Claim No CO/
IN THE HIGH COURT OF JUSTICE
PLANNING COURT
ADMINISTRATIVE COURT
B E T W E E N:
THE QUEEN ON THE APPLICATION OF:
VSH NOMINEES 1 LIMITED and VSH NOMINEES 2 LIMITED
Claimant
-v(1) THE SECRETARY OF STATE (on behalf of the PLANNING INSPECTORATE)
(2) DEPARTMENT OF TRANSPORT
Defendants
and
CENTRO PLC
Interested Party
STATEMENT OF FACTS AND GROUNDS
Introduction
1. The Claim challenges the Defendant’s Inspector’s decision dated 14 November 2014 to
refuse an application to adjourn the forthcoming Public Inquiry into an Application for
the Proposed Midland Metro (Birmingham City Centre Extension Land Acquisition and
Variation) Order under the Transport and Works Act 1992 (the “Order”).
2. The Claimant submits that an order be made so as to require the Inspector to reconsider
as to whether to adjourn the Inquiry. Indeed, the Claimant submits that the decision not
to adjourn the forthcoming Inquiry was, for the reasons explored below, patently
unreasonable, unfair and irrational.
The Parties
3. As to the parties and their roles:
a. The Claimant is VSH Nominee 1 Limited and VSH Nominee 2 Limited (together
“VSH Nominees” or the Claimant).
The Claimant is a statutory objector in
relation to the Order.
b. The Defendant is the Secretary of State on behalf of the Planning Inspectorate and
the Department for Transport.
c. The Interested Party is the Promoter of the Order.
Background
4. Relevant background to this claim is set out in the Witness Statement of Michael Pocock,
the Chronology and the correspondence bundle which accompany these grounds of
challenge.
5. The scheme to which this Order relates involves the promotion of a tram line in central
Birmingham. For present purposes, it is sufficient to emphasise a number of central
points.
a. The promotion of the scheme has a lengthy history.
The specific issues of
relevance date back to 1997 and the Secretary of State’s decision to accept the
Inspector’s recommendation in 2004 (the “2004 Decision”). The 2004 Decision is
of particular relevance because it was made on the basis of the prohibitive lack of
feasibility and cost of various alternative routes.
b. Material changes to the proposals have occurred since the 2004 Decision. There
have been policy changes in terms of decision making; alterations to the
alternative routes; other considerations in relation to the immediate property and
the route’s effects on pedestrian. For example, the proposed trams are to be
wider than examined previously as part of that decision.
This will have a
material impact on the proposed route given that certain streets (Pinfold Street as
just one example) have some limited carrying capacity in terms of their restrictive
width. A bus depot is also no longer in situ.
c. The Claimant’s land and building is grade II listed. Its environs are of significant
heritage importance given that it is the principal pedestrianised area in the
locality that is immediately adjacent to a grade I listed building and is located in
one conservation area and adjacent to another. Should there be genuine, feasible
and affordable options that could avoid the need for those environs to be harmed
(insofar as the previous Inspector found such harm to be outweighed by the lack
of feasible alternatives) by the proposed route then there is a clear public interest
in such alternatives being fully and properly considered.
d. It is an essential part, indeed a requirement, of any such Inquiry relating to major
schemes for alternative routes to be considered yet, to date, alternatives have
only been considered in terms of minor alterations to the promoted route and
discrete sections of that route.
e. The promotion of the Order must necessarily fail unless and until alternative
routes have been fully and properly reconsidered. The previous issues as to the
economic viability, cost and effect of possible alternative routes both in terms of
their potential effect on the Claimant’s building and also its immediate environs
can be overcome through re-routing the proposed tram line away from Victoria
Square.
f.
Given the passage of time since the 2004 Decision, and the substantial amount of
new evidence that strongly suggests that a number of the assumptions and
conclusions of the previous inspector are now insupportable, it is in the public
interest for the scheme, and other alternative route options, to be reconsidered
fully in light of the available evidence.
Submissions
6. The Claimant’s position in relation the above has been consistent and repeatedly
communicated to the Interested Party since before the submission and exchange of
Statements of Case back in August 2014. The Claimant’s position has neither changed
nor altered to any material extent that could be said to justify the Interested Party’s late
and obstructive approach to exchange of evidence, information and documents.
Effect upon land and building
7. The Order will cause harm to the Claimant’s building, land and its immediate environs.
As noted above, such building, land and area are significant in terms of their heritage
and contribution to the built environment of Birmingham City Centre.
Indeed, the
previous Inspector found that harm would be caused to Victoria Square and its environs
(see, for example, para 6.14.3 of the 2004 Decision).
