Mr Justice Supperstone :
Introduction
- The Claimants were the owners and directors of a business, THK World Entertainments Limited ("THK"), which was a music-based enterprise including a nightclub ("Imperial Gardens"), recording studio and other facilities and activities at 299 Camberwell New Road in the London Borough of Southwark ("the premises"). The core of the business was the nightclub. The Defendant was the local authority with responsibility in their area for, amongst other matters, planning, regeneration and entertainments licensing.
- In 1995 the Claimants identified a number of railway arches under the railway viaduct at the premises, which were owned by Railtrack Plc ("Railtrack"), and began the process of developing their enterprise there, including applying for planning permission.
- In summary the Claimants allege that their business failed because of the Defendant's refusal to grant full planning permission for Imperial Gardens in 1995 and, thereafter, their delay before granting such permission in 2002, by which time planning permission had been granted to Fairview New Homes Camberwell Limited ("Fairview") for a housing development within 3.5 metres of the premises. THK was dissolved on 1 March 2005.
- The Claimants acknowledge that shareholders cannot normally sue for the loss in value of their shares in a company. However they rely on the exception recognised by the Court of Appeal in Giles v Rhind [2003] Ch 618, that there are no reasons of principle or policy to prevent a shareholder from recovering damages where the wrong done to the company had made it impossible for it to pursue its own remedy against the wrongdoer. That, it is submitted, is the position in the present case.
- Unhappily the Third Claimant, Mr Taylor, died during the course of these proceedings. At the start of the trial I ordered that his claim be allowed to continue.
Background
- On 19 September 2005 the Claimants instituted proceedings against the Defendant, claiming damages, including exemplary damages, for (1) misfeasance in public office, (2) maladministration, (3) racial discrimination, and (4) breach of the Human Rights Act 1998. Particulars of Claim were served on 7 October 2005. These were amended by order of Nicola Davies J on 14 July 2010. An application to introduce a new cause of action, namely negligent misstatement, over four years after the Particulars of Claim were served, was refused on 14 July 2010 by Nicola Davies J.
- At trial the only cause of action that was pursued was misfeasance.
- The Claimants allege that between 1995 and 2002 the Defendant (themselves and/or by an officer or officers for whose conduct they are vicariously liable), through wrongful acts and omissions, deliberately or recklessly undermined and ultimately destroyed their business. It is alleged that the underlying reason for the Defendant's unlawful acts and omissions was to pursue a policy of regeneration of Camberwell (the general area in which the Claimants' business was located), in particular by supporting and seeking the creation of a railway station ("Camberwell Station") at Medlar Road/Camberwell New Road. The development of this station, it was alleged, would require or result in the use of the arches in which Imperial Gardens was situated: for the station to proceed, Imperial Gardens would have to go. As the Claimants and/or THK were in legal occupation of the arches, and had a lease of at least two, the only way in which this could be achieved was by making sure that their business never became fully and legally established in the arches. (See paragraphs 4 and 5 of the Amended Particulars of Claim).
- Paragraph 6 of the Amended Particulars of Claim states that:
"The allegation more specifically is that, in order to progress regeneration of the area both by facilitating Camberwell Station and otherwise, the Defendant (themselves and/or by an officer or officers for whose conduct they are vicariously liable) resorted to actions which were wrong in law in order to minimise or eliminate opposition or obstacles to such regeneration by
(i) delaying THK's application for full planning permission for Imperial Gardens, and/or
(ii) failing to inform THK and/or the Claimants, whether specifically or as one of a number of small BME businesses in the area, of their intentions as set out in paragraph 4 above, and/or
(iii) depriving THK and/or the Claimants, whether specifically or as one of a number of small BME businesses in the area, of their rights to participation in the development process in relation to the … Fairview housing proposal,
in the knowledge that these actions could prevent THK and/or the Claimants protecting their interests, and/or reckless as to the consequences to the Claimants, i.e. the loss of their business."
(As for the reference to THK and/or the Claimants being "one of a number of small BME businesses in the area", the claim of racial discrimination was not pursued at trial).
- By the conclusion of the trial Mr Leigh, for the Claimants, had in his closing submissions limited the claim to one of "reckless misfeasance by one or more of the officers in the Defendant Council, and possibly at least one councillor, who knew or ought to have known that the Claimants would be harmed by their conduct… This conduct was, in short, pursuing/promoting a planning policy in the UDP for the train station (T.3.2) by unlawful means" (para 4).
The law
A. The Claimant's standing to bring the present claim
- The Claimants were shareholders in THK, a limited company which is now dissolved. A claim against the Defendants was not listed as a chose in action in the liquidation. Lord Bingham in Johnson v Gore Wood & Co. [2002] 2 AC 1 at 35 stated the following propositions:
"(1) Where a company suffers loss caused by a breach of duty owed to it, only the company may sue in respect of that loss. No action lies at the suit of a shareholder suing in that capacity and no other to make good a diminution in the value of the shareholder's shareholding where that merely reflects the loss suffered by the company. A claim will not lie by a shareholder to make good a loss which would be made good if the company's assets were replenished through action against the party responsible for the loss, even if the company, acting through its constitutional organs, has declined or failed to make good that loss… (2) Where a company suffers loss but has no cause of action to sue to recover that loss, the shareholder in the company may sue in respect of it (if the shareholder has a cause of action to do so), even though the loss is the diminution in the value of the shareholding… (3) Where a company suffers loss caused by a breach of duty to it, and a shareholder suffers a loss separate and distinct from that suffered by the company caused by breach of a duty independently owed to the shareholder, each may sue to recover the loss caused to it by breach of the duty owed to it but neither may recover loss caused to the other by breach of the duty owed to that other. …"
(see also Lord Millett at 61-62 and 66).
- The Claimants accept this statement of principle, but submit relying on the decision of the Court of Appeal in Giles v Rhind [2003] CH 618 that there are no reasons of principle or policy to prevent a shareholder from recovering damages where the wrong done to the company had made it impossible for it to pursue its own remedy against the wrong-doer.
- Waller LJ in Giles v Rhind noted that both Lord Bingham and Lord Millett in Johnson v Gore Wood & Co both recognised that if shareholders have a cause of action in relation to damage suffered by the company in which they hold the shares where the company does not have a cause of action, the shareholders may bring a claim even if in reality they are claiming damages reflective of the loss suffered by the company. (Para 30). Waller LJ continued:
"31. The logic of that … exception ought to be based on the injustice of a wrong-doer being able to defeat a claim by suggesting that the loss being suffered was suffered by the company and is thus irrecoverable by the shareholder although the company does not or may not have a cause of action. But it is right to say that Lord Millett [2002] 2 AC 1, 62D justifies that exception on the basis that 'since the company itself has no cause of action in respect of its loss, its assets are not depleted by the recovery of damages by the shareholder' thus Lord Millett appears to have in mind the concept that the cause of action which a company has (if it has) is one which enables the company to bring about full recovery.
32. Lord Bingham of Cornhill, where he is considering what should constitute a 'mere reflection of the loss suffered by the company', put it this way, at p.36:
'The problem can be resolved only by close scrutiny of the pleadings at the strike-out stage and all the proven facts at the trial stage: the object is to ascertain whether the loss claimed appears to be or is one which would be made good if the company had enforced its full rights against the party responsible…'
33. In Johnson v Gore Wood & Co. There was no difficulty about the company having a cause of action and being able to recover on the cause of action. I also think that in the light of Lord Bingham of Cornhill's observation, at p.36C, that it is important for the 'court [to] be astute to ensure that the party who has in fact suffered loss is not arbitrarily denied compensation', it is clear that he had the particular facts in Johnson v Gore Wood & Co. in mind, i.e. that there had been nothing to stop the company continuing with its action if it had so chosen.
34. One situation which is not addressed is the situation in which the wrong-doer by the breach of duty owed to the shareholder has actually disabled the company from pursuing such cause of action as the company had. It seems hardly right that the wrong-doer who is in breach of contract to a shareholder can answer the shareholder by saying, 'The company had a course of action which it is true I prevented it from bringing, but that fact alone means that I the wrong-doer did not have to pay anybody.'
35. In my view there are two aspects of the case which Mr Giles seeks to bring which point at Mr Giles being entitled to pursue his claim for the loss of his investment. First, as it seems to me, part of that loss is not reflective at all. It is a personal loss which would have been suffered at least in some measure even if the company had pursued its claim for damages. Second, even in relation to that part of the claim for diminution which could be said to be reflective of the company's loss, since, if the company had no course of action to recover that loss the shareholder could bring a claim, the same should be true of a situation in which the wrong-doer has disabled the company from pursuing that course of action. I accept that on the language of Lord Millett's speech there are difficulties with this second proposition, but I am doubtful whether he intended to go so far as his literal words were taken. Furthermore it seems to me that on Lord Bingham of Cornhill's speech supported by the others, it would not be right to conclude that the second proposition is unarguable." (See also Chadwick LJ at paras 65-80).
- What the Court of Appeal decided in Giles v Rhind was that on the particular facts alleged in the case it cannot be held – on what was, in effect, an application to strike out the claim for damages without a trial – that the no reflective loss principle was applicable. The question whether or not the wrong done to the company by Mr Rhind was a direct cause of the receiver's decision to discontinue the claim made by the company could not be determined without a trial (para 80) the Court of Appeal decided that the case was arguable because in neither Johnson v Gore Wood & Co nor in Day v Cook [2001] Lloyd's Rep PN 551 (CA) did the court need to address the question whether what Arden LJ described in Day v Cook as the "no reflective loss principle" applies in a case where, by reason of the wrong done to it, the company is unable to pursue its claim against the wrongdoer (para 61). The effect of the first instance judge's decision in Giles v Rhind was as follows:
"… That a wrongdoer who, in breach of his contract with the company and its shareholders, 'steals' the whole of the company's business, with the intention that the company should be so denuded of funds that it cannot pursue its remedy against him, and who gives effect to that intention by an application for security for costs which his own breach of contract has made it impossible for the company to provide, is entitled to defeat a claim by the shareholders on the grounds that their claim is 'trumped' by the claim which his own conduct was calculated to prevent, and has in fact prevented, the company from pursuing." (para 66).
- Accordingly the Defendants submit that unless the Claimants can establish that THK was only unable to pursue its own claim against the Defendant by virtue of the Defendants' misfeasance, then the Claimants cannot bring themselves within the exception to the Johnson v Gore Wood principle that the Court of Appeal in Giles v Rhind supports.
B. Misfeasance in public office
- In Three Rivers District Council v Bank of England (No. 3) [2003] 2 AC 1 Lord Steyn at 192B-C explained that there are two different forms of liability for misfeasance in public office:
"First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith in as much as the public officer does not have an honest belief that his act is lawful."
- The first form is referred to as "targeted malice" and the second as "untargeted malice". Lord Hobhouse explained the difference as follows: "targeted malice" is where "the official does the act intentionally with the purpose of causing loss to the plaintiff, being a person who is at the time identified or identifiable"; "untargeted malice" is where "the official does the act intentionally being aware that it will in the ordinary course directly cause loss to the plaintiff or an identifiable class to which the plaintiff belongs" (at 231).
- In the second form the claimant has to prove that the public officer acts knowing that he has no power to do the act complained of or with reckless indifference as to the lack of such power that the act will probably injure the claimant. In relation to untargeted malice, "lack of power" is used in the sense of public law unlawfulness. Lord Hobhouse said at 230:
"This may arise from a straightforward breach of the relevant statutory provisions or from acting in excess of the powers granted or for an improper purpose… The test is the same as or similar to that used in judicial review."
- As to the reckless form of untargeted malice, the claimant has to prove that the public officer acted with a state of mind of reckless indifference to the legality of his act and its consequences. Recklessness is sufficient but only in its subjective sense (see Clerk & Lindsell on Torts (20th Ed. 2010), para 14-107). As to the reckless form of untargeted malice, the nature of the state of mind required is apparent from what Lord Hope said in relation to damage at p.252 [62]:
"Recklessness is demonstrated where it is shown that the public officer was aware of a serious risk of loss due to an act or omission on his part which was unlawful but chose deliberately to disregard that risk. That is sufficient to establish that he did not have an honest belief in the lawfulness of the conduct which, to his knowledge, gave rise to that risk. Recklessness about the consequences, in the sense of not caring whether the consequences happen or not, will satisfy the test."
- Lord Hutton quoted Brennan J in Northern Territory of Australia v Mengel 69 ALJR 527, 545 for the proposition that "Any act or omission done or made by a public official in purported performance of the functions of the office can found an action for misfeasance in public office" and added that "whether the public official is sued in respect of an act or omission, if must be a deliberate one involving an actual decision and liability will not arise from injury suffered by mere inadvertence or oversight" (page 228). "The failure to act must be deliberate, not negligent or inadvertent or arising from a misunderstanding of the legal position." He added:
"In my opinion, a failure to act can amount to misfeasance in public office only where (i) the circumstances are such that the discretion whether to act can only be exercised in one way so that there is effectively a duty to act; (ii) the official appreciates this but nevertheless makes a conscious decision not to act; and (iii) he does so with intent to injure the plaintiff or in the knowledge that such injury will be the natural and probable consequence of his failure to act." (page 237).
- The employing authorities will be held vicariously liable for the misfeasance in public office of their employees if they acted in the course of their employment. As Lord Steyn put it in Lister v Hesley Hall Ltd [2002] 1 AC 215 at para 28, the test whether an employee has acted in the course of his employment was whether the tort was "so closely connected with his employment that it would be fair and just to hold the [employer] vicariously liable."
- An essential ingredient of the tort of misfeasance in public office is proof of special damage (see Watkins v SSHD [2006] 2 WLR 807).
The evidence
- The claim requires consideration of the evidence in relation to:
i) First, the 1995 planning application.
ii) Second, the period from the grant of temporary planning permission in 1996 until the application for full planning permission in 1999.
iii) Third, the 1999 planning application and the grant of planning permission to Fairview.
I shall deal with each in turn.
