Big new TfL Substation to be built on Green Lanes - but community voice silenced

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Permalink Reply by Cllr Rosie Latchford 3 hours ago

Hi everyone. 

After I met with residents a couple of weeks ago, I took the questions that came up in our meeting to the council. I have just heard back, and thought best to share with everyone here. 

I have also submitted a FOI request to TFL about their conversations with Clarion about this pocket park. 

I will write in our opposition to the substation this week too, coming from myself and Jo Kuper my fellow councillor. Mark is the third councillor for Harringay but sits on the planning committee so isn't able to comment.

Here is what the council has told me: 

1. Land ownership

Officers have reviewed the Land Registry records to establish ownership of the land (the car park site) in question with the relevant title, AGL497513, showing that a 999-year lease was granted on 5 July 2019 to London Underground Limited. The registered proprietor of that leasehold interest is Places for London Limited, however we were not able to identify the owner/ freehold title. The above therefore demonstrates that London Underground Limited have a legal interest in the land for the purposes of carrying out operational development proposals.

By way of background, planning application HGY/2016/1807 for the Colina Mews residential development included a Certificate B identifying parties with an interest in the wider landholding, including LJ Green Lanes Ltd, Highways and Transport for London (TFL). However, this does not provide conclusive evidence of the current freehold ownership of the car park site itself.

2. Pocket park proposals

The treatment to the smaller portion of land in question were approved via approval of details application HGY/2019/2782 in 2020 discharging condition 4 attached to the original 2016 planning permission and as per drawing L1092 C3 and show a permeable surfacing to this area with 4 parking spaces.

Whilst noting the approved details, it is obvious that the proposal was in conflict with TfL's longer-term intentions for this part of the site. Although Clarion Housing Group leased the land for a temporary site office during construction of the residential development, TfL's intention was always to bring forward proposals for a power transformer room under permitted development rights in connection with the Piccadilly Line Upgrade, and it is understood that Clarion Housing Group was aware of these plans. 

On that knowledge TFL submitted a non-material amendment (NMA) application in 2021 under application ref: HGY/2021/3583 ’…to amend the description following Transport for London's request to take back ownership of their land on the site, previously proposed as an area for car parking’ which was approved in May 2022 with a further Non-Material Amendment application, ref. HGY/2023/0698 approved to make minor changes to the approved scheme, including reducing the parking provision from 14 to 13 spaces, amending the location of short-stay cycle parking, and revising the window arrangement and elevational design of the development.

It is also understood that during this time TfL were looking to end their lease with Clarion Housing Group. It is understood that it was TfL’s intention to start works for the transformer building around 2025. Ultimately, it is unknown to the Council what other discussions happened between Clarion Housing Group and TFL back in those earlier years.

3. Certificate of Lawfulness application and opportunities for public involvement

A Certificate of Lawfulness application differs from a planning application in that the Local Planning Authority is required to determine whether the proposed development is lawful based on the relevant provisions of planning legislation. The assessment is therefore a legal one rather than an assessment made on the planning merits of the scheme. As such, there is no statutory requirement for public consultation in the same manner as would apply to a planning application, where we advise the community of the application having been received so they can comment, given we can consider matters in our assessment such as impact on neighbours’ amenity. We must determine the certificate application based on the facts of the case and the applicable legal tests. Residents may write to Officers with comments on how they consider the proposal might impact on them, and we will read them; but unfortunately we cannot take them into account in deciding if the proposal is permitted development or not as that is purely based on law. Our recommendation/decision will either confirm, or otherwise, that the proposed use/building operations are lawful for planning purposes.

Whilst accepting that a decision on the Certificate of Lawfulness application has not yet been made, and assuming the relevant criteria are satisfied such that the development is deemed to be lawful, we would ultimately not be able to prevent TfL from exercising such their permitted development rights. However, we would wish to discuss this matter with TfL to encourage a more sensitive approach to the design and siting of any structure, having regard to its impact on the surrounding street scene. Whilst we cannot compel such engagement we will seek to engage with TfL on this matter and can provide you with a further update in due course.

Thanks,

Rosie

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Permalink Reply by Nigel 2 hours ago

I thank Cllr Latchford  for her explanatory posting above. 

It is clear that she has consulted the planning officers and possibly the Council's Monitoring Officer, who is a solicitor. Regrettably, she appears to have been misinformed as to her duties and the legal position and the duties of decision-makers at the Council.

Most of what she writes is correct as a matter of law, in particular: 

"As such, there is no statutory requirement for public consultation in the same manner as would apply to a planning application, where we advise the community of the application having been received so they can comment, given we can consider matters in our assessment such as impact on neighbours’ amenity. We must determine the certificate application based on the facts of the case and the applicable legal tests......." and

"Whilst accepting that a decision on the Certificate of Lawfulness application has not yet been made, and assuming the relevant criteria are satisfied such that the development is deemed to be lawful, we would ultimately not be able to prevent TfL from exercising such their permitted development rights " 

However, it is NOT correct in law or otherwise to say that:

"Residents may write to Officers with comments on how they consider the proposal might impact on them, and we will read them; but unfortunately we cannot take them into account in deciding if the proposal is permitted development or not as that is purely based on law." 

The law requires the Council to decide whether, as a matter of fact the site or land the subject of the application, is in operational railway use. 

Cllr Latchford, the Council decides that as a fact, not law, and the law requires that all relevant facts and matters are to be taken into account in so deciding. If a resident or anyone puts that fact in issue to the notice of the Council, the decision in Tameside and the long line of cases following holds that the Council must inquire into the actual position in fact and familiarise itself with what is needed before deciding. You and the Officers that serve you may not ignore 

As I wrote before, it is basic admin law is that all relevant facts must be taken into account. The Council may not fail to take evidence of relevant facts into account. That will vitiate the decision. The absence of a formal, statutory comments procedure does not obviate that duty. 

The law goes further. If the Council makes an error of fact material to its decision, that decision will be unlawful and liable to be set aside by the Court: see  E v SSHD [2004] EWCA Civ 49 and the line of cases following.

The E  test, amply fulfilled here, has 4 conditions: the mistake must be on a existing fact (including mistake as to the availability of evidence on a particular matter); it must be uncontentious; if challenged, the claimant must not be responsible for the mistake; and the mistake must have placed a material part in the decision-maker’s reasoning. Conditions 1,2 and 4 are amply fulfilled and if it went to court, condition 3 would be too.

So please, Cllr Latchford, Cllr Kuper and "Cllr Mark"do be careful; you all now know the site is and has not been in railway operational use for years and years, if ever. It is your duty to ensure that the decision-makers do not think otherwise.  Don't be fooled into thinking that "sensitive design" or "engagement with TFL"  or some consultation will suffice - on the plain facts known to Councillors, TFL is not entitled in law to the Certificate it seeks. The Council would expose itself to judicial review is it decided otherwise.

Please pass this note on to your colleagues, particularly members of the planning committee. Meanwhile, I would be happy for the Monitoring Officer to comment and tell you - and me - if I have the law wrong, with authorities in support of course.

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