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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Martin-Sklan, R (on the application of) v London Borough of Barnet [2010] EWHC 2482 (Admin) (13 August 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/2482.html Cite as: [2010] EWHC 2482 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		13th August 2010

1. MR JUSTICE OUSELEY: There are two proceedings before this court. One is a matter in the Chancery Division, the other is a matter in the Administrative Court and I order the transfer to the Administrative Court of the related matter in the Chancery Division. The Chancery Division matter is HC10C02018, between the same parties, and directly related to the same relief sought.
2. The judicial review application for permission concerns the actions of the London Borough of Barnet in creating a children's playground in Brookside Open Space without the planning permission it needed and without the authority of the relevant committee or officers of the Council.
3. The matter comes before me today as an application for interim relief and permission. The London Borough of Barnet, through Ms Sheikh's helpful acknowledgment of service, has conceded not merely that permission should be granted but in reality Ms Sheikh accepts that the claimant is right that the decision to create the children's play park at Brookside was not taken by anyone with authority to take it and did not have the planning permission which it required, its scale falling outside the scope of the permitted development rights for local authorities under class 12.
4. I entirely agree that her recognition that there was in reality no arguable defence to the claim is right. It follows therefore that this matter by consent is now being dealt with not merely as an application for permission, which I have granted earlier in the hearing, but also concerns the substantive relief.
5. It is not disputed but that there should be a declaration that the defendant acted beyond its powers in the sense that the decision was not taken by the body within the Council with power to take it and that planning permission was necessary but not obtained.
6. The issue of greatest concern is whether there should be an order that the play park be dismantled and the ground restored or whether there should be an order preventing its use until a decision has been reached on a retrospective planning application to be made by the Council to itself.
7. The Council contends that it would be disproportionate to require the play park to be dismantled where it is possible but not inevitable that planning permission would be granted and the relevant body would make a decision that this was to be the place where it should be erected. Mr Martin-Sklan, the claimant, contends that the play park should be removed and, if in due course permission is granted, it will have to be re-erected. The question for me is whether I go down the route preferred by the defendant or the route preferred to the claimant.
8. I have come to the view that I should adopt the claimant's submissions. There are two reasons for that. Although it is true that his claim was not clearly formulated until the judicial review proceedings were begun on 30th July 2010 or made clear in the Chancery Division proceedings until a witness statement in those proceedings of 28th July 2010, it is clear from correspondence that sufficient concern was being raised about the decision-making process and the justification for the erection of the playground that the attention of the Council to its decision-making process, to a consultation process pursuant to an application for planning permission which ought to be made, ought to have alerted it to the problems that existed.
9. Secondly, the proceedings in the Chancery Division were commenced on about 18th June 2010, seeking injunctive relief and pursuant to these proceedings Mr Martin-Sklan has been asking the Council to stop proceeding with the development whilst various issues, although not in the end issues proceeded with, were resolved. The Council has nonetheless proceeded to build out the playground. There is a dispute, which I do not propose to resolve, about whether those works were or were not complete before 28th July but nonetheless it cannot be said that the Council has completed the works without being alerted to the approximate area of concern, consultation and who was the decision-maker. Where consultation was at issue, and the absence of consultation was the focus of it, the question of whether the planning process ought to have created the vehicle for that consultation ought to have been in their mind.
10. There is another factor. Accepting the good faith of London Borough Barnet when it comes to consider the application for retrospective permission, it is not an irrelevant factor that the development has already taken place, although conventionally in a retrospective application it is a factor that would be given little weight by a local authority dealing with a third party, but that is not the position here and it is important in my judgment that the decision be taken and be seen to be taken as objectively as possible as to whether this should be the site for the playground or whether it should be somewhere else.
11. Accordingly, notwithstanding that there is a risk, I accept, that the requirement that the equipment be removed and the ground be restored may lead to a waste of money, which would be regrettable, I consider that that is the appropriate course. There will therefore be an order that the equipment be removed and the open space restored to its previous condition.
12. I make it clear, of course, that if during the course of those works the retrospective application is determined in favour of this site then there is no need further to restore the site.