The 1995 planning application
- On 27 September 1995 the Defendant received an application for planning permission from THK for Arches 342 and 343 at 299 Camberwell New Road. The application was made for a "Public Entertainment and Production House". Mr Dennett, who at the time was a Principal Planner, allocated the application to Mr Goate who then became the case officer for the application. Mr Goate recalls discussing the application with Mr Chambers, the Area Manager, but not with Mr Dennett. Mr Goate had joined the Defendant in January 1995 and this was the first planning application he had to deal with. He visited the site with Mr Davenport. He said Mr Stevenson made frequent complaints about the way he was handling the application so he felt it appropriate to make a list of what happened. His file note is at C3/Tab 5/3935.
- With regard to the site meeting on 2 November 1995, he said he thought that it was appropriate that there should be another officer with him. More often than not when he spoke to Mr Stevenson and explained the situation, Mr Stevenson would say he was wrong. He said Mr Stevenson was very aggressive, swore at him and put the phone down.
- The application was registered on 3 November 1995. It was Mr Chambers' decision to validate the application, even though Mr Goate says they still did not have sufficient information at the time. Mr Stevenson said that he was most concerned that the application had not been validated by 11 October 1995 as they had given all the information that was required for validation. I do not accept this criticism. It is clear that during October 1995 Mr Goate and Mr Stevenson discussed matters that needed to be clarified before the application could be validated. A plan which Mr Stevenson submitted showed the nightclub occupying three arches, 341-343, whereas the application had been for arches 342 and 343 only. The plan also referred to emergency building work to secure the premises that Mr Goate explained would itself require planning permission. It appears from a further letter from Mr Stevenson dated 3 November 1995 (C1(1)/2896) where there is reference to current use and proposed use that a cinema was added in Arch 3 and there was a change in plans between October and November 1995, yet the Defendant validated the application on 3 November.
- Mr Goate drafted a report for the Planning Committee. It went to Mr Chambers for his approval and then to Ms Linacre, Head of Development Control. Mr Chambers said that he agreed with Mr Goate's recommendation and Ms Linacre signed it off. Mr Goate finalised the report by 4 December 1995 (C1(1)/2913). Mr Goate's conclusion was that the application should be rejected on balance because of loss of amenity (para 9, reason for refusal). He said he would have considered the policies in the UDP relevant to this site. He did recall the location of Imperial Gardens beside a symbol on a map of the proposed railway station in the UDP. However his recollection is that the railway station was at a very early stage and no proposals for the railway station had been made. He assumed there was no funding for the railway station and therefore it was not appropriate to take it into account at that time. That was the reason why there was no reference to the railway station policy in his report. He said that in 1995 the view that was taken was that the railway proposal was not a relevant consideration. The railway station may or may not have impacted on the arches. In any event the process of securing the arches for a railway station would be a matter for Railtrack when they had a scheme that they wanted to proceed with. Under cross-examination by Mr Leigh, Mr Chambers accepted that the policy had a potential application. He said if the policy was engaged, he would think it had very little weight at the time. Certainly in no way would the existence of the railway proposal be a reason for refusing the application for planning permission in respect of Imperial Gardens in 1995. He said he did not recall discussing the policy with Mr Chambers. If Mr Chambers had thought it should be included he would have put it into the report. In his view it was not appropriate to delay this application where there was not even a proposal for a railway station. He did not know about the legal advice received in respect of the policy that Mr Manson, then Director of Regeneration and Environment, referred to in his evidence (see below).
- Mr Goate said that despite his conclusion that the application should be rejected, it was considered to be a high profile application because of residents' objections and Council interest and the application was therefore referred to the Planning Committee. He said that the officers could have refused the application outright and not referred it to the Planning Committee, but they did refer it for the reasons he stated.
- Mr Goate did not attend the Committee Meeting on 12 December 1995. Mr Chambers did attend the meeting.
- Mr Chambers said that he was surprised that the minute of the Planning Committee hearing on 12 December 1995 did not show that the Committee went in to closed session at one stage of the hearing. He said Councillor Ritchie addressed the meeting in his capacity as ward councillor and made suggestions as to why the application could not be given limited consent. He said that it may be that that started a debate between members and it led Ms Linacre, as lead officer, to suggest that the Committee go into closed session. He said we are talking about 15 years ago. It is not unusual, in his view, for members to disagree with officers and that is not in itself a reason for going into closed session. The reason would be for members to receive legal advice on matters put before them. He said that in this case he thinks legal advice was given in closed session, but the decision was made in open session. Mr Watson, a former Councillor of the Defendant, who had attended many planning committee meetings, said that meetings would commence in open session; if legal matters arose then advice was taken from the Borough solicitor in closed session. He said if officers disagreed with the Committee's view that was not a reason to go into closed session.
- Mr Leigh suggested to Mr Chambers that in closed session it was revealed to the Committee that there was a weakness in the UDP policy. Mr Chambers said that it is most unlikely that that would have arisen as an issue that members would want advice on. Mr Leigh suggested to him that if members had granted full planning permission that would have created a business use in a location where the railway station might be located. Mr Chambers said that other arches were in use and if these arches were subsequently required for a railway station that would be something that Railtrack would have to deal with. It was put to him that the advantage of temporary consent is that it would not be a refusal and therefore there could be no appeal; at the same time temporary consent was not full consent. Mr Stevenson in his evidence suggested that the Council had granted temporary planning permission in 1995 because they knew they needed part of the site safeguarded for the railway station. He said he suspected that having given temporary permission the Council thought the Claimants "would run away and they would preserve their site for the railway station". Mr Chambers said that he could not accept that temporary planning consent was granted as a deliberate attempt to protect the railway station.
- Mr Waters, the Defendant's planning expert, agreed with Mr Stevens, the Claimants' planning expert, that normally when members disagree with the recommendation of officers the discussion is in open session. However Mr Waters said that if the discussion touches upon a sensitive area and there is a risk of a judicial review challenge exceptionally there may be circumstances where members may wish to confer with their legal adviser in closed session. He said he had the impression that in the present case a member of the Council, Mr Ritchie, interceded on behalf of the Applicant in his capacity as ward councillor. Listening to Councillor Ritchie, members may have thought it was preferable to discuss the matter in closed session.
- Mr Stevenson suggested in his evidence that in closed session Councillor Ritchie said that the location of Imperial Gardens was the site for the railway station and it was because of what he said that temporary permission not full permission, was granted by the Committee. There is no evidence that Councillor Ritchie said this and that this was the reason for the decision. The evidence suggests that Councillor Ritchie spoke in favour of the application and not against it, as seems to be suggested.
- Finally it was suggested that there was undue delay between the Committee decision on 12 December 1995 and the issue of the decision notice on 1 August 1996 and that this was unusual. Members resolved to grant consent subject to "the usual conditions". Mr Goate said that he did not accept that he was dragging his heels during this period. The reason for the delay was the consideration that was given as to what conditions could properly be imposed (see witness statement of Mr Goate at paras 59-87 and, in particular, Mr Goate's letters to Mr Stevenson dated 15 February 2006, 16 May 2006 and 25 July 2006).
- The Decision Notice contained four conditions. The first condition was that the use permitted must be discontinued on or before 31 August 1997. This was because the permission granted was for a one year temporary permission. The stated reason was "to enable the Council to monitor the uses in operation at these premises, in particular their effect on local residents and surrounding occupiers with regard to noise, traffic generation and parking". The Claimants say that no such monitoring subsequently took place and in Mr Stevens' opinion the decision to grant temporary planning permission in this case was not reasonable. He said the only explanation he can think of for a temporary permission is that officers were able to persuade members that there was some reason not to grant full planning permission. He believes that the stated reason for the temporary consent was "specious". Mr Goate's evidence was that what was meant by "monitor" was that the Council wanted to see if the use caused any problems. If it did and these were serious, then the likelihood was that the problems would be reported to the Council by the affected members of the public or neighbouring occupiers. This reason for the grant of temporary permission, namely to allow such monitoring to take place, Mr Goate said, was by no means unique to this application. He said that it was the usual reason given for the grant of temporary planning permission.
- Mr Dennett said he had nothing to do with the 1995 application going before the Committee in December 1995. He did not attend the Committee hearing and he was not aware that consent took some time to be given.
(II) Period from grant of temporary permission until making of 1999 application
- Mr Stevenson said that the temporary planning permission that was granted "derailed our plan". Not only could they not get any investors, but all they could do was run a hire club.
- He said no-one was going to invest because they had temporary permission. Once temporary planning permission was given, they were in debt. They would not go to investors until their debts were paid off. He said he believed once monitoring by the Defendant had been done they would get full planning permission. He was confidently expecting to get full planning permission after August 1997. He said he thought they would go for investment in about 1998. When asked why they did not apply for planning until April 1999, he said they wanted to hear about what was happening to the monitoring. He said when they applied for full planning permission in April 1999 they thought that within about eight months they would be in a position to go to investors. It might be thought that if the financial success of the company depended on the grant of full planning permission the Claimants would have pursued an application with vigour at the very latest by the time temporary permission expired in August 1997. However not only did they not put in an application until April 1999, but thereafter they took no steps to follow up the application.
- Between August 1997 and April 1999 the Defendant permitted Imperial Gardens to continue to operate and did not take enforcement proceedings during that period. Mr Chambers said that at the material time there were no particular procedures when temporary consent elapsed.
- It was only after several reminders were sent by the Defendant that the application was actually made in April 1999. It followed threatened enforcement action by the Planning Department (see witness statement of Mr Chambers at C1(1)/2767-2768). THK were advised in August, September, October and November 1998 in writing and by telephone about the need for an application. Mr Stevenson said the letters were sent to the wrong address. However a file note of the Defendant's Enforcement Unite indicates that in October 1998 he said that he was submitting an application by the end of the week; he repeated this in November and there was a further conversation with an Enforcement Officer on the telephone in December 1998. He instructed Chrysos & Co. solicitors, to submit a planning application in January 1999. There are further records of relevant telephone calls in March 1999. The application was submitted under cover of a letter dated 9 April 1999 from Chrysos & Co. It makes no reference to any urgency or any disquiet on Mr Stevenson's part by reason of the failure to grant full planning permission.
(III) The 1999 planning application
- It appears that it would be the practice to allocate a renewal application to the original case officer, other things being equal. However Mr Goate said that Ms Linacre told him that Mr Stevenson said he was "jinxed" and he did not want him dealing with his application again. The 1999 application was allocated to Ms Tina Khakee. She said the difficulty with the case was obtaining information from the Claimants' agents. She wrote the report for the Sub-Committee dated 11 April 2000 which is at B2/1808. She said she did not recall discussing her recommendation with anyone before making it. Her recommendation was to grant planning permission. She said she was content to make that recommendation subject to additional information being provided. She had had a meeting with Mr Bill Foreman, a representative for Chrysos & Co., solicitors, acting for THK. In a letter dated 29 August 2000 she wrote to Chrysos & Co. as follows:
"Town and Country Planning Act 1990
Arches 341, 342, 343, and No. 299 Camberwell New Road, London SE5
I refer to the above application, which is still under consideration, and the meeting between your representative Mr Bill Foreman and myself in this office on 27 March 2000.
In this meeting, the above application was discussed and additional information was requested in order that the application could be properly assessed and given full consideration.
It was my understanding that your Mr Foreman was to gather further information with particular regard to:
- The sound insulation of the premises and in particular the main entrance porch insulation.
- The ventilation and extraction system.
- The levels of employment, the use provided during the day and in the evening.
- The entrance for the club and staff entrances.
- Confirmation of the hours of use, in particular the club nights.
- Further information on the daytime facilities/exhibitions/ acts.
- The arrangement with the parking bay to the front of the premises.
None of this information has since been received and given that the use is in existence, it would be helpful if this could be provided as soon as possible so that the application can finally be determined.
Should you require any further information or assistance, please contact Tina Khakee at the above offices."
- Ms Khakee said that she was nervous about presenting this case to Committee without being sure about these outstanding matters. She said there were a number of objections to the application (C1(1) at 2948-2954). It was, in her view, important to have answers to the objections in order to determine the planning application. Railtrack, the freeholder, was also objecting (2955). Further, there were noise complaints (2960). She had made a site visit (2956-8).
- Ms Khakee left the Defendant's employment at the end of August 2000. Before doing so she wrote a "handover note" relating to this application. She said "The main issues are the noise and disturbance caused to adjacent properties as a result of the club use. This is the reason for the previous use being given a temporary consent." The note continued as follows:
"Outstanding matters
The agent has promised to provide various pieces of additional information. Whilst these could be conditioned, it was felt to me more helpful if these details could be provided before the application was presented to Committee. The outstanding information is as follows:
- Sound insulation of the premises, in particular the porch, which allows music/noise to escape.
- Details of the ventilation and extraction system to ensure that this is suitable for the use and is provided without a detriment to adjacent occupiers.
- Confirmation of hours of the club and exhibition use during the day.
- Parking arrangements of the bays highlighted in the application documents.
- Levels of employment, which would assist the application.
Please see letter to agent on file to the agents. The most recent contact was a meeting with a representative of the company, Mr Bill Forum [Foreman], who advised that these details would be submitted shortly – that was in March.
A Committee report has been drafted on the R drive under 1999. Outstanding information will need to be incorporated when received."
- Ms Khakee was cross-examined about these "outstanding matters". As to the first bullet point, she did not know what was meant by it. She said it could have been what she was told at the site meeting. She could only assume it was something to do with sound insulation at the entrance. Not everything had been provided to allay residents' fears. As to the second bullet point, she said that she could only say that she felt that details of the ventilation system were needed. As to the third bullet point, she needed confirmation in writing. As to the fourth bullet point, again she wanted confirmation in writing from the agents. As to the fifth bullet point, she said she asked for information so that she could include it in the report in order to help the application so that she would be able to say that the application would generate employment as the site was in an employment area.
- She said it was her practice to draft a report which would be amended in due course when information was provided. It was not intended that this draft report would go before any committee in this form. This was an application that could potentially have attracted some opposition in the light of the objections that had been made so she felt it was important to have the application in order before it was presented to the Committee. The handover note, she said, was her assessment of the situation in relation to the application at the time she wrote it.