8. Given that the Claimant’s evidence explores the potential for an alternative route to
avoid harm to the above assets, it is clearly in the public interest for such to be explored
in full at the Inquiry. In view of the fact that it is claimed that the Claimant’s alternative
route would also serve the city better in terms of connectivity and in planning terms, it
would be unreasonable and/or irrational for the Inquiry to proceed in a manner that
would obstruct and/or prevent such exploration from taking place.
9. Furthermore, even on the Interested Party’s own case, some minor alterations have been
made to the previously proposed scheme (for example, how it transits through Victoria
Square itself). The harm of such alterations must be fully and properly considered at
Inquiry.
Listing and timetabling
10. It is important to note the context in which preparation for the Inquiry has been
undertaken and as a result of which the timetabling occurred.
11. The Inquiry was originally scheduled to last three days (19 November to 21 November
inclusive).
The Claimant instructed Leading Counsel on that basis.
Numerous
consultations have taken place between Leading Counsel, the Claimant and its expert
advisors. Such timetabling occurred largely as a response to the scope of the Statements
of Case submitted by the parties. The Interested Party’s Statement of Case failed to
disclose, infer or intimate that it would be relying upon the copious amounts of
information and documentation that has been disclosed on exchange of evidence and, in
some instances, as late as 10 November 2014 (nine days before the Inquiry and on the
final date when evidence could be served as rebuttal). This is clearly prejudicial to the
Claimant and contrary to the spirit and intent of the extant inquiries procedure rules.
12. This prejudice is aptly described at paragraphs 17-19 of Michael Pocock’s witness
statement, which explains that:
a. Prior to receipt of the letter from the programme officer on 14 November 2014,
the Claimant’s reasonable assumption was that it would make submissions to the
Inspector at the inquiry opening on the 19 November 2014 on the basis that the
evidence was largely unchallenged (save for the previous Inspector's conclusions
on any written evidence previously considered). The Claimant was going to
adopt the same position for the alternative routes.
b. As to the CPO of Victoria Square House itself, the Claimant came to the
conclusion (again on the basis of the Interested Party’s limited disclosure,
evidence and Statement of Case) that the case was a relatively narrow one and
related to the effects on the building and immediate environs of Victoria Square.
The CPO had not had proper regard to the effects on Pinfold Street and there was
no consideration of matters outside of the Variation Order although there was
some consideration of Victoria Square.
c. All of the above was a position that was rationally and reasonably held given that
the Claimant only principally had one or two Gillespie drawings received from
the Interested Party to base its position on (without any vertical alignment
information).
d. Therefore, the Claimant’s understanding was that evidentially the Inquiry would
require three days. It was only following exchange of all the evidence that it
became clear that the Interested Party was raising substantial new evidence and
points in relation to, in particular: its business case, economics, value for money,
alternatives, bridges and reports, some of which have still not been received
(including that relating to the obtrusive effect upon the listed building and
whether it is able to have fixing brackets attached to it).
13. The Inquiry now looks likely to run to around nine days with very significant amounts
of new information, evidence and documentation that has been supplied in the manner
described above. In particular in relation to the alternative and the evidence concerning
the bridges some of which is still absent (including the 2004 evidence) as well as
evidence contained in the business case in relation to potential further compulsory
purchase of land as well as costings. For the Inspector to have refused to adjourn the
Inquiry on the basis that any unfairness can be remedied as a result of the cross
examination of the Interested Party’s witnesses fundamentally misunderstands and
underestimates the level and nature of work that goes into preparation for such cross
examination including briefing notes to counsel by witnesses, particularly when it
relates, as it would in the present instance, to detailed and technical expert evidence.
This is supported by paragraph 15 of Michael Pocock’s witness statement in which he
explains that engineers would “usually quote six to eight weeks to undertake this work. Given
the urgency in this matter, notwithstanding his other professional commitments, James Parsons
has indicated that it may be possible to produce a draft report in three and a half weeks.”
14. Further to the above, the Inspector’s position is yet more unreasonable and irrational
when one considers the fact that much of the recently disclosed documentation relies
upon a number of other documents that the Claimant still does not have a copy of. This
is perhaps best illustrated in relation to the fact that the scheme, both then and now, has
been promoted on the basis that total reconstruction of a significant bridge would be
required. That position appears to have been maintained in reliance upon a 2004 Report
compiled by a bridge engineer, which the Claimant has still yet to be provided with.
Preparation for the Inquiry
15. The Claimant has sought to prepare for the Inquiry in line with the relevant procedural
timetable and extant inquiry procedure rules. The Claimant has acted in an open and
transparent manner throughout, only requesting further information as and when it has
been necessary to do so in the context of the compulsory purchase powers which are
sought by the Interested Party.
16. In any event, the Claimant ought never to have been in the position of having to request
crucial information a matter of weeks before the Inquiry opened as it should have been
supplied earlier, in a timely manner and in the clear knowledge that an Inquiry had been
requested by the promoter (and that there were outstanding objections including by the
Claimant, whose Statement of Case they had in August as well as many requests for the
same information concerning the alternative route and the bridges on Navigation Street).