13. I note that Mr Martin-Sklan has an application for damages. The unlawful acts of the Council do not sound in a tortious act in relation to damages and, insofar as damages were sought under the Human Rights Act for breach of them, he does not have in my judgment an arguable case. So I would, but I have not heard argument on it, be minded to make an order dismissing the claim for damages. I do not wish the case to proceed in relation to damages unless Mr Martin-Sklan is determined to have his day on it but if he proceeds and loses he will have to pay the costs of that.
14. Mr Martin-Sklan, do you wish that matter to proceed?
15. THE CLAIMANT: No, my Lord.
16. MR JUSTICE OUSELEY: Do you have an application for your costs?
17. THE CLAIMANT: Yes, my Lord.
18. MR JUSTICE OUSELEY: You do not oppose that?
19. MS SHEIKH: My Lord, not in principle, but we do oppose the quantum.
20. MR JUSTICE OUSELEY: To be assessed.
21. MS SHEIKH: To be assessed.
22. MR JUSTICE OUSELEY: Very well. Can I trouble you, Ms Sheikh to draft the appropriate order?
23. MS SHEIKH: My Lord, yes.
24. MR JUSTICE OUSELEY: I think it is probably more sensible if you do it. Would you then show it -- (pause)
25. I am also going to dismiss the Chancery Division proceedings, because it is all dealt with by this.
26. Ms Sheikh what is being suggested is that you should prepare a manuscript order before you the leave the court precincts. Mr Martin-Sklan, you should stay behind, please, and make any comments you want to make on the manuscript, but then come to me, through the associate, and I will then approve it and it will be typed up and it will be dealt with.
27. THE CLAIMANT: My Lord, I just wanted to say, to clarify the terms of your order -- I am very grateful for your order, my Lord -- and your order was for the equipment to be removed and the outstanding space restored to its previous condition. That does not specify a time for the Council to do that.
28. MR JUSTICE OUSELEY: No. I do not propose to specify a time. It is intended to be done without delay and I think, in the absence of a time being specified, I am prepared to, at present, assume the local authority is not going to engage in some feet dragging. But if there is, then you can have liberty to apply to this court for the time to be specified.
29. THE CLAIMANT: I just wanted to clarify, my Lord, that, on the terms of your order, the equipment to be removed within a reasonable time. Presumably then the Council would prevent it being used as from now, if they are going to remove the equipment. Where does the order stand on that issue?
30. MR JUSTICE OUSELEY: Yes. I think, in the meantime, pending removal, you should be prevented.
31. MS SHEIKH: I will add that in, my Lord.
32. MR JUSTICE OUSELEY: By fencing.
33. MS SHEIKH: Sealing it off.
34. MR JUSTICE OUSELEY: You need to say "by fencing" otherwise --
35. THE CLAIMANT: I am sorry, I did not catch what you said, sir.
36. MR JUSTICE OUSELEY: By fencing.
37. THE CLAIMANT: Today or by when it is practicable?
38. MR JUSTICE OUSELEY: Well, within a reasonable time. It is going to take some time to do the fencing. It is a Friday. I really do not want to have to police the precision of this. The local authority has behaved very responsibly today, you have made far more rapid progress than you could ever have imagined and I have no doubt the local authority is going to put it up as soon as it properly can. I am not going to order forthwith, but I am sure it will be up by Monday.
39. MS SHEIKH: My Lord, yes. The local authority would not have taken the position it has today unless it accepted the situation, so --
40. MR JUSTICE OUSELEY: Well, I am going to give you liberty to apply, Mr Martin-Sklan, if there is evident feet dragging, but I am not prepared to suppose at the moment that there will be. I imagine the local authority will get on and do what it has been told to do.
41. THE CLAIMANT: Thank you. I am grateful to you, my Lord. I just mention the point because I feel that over the last couple months we have suffered enough and it should be done reasonably quickly.
42. MR JUSTICE OUSELEY: I am sure it will be done reasonably quickly.
43. THE CLAIMANT: I am grateful to you, my Lord.
44. MR JUSTICE OUSELEY: Thank you very much.