- Asked about the delay from the submission of the planning application on 9 April 1999 she said "some people are in a hurry with their application and hassle quite a bit. Some for one reason or another do not press their application. As a busy planning officer rightly or wrongly you deal first with those applications that are being pursued forcibly." She said "in this particular case it was probably not in their interest to chase. They were using it as a nightclub."
- She was asked about Mr Dennett. She said she always found him to be very knowledgeable. She described him as a very "straight guy". She said she had no reservations about his honesty and competence.
- When Ms Khakee left the Council she said she had 40-50 planning files for which she was responsible, one of which related to this application. She had no recollection of whether she physically handed the files to the Team Leader. She said she would have left them on her desk or in an appropriate place. Mr Dennett said that her files would have been left on her desk. He said there was no reason for them to be put on his desk. Thereafter they were reallocated. Mr Dennett said that he could not think of any reason why all of Ms Khakee's files would not be reallocated at about the same time in September 2000 or thereabouts. This application was re-allocated to Mr Allanah.
- Mr Allanah said he received the file within a couple of days of writing a letter dated 17 December 2001 to Chrysos & Co. In that letter he wrote:
"I refer to my colleague's previous letter to you dated 29 August 2000 regarding the above planning application. I can confirm today that there is no record to show that you have sent any of the information that was requested to progress with the above application.
I am now reminding you to forward the following information:
- The sound insulation of the proposed premises and in particular the main entrance porch insulation.
- The ventilation and extraction system.
- The levels of employment use provided during the day and in the evening.
- The entrance for the club and staff entrances.
- Confirmation of the hours of use, in particular the night club.
- Further information on the daytime facilities/exhibitions/ acts.
- The arrangement with the parking bay to the front of the premises.
If I do not hear from you in ten days time with effect from the postal date of this letter, your application would be determined as it stands."
- Chrysos & Co. replied to Mr Allanah by letter dated 21 December 2001. They wrote:
"Thank you for your letter of 17 December, 2001, regarding the above.
We have no instructions from the Applicant in connection with the matters which you have raised. We have passed your letter to him and suggested to him that he either contact the Council direct or provide instructions.
In view of the time which has elapsed since any previous action was taken in connection with the application and the intervention of the Christmas period we trust that you will not act on the application after the ten day period specified in your letter."
- On the same day, 21 December 2001, Chrysos & Co. wrote to Mr Stevenson, enclosing a copy of the letter dated 17 December 2001 from Mr Allanah as follows:
"I had understood from your conversation with Bill Foreman in early July, 2001, that you no longer wished to pursue this application. This was on the basis that planning permission for the use had been granted following the submission of a separate application. I also understood that you indicated in that conversation that you did not wish this firm to continue to act in this application.
I have acknowledged the Council's letter indicating that I have no instructions from you in connection with the application. I will do nothing further with this matter but if the application has not yet been determined I would suggest that you either contact the Council direct or take advice elsewhere.
I know from speaking to Bill Foreman that he would be willing to discuss the matter with you."
- On 2 January 2002 Mr Stevenson wrote to Mr Allanah:
"Having received your letter via Chrysos & Co. I am shocked to find out that after nearly 2 years this matter has not been dealt with. We naturally presumed that since no further correspondence had been forwarded to us that planning had been granted. I am happy to forward the information once again as detailed in your letter of 27 [17] Dec. 2001. I have tried to contact you over the Xmas and New Year period but to no avail. Your letter states that we need to respond within ten days, however your letter only arrived with us on 28th December.
Please forward all correspondence to myself at the following address: 299 Camberwell New Road, London SE5 0TF. I can be contacted on 020 7252 7170.
I look forward to hearing from you."
- On 23 January 2002 Mr Stevenson wrote to Mr Allanah providing, he said, "the relevant details" requested in his letter of 17 December 2001. Mr Stevenson concluded the letter stating:
"The club has been operating for four years holding some very successful nights. The events held at the premises are very varied, catering for all sections of the community. I hope this is enough information for you. Should you require further info please do not hesitate to contact me on [telephone number provided] or Cllr. T. Ritchie who was involved with the project from the outset and still keeps updated with the business."
- Mr Allanah said that Ms Khakee's handover note was "quite a helpful and well constructed document". He said that when he read the file he would have known that there were quite a number of objections to the application and that the nightclub was actually in operation. In those circumstances for the application to have the best chance of success he said it was sensible to await the information that was requested. There was nothing on file that he saw indicating the information had been provided.
- Asked why, if he only received the file a few days before he wrote the letter of 17 December 2001 he did not tell Chrysos & Co. that was the case. He said he did not feel there was a need to explain the long time that had elapsed since Ms Khakee's letter of 29 August 2000. He said that Mr Stevenson had phoned him before he wrote his letter of 17 December 2001 and said that they had received a letter demanding information "but I have told your people we have sent it". Mr Allanah said it was following that telephone conversation that he wrote the letter.
- No note was produced by Mr Allanah of that telephone conversation. However there is a note that he made of a later telephone conversation that he had with Mr Stevenson. In that conversation Mr Stevenson said that all the information that Ms Khakee requested had been sent to her. However Mr Allanah said there was no evidence of the sound insulation scheme and drawings on file. As a result he advised Mr Stevenson personally to deliver the drawings to him, which he said he then did. Mr Allanah said, "As soon as I received it [the drawings] I proceeded to conclude the application". He said he wrote a report to go to Committee which he handed over to his manager, Mr Dennett. Having handed the report to Mr Dennett, he had no discussion with him or with anyone else about it.
- Mr Allanah was shown a copy of the report dated 22 July 2002 (C1(1)/2983) that did go to Committee. He said it was not written by him. He said how his manager changed his report "after [he] handed it over was outside [his] control".
- Mr Dennett's evidence was that in February 2002 Mr Allanah gave to him the report of 11 April 2000 (L/9101) as his report. He did not know which part of the report was written by Ms Khakee and which part by Mr Allanah. He did not think he spoke to Mr Allanah about it. He made a number of amendments to the draft (see L/9101-9104) and it was put before the Committee for consideration on 22 July 2002.
- Mr Dennett agreed there was very little difference between the draft report of 11 April 2000 and the report that went before Committee in July 2002. He said the delay in submitting the report to Committee was because further information was awaited, as is clear from Ms Khakee's letter of 29 August 2000 and Mr Allanah's letter of 17 December 2001. He said he and Mr Cook , the Head of Development Control, asked Mr Allanah to make a site visit because they thought it would be very difficult to put the matter before Committee before checking what sound insulation measures had been carried out.
- There was the additional point that the proposed use in the application was for "continued use for public entertainment use comprising nightclub/restaurant and public exhibition hall". Mr Dennett said that he and Mr Cook decided that they needed Mr Allanah to visit the premises to see whether there was a restaurant there. An application for a restaurant could not proceed without further responses from environmental health, the previous response having been in May 1999. (See e-mails dated 17 and 18 July 2002 at C1(1)/2982A). Further, given the passage of time since the previous internal consultations Mr Cook also considered that public re-consultation should take place. The period for this was from 27 February to the end of March 2002. However on 28 March 2002 Mr Stevenson wrote stating that the applicant intended to amend their application. At a later stage he decided not to make any such amendment. Mr Dennett believed that a major reason the application was not considered until 22 July 2002 was due to difficulties in accessing the premises. The Council was also awaiting comments from the Noise Team. The Noise Team's comments in relation to sound insulation further to THK's letter of 23 January 2002 (C1(1)/2967-8) were required. On 29 January 2002 Mr Allanah had written a note to Mr Dennett, on a copy of Mr Stevenson's letter of 23 January 2002 which read "We need to conclude on this application. All the information we requested are now with us. The issue of sound insulation in this case can be conditional". However, in his evidence Mr Allanah accepted that Environmental Health would have an interest in points (1), (2) and (5) raised by Mr Stevenson in his letter. On 1 July 2002 Mr Dennett wrote to Mr Stevenson (cc Mr Allanah):
"As far as your application to renew the permission for the continued use of your own premises I hope that this will be put before our next Planning Committee on 22 July. The reason your application was not put before the most recent Committee is that the case officer had not obtained the comments of the Environmental Health Officer to the contents of your letter of 23.1.02. I consider it critical, and in your interests, that specialist advice on these two matters is available to the Committee when they come to consider your application."
In a memo dated 9 July 2002 Mr Allanah informed the Noise Team that he needed their comments by 3pm that day.
Fairview Application
- The decision granting planning permission to THK is dated 23 July 2002. However in February 2002 Fairview New Homes (Camberwell) Ltd ("Fairview") was granted planning permission for a residential housing development close to the nightclub. I turn now to consider how the grant of that planning permission to Fairview came about. The Fairview application for the construction of 57 flats related to land formerly used as a Fiat Car Showroom at 295-297 Camberwell New Road, ending within, it is alleged, 3.5 metres of the arches used by THK.
- Mr Dennett said that he was involved in initial discussions with Fairview before they submitted their planning application. It was his view that a wholly residential use would be appropriate for this site. He validated Fairview's application. As the validation officer on this application his role was to ensure that the submission was adequate; he compiled the initial consultation list and allocated the case to an officer. In order to compile a consultation list, he would use an Ordnance Survey ("OS") map and he would also check each entry in the electoral roll for neighbouring properties; however this roll only contains residential properties. The OS map did not show railway arches but only the railway viaduct. He did not include Imperial Gardens on his initial consultation list. He cannot specifically recall why this was so but he says:
"(b) looking at the OS map, I would have probably assumed that a building the size of a small box labelled as 299 was not a multi-storey building. As the building would not peek over the railway line, it would be unaffected by the Fairview development;
(c) I would have probably considered that a building of this size would probably be a small storage building and therefore it would not reach over the railway lines so could not be affected. The railway would have acted as a substantial barrier." (See his witness statement at para 47).
He said he would normally include Railtrack on his consultation list for land in the vicinity of a railway track, however, he did not include them on this list. He admits this was an error on his part but he notes that Ms Donna D'Alessandro, to whom he allocated the file as case officer, subsequently added them as a consultee.
- In summary the Claimants' case in relation to the Fairview application is as follows:
i) Neither the Claimants nor THK were notified of the application for the purposes of consultation as they should have been under the policy and practices of the Defendant (for which reason determination of the application was wrong in law for procedural impropriety); the report recommending approval of the Fairview application makes no mention of the presence, proximity or interest of Imperial Gardens. (Para 60 of the Amended Particulars of Claim).
ii) The failures to consult the Claimants or THK in respect of Imperial Gardens, and to include reference to it in the report to the Committee, were plainly not omissions based on ignorance of its presence (para 68). For the reasons set out in para 62 both the planning officer for the Fairview application, Ms D'Alessandro and Mr Dennett had personal knowledge of Imperial Gardens. It would be virtually inconceivable for anyone dealing with the Fairview applications not to be aware of the existence of the nightclub (para 62 (xi)).
iii) These can only have been deliberate omissions and acts. As such, they are wrongful irrespective of the reasons for them. The overwhelming inference is that the only reason for these omissions and acts was the intention to seek to minimise the risk that Imperial Gardens would oppose the Fairview development and strengthen or entrench its existing position which would hinder the Defendant's general regeneration objectives and/or would be inconsistent with the Medlar Road proposal for Camberwell Station; alternatively the Defendant was in pursuit of the same objectives reckless as to the consultation rights of the Claimants and/or THK. These omissions and acts constitute misfeasance; alternatively this recklessness forms part of the claims in misfeasance. (paras 69 and 70).
- Mr Huckerby, a neighbour of Imperial Gardens did not recall any site notices going up. He referred to his letter of 7 July 2001 (B4/2475). He thought the noise of the nightclub would be extremely unpleasant for anyone living next to it. He said the only two properties adjoining the site had not been consulted, nor had the nursery. It seemed to him incomprehensible that an error had occurred that had led to all three being excluded from consultation. He said he was dimly aware that a station was to be put in the area, but nothing materialised. He knew it might conceivably happen at some stage, but he was always doubtful about it.
- Ms Carmen Lindsay, founder of a charity, the Camberwell After School Project, said that one of the Project's three centres was at 14 Badsworth Road, opposite the Fairview development. She said they did not receive notice of the development. She did not notice any site notice. They had concerns about the Fairview development in relation to natural light which may have been impaired and also concern about a pathway. She referred to correspondence with the Defendant (B4/2621-2623 and 2625-2626) and said it was not correct that there was consultation with them. She said at no time were they consulted with regard to Fairview. She also referred to the fact that previously they were not given notification of a drug rehabilitation centre that opened close to the Badsworth Road centre. She said she thought the Defendant just wanted to keep it quiet. However there was publicity in the press about it.
- During the police investigation into the Fairview application Ms D'Alessandro made a witness statement dated 11 March 2005 ("WS"). That statement was admitted in evidence by agreement between the parties, she having returned to Australia of which country she is a national. She was employed by the Defendant from January 1998 until September 2002. In her statement she sets out in detail her involvement in the Fairview application. Material parts of her evidence include the following:
i) The planning department received the application on or around 11 May 2001. The case was allocated to her by Mr Dennett on or around 15 June 2001.
ii) Fairview made two applications at the same time. This is not unusual for it allows the company to exercise their appeal rights if for some reason one of the applications is being held up and was not progressing within the eight week period. By making an application in this way they are effectively forcing the Council to act within the period. (Page 3 of WS).
iii) She said: "I have been shown a validation sheet dated 14 May 2001, numbered 0100827, containing some handwriting at the bottom. I can confirm that this is my handwriting. This handwriting relates to additional consultees to the application that I had identified… As the application was on a major road TfL (Transport for London) were notified. The site was also abutted by a railway so I added Railtrack and the Camberwell Society, who have an input on developments within conservation areas. Although the site was not in the conservation area I thought it was important to notify them." (Page 4 of WS).
iv) She said: "I note from [the validation sheet] that the press and site notices state 'No' for this application but I certainly did put up the site notice.