Whilst the 2005 Metro Scheme has statutory approval, the variation to that scheme does
not and, additionally, the Interested Party’s compulsory purchase powers for the next
phase of the scheme have expired.
As such, the Claimant’s requests for further
information have, at all times, been reasonable and proportionate to the exercise of the
draconian powers of compulsory purchase. Furthermore, the Interested Party is under a
legal obligation to make all information in connection with the proposal publicly
available in any event in justification of its case.
The application for an adjournment
17. The essence of the Claimant’s application for an adjournment of the Inquiry can be
summarised very shortly:
a. Not only has the Interested Party failed to disclose certain crucial documents
(notwithstanding the Claimant’s detailed, timely and repeated requests) but also
those documents that have been provided have frequently been provided in an
inappropriate form, incomplete, or in a piecemeal fashion.
b. Furthermore, the latest series of documents that have been produced are of a
scale that is disproportionate and wholly unreasonable in the circumstances.
18. As to a. above:
a. The correspondence accompanying these grounds reveals continued attempts on
behalf of the Claimant to seek further highly relevant information and full
disclosure of highly relevant documents from the Interested Party and other
parties such as Network Rail and Birmingham City Council (as that was where
the Claimant was directed by the Interested Party). Such attempts have included
Freedom of Information and Access to Environmental Information requests that
have been met with no cooperation on behalf of the Interested Party whatsoever.
b. At no stage has the Interested Party, either through its Statement of Case or
otherwise, intimated that such documents would be disclosed at such a late stage
or that they existed or that they were in their possession or that they had access
to them.
c. Notwithstanding such lack of transparency, it now appears that the Interested
Party did have access to those documents and relied upon them (and put in a one
page extract from them in evidence) that were disclosed as late as 26 October
2014 and 10 November 2014 not only as part of its rebuttal to the Claimant’s
evidence but also, and crucially, as part of its promotion of the Order. It is,
therefore, inconceivable that the Interested Party cannot have been aware that
such documents would require disclosure until such a late stage in the Inquiry
preparation procedure. It is simply not sufficient for the Interested Party to
suggest that because those documents are recent their obstructive manner is
excused.
19. As to b. above:
a. To take just one example, on exchange of evidence on 26 October 2014, the
Claimant received a substantial quantity of new information not previously
disclosed or referred to in the Interested Party’s Statement of Case and some but
by no means all of the evidence requested by the Claimant. The new information
included over 600 pages of the “Business Case”, which was not available on the
Interested Party’s website and whose existence was not previously known of by
the Claimant or even mentioned in discussions.
b. Notwithstanding its late disclosure, the Interested Party must have known about
the likely content of such information and documentation well in advance of 26
October 2014 (when the first tranche was disclosed) and 10 November 2014
(when an even later tranche was disclosed).
c. Other new documents have included very detailed engineering documents in
relation to which the Claimant must be provided an adequate and meaningful
opportunity to seek and receive expert advice. This is particularly so given the
central part that such documents will play in any meaningful testing of
alternative options (and they are incomplete given that the 2004 report remains
missing).
d. Furthermore, now that the Interested Party has purported to disclose further
documents, those documents are of such a size, detail and complexity that it is
inconceivable to think that the Claimant will be in a position to fully and
appropriately brief Leading Counsel (or indeed any counsel) in advance of the
Inquiry.
Sole objector
20. Throughout its preparation for the Inquiry the Claimant has had to attempt to hit a
moving target.
The importance of this is further emphasised by the fact that the
Claimant is the sole objector to the Order.
21. It simply is not a response to such difficulties to say, as the Interested Party may attempt,
that the Claimant ought to have known in the circumstances that such information was
available and would be supplied in due course or that it is in the public interest for the
Inquiry to continue.
To accept such an argument would be to miss the essential
unfairness that underpins this application. In the context of this matter, in which the
Claimant is a statutory objector to an Order promoted by the Interested Party, it is clear
that the prejudice that this has caused to the Claimant in its preparation for the Inquiry
has been manifest and substantial.
22. Furthermore, given that the Claimant is the sole objector, the adjournment of the Inquiry
would cause no prejudice to any third party. That much is plain.
23. It is also not an appropriate response to say that any unfairness caused by the late
disclosure and exchange of key information will be remedied by the inquiry process and
cross examination. In this instance, the Claimant’s role as sole objector means that
cannot occur: there is no other objector that can be relied upon to test the Promoter’s
evidence and/or the basis for its assumptions.
