss of the farmyard orchard, and expanded the built floor-space from 152 sq m to an astonishing 2,160 sq m ofdevelopment: over 14 times the original size. It would have included 5-6 classrooms and generic education, plus two staff flats, self-catering for 2-3 students and a new road through mature oak woodland.

The CPCA and West Beckenham Residents Association objected to these proposals. Furthermore Bromley's own Advisory Panel for Conservation Areas (APCA) had recommended refusal of Capel Manor's planning application. Nick Goy, Cllr John Getgood and Cllr Karen Roberts reminded the committee that Crystal Palace Park was known as the 'People's Park', that other park amenities had been lost, and that the popular children's farm had been rebuilt with Heritage Lottery funding. Not one person spoke in favour of Capel Manor replacing the children's farm.

The only animals left at the farm

The LDA spin
LDA consultation events, roadshows, dialogue meetings and press articles led many to believe that a new children's farm would soon be opened. In defending LDA proposals, Roger Frith wrote in the Bromley Times of 6 February 2006, "What is crucial here is that all of our other proposals - including the brand new sports centre, reintroducing the city farm, new childcare facilities and holding more events - have received overwhelming support."

The application departed from the open-space rules in the Borough Plan, but Bromley planners ignored this. This was reported to the Government Office for London (GOL) and a holding direction was requested, and granted, which we acknowledge. This could have resulted in 'calling in' for a public inquiry. In some cases this helps balance the unfairness whereby applicants get a second chance at appeal, which is denied to objectors.

Councillors were concerned at Capel Manor's works and public statements, their presumption of planning permission, 'foot in the door' expansion plans for a major college on a small site, and the loss of the public farm. Voting against the recommendation of Bromley planning officers, councillors rejected the application as inappropriate development on Metropolitan Open Land (MOL).

Apologise, but re-apply
Chief Executive Steve Dowbiggin spent much of his presentation to the 14 October Main Group meeting apologising for the College's felling of trees in a Conservation Area before planning permission had been obtained, and misleading students about courses and the status of the farm, which they had already renamed 'The Croft'. (Neither Capel Manor nor the LDA have a lease on the land. Bromley still owns and manages Crystal Palace Park.)

Continuing the confusion, Mr Dowbiggin misquoted his own planning application, announcing different public opening times from those given to the planning committee. He read out a 'Noah's Ark' list of around twenty animals, but again these were not in Capel Manor's planning application.

Roger Frith claimed the college could still be a public farm, ignoring the text of the application where "Change of use (farm use to educational)" is crystal clear.

As Mr Frith and Mr Dowbiggin should know, the only legally binding planning commitments are what are actually stated in the planning application not verbal statements or a late letter.

No doubt Mr Dowbiggin will re-submit his planning application, but given the numerous irregularities with Capel Manor's initial involvement it may be hard to believe any new claims. The LDA has not revealed whether alternatives to a Capel Manor private college had been considered and why the children's farm was not restored, as it was a much-loved attraction in Crystal Palace Park.

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It allows for the sale by retail of alcohol throughout the week, ranging between 11 am to 2 am; the provision of regulated entertainment throughout the week, ranging between 9 am to 3.30 am; the provision of late-night refreshment on Fridays and Saturdays between 11 pm to 3 am.

Bromley Council’s Alcohol and Entertainments Licence Guide states that the four objectives of the Licensing Act 2003, each having equal importance and weight, are: prevention of crime and disorder, protection of children from harm, prevention of public nuisance and public safety.

The CPCA has serious doubts whether the already stretched police, who were unaware of this application, could cope with any disorder when they are 20% below strength across London. This is likely to exacerbate the already considerable difficulties in liaison between police divisions across borough boundaries here at Upper Norwood / Crystal Palace.

It must be asked if a public park of the importance of Crystal Palace is appropriate for late-night drinking. Alcohol will be sold until 2 am with drinking-up-time obviously much later and the provision of late-night ‘refreshment’ until 3 am.

How will the sale and consumption of alcohol anywhere within the Park be controlled, given that the area of these ‘premises’ is 200 acres of public parkland, with the number of people attending given as “29,999”?