The duplication application 0100828 has a validation sheet also made against it; the consultees on this sheet are simply shown 'as per 53364'. This denotes that the consultees are to be the same for both applications. I notice that the press notice and site notice for this application are 'Yes'. This indicated that a site notice was produced and a press notice". (Page 4 of WS).
v) She said: "Upon receipt of the application I looked at the plans and supporting information, I then remember going out to the site, this was on 12 July 2001, in the morning. … At the site I arrived with the plans, site notices and a digital camera, the camera was one which belonged to the [Defendant]. Using the camera I took photographs of the site from a number of angles. … Amongst the photographs that I took, I remember taking a photograph from the corner of Camberwell Station Road looking along Camberwell New Road (towards London and the development site), beneath the railway arch. However, when I got back to the office and downloaded the pictures from the digital camera I was only able to see the viaduct wall (due to the low viaduct bridge), therefore I did not print this as it did not show the site and was of no benefit." (Page 6 of WS).
vi) She said: "I remember putting up six site notices. There were three notices for each application… The notices were placed at each corner of the triangular site being affixed to the wire mesh fencing surrounding the site. I fixed the notices to the fence with string (two in Medlar Street, at the end of the alleyway next to the viaduct, two in Camberwell New Road, again at the end of the alleyway and two at the junction of Camberwell New Road and Medlar Street. The notices were printed on white A4 paper, which was laminated, the normal method for notices within the borough and were secured at a height which was easily visible for persons." (Page 6 WS).
vii) She said: "As part of my site visit I walked to the side, I distinctly remember I walked along the alleyway from Medlar Street to Camberwell New Road, as I felt quite insecure and vulnerable. The showroom was very close to the boundary and as you progressed along the alleyway you went out of the visual sight of other persons. The alleyway itself was dirty; graffiti-ridden, and because of the higher adjoining walls quite dark. There were a number of doors (I cannot remember how many in total) in the alleyway which were locked. I am able to say that they were locked as I remember them being secured with padlocks. I distinctly remember that there was no signage above or adjacent to the doors…
I have been shown a photograph… In approximately the centre of the photograph is a grill door adjacent to the orange hoarding. I am told that this is the entrance to Imperial Garden Nightclub situated within the arches of the viaduct. I have thought long and hard about this and can honestly say that I do not recall seeing this property at the time I visited the site. I can only state it is a mistake on my part, had I known about the club I would have added them to the consultation list and ensured that they received a letter of consultation as per all the other consultees. However I did notify Railtrack (owners of the viaduct) who I feel should have notified their tenants and there were two site notices (one for 0100827 and one for 0100828) less than three metres from entrance to the club (located on the fence at the entrance to the alleyway from Camberwell New Road)". (Pages 6-7 of WS).
viii) She said: "I have been shown a letter from Mr Huckerby dated 7 July 2001 within it he makes a number of objections to the proposal but agrees with the proposed scheme in principle making use of the land. Upon receipt of this letter I can only think that I did not read it fully. I must have scanned through it looking for planning issues contained within. I can honestly state that I made a genuine mistake and stopped reading the letter prior to the bottom two lines where he mentions the existence of the nightclub. I cannot remember speaking to Mr Huckerby but I am told I spoke to him on the telephone, we would have discussed the application but I cannot remember what we said. Later, when compiling my report I summarised the planning issues highlighted by him and as I had not read the last lines I did not mention the club within my report." (Page 8 of WS).
ix) She said: "Referring to the Committee Report that I compiled, due to the working conditions and environment within the office I wrote the majority of this report at home on my personal computer." (Page 10 of WS). "…I have noticed that there are a number of errors within it, the mistakes are genuine errors and I had no intention to deceive any person… Contained within the 'Consultees replies from' section I have stated that 272 Camberwell New Road had no objections to the overall proposal but had concerns with the height, massing and design; this is correct as [Mr Huckerby] did have a number of concerns but as I had earlier not picked up on the two-line mention of the nightclub I again did not refer to this in my report. As stated above these are genuine errors, which I regret and I had no intention of deceiving the members of the Committee". (Pages 11-12 of WS).
x) She said: "As the development was a breach of the Unitary Development Plan (UDP) this meant that it had to be referred to the Government Office for London (GOL), who would decide whether to approve the departure or whether to call it in for Ministerial approval. On 29 October 2001 I submitted a file… to them for determination. On 21 November 2001, the GOL wrote back to me stating that they would not intervene and would allow the Council to depart from the UDP (which is a public document, available to members of the public)." (Page 12 of WS).
xi) She said: "I have been asked about [my] knowledge and dealing with the proposed New Camberwell station. I can state that I knew of it and that it was a proposal within the UDP but I had no dealings with it and as it was only a proposal you never took this into consideration when dealing with your planning application. The idea for a new station was in the public domain as you would often see details about it within the local paper. I had no dealings with the proposal, did not know of the proposal sites and had not seen any of the proposal ideas. I was not aware of and had no knowledge of what if any businesses would be affected by its construction.
I have been asked where the proposed site for the station development was, I believe it was south of Camberwell New Road." (Page 19 of WS).
xii) Commenting on the Audit Commission Report Ms D'Alessandro said, "at no time during this investigation was I ever contacted." She said the report portrays her as an inadequate planner and she is blamed for events in the processing and assessment of the planning applications which would have been overcome if she had been contacted and interviewed. She said "Whilst I now reside in Australia, I could have been contacted and interviewed over the telephone or correspondence via e-mail." (Page 22 of WS).
xiii) Commenting on para 47 of the Report, she said "My site visit did 'not highlight the existence of the Imperial Gardens Nightclub' because I visited the application site during the day. I walked past the entrance to the nightclub as shown to me by photographs. The nightclub is not highly visible from Camberwell New Road. I walked along Camberwell New Road into Medlar Street. I clearly remember walking along the alleyway from the south between the application site which contained showroom along the boundary with the railway. The alleyway was not pleasant to walk along and I felt very insecure given there was no exposure from either road as you were buried between the showroom and the railway. There were a number of doors leading out from the railway arches into the alleyway. I took particular notice of these doors to see whether there was any identity of the occupants of the railway. As they were clearly locked and there was no activity I presumed that the railway arches were not occupied. There was also [no] indication that these doors were used as fire exit doors given they were heavily locked. However, I added Railtrack to the consultation list as noted in my handwriting on the validation sheet (also mentioned above)."
xiv) Commenting on paragraph 55 of the Report, she said "I regret that I did not take note of the last two lines of Mr Huckerby's response letter of 7 July 2001. I recall reading his planning concerns and did not take note of his comments regarding the nightclub. I had summarised his planning objections in the recommendation report to the Development Control Committee. It is also regrettable that either Mark Dennett or Andrew Cook, who cleared my recommendation report to the Development Control Committee, failed to read Mr Huckerby's letter given there are only two letters of objections received for this application. Whilst I acknowledge that I am the Case Officer and responsible for the applications, I was dealing with a number of planning applications at the time. There were fifteen items on this particular Development Control Committee, and therefore both Mark and Andrew should have been more thorough when clearing my report." (Page 24 of WS).
xv) She said: "Whilst dealing with this application I was not put under any pressure from the local councillors and in no way did they try to influence the process". (Page 25 of WS).
- The Fairview application was considered at a Development Control Committee meeting on 24 October 2001. Ms D'Alessandro did not attend that meeting, however Mr Dennett and Mr Cook did. At paragraph 65 of the Amended Particulars of Claim it is said that "the evidence of what transpired at the Committee Hearing is contradictory". A note produced by the clerk suggests that Councillor Ritchie, who was the only one of the four members of the Committee who definitely did know of the existence of Imperial Gardens, asked a question about the proximity of Imperial Gardens to the Fairview site and was told that it would not affect "affordable housing". The Claimants allege that this answer was "incorrect and untenable, probably at any time but least of all in recent years when behaviour in and around residential areas has become a major public policy priority" (para 67). They allege that, in view of its proximity, issues of sound of loud amplified music and departing clients, this made the juxtaposition of residential premises and a nightclub wholly inappropriate from a planning perspective. It is said that had the Claimants objected to the Fairview application and had this been reported to the Committee, the application would have been refused. (Para 67).
- The only person present at the Committee hearing to give evidence at this trial was Mr Dennett. He said he had no recollection of Imperial Gardens being mentioned. He accepted that the minutes of the meeting recorded the question from Councillor Ritchie: "Issue of nightclub near site, would this not affect affordable housing?" He said neither he nor Mr Cook picked up on this. However he did not remember the question being asked.
The Claimants' evidence
- Mr Stevenson, the First Claimant, gave evidence over five days. His witness statement dated 11 December 2009, which is 122 pages in length ("WS"), stood as his evidence in chief.
- Mr Stevenson said that he is a Music Promoter. In 1989 he met Ms Hinton, the Second Claimant, and they decided to set up a business together, with the assistance of Mr Taylor, the Third Claimant. In early 1995 Mr Stevenson and Ms Hinton came up with the idea of looking for their own nightclub. They spoke to Mr Taylor about their business plan. The original plan was to develop a production house and nightclub. Opening a production house was an American concept which was effectively a building in commercial use 24 hours per day, funded by a nightclub. The plan was to spend their own monies obtaining the necessary licences and planning permission, and then prepare the nightclub as a shell and present it to investors. In addition to Mr Taylor they spoke to Mr Alan Miller and Mr David Williams, both of whom expressed an interest in financing the project, and there were also other potential investors.
- Mr Stevenson's responsibility was to find the venue and negotiate the lease. He said, with the assistance of Ms Hinton, he would liaise with the Defendant's departments, such as licensing, planning, building control, the fire brigade and the Police. After an extensive search for a venue, he remembered a nightclub that used to be in railway arches in Camberwell New Road, Camberwell, London SE5. He went to the railway arches where he found the lobbied entrance to 299 Camberwell New Road. He contacted Railtrack who were the freeholders of the arches. On 7 June 1995 he met with Mr Alisdair Clements, the Letting Negotiator who worked for Spacia, Railtrack's property division, and he had two further meetings during September and October 1995 with regard to the arches. He said that on his inspection of arches 342 and 343 there were clearly remnants of a nightclub. He also wanted arches 340 and 341 for recording studios and his management company. Arch 341 would be a cinema/chill out room for the nightclub and arch 340 would house ancillary activities such as the recording studio, cinema and rehearsal rooms. He said that unless all four arches were available he would look elsewhere as the space would not cater for all their needs. They had budgeted £30-40,000 to redevelop all four arches, including structural work and the shell of a nightclub, minus the décor, fixtures and fittings, sound, lights, toilets, CCTV and fire alarms.
- On 14 August 1995 they submitted an application for a music and dance licence to the Defendant's licensing department. They had various site meetings with the police, fire officers, and the Defendant's officers. From a very early stage, the fire officer made it clear that if they intended to link the four arches together, the egress route would need to be down either side of the arches, running in opposite directions leading to two escape routes into Medlar Street and two escape routes to Camberwell New Road.
- On 4 September 1995 they were granted a liquor licence, in the name of Mr Taylor and another person, for arch 343 in accordance with their plan to open for Christmas 1995.
- On 25 September 1995 they submitted an application for planning to the Defendant.
- In October 1995 they entered into discussions with Railtrack for a lease of the four arches. A tenancy agreement for arches 342 and 343, known as 299 Camberwell New Road, was granted to Mr Taylor, effectively for THK, on 20 November 1995. Mr Stevenson said that Railtrack had promised to grant a lease for arches 340 and 341, once the lease on arches 342 and 343 had been finalised. This was disputed by Railtrack and there was a long-running dispute between the Claimants and Railtrack relating both to this matter and to the egress routes to the four arches. Suffice to say that at trial Mr Stevenson accepted the position as recorded in a judgment given by Judge Wakefield on 30 October 2003 in Railtrack v Taylor and THK World Entertainments Ltd that, inter alia, there was never any concluded agreement between Railtrack and the Claimants and/or THK for the grant of a lease for arches 340/341.
- Mr Stevenson said that soon after they applied for planning permission and a music and dance licence they were met with objections from the Chairman of the Defendant's Licensing Panel, Councillor Tony Ritchie and delays from the Planning and Licensing Departments. Mr Stevenson says that around the time the tenancy agreement for arches 342 and 343 was entered into on 20 November 1995.
"We started to feel as if something was not quite right, and I have to say sadly, at the time, I believed it was racially motivated. I now realise that it was simply the Defendant procrastinating to protect its aspirations for the train station." (Para 76 of witness statement).
Mr Stevenson said that both the Defendant and Railtrack were safeguarding their objective, namely that a train station be located at the Imperial Gardens site. During the planning process they became very suspicious of the Defendant so they decided to present a comprehensive package to deal with potential concerns any objectors had regarding parking, noise, and their management. The information was contained in brochures that were submitted for consideration at the Planning Committee hearing on 12 December 1995. When they were informed the night before the Planning Committee hearing that the Defendant was opposing their planning application, such was their concern that they organised taxis to deliver these brochures to all the councillors who sat on the Planning Committee panel.
- At the Planning Committee hearing on 12 December 1995, Mr Stevenson said "The Chair announced they were mindful to give full unconditional planning, when one of the officers asked to go into a closed session. We were asked to leave. At the time we had no idea why there was this closed session which is most unusual, and suspect the train station aspirations were discussed. When we were invited back into the room, the Officer changed his recommendation to grant temporary planning permission for one year."
- Mr Stevenson said that upon being granted temporary planning permission, they realised the implications it would have on the financing of their project. He said "Temporary planning was granted to derail the nightclub. They would of course have been aware that no developer, bank or investor would want to loan vast amounts of money on a nightclub with temporary planning." (WS, para 91)
- Mr Stevenson said that following the grant of temporary planning permission they devised "a temporary plan" to turn the nightclub into a basic hire venue. He described "the precarious position" they were in due to the fact that they could not raise finance on the temporary planning permission.