24. Given the very serious repercussions that the confirmation of the Order would have for
the Claimant, it is unreasonable to expect the Claimant to instruct alternative Counsel
even assuming one to be available1:
a. This is a complex case with technical issues as to bridge design, alternative
routes, planning, conservation, heritage and economic evidence. The Claimant
instructed Leading Counsel on that basis. Numerous consultations have taken
place between Leading Counsel, the Claimant and its expert advisors. To expect
or consider that it would be possible to simply instruct alternative counsel at this
late stage is plainly wrong.
b. As noted above, the Inquiry was originally timetabled on the basis of three days.
This was done as a result of the content of the parties’ Statements of Case. The
Interested Party ought not to profit as a result of its own failure to appropriately
refer to its intention to rely upon the documents, or essence of the documents,
that it has only recently deigned to disclose.
25. Further to the above, to suggest that any consequent unfairness can simply be remedied
through the process of cross examination2 is also plainly wrong. Indeed, for cross
examination of the relevant witnesses and individuals to be of any worth whatsoever it
is essential that the Claimant is:
a. Given adequate time to analyse and consider this recently provided information
particularly where, as is the case here, the Claimant’s requests for such
information have repeatedly been ignored or passed over; and
b. Provided with a meaningful opportunity to rebut such information and evidence
through the submission of its own evidence if necessary.
The Claimant’s Leading Counsel, John Steel QC, is not available during the weeks beginning 24
November 2014 and 1 December 2014 as he has other professional commitments, including a case
in the High Court listed for the week beginning 24 November 2014 and a trial listed for 5 days starting
on 1 December 2014.
2 As appears to be the suggestion made by the Programme Officer in the third paragraph of her letter
dated 14 November 2014.
1
26. Notwithstanding that the Interested Party may attempt to characterise the difficulties
outlined above as simply part and parcel of the preparation for an Inquiry3, the fact
remains that for the Promoter of this Order to benefit from its own failure to intimate
that it would seek to rely upon such information in its Statement of Case, to disclose
relevant material promptly or in accordance with the rules of natural justice would be
manifestly unreasonable and unfair.
27. Whilst it is clearly the case that professional witnesses are instructed on a fluid basis that
may require further work from time to time, such witnesses also have numerous
concurrent commitments. The purpose of a Statement of Case is to put another party on
notice as to the case that they must meet. This is particularly important in the context of
compulsory purchase where the repercussions of confirmation are so inherently serious.
Had the Interested Party chosen to disclose its reliance upon such documents at the
appropriate time and supplied the relevant information in a timely manner (which, on
any basis, ought to have been well in advance of the actual disclosure of such
documents), then the Claimant would have instructed its professional witnesses
accordingly and would have informed the Planning Inspectorate had there been any
problem. Again, an adjournment is the only fair and appropriate response to ensure that
the Interested Party does not profit from its own failure to have done so.
Summary of Grounds and Conclusions
28. In light of the background to both the promotion of the Order and, more specifically, the
recent conduct in relation to the exchange of evidence and documents prior to the
forthcoming Inquiry, the Claimant submits that the Inspector’s decision not to adjourn
the Inquiry after the first day or at an appropriate moment (as communicated by letter
dated 14 November 2014) was unreasonable, unfair and irrational.
29. The Claimant asserts that there are alternative route options that must be fully and
properly considered at any Inquiry into the Order. Such options may represent better
3
See, for example, paragraph 11 of letter from Winckworth Sherwood dated 12 November 2014
which suggests that “VSH further seemingly complains that its witnesses have set aside insufficient
time to consider Centro’s main and rebuttal evidence. Yet it is to be expected that experienced
professionals will make due allowance for this, failing which they will not accept the instructions in the
first place. Yet again this found no case for adjournment.”
value for money (a key consideration given the Interested Party’s public funding), better
connectivity, greater planning benefits and less harm to significant heritage and
conservation assets.
30. For such alternatives not to be considered fully and properly solely because of the
Interested Party’s failure to intimate and identify in its Statement of Case its intended
reliance upon a sequence of documents that have been disclosed late (if at all) would be
unreasonable, irrational and unfair. The prejudice that a refusal to adjourn the Inquiry
would cause to the Claimant, and to the public interest, is manifest and substantial.
Such prejudice would be occasioned not only in terms of the Claimant’s objection to the
Order but also as to the promotion of alternative routes.
31. It simply is not a valid response to such concerns, or a reasonable position for the
Inspector to adopt, to suggest that any such prejudice can be overcome by the inquiry
process (including cross examination), the Claimant instructing alternative counsel or by
any other means. It is plain that it cannot.
32. For the above and other reasons, the Claimant asks the Court to grant permission and to
order that the Defendant’s inspector reconsider the decision not to adjourn the Inquiry.
33. In view of the urgency of this application, the Claimant may apply to amend its grounds
of challenge in due course.
JOHN STEEL QC
JONATHAN DARBY
17 November 2014