With such numbers attending events, it is likely that many will arrive by car. How will ‘public safety’ for park-users and residents be ensured?

The objective to protect children from harm is hardly likely to be achieved when alcohol will be on sale anywhere in the Park from 11 am on Saturdays and 12 noon on Sundays.

It must be remembered there are already a great many licensed premises in the Crystal Palace area that bring with them a night-time dynamic and frequent anti-social behaviour, which can spill into surrounding residential neighbourhoods.

A recent press release by the Government’s Advisory Council on the Misuse of Drugs has expressed serious concerns on increased alcohol and drug use among young people, stating “... the use of tobacco, alcohol and cannabis among 15-year-olds in the UK is among the highest in Europe...” Will the granting of this application to the LDA reflect these concerns and be of benefit to this most important public park?

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With the dearth of council planning enforcement officers and their ever-increasing workload, developments are going ahead more and more often without the benefit of planning permission, on the basis that when found out, a retrospective application, followed by a long-winded and expensive appeal process, will ensue. Then there is the very real possibility that the council will back down from lack of funds and manpower to fight the case.

Hence a massive and audacious illuminated advertising sign has been erected on the frontage of Jack Beard's at the Palace, at the top of Anerley Hill - without permission. The CPCA has formally objected, along with many others, and for a short time planning enforcement officers managed to have the adverts removed, only to see them return in the form of a Thames Water ad sponsored by .. London Mayor, Ken Livingstone.

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This latest news contradicts statements by the London Mayor affirming his intention to retain the valuable facilities provided by the National Sports Centre and secure a great future for "this sporting landmark". It would seem that many events will transfer to the new Olympic facilities in Stratford after 2012, leaving just the shell of the NSC for indoor football, hockey and other sports with perhaps a new "temporary" pool close by.

This bombshell follows a costly three-year 'consultation' process where the public were shown various proposals, the most favoured of which was the building of a new 50-metre pool and other sports facilities closer to existing transport provision. Furthermore, architects have been asked to submit proposals through an international design competition. In October 05 the LDA assured us that the future of the athletics facilities for sports people and the public at large would be secured at Crystal Palace.

With the exception of selling-off parkland to build private luxury housing, stakeholders, including CPCA members, gave overwhelming support to London Development Agency proposals which included the demolition of the existing worn-out NSC. The demolition of the NSC, opposed by English Heritage, was pivotal to LDA plans, to justify their claim to greening the centre of the Park.

The probability is that the enormous cost of the Olympic Games, which are increasing almost by the month, has influenced this decision which has deprived stakeholders and athletes alike of this promised facility.

Not only have the LDA reneged on their repeated assurances they did not intend to build private houses in Crystal Palace Park but now on the cardinal element of their proposals to build a new National Sports Centre.

South London Press report on the crumbling NSC (21st July)

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CPCA chairman John Payne with Cllr Darren
 Johnson, leader of the Green Group at The
 London Assembly, and the petition to the Mayor

There has been good coverage, for instance on BBC news and local media such as LBC radio and on the Croydon Advertiser website. The topic was a big focus on BBC London 94.9's morning phone-in, with the overwhelming majority of callers phoning in to express their horror at the idea of building housing on park land.

There was general agreement that the sell-off of school playing fields started with one school somewhere selling off 'just a little' space to fund an 'improvement'. We are now left with the consequences to our children's health and wellbeing of the mass sell-off of playing fields. We need to protect our nation's parkland from this dangerous precedent.

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Letters to the Editor, 15/02/06

SIR - Michael Finlay (Letters, February 14) is quite right. The London Development Agency's appetite for land, compulsorily purchased or otherwise, is seemingly insatiable.

Crystal Palace Park is next in line: more than 200 luxury dwellings to be built on protected, public parkland, ostensibly to help pay for some minor improvements elsewhere in the park - the proposed new sports facilities having already been accounted for.

This loss of green space is all the more regrettable since, according to a recent report, Dereliction of Duty?, by the London Assembly environment committee, the LDA has failed to promote the use of brownfield sites.

Richard Francis Thornton Heath, Surrey

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