- On 1 August 1996 temporary planning permission was approved by the Defendant and was stated to be granted until 31 August 1997. On 15 September 1996 Imperial Gardens nightclub opened. No enforcement action was taken by the Defendant upon the expiry of temporary planning permission. Mr Stevenson said they "assumed" that they would be granted full planning permission if the monitoring, which they were told was taking place, was favourable. He said they were conscious not to push the Defendant because of issues that had arisen after a shooting incident at Imperial Gardens in March 1997. In fact the incident had nothing to do with their establishment, nevertheless the police objected to their occasional licence application in March and April 1997 for the variation of a music and dance licence which led to a licensing hearing, but not only did they keep their licence but they were granted an extension of the licence.
- Mr Stevenson said that on 2 November 1998 they instructed a firm of local solicitors, Chrysos & Co., to submit a planning application to the Defendant. Mr Chrysos was very busy and said this was not a straightforward application. He therefore instructed Mr William Foreman, who was a planning solicitor to assist with this planning application. On 11 January 1999 Chrysos & Co. wrote to them advising that they were preparing their planning application. On 9 April 1999 Chrysos & Co. submitted a further planning application on their behalf for permanent planning permission. In the accompanying letter dated 4 April 1999 Chrysos informed the Defendant that the Defendant should rely on the information sent to them with their previous application. Mr Stevenson said due to the extra building works they submitted new plans and drawings, taking into consideration the planning application for new toilets and stairs in arches 340 and 341. Also various questions were answered and information provided about staffing levels. In April 1999 Spacia responded after being consulted by the Defendant. They opposed the application. Mr Stevenson said that after submitting their planning application they became increasingly concerned with Mr Foreman who "appeared to be trying to complicate the application". Mr Stevenson said:
"Having made a new application for permanent permission we believed, once the Defendant had included the monitoring information, they should have supported our application. We did not hear anything from the Council for an entire year during 1999, so we assumed that it was accepted. During this time we made numerous telephone calls to the Planning Department and on each occasion, we were told not to worry and that they were very busy." (WS, para 178).
- During 1999 Mr Stevenson said they were having a dispute with Spacia concerning their claim that the Claimants/THK did not have a lease for arches 340 and 341 and the egress route was disputed. He said:
"We felt that Spacia were trying to put obstacles in our way to prevent us from operating in the premises. It was obvious to us that certain employees within Spacia were acting in such a way that they were trying to stop our business from expanding because they had a bigger interest in the train station and Sainsbury's development." (WS, para 183).
- Mr Stevenson said he thinks that Mr Dennett intended to keep their 1999 planning application "on hold" in order to protect the Defendant's wider planning aspirations for the area. He believes that there was wilful delay in the Imperial Gardens application for planning permission which was "deliberate policy of the Defendant rather than the act of a single errant planning officer". (WS para 198).
- On 29 August 2000 the Defendant wrote to Chrysos & Co. requesting further information for the planning application. Mr Stevenson said they had already made it clear in April 1999 that they wanted their application to be judged on the documents and reports that were submitted in 1995 and 1999. They suspected at the time that they were asking for more information to drag out the application. He said this certainly seems to be the case when you consider that in 2002 the Defendant judged the application on the same information.
- Mr Stevenson said he believed that if the Defendant's planning officers were able to ensure that Imperial Gardens' planning application was determined after Fairview's application, then there would not be a problem for Fairview. He did not believe that Ms D'Alessandro put up site notices in relation to the Fairview application.
- On 17 December 2001 Mr Allanah wrote to Chrysos & Co. requesting further information concerning the application. On 21 December 2001 Chrysos & Co. wrote to the Defendant advising that they were no longer instructed on behalf of the Claimants. Mr Stevenson said:
"The reason why we dis-instructed Chrysos & Co. was because we believed that our planning application submitted to the Defendant had been accepted. We were unaware that they were asking for additional material until we received Emmanuel Allanah's letter dated 17 December 2001… I replied to Emmanuel Allanah's letter on 2 January 2002 expressing surprise at the application not being granted. However, I was happy to forward the information requested in his letter of 17 December 2001. During the Christmas period, I had tried to contact him but was unable to do so. … We wrote to Mr Allanah on 2 January 2002 where we said that we actually presumed that our planning permission had been granted by a delegated decision." (WS, para 274).
- Mr Stevenson said that on 23 January 2002 they sent a further letter to Mr Allanah enclosing the relevant details that he required for the planning application. The details they sent him were in relation to the sound insulation which had already been sent in April 1999 with their application. He said:
"We believe this was sufficient for the Planning Department to determine our application as they did with the original application in 1995. The basis of information that we sent in 1999, which is consistent with the 1999 document, which recommends to grant. This was the same information they eventually used to grant us planning in July 2002, even though it was now in conflict with Fairview's scheme." (WS, para 275).
- Mr Stevenson said that in February 2002, one of their members of staff had seen a man outside the Medlar Street entrance to the nightclub taking photographs and had informed them about this. He said he and Ms Hinton went outside and spoke to a person who identified himself as Emmanuel Allanah, the Planning Officer for the Defendant who was allocated to look after their planning application. Mr Stevenson said that he accused him of delaying their planning application. He did not get a straight answer from him. Mr Allanah said there were things going on and he was only doing whatever his line manager had told him. Mr Stevenson said later they telephoned him and asked what he meant. He said he was willing to meet them in private and explain what was going on with their application. The meeting took place after they discovered and complained about the Fairview development. Mr Stevenson said that Mr Allanah "informed us that the Defendant had deliberately sat on our planning application and it was nothing to do with him. He pointed the finger at Mark Dennett and Phil Chambers". (WS, para 286).
- Mr Stevenson said that if their application had been heard before the Fairview Homes application they would not be in the position they are now in because their existence would have highlighted the conflict with Fairview's application and "at least forced a redesign with the noise sensitive flats at the end of the site". (WS, para 338).
- Mr Stevenson said it took eight weeks for the Defendant to respond to their letter of complaint of 7 March 2002. With regard to the delay he said he thinks it was to stop the Claimants applying for a judicial review.
- Mr Stevenson said that on 7 May 2003 Mr Allanah resigned from the Defendant. He said before he did so "he phoned us to explain that Mark Dennett asked him to hold up our planning. He warned us that Phil Chambers was also involved. He complained that he also suffered discrimination." (WS, para 397).
- Mr Stevenson believes that there was a conspiracy to cover up anything that proved the Defendant was "negligent/misfeasant". (WS, para 47). He believes "the Defendant had set out to derail our enterprise and strangle it at birth". (WS, para 420). Mr Stevenson said:
"When I first discovered Fairview were building flats three metres from our site, we were told this was a simple mistake in failing to consult us. However, it has become clear after many years of investigating the issues that there was a connection between being granted temporary planning in 1995 and the way we have been treated up until today. All of which relates to our attempt to establish a nightclub at 299 Camberwell New Road which we later discovered was the Defendant's chosen site for a train station and other regeneration schemes. … Having set out to deny Imperial Gardens' planning as early as 1995, the officers Mark Dennett, Andy Cook, Phil Chambers and Neil Goate continued with the policy. If the Defendant and Railtrack had been honest with us from day one, we would never have pursued these premises." (WS, para 425).
- Mr Stevenson said that the planning application in 1995 was the first time that he had been involved in the planning process.
- He said that they were most concerned that the application was not validated by 11 October 1995; they had given all information required for validation by that time.
- Mr Goate had said the words "public entertainment and production house" (C3/3895, para 11) were very vague and a number of words used were not clear. Mr Stevenson thought the Council knew the impact of their club on the train station and that was the reason why Mr Goate delayed the application in October 1995. He thought Mr Chambers, not Mr Goate, was running the application.
- Mr Stevenson accepted there were a number of objections from consultees (C3/3899). It was not unreasonable, he said, to consult the traffic group. Mr Kent, the Traffic Group Manager, recommended refusal of the application for traffic reasons (C3/3975). Mr Stevenson was not saying that Mr Goate was acting improperly or writing the recommendation improperly.
- Mr Stevenson was referred by Lord Faulks QC for the Defendant to Mr Goate's report at C3/3900. At para 48 Mr Goate referred to his main concern, being the impact on the amenity of nearby residents; at para 49 that the decision was very much on balance; and at para 50 that the matter should be referred to the Planning Committee because of it being a high profile case. Mr Stevenson said he thought that the decision was "coloured by the train station".
- As for the Committee meeting on 12 December 1995, Mr Stevenson said the minutes of the meeting are very short (C3/4019); they were not asked to attend the private meeting and in the circumstances "all we can think is that Cllr Ritchie said "this is the site for the train station".
- Mr Stevenson said that they would have run a mile if they had been told about the railway station. He said the Council may have been confused about how the UDP worked. He thought the Council felt, in order to get the UDP to have jurisdiction under the arches, they would have a problem. Someone had made a basic mistake. They had highlighted the wall next to the site for land use terms and the Council could not now say they had protected Imperial Gardens for the railway station. The UDP does not highlight Imperial Gardens' fire escape and arches. Either the Council felt they could not activate the UDP or they made a mistake as to what they could do.
- Mr Stevenson said that in early February 1996 Railtrack took away their egress route so mayhem broke out. They reneged on the agreement they had made. He said the fire escape route was being safeguarded for the Council. Mr Stevenson said that they now knew that Railtrack behaved as they did because of what the Council offered them.
- Financially, Mr Stevenson said, in the first year it was a case of taking from Peter to pay Paul. He said in early days, the first two years, it was a nightmare. He himself took cash from the cash takings from the bar to pay the debtors as they turned up at the club. He said they had people waiting in the club for money they owed. Once temporary planning was given, he said they were in debt. Bar takings were the only source of income. Occasionally they obtained a percentage of door money.
- Asked why they did not apply for planning until April 1999, he said they wanted to hear about what was happening to the monitoring of the club. They had to get rid of their debt before going to investors. They also had to get the building up to scratch and improve the facilities before doing so. He said in April 1999 when they applied for full planning permission they thought that within about eight months they would be in a position to go to investors.
- Mr Stevenson said the fire egress route issue was initiated by the Council. The only person to benefit was the Defendant. He said "Railtrack was doing Southwark's bidding". They believed that Southwark scuppered all the deals they had on the table. The Defendant bullied their landlord, Railtrack. That is why they did not get arches 340 and 341. Railtrack deliberately reneged on their agreement.
- As for the 1999 application: Mr Stevenson says that he phoned and spoke to Mr Goate. However he accepts that he wrote no letters following up these telephone calls. Mr Goate's evidence was that he did not deal with the 1999 application.
- Mr Stevenson said he says he was astounded and angry about Mr Allanah's letter dated 17 December 2000. As for the delay he said "most probably, knowing me, I did hurry the Council along. Most probably I did write letters during 2000 and 2001".
- When questioned by Lord Faulks QC about his statement that Mr Allanah informed him that the Defendant had deliberately sat on their planning application and that the people responsible were Mr Dennett and Mr Chambers, Mr Stevenson accepted that there was nothing in the statement Mr Allanah made to the police (D/5419 at 5421-5422) about this. Mr Stevenson believed that Mr Dennett and Mr Chambers had been deliberately sitting on their application even before the Fairview application was made.
- Mr Stevenson said that for him "the key to the whole thing was getting full planning permission".
- Mr Stevenson explained why the 6am licence they had was so valuable.
- Mr Stevenson said that in December 2003 he had a meeting with Councillor Nick Stanton (Leader of the Council) and others when the issues of the nightclub and Fairview were discussed. He said Mr Stanton talked about how the Council could assist them and he mentioned a relocation and compensation package of £500,000. Mr Stevenson said he asked Mr Stanton to put this in writing but the letter never materialised. He said the offer was subsequently discussed at a full Council meeting. Mr Berry, who conducted a review of the Fairview planning application on behalf of the Defendant said that he attended a meeting at Peckham Town Hall where a suggestion was made that compensation be paid to Mr Stevenson. He said an offer of a sum of about £500,000 was "circulating in the ether". It came from Cllr Stanton. He did not know if it was tabled.
- Ms Hinton, the Second Claimant, gave evidence. She said she dealt with the day-to-day finances of the nightclub. Running a nightclub was a new venture. Mr Taylor, the Third Claimant, provided the money; he was the only signatory for THK's bank account; he was the licensee. She said she didn't deal with planning matters. Mr Stevenson did. She said getting full planning permission was Mr Stevenson's task. She left that to him. She was concerned as to why planning permission was not forthcoming. She was frustrated throughout the whole planning process.
- Ms Hinton was referred to the budget at B3/para 27. She said the first stage was to secure the shell of the nightclub. That cost £30-60,000. The second stage was to go to investors to redevelop all the four arches as a nightclub. The figure of £300-400,000 was to cover both stages. She said they had £32,000 for stage one from Mr Taylor and Mr Stevenson plus small amounts from small investors. Stage two would involve outside finance or Mr Taylor. That stage was not reached because full planning permission was not obtained. She said she liaised with six/seven building firms to obtain 90 days' credit; but for the fire escape problem they would have been up and running in March 1996, but with the fire escape problem it was seven/eight months later. She said the builders were less than pleased. As soon as money came in the builders sat in the bars and collected their money. In the early days they received letters from people not being paid, final demands and communications from court bailiffs, but they had good relationships with them. She said the Claimants were never concerned about the future viability of the nightclub if full planning permission was obtained.
- There was no evidence from Mr Taylor, the Third Claimant. There was no witness statement from him. Ms Hinton described Mr Taylor as the Finance Director of THK. He provided financial support for the company in the early days. (G1/7205).
- For reasons that will become clear it is not necessary for me to consider the evidence I heard with regard to potential investors in Imperial Gardens or licensing matters. Nevertheless I do record that Mr Miller, described by Mr Leigh as "a high flying and successful entrepreneur", said he was impressed with the Claimants. He admired their energy and imagination. He thought they should make a go of it. He thought they had everything except for full planning consent. As for investors, he said you only had one bite of the cherry with investors. He discussed matters with them in general terms, but did not get beyond that to a concrete proposal.
- Ms Wettstein-Sarich invested £5,000 in the club for a 100% return. She said she was very happy with her investment. It came back in dribs and drabs and she received back all moneys owed to her. She said she invested the money on the basis that the Claimants had a good reputation. She found them to be very efficient and organised.
- Pc McNally said that as a licensing officer he did not have a concern about the club. He said Mr Stevenson expressed himself in a forthright manner. He never found Mr Stevenson or Ms Hinton to be aggressive. He gave a reference for Mr Stevenson on 16 July 2002 (B3/2141) and he stood by what he wrote.
- Mr Parkins, who was the licensing manager for the whole borough during the relevant period, had various site meetings with Mr Stevenson and Ms Hinton. He said of Mr Stevenson, "certainly he was assertive".
Railtrack
- Railtrack Plc ("Railtrack") is the freeholder of railway arches between Camberwell New Road and Medlar Street in Camberwell which include arches 339 to 343. The Third Claimant was granted a tenancy of arches 342 and 343 by Railtrack under a formal Tenancy Agreement dated 20 November 1995. The permitted use was "as a nightclub and musical studio and for such other associated purposes with the prior written consent of the Company (Railtrack)". In Railtrack v Taylor and THK World Entertainments Ltd the learned judge found that THK was the beneficial owner of the tenancy.
- The Tenancy Agreement provided for a stepped rent over the first three years (£7,000, £9,000 and £10,000). There was to be a rent review after three years. The tenancy was determinable on six months' notice by either party (subject to the Landlord and Tenant Act 1954 ("the 1954 Act")). There was a provision for forfeiture in the event of rent being 21 days overdue.
- The litigation concerned all the arches 339 to 343. Substantial rent arrears had accumulated in respect of arches 342 and 343. One of the issues was whether the tenancy of those arches had been forfeited for non-payment of rent by the service of the proceedings. Other issues concerned THK's occupation of arches 340 and 341 and also THK's occupation of arch 339. THK's Defence and Counterclaim claimed THK should be entitled to set off their arrears of rent for arches 342 and 343 against damages they were seeking for loss of business arising out of sound interference at the Arches and alleged delays in opening the nightclub (resulting from structural defects in Arch 343 and a dispute over fire exits).
- The judge found that neither Mr Taylor nor THK had the right to occupy any arches other than arches 342 and 343. THK had previously been in negotiations with Railtrack for a tenancy of arches 340 and 341. However there was no concluded agreement for a tenancy or lease of those arches. THK was a tenant at will of arches 340 and 341 from January 1996 while negotiations for a tenancy with Railtrack were still ongoing. During this time Railtrack were aware of THK's occupation and acquiesced to it. The tenancy at will continued until July 1996 when a letter was sent to Mr Taylor withdrawing the offer of a tenancy on arches 340/341. Further negotiations then took place and as a result the tenancy at will revived and was not terminated until December 2000 when a letter was sent by Railtrack's solicitors to THK's solicitors ending the tenancy with effect from 3 January 2001. As for arch 339, THK's occupation of that arch was without having obtained Railtrack's licence or consent. It followed that THK were trespassing by using arch 339. The trespass took place from 10 October 1999 continuously until 10 August 2000. The trespass involved the use of the arch as an annex to the nightclub.
- Mr Taylor was ordered to pay £30,167.42 plus interest in respect of the rent arrears for arches 342 and 343. This was the total amount claimed by Railtrack less a deduction of £12,696 which the judge held Mr Taylor/THK were entitled to set off for the costs associated with putting the fire escape through Arch 341 and for two months' loss of profits for the delays encountered in opening the nightclub. Railtrack were also awarded £20,680 plus interest as damages for THK's unlawful occupation and use of arches 339, 340 and 341, as well as a further £41,152 plus interest in respect of mesne profits arising out of THK's use of arches 339, 340/341 and 342/343. THK were also ordered to give Railtrack possession of arches 339, 340/341 and 342/343 (subject to THK making an application for relief from forfeiture in respect of arches 342 and 343). Railtrack were awarded their costs.
- Ms Winstanley had responsibility at Spacia, the arm of Railtrack which mainly dealt with railway arches and the property around the stations/tracks, for managing arches 342 and 343 from the time she joined in January 2000. She took the decision to issue court proceedings, which were issued by Railtrack in June 2001, in order to try to recover the rent arrears in respect of arches 342 and 343 and regain possession of the other arches. She did so having taken the advice of Spacia's solicitors and Counsel.
- Ms Winstanley said that the decision she took to institute legal proceedings had absolutely nothing to do with either Southwark Council or any other plans they or Railtrack had for a new station. In her witness statement Ms Winstanley said:
"47. Had Railtrack actually wanted to build a new Camberwell station on this site and so needed to remove the tenants of any arches required for the work, then the most practical way of achieving that aim would have been to serve an opposing section 25 notice under the Landlord and Tenant Act 1954 opposing the renewal of the lease based on section 30(1)(f) and/or section 30(1)(g) of the Landlord and Tenant Act 1954 on the grounds of redevelopment or owner occupation. This would have entitled Railtrack to refuse renewal of the tenancy (which was only an annual tenancy) on the grounds that they intended to undertake substantial construction work which could not be carried out with the tenant in place. …
48. Given that Railtrack would always have had this option open to it to refuse renewal of the lease, the most financially sensible course of action, had it been intended to build the station, would have been to leave any existing tenants in place until the latest possible date so that Railtrack continued to receive rent. Given that major projects such as the construction of a new station take many years to come to fruition, it would have been foolish to get rid of rent-paying tenants years before any work could possibly start, especially given the difficulty in finding tenants for these arches in the first place. …
50. The fact of the matter is that had THK been good tenants and paid their rent, it would very much have been in Railtrack's interests for them to remain in occupation of the Arches…"
- During the rent arrears litigation and in the present proceedings Mr Stevenson has made repeated allegations of racism against Ms Winstanley which she says she has found it increasingly difficult and distressing to cope with. He made allegations against her that she was in league with the Defendant and that there was a racially motivated decision to destroy Imperial Gardens. However, as I have noted, the allegations of racial discrimination are not now pursued.
- Mr Stevenson said that at a meeting in 2004 held after the Railtrack proceedings the three Claimants met with Mr John Armitt and Ms Sue Clarke of Railtrack/Network Rail in the presence of Ms Harriet Harman, their local MP. He said that they presented new evidence to Mr Armitt to prove that Railtrack's witnesses had misled the court. Mr Stevenson said the evidence showed that, contrary to what Ms Winstanley had previously said. He said it showed she was aware of the Defendant's aspirations for a train station and had spoken to the Defendant's officers about it. He said that at this meeting an agreement was reached that the Claimants would not attempt to overturn the judgment or pursue the matter further on the understanding that Railtrack would not enforce a charging order secured on Mr Taylor's property for arrears of rent, legal costs and interest. The charge amounted to approximately £350,000 plus interest. Mr Stevenson says "this is a significant amount of money to be written off and in my opinion clearly shows that there was wrongdoing." (WS of Mr Stevenson, para 114). Ms Winstanley said that the charge was not enforced against Mr Taylor's house as "an act of goodwill".
- Part of the "new evidence" came from a telephone conversation that Mr Stevenson had with Ms Winstanley that he recorded, unbeknown to her. He says the conversation supports his case and she was being "cagey" during the conversation.
- Under cross-examination by Lord Faulks QC Mr Stevenson said that Mr Armitt was not at the meeting, but that a senior officer from Spacia was. He said the "new evidence" consisted of documents showing the Defendant's interest in the railway station, for example a feasibility study. Ms Harman has not given evidence. Mr Lee Jasper said he was at the meeting which, according to his diary, took place on 8 July 2004.
- Ms Winstanley said that when she moved to Spacia, having previously worked for the Defendant, and assumed responsibility for the arches at 299 Camberwell New Road she does not believe she was aware that these arches were adjacent to the site proposed in the UDP for the new Camberwell station. Whilst working at Spacia she became aware in general terms of the plans that Railtrack were formulating for the Thameslink 2000 project. However she does not believe that she was ever aware that a new Camberwell station was being considered as part of Thameslink 2000. She says if she ever came across this, then it did not stick in her mind and she certainly never linked it mentally with the arches at 299 Camberwell New Road. She said the proposed development of a station at Camberwell "was raised by Mr Stevenson towards the end of the rent arrears trial. The application stated that Mr Stevenson had uncovered evidence relating to plans for a new station that were part of the Thameslink 2000 project. He wanted the judge to hear this new evidence. He also wanted to submit evidence of a taped conversation with me and recall me and other witnesses for cross-examination." The judge refused both requests. Ms Winstanley said this prompted her to look into the station issues. She spoke to a contact she had at Thameslink about the station proposals and through him she managed to obtain copies of the various Feasibility studies which had been drawn up by Railtrack at the request of the Defendant. She was told that the studies were only at the very early stages and only one of the options considered as a potential location for the station would actually have had any impact on the arches occupied by the Imperial Gardens nightclub. She said that from talking to her contact at Thameslink she got the distinct impression that Railtrack were not going to push for a station at Camberwell. As for the allegation that the Defendant and Railtrack were effectively working together towards the same objective, namely building a new Camberwell station and that this was the reason for bringing the rent arrears claim, Ms Winstanley said she absolutely refuted this allegation.
The railway station
- Mr Manson was employed by the Defendant as Director of Regeneration and Environment from 1994 to 2001. He was responsible for property, planning and economic development. He delegated responsibility for determining planning applications. He said that whilst at the Council he was not aware of any issues concerning Imperial Gardens own planning applications.
- In his evidence he gave a detailed history of the station proposals. He said the construction of a railway station at Camberwell was a longstanding ambition of the Council. In July 1995 the Council introduced the Southwark Unitary Development Plant ("the UDP") which formed the basis of the Council's development policies for the next decade. Policy T.3.2 dealt with the new public transport schemes and services. A number of specific public transport improvements and projects were listed under Policy T.3.2. One of these was the construction of a new station at Camberwell. Policy T.3.2 provides that:
"The Council will:
…
(ii) urge the public transport operators and the Department of Transport as appropriate to progress suitable schemes for the following:
…
[f] construction of new British Rail stations at Camberwell and Walworth."
- The Proposals Map attached to the UDP identified the site of the proposed Camberwell railway station as Proposal 106. The plan shows the location of the proposed railway station on the site of the former Woolworth Bus Garage, adjacent to Medlar Street. This location was next to the Imperial Gardens site at 299 Camberwell New Road, arches 341-343.
- Mr Manson said that the location of the station is only an initial indication. It is possible to change the detail. The UDP is more specific about intentions than location. He described the UDP as being a "road map" for the Borough. He said it is a "starting point" in planning terms. He had no view as to whether the proposal for the nightclub does or does not fit in with the UDP plan.
- Mr Manson said the difficulty about transport is that it is not in the gift of the local authority. If something is to be achieved it has to be done with the rail authority. The objective was to improve transport in Camberwell. He said that Railtrack was never a keen supporter of the station proposals.
- Mr Manson said he did not think that planning applications would be refused on the basis of the location of the symbol for the railway station. This site for the station is no more than an aspiration. He said lawyers had advised that the Council could not refuse planning applications on this basis. He and others in the department knew that the symbol on the UDP was not sufficient to prevent planning applications. Mr Leigh put to Mr Manson that Mr Dennett had taken the line (see, for example at F1/6466) that the UDP did preserve the railway station at that location. Mr Manson said a prudent officer would express himself in the terms that Mr Dennett did. It would be perfectly clear to a person experienced with development schemes how to proceed on this one. This is a complex and very difficult area for a person as an individual to come to where you have a site with employment use and an aspiration for a railway station. Persons going into a major project like this would have to have experienced advisers. If someone comes along who is not a major developer like Sainsbury's one would expect officers to ensure when they said something they meant it. He said from his experience he had always been impressed with the care given by planning officers to individuals.
- Mr Manson said the prospects of a new station being built as part of Thameslink 2000 was remote. However it provided the perfect platform to get the station proposals on the agenda and to force Railtrack to give them serious consideration. He said they used their objections to Thameslink 2000 to get Railtrack to carry out and pay for feasibility studies for a new Camberwell station as they had to show they were giving this proper consideration. In 1997 Railtrack developed an Order, which did not include any proposals for a rail station at Camberwell. The 1997 TWA Order was subsequently deferred which gave Railtrack an opportunity to review the terms of the Order and respond to any objections raised through a process of consultation. This ultimately led to the submission by Railtrack of the revised 1999 TWA (Variation) Order.
- In October 1998 Railtrack undertook a Feasibility Study. The Feasibility Study examined two sites for the railway station location. Option 1 was situated to the north of Camberwell New Road (the site identified in the UDP), and Option 2 to the south of Camberwell New Road on the site of the old Camberwell Station. Under Option 1 the station building would be located between Medlar Street and Camberwell New Road, directly above and adjacent to the Imperial Gardens site. It was accepted that various properties within the Option 1 site would need to be acquired in order to facilitate a new station in this location. The Feasibility Study explicitly recognised that:
"This option would require the permanent acquisition of the tenancy at 299 Camberwell New Road, this tenant currently occupies Arches 342 and 343. The tenancy arrangements in this case could be terminated within six months. It may be possible to relocate this tenant to an alternative arch site but given its use as a nightclub opportunities for relocation within the area may be limited." (See page 37).
However, the conclusion that the Railtrack Feasibility Study reached was that Option 1 was not viable. This led to the conclusion that "A station on the Option 2 site, with platforms serving the slow lines, is the only viable operational solution for Camberwell." (Page 42). Railtrack's preferred location, namely Option 2, was some distance away from Imperial Gardens, over the other side of Camberwell New Road, and so would not have affected the club at all.
- However, in transport terms, the Council felt that Option 2 was not the best option as it did not facilitate an interchange with buses. A further feasibility study was carried out by Railtrack in November 1998, which examined a new location known as Option 3, which the Council believed would be better in terms of bus interchange. Option 3, as examined by this second Railtrack study, was effectively the original option 1 site but shifted north up the railway line to the other side of Medlar Street. Mr Manson said that had the Option 3 location been pursued, the Imperial Gardens site at arches 341-343 would not have been detrimentally affected by the construction of the station building or the arch widening. He said that as part of Option 3, a walkway would have been created along the side of the arches next to the Imperial Gardens site. For this reason the new station would probably have benefited the nightclub, as the arches themselves would have been cleaned up and the walkway would have created improved access to the site.
- In June 1999 Colin Buchanan & Partners were commissioned by the Council to produce a further study. That study concluded that Option 3 is preferable in terms of bus interchange and transport links.
- In 1999 Railtrack submitted its revised TWA Variation Order. However the 1999 Order again failed to provide for a station at Camberwell. In October 2000 the Council presented its objections to Thameslink 2000 as part of the Public Inquiry. Numerous Council officials gave evidence and the Council pursued its argument that a rail station at Camberwell should be provided as part of Thameslink 2000. During the course of hearing the Council's evidence at the inquiry, the shadow Strategic Rail Authority suggested that the Council ought to pursue the issue of a station at Camberwell independently of the Thameslink 2000 process. Consequently the Council were invited to put forward a Rail Passenger Partnership (RPP) bid for funding. Railtrack indicated that they would support the bid and give technical assistance, by providing indicative scheme drawings and costings. In November 2000 the Council submitted a Pre-Qualification Bid ("the PQB") for Rail Passenger Partnership funding to the shadow Strategic Rail Authority. At this stage only the broad principles and overall viability of the station were considered. The PQB submitted to the RPP by the Council was based upon Option 3.
- Mr Manson retired from the Defendant on 23 November 2001. However he has reviewed the Council documents which post-date his retirement and he was able to summarise the outcome of the station proposals. In November 2001 Mr Nick Alexander, an independent consultant, advised the Defendant that Option 2 is preferable for technical rail industry reasons. In March 2002 the Defendant confirmed that Option 2 was now its preferred site for the RPB bid. In April 2003 the Defendant received formal notification that due to budget constraints the Rail Passenger Partnership would no longer be able to fund the proposal for a station at Camberwell. As a result the plans for a station were shelved.
- Mr Manson said the plans for the station from October 1998 until April 2003 never came anywhere near the stage when the Council had to consider which occupants would have had to be displaced. In any event, had the proposals ever reached such a stage, it would have been for Railtrack to apply for the necessary compulsory purchase orders. However Imperial Gardens was simply not an issue in relation to Options 2 and 3.
- Mr Manson said he had regular contact with Mr Dennett and Mr Chambers during his employment. He said most officers were deeply sceptical of the station and thought he was "bonkers" in proposing it.
- He said during the period from June 1999 to November 2001 Option 3 was the preferred site for the station. If there had been any risk of planning applications jeopardising the station proposals then two applications, one involving Mr Kapoor in which Mr Chambers was involved, and another application from a company called Spearglade Ltd would have posed the greatest threat. However the Development Control Department was perfectly open with the applicants about the implications for the site should the station proposals get off the ground and did not regard the station proposals as a reason to refuse planning permission.
- Mr Chambers was Area Manager of the Defendant's West Area Team at all material times. He said that following the adoption of the 1995 UDP, if the Defendant were to receive an application relating to land that formed part of the proposed location of the new station, then the case officer would consider this in making his/her recommendation. This, he said, was because the station is a formal proposal in the Development Plan and therefore a material planning consideration to be taken into account. However, in circumstances where there is no funding in place for the proposal and it remains an aspiration only, it is unlikely that an otherwise acceptable proposal would be refused solely on the basis that the land formed part of the preferred site for the station. He never saw the legal advice that Mr Manson referred to. He said the developers who had planning advisers all understood the position; although he accepted that those without planning advisers would not necessarily understand the situation. When asked to contrast how he dealt with the Anish Kapoor proposal (C1(2)/3245), when he referred to the implications of the railway station, and the failure to refer to the railway station when dealing with the 1995 application, he said that they did not have in 1995 the detail that existed in 1999 showing where the "feet" of the station would be. Further, the Kapoor proposal was for a new building and more likely to have impact on a station proposal than a change of use of premises already in existence.
- Mr Chambers said that by the time the 1999 application was considered the likelihood of the station being achieved in the location identified in the UDP was "pretty negligible".
- Mr Dennett said he had nothing to do with the 1995 application. He was also unaware of the legal advice Mr Manson referred to about refusing an application on the basis of the policy in relation to the railway station. He said his approach was to allow for the possibility of a railway station.
- There is evidence that Mr Dennett was aware of the presence of Imperial Gardens from about 1995. He was the validating officer for the 1995 application; he visited the site in February 1996; and he was the team leader on the Sainsbury's development application when THK was formally consulted and Mr Stevenson responded to the consultation objecting. In March 1997 there had been a shooting at the nightclub which was "big news in the Borough" (see Claimants' closing submissions, para 122). However Mr Dennett only recalled becoming aware of the existence of Imperial Gardens when Mr Allanah brought the 1999 application to his attention in early 2002 when he forwarded a draft Committee Report. He said that it is possible that the existence of Imperial Gardens prior to this may have been a peripheral point to other planning issues that he had involvement in, however he was not consciously aware of its existence prior to this time. He was now aware that he allocated THK's initial application in 1995 to Mr Goate, however this was one of thousands of applications, he said, he allocated and he had no specific recollection of it.
- Mr Dennett said he knew there were options for the railway station but he was not aware of the detail of the options. He said his role with the Thameslink 2000 Inquiry on behalf of the Defendant was Development Control in respect of three specific proposals: (i) the new Blackfriars Bridge station; (ii) the viaduct over Borough Market and the bridge of Borough High Street including demolition of a terrace of listed buildings; and (iii) development on London Bridge Station. He said if there was any evidence provided by the Council regarding a potential station in Camberwell to the Inquiry, he was not involved in it. He had no real involvement with the proposed station. He remembered that he was told there were six feasibility reports into the proposed station, however, he did not read these prior to the Claimants' complaints, nor was he expected to as he was not a transport planner. He said to the best of his knowledge there were never any detailed drawings of a station at any of the prospective Camberwell Station sites. He did not "support" any proposal. He of course knew that there was a station proposed in the UDP Proposals Map but he had no involvement in any negotiations for a Camberwell station. However Dr Turner, who gave evidence to the Thameslink Public Inquiry on behalf of the Defendant, said that Mr Dennett knew of the proposals for a train station in Camberwell (B2/1853).
Mr Stevens' evidence
- Mr Andy Stevens, Director of AS Planning Ltd, gave evidence on behalf of the Claimants as a planning expert. At para 6.22 of his Report he said:
"While I consider what happened in respect of the Claimants' 1995 application is unusual and in certain respects unreasonable, what followed with the Claimants' 1999 application, and particularly with the Fairview New Homes application, cannot in my view in any way be explained as a series of uncoordinated and unfortunate errors. The extreme circumstances, in volume as well as in their detailed nature, could only in my view have occurred in order to achieve an unstated goal, and that goal must have been to ensure that the potential threat imposed by the existence of Imperial Gardens on the Defendant's aim to achieve the development of a new Camberwell train station was removed."
- In answer to questions from Lord Faulks QC Mr Stevens said that he had no experience of how the Defendant Council works. He was not in a position to challenge the evidence of Mr Waters, the Defendant's planning expert, as to why planning applications may take a long time to be determined. He agreed there are many reasons as to why applications may not be active.
- Mr Stevens said the Defendant's officers were guilty of deliberate wrongdoing. He was "quite happy to stick by the contents of [his] Report on the basis of the information [he] looked at". He accepted Mr Dennett had nothing to do with the 1995 application (apart from allocating it). He said different people were concerned with the wrongdoing in relation to the 1995 application and the 1999 application. He thought it was unreasonable for the Council to change case officers in 1999 and give the case to Ms Khakee to handle when Mr Goate had handled the 1995 application. He said Ms Khakee's report and handover letter were entirely "inconsistent". She was deliberately asking for information in her handover note that she did not need because her report was not a draft. Her report of 11 April 2000 appeared to him to be a report in final terms. He said it was a complete report with a recommendation, giving no concerns. He said Ms Khakee "was intending to protect the long-term plan for a station. That was her motive for her wrongdoing."
- Mr Stevens thought it was "inconceivable" that there could have been a mistake in missing Imperial Gardens as a consultee on the Fairview application in the same way as it was inconceivable that Ms Khakee could have been waiting for additional information. He found it very difficult to believe what Ms D'Alessandro said in her police statement (D/5522 at 5544, paras 47-50). He simply could not conceive that she did not see the presence of Imperial Gardens.
- Mr Stevens said that Council officers were prepared to do deliberately unlawful things to avoid putting the UDP station at risk. They deliberately excluded Imperial Gardens as a consultee and deliberately included Railtrack to improve the picture. It was a deliberate decision to exclude Imperial Gardens because to include them would have frustrated and prevented the Fairview application going ahead. The motive of the Council remained the same throughout. It was the sole motive, namely to maintain the Council's aspiration in relation to the railway station.
- Mr Stevens said that none of the views he expressed were affected by the fact that he did not hear Mr Dennett or any of the Defendant's officers give evidence on oath in these proceedings.
Claimants' closing submissions
- Mr Leigh in his closing submissions for the Claimants said that he opened the case on the basis that the Claimants believed the Defendant had been misfeasant and they suspected where the tortious acts had occurred. He submitted he could now show that the handling of the THK/IG application from the beginning to the end was "a series of events that, when considered in their totality including all the surrounding circumstances, are only explained by misfeasant conduct." (Para 3). He had explored the possibility of targeted malice but he did not in his closing argument submit that there had been targeted malice. He submitted that there had been reckless misfeasance by one or more of the officers in the Defendant Council. This was a case of the second form or limb of the tort as defined in the speech of Lord Steyn in Three Rivers No.3.
- At paragraphs 63-78 of his Closing Submissions Mr Leigh analyses the evidence relating to the different versions of Ms Khakee's draft report dated 11 April 2000 and what he says are the implications of the evidence. He describes the computer information as "both revealing and puzzling" (para 63). He submits that "the picture revealed is not of the Defendant granting consent and trying to help the club, but rather granting consent to prevent any criticism that the club did not obtain planning due to the Fairview fiasco and then trying to bury it through the licensing regime supported by the vociferous detailed objections in the Planning Committee Report." (Para 67). At para 71 he says:
"Accordingly, someone that we cannot identify with absolute certainty (though we may suspect) has deliberately created a file in September 2000 to be consistent with an allegation that Mr Allanah took over the case. Even if the court considers this a conclusion too far, at the same time the only hard copy of the real file was removed at some point from the paper file that would have shown that the Defendant would have been, or at least might have been, in a position to determine the application by April 2000. Significantly, the April 2000 report was never shown to anyone investigating the IG planning application and was only discovered when the police raided the Defendant's offices in 2004. The fact that Mr Dennett admits to removing it and keeping it (hidden) does not do him any credit."
Mr Dennett said he had kept the draft report from Ms Khakee for "management technique purposes" because Mr Allanah had had a hand in it and he could then discuss it with him. However he did not discuss it with Mr Allanah. He said he discussed it with Mr Cook, having made amendments with him. Mr Dennett, in answer to questions from Mr Leigh as to the amendments made in November 2002 by "R. Brown", said he could not understand the motive for these alterations. He said the deletion of the reference to Sainsbury was "bizarre".
- In paragraph 85 of his Closing Submissions Mr Leigh says that "A number of different people have already considered the Defendant's handling of the Fairview application." Mr Leigh highlights findings in the following reports:
i) Eli Abt's report for Defendant (November 2003);
ii) District Auditor's report (February 2004);
iii) Local Government Ombudsman findings (February 2004);
iv) Report of Defendant's Special Scrutiny Sub-Committee (July 2004);
v) Independent Review of the Council's Equality and Diversity Framework by Lord Ouseley (February 2005);
vi) Planning Aid for London statement to Defendant's Overview and Scrutiny Committee (May 2005);
Mr Leigh submits that against the background of "numerous damning tribunal findings against the Defendant" the offer of £500,000 that was made to the Claimants (see para 109 above) "must only have been made due to the acknowledgement of serious wrongdoings by the Defendant" (Claimants' Closing Submissions, para 42).
Findings and Conclusions
- The 1995 planning application was made on 25 September 1995. The application was registered on 3 November 1995. It was Mr Chambers' decision to validate it after the site meeting the previous day. Mr Chambers said he did not validate it earlier because he did not have sufficient information to do so. Mr Leigh in his closing submissions did not pursue the criticism that the application should have been validated before 3 November 1995.
- Thereafter Mr Goate had sole responsibility as case officer for the application. I accept his evidence that the report that he drafted for Committee recommending that the application be rejected was written by him and contained conclusions he honestly arrived at for good reason. No pressure was put on him by Mr Chambers or by anyone else. His draft report was approved by Mr Chambers and then by Ms Linacre, Head of Development Control, before it was submitted to the Committee for the meeting on 12 December 1995 when the application was considered.
- I reject the allegation of wrongdoing at the Committee hearing on 12 December 1995. There is no evidence to support this allegation. The Committee may have decided to go into closed session for various reasons. The most likely is that put forward by Mr Waters (see para 32 above). I reject the allegation that the Committee granted temporary permission for an improper motive. There were perfectly proper reasons for doing so.
- Mr Chambers accepted that seven and a half months was an unusually lengthy period from resolution by the Committee to the date when the decision was made, in this case on 1 August 1996. However Mr Goate in his evidence chronicled the time he spent trying to obtain the information necessary to finalise the conditions in order to issue the permission. There is no evidence that Mr Goate was deliberately delaying this application. Moreover Mr Leigh did not suggest to him that he was doing so on the instructions or at the behest of Mr Chambers.
- The temporary planning permission expired on 31 August 1997. However it was not until April 1999 that THK submitted a further application for planning permission. They only did so then after being threatened with enforcement action by the Defendant.
- Ms Khakee was the case officer for the 1999 application until she left the Defendant in September 2000. She was an honest and truthful witness who was trying her best to recall events that occurred over ten years ago. I accept her evidence as to why she wrote her draft report of 11 April 2000 as she did and what she said about her handover note which she wrote in August 2000. It was not suggested to her, and there is no evidence, that her approach to the application was influenced by the Defendant's aspiration for a station.
- When she left the Defendant the THK application was passed to Mr Allanah. I do not accept that he only received the file shortly before writing his letter of 17 December 2001. It seems to me to be much more likely that the file was passed to him at the time when all Ms Khakee's files were redistributed after her departure and that he, perhaps understandably, did not take any action because he was awaiting the information that Ms Khakee had been seeking and that she highlighted in her handover note. When Mr Allanah wrote to Chrysos & Co. he made no mention of having recently received the file or the delay that had occurred since the last communication from Ms Khakee. Further, he made no reference in his letter to a telephone call that in his evidence he said he received from Mr Stevenson before writing that letter. Significantly Mr Stevenson made no reference either to any such telephone conversation. Even if Mr Allanah did not receive the file until December 2001, but it was with another officer in the department, the information requested by Ms Khakee had not been provided and the application could not be processed further without it.
- On 2 January 2002 Mr Stevenson wrote to Mr Allanah saying that he thought that planning permission had been granted. He could not possibly have thought that. It appears from the letter dated 21 December 2001 from Chrysos & Co. to Mr Allanah that Mr Stevenson had withdrawn instructions to pursue the planning application in July 2001.
- Mr Stevenson does not refer in his letter of 2 January 2002 to Mr Allanah to any efforts that he made, orally or in writing, to follow up the planning application that was submitted in April 1999. Mr Stevenson said in his evidence that there were some telephone calls to the Council but he gave no details and there is nothing in writing to support this evidence.
- It is the Claimant's case that, in Mr Stevenson's words, "the key to the whole thing was getting full planning permission". However the evidence indicates (i) that it was only when pushed by the Defendant that the planning application was made in April 1999, despite the fact that temporary permission had expired on 31 August 1997, and (ii) thereafter, certainly until January 2002, the Claimants took no active steps to pursue that application.
- I have no doubt, having heard and observed Mr Stevenson give evidence over five days and having heard the evidence of Pc McNally, Mr Miller and others as to his character and personality, that if he had wished to pursue a full planning application on the expiration of the temporary permission he would have done so with vigour. The fact is that he did not. In my view the likelihood is that because of the financial position of THK and the Claimants after temporary permission was granted in 1995, the problems that they encountered with operating Imperial Gardens, and the fact that they only had a tenancy agreement with Railtrack in relation to two of the arches (not of the four arches that Mr Stevenson said they needed, see para 71 above), their plans for the second stage of Imperial Gardens' development (see para 111 above) became a more long term aspiration.
- Certainly Mr Stevenson's lack of complaint to the Defendant about the delay does not suggest any urgency on his part in obtaining full planning permission in order to obtain new investment for the club.
- Plainly there was considerable delay in dealing with the 1999 application. However I accept the evidence of Ms Khakee and others as to the reasons for delay in dealing with planning applications at around this time and how applicants who pressed their applications were likely to have their applications dealt with more speedily by overworked case officers. Further, in the present case there is the evidence of outstanding information that had been requested in order to deal with the application, but not provided. The delay between January 2002 when Mr Stevenson responded to Mr Allanah's request for further information and July 2002 when the application was determined by the Committee and permission granted was likewise because of the delay of THK and departments other than Planning within the Defendant in providing information that was required.
- I am satisfied that the report which went to Committee on 22 July 2002 was the one submitted by Mr Allanah to Mr Dennett, which he amended as he said he did in his evidence. I consider it unlikely that Mr Allanah, having been provided with Ms Khakee's draft report of 11 April 2000, would have put that draft totally to one side and started afresh. In a department where there was a heavy workload and everyone was under pressure, it seems improbable that he would have done as he suggests he did.
- There are many criticisms that can be levelled against the Defendant in relation to the handling of the Fairview application. These have been noted in a number of reports. However in this case the court is only concerned with whether the Defendant has committed acts of misfeasance against the Claimants and THK.
- Ms D'Alessandro was the case officer on the Fairview application. She gave a statement to the police on 11 March 2005. Mr Leigh agreed that her statement could be admitted in evidence on the basis that she was overseas. Mr Leigh said that he did not in the circumstances require her to be called but he asked that her evidence be considered subject to the usual caveat that the weight to be attached to it takes account of the fact she will not be cross-examined and he can point to any contradictory evidence. He could have made an application to cross-examine her by video link, but he did not do so.
- In paragraph 62 of the Amended Particulars of Claim there is reference at sub-paragraphs (v)-(vii) and (ix) to Ms D'Alessandro's involvement as the planning officer for the Fairview application. However there is no express allegation made against her either in the original Particulars of Claim or the Amended Particulars of Claim (amended as recently as 16 July 2010) that she was guilty of misfeasance. Paragraphs 69 and 70 of the Amended Particulars of Claim in the section of the pleading headed "The Fairview Committee Hearing", which she did not attend, were amended to plead misfeasance expressly. However the only omission or act referred to in those paragraphs that could potentially involve her related to the failure to consult the Claimants or THK and that does not refer to any specific wrongdoing by her.
- Nevertheless at the hearing Mr Leigh made clear that Ms D'Alessandro was one of the Defendant's officers whom it was claimed was guilty of misfeasance and this was the position he adopted in his closing submissions. I reject this allegation. There is no evidence that she was put under any pressure by Mr Dennett, or any other officer or any councillor to act as she did in performing her duties as planning officer on the Fairview application. Mr Dennett said that he did not tell her not to look out for the nightclub when she went on her Fairview visit. She admits in her police statement the mistakes that she made and apologises for them. She was employed by the Defendant for a short period when she was living in the UK. I consider it improbable that she would have been involved in any wrongdoing in order to protect the Defendant's aspiration for a railway station.
- I consider Mr Dennett's evidence to have been unsatisfactory in certain respects. In particular I find it difficult to accept that he did not know of the existence of Imperial Gardens before he received the letter of complaint from Mr Stevenson in March 2002. It is also clear from the minute of the Committee meeting of 24 October 2001, dealing with the Fairview application, that mention was made of Imperial Gardens and I would have expected him to have said something in response. Undoubtedly there were serious failings in the planning process, in particular in relation to the failure to consult with THK on the Fairview application. The offer to pay the Claimants £500,000 (see para 109 above) may have been made in recognition of these failings and their consequences. However the Defendant did not approve any such payment and there is no basis on which I can infer any admission of misfeasance on the Defendant's behalf from this offer.
- Mr Leigh disavowed an allegation that Mr Dennett took any action in order to favour the Fairview application for corrupt motives. Mr Dennett denied that he had any dealings with Fairview that were corrupt in any way. He has not been charged with any criminal offence in relation to the Fairview application. What the Claimants allege, and Mr Leigh submits, is that Mr Dennett is guilty of misfeasance, his sole motive being to promote the railway station.
- In my view it is highly improbable that Mr Dennett (or indeed any other officer of the Defendant) would have committed the wrongdoing alleged in order to promote the railway station. I do not accept that they would have done so at any time during the relevant period, but in particular at or around the time of the Fairview application when there was no realistic prospect of there being a railway station that would impact on Imperial Gardens.
- The Claimants' case appeared to amount to an allegation of conspiracy amongst the Defendant's officers in the planning department which extended to other departments, in particular the licensing department and embraced Railtrack. However, at the conclusion of the six week hearing in his closing submissions Mr Leigh restricted his allegations of misfeasance to acts and omissions committed by Mr Dennett, Mr Chambers, Ms D'Alessandro and Councillor Ritchie.
- Mr Chambers had no involvement in the 1999 application. For the reasons I have given I reject the allegation that Ms D'Alessandro was guilty of misfeasance. That leaves Mr Dennett. In the light of the evidence of Mr Manson I consider it highly improbable that Mr Dennett, acting on his own, did what is alleged in order to promote the railway station.
- No wrongdoing was alleged against Mr Manson. I accept his evidence. From June 1999 to November 2001 Option 3 was the preferred site for the station. In November 2001 the Defendant was advised Option 2 was preferable and in March 2002 the Defendant confirmed Option 2 was its preferred site. The arches occupied by Imperial Gardens would not have been required for the construction of the Option 3 station or for Option 2. There was, in my view, no realistic prospect of a station impacting on the arches occupied by THK, pursuant to their tenancy agreement with Railtrack, at the time the acts of misfeasance are alleged to have taken place in relation to the 1999 application.
- Mr Dennett was not involved in the 1995 application, other than in allocating the application to Mr Goate. There is no suggestion that Mr Dennett influenced Mr Goate in his decision. There was no allegation of misfeasance made against Mr Goate. There is no evidence of misfeasance by Mr Goate, Mr Chambers or any other person involved in the 1995 application on the Defendant's behalf. Yet that was the time, shortly after the UDP came out, that arguably a station may have impacted upon the arches.
- Mr Stevenson gave evidence that Mr Allanah informed him that the Defendant had deliberately sat on their 1999 planning application and it was nothing to do with him. Mr Stevenson said that in February 2002 Mr Allanah "pointed the finger" at Mr Dennett and Mr Chambers (para 286 of his witness statement). Further, Mr Stevenson said that in about May 2003 Mr Allanah informed him that Mr Dennett had asked him to hold up the planning application and that Mr Chambers was also involved. (Para 397 of Mr Stevenson's witness statement). Mr Allanah in his evidence said nothing about these matters. I reject the allegations that Mr Dennett and Mr Chambers deliberately sat on the 1999 application and that Mr Dennett and Mr Chambers asked Mr Allanah to hold up the application. Mr Chambers had no involvement in the 1999 application. The allegation was not put to Mr Dennett.
- I heard evidence from a number of members of the Defendant's licensing unit, including Mr Franklin, Mr Parkins and Ms Kraus. The Claimants' allegations of misfeasance by the Defendant's officers appeared to embrace the licensing unit. However in his closing submissions Mr Leigh did not submit that any person in the licensing unit or noise team was involved in any act of misfeasance. There was no evidence of any wrongdoing by Mr Franklin, Mr Parkins, Ms Kraus or anyone else in the licensing unit or noise team.
- The judgment in the Railtrack litigation sets out correctly, as the parties accept, the basis on which the Claimants and THK occupied the arches. The only two arches that they had a right to occupy were Arches 342 and 343. I accept Ms Winstanley's evidence that Railtrack instituted proceedings against Mr Taylor and THK because of rent arrears. I reject the allegation that they did so in order to assist the Defendant to protect the station. Judgment was handed down in the case on 31 October 2003. No application was made to seek relief from forfeiture in respect of Arches 342 and 343. Subsequently all four Arches were repossessed. The monetary judgment was not enforced against Mr Taylor. The Claimants say that was because of the evidence of wrongdoing they presented to Railtrack after the case had concluded. The reason for Railtrack not enforcing a Charging Order secured on Mr Taylor's property for arrears of rent, legal costs and interest is not clear. However there is no evidence of any wrongdoing by Ms Winstanley and I reject the allegations that have been made against her.
- In addition to the allegations against the Defendant's officers the Claimants allege that one of the Defendant's councillors, Cllr Ritchie, was guilty of wrongdoing. Neither the Particulars of Claim nor the Amended Particulars of Claim contain any allegation of misfeasance or wrongful conduct against Cllr Ritchie. Indeed he was not in fact the holder of a public office. In any event there was no evidence of any wrongdoing by him. There was no basis for the allegations that were made against him.
- The Claimants alleged that after Fairview were granted planning permission and there was an investigation as to why THK had not been consulted on the Fairview application, the Defendant's officers were involved in a "cover up" to prevent their wrongful conduct coming to light. Mr Leigh, in his closing submissions, submits first, that "someone" deliberately created a file in September 2000 to be consistent with an allegation that Mr Allanah took over the case at that time; and second, the only hard copy of the real file was removed from the paper file that would have shown that the Defendant would have been in, or at least might have been in, a position to determine the Imperial Gardens application by April 2000 (para 71). There is no evidence as to the identity of the person who created the file in September 2000. The reason why it was done is unclear. However I am satisfied that Mr Allanah did in fact take over the case on Ms Khakee's departure. As for the removal of the file, I do not accept this was done for the reason the Claimants allege. It is clear from Ms Khakee's handover note of August 2000 that the Defendant was not in a position to determine the application by April 2000 or indeed by the time she left in September 2000.
- I was not assisted by the evidence of Mr Stevens, the Claimants' expert on planning issues. In his Report he concluded that the Defendant's conduct in relation to the 1999 application, and in particular with regard to the Fairview application, occurred in order to achieve "an unstated goal" which must have been "to ensure that the potential threat imposed by the existence of Imperial Gardens on the Defendant's aim to achieve the development of a new Camberwell train station was removed" (para 6.22). He said "the acts that were undertaken were deliberate and … the intention was that Imperial Gardens would close" (para 6.29). When cross-examined by Lord Faulks QC he maintained that the Defendant's officers were guilty of deliberate wrongdoing. I find it surprising that he did not consider the fact that he had not heard the Defendant's officers give evidence at this hearing to be material to the opinion he expressed and maintained. It is to be noted that Mr Leigh, in his closing submissions, limited himself to the second limb of misfeasance in Three Rivers (apart from the "cover up" allegation), despite the evidence of Mr Stevens.
- In the light of the conclusions I have reached on the issue as to whether any of the acts or omissions committed by the Defendant's officers constituted misfeasance, there is no need for me to consider in this judgment the noise, valuation and accountancy evidence that I have heard. For the same reason it is not necessary for me to consider the evidence that I have heard as to the financial affairs of the Claimants, THK and associated companies.
- In summary, I find that there was no misfeasance by any of the Defendant's officers (or by Councillor Ritchie) and no misfeasance for which the Defendant is responsible.
- It follows that the Claimants cannot bring themselves within the exception noted in Giles v Rhind.
- Accordingly, for the reasons that I have given, this claim fails.
