There is no straightforward way to divide up the text into categories to ease reading and navigation. I have therefore adopted an arbitrary division by occasionally inserting page numbers and letters present in the official transcript. Otherwise the document is the full text of the judgement un-abridged in any way (including typographical errors)- Webmaster
- brief Crystal Palace Campaign
comment on the case based on the 1990 Act
Start of the judgement
PAGE 2 - "Before the court is an application for judicial review."
PAGE 5 - "...the authority gave their reasons..."
PAGE 10 - "the concept is a glass crystal 256 meters long..."
PAGE 18 - "The present proposals reflect the rectangular and repetitive nature of the original Palace" PAGE 22 - "He submitted that this task of identifying the concepts..."
PAGE 27-B - "Parliament in 1990 plainly envisaged the construction of a building..."
PAGE 29-B - "I turn to this subsidiary ground concerned with parking."
PAGE 32-F - "The new point is a short one. It consists of two propositions."
PAGE 35-D - "Did the words reflect the architectural style of the original Crystal Palace'.."
What is the Crystal Palace Act Challenge about?
The Crystal Palace Act 1990 states
"any new building must reflect the architectural style of the original Crystal Palace."
Graham Allen, the MP who was the architect of the Act, has said that the new design
"owes more to a greyhound stadium grandstand than the original Crystal Palace".
If the Court agrees with him, this building may never be built.
Bromley's planning committee was told that various experts had advised that the building complied with the Act. The Campaign has pointed out that the experts had done no such thing, and had in fact misunderstood or misapplied the words of the Act. These errors are fatal to the planning permission.
Why are we attacking the style of the building, when it's obvious that there shouldn't be a massive building there at all? Because it is our best legal point. Arguing that this building is crass, ugly, immoral and an exercise in profiteering would be nice, but it wouldn't win the case. Also, if the building needs to be designed with vaulted roofs like the original Palace, then it can't be built, because you can't put a car park on a dome. Finally, there is a race to build multiplexes in South London. If other schemes start while the developer is locked in battle with us, the developer may lose the race, and the site will be saved.
Royal Courts of Justice
2lst December 1998
LORD JUSTICE KENNEDY
LORD JUSTICE SCHIEMANN
SIR IAIN GLIDEWELL
R E G I N A
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THE LONDON BOROUGH OF BROMLEY (First Respondent)
LONDON AND REGIONAL PROPERTIES LIMITED (Second Respondent)
THE CRYSTAL PALACE CAMPAIGN (The Applicant)
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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171-421 4040 Fax No: 0171-404 1424
(Official Shorthand Writers to the Court)
MR R DRABBLE QC [MR MAURICI] (instructed by Messrs Leigh Day & Co, London EClM 4LB) appeared on behalf of the applicant
MR C COCHRANE QC and MR G STEPHENSON (instructed by Chief Legal Officer, London Borough of Bromley, Bromley BRl 3UH) appeared on behalf of the First Respondent.
MR M HORTON QC and MR C BOYCE (instructed by Messrs Lawrence Graham, London WClR lJN) appeared on behalf of the Second Respondent
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J U D G M E N T
(As approved by the Court)
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2lst December 1998
LORD JUSTICE SCHIEMANN: Before the court is an application for judicial review. Leave to move for judicial review was refused by Sullivan J but the application for leave was renewed before another constitution of this court and leave was granted. However it was ordered that this court should hear the application for judicial review itself rather than requiring the matter to be decided at first instance. So we are exercising an original jurisdiction.
The decision sought to be reviewed is the decision of the Council of the London Borough of Bromley acting through its Development Control Committee to grant outline planning permission to London and Regional Properties Limited for a major development on the site of the former Crystal Palace. The applicants want that permission quashed. Judgments on the planning merits are entrusted to the council. This court can only quash a permission if what has been done by the London Borough of Bromley is against the law. All that is common ground.
The present case is unusual because the decision to grant planning permission although subject to the general law contained in the Town and Country PlanningAct l990 was also made in the light of the Bromley London Borough Council Crystal Palace Act of 1990 and of an undertaking which had given by the Council to Parliament during the course of the passage through Parliament of the Bill which later became that Act. The applicants claim that, in the light of the inhibitions contained in the Act, the grant of planning permission in the form which it took was unlawful. So I propose first of all to set out those inhibitions. The long title to the Act tells us that it is "An Act to provide for the leasing of land at Crystal Palace". The section upon which the applicants rely is section 4 which reads:
"The principal building to be constructed in any development of the Pink Land consequent upon the provisions of this Act shall reflect the architectural style of the original Crystal Palace."
The undertaking which the Borough Council as promoters had given during the passage of the Bill through Parliament was in these terms:
"Style of building. If a building is constructed in implementation of the Bill, the Council as Planning Authority shall require that the building should contain a predominance of glass and metal or similar materials and that the building should reflect the spirit of the original Crystal Palace."
The permission which it is sought to quash was for:
"the development of leisure and recreational facilities, car park deck and associated ramps and surface car parking, at site of former Crystal Palace."
It was subject to a number of conditions. One of these was concerned with car parking and this has given rise to a subsidiary head of challenge which I shall consider later in this judgment. The only conditions which are relevant to the main head of challenge are conditions 1 and 3. The first of these is in standard form when outline planning permission is being granted, namely, a condition requiring the subsequent approval of details of siting, design, appearance, access and landscaping. Condition 3, however, I ought to set out. It is in these terms:
"The details submitted pursuant to condition 1 shall show inter alia a building with elevations of predominantly glass and metal and generally according with the illustrative elevations accompanying the application, drawing number PE4201 in all material respects, reflecting the spirit and architectural style of the original Crystal Palace at Sydenham and in accordance with the terms of the Bromley London Borough Council Crystal Palace Act 1990 and other relevant legislation "
Pursuant to their statutory obligations the authority gave their reasons for the imposition of this condition and those were these terms:
"In the interests of the visual amenities of the area and the adjacent conservation area in particular and to comply with the terms of the Crystal Palace Act 1990 and other relevant legislation."
The applicants' principal submission is that when one looks at the drawing referred to in the third condition it is clear that the development for which the Council were purporting to grant permission could not conceivably be described as reflecting the architectural style of the original Crystal Palace.
The applicants are various local individuals some of whom act on behalf of the members of a local association known as the Crystal Palace Campaign. As the proceedings are now formulated, no objection is taken to the legal status of the Applicants for judicial review nor to their standing to make this application and we see none.
In substance what is objected to is a particular building with a particular design. The permission, however, is an outline permission requiring that before any development is commenced detailed plans should be submitted and approved. The third condition may not be properly categorised as a condition at all but be intended merely to give the world some idea of what sort of design would be likely to gain approval. So a possible answer which this court could give to the problems posed by this case would be merely to state that the application for judicial review was premature in that the final plans had not yet been approved and that in any event non-compliance with section 4 does not go to the validity of the planning permission but merely to the legality of constructing such a building whatever the planning situation. The mere grant of planning permission to construct something which is not permitted by the private act is not in itself illegal; nor does the grant of such permission legalise the subsequent construction of the building if such construction is indeed prohibited by section 4.
However, all parties are anxious to have the substance of their disagreements resolved as soon as possible. Moreover, the local planning authority, when granting itself planning permission clearly took the view that compliance with section 4 was a relevant consideration for them to bear in mind when deciding whether or not to grant planning permission and what conditions to impose. The point at issue between the parties is one of importance and ought to be resolved as soon as possible and we are content to resolve it in these proceedings.
The essence of the submissions which have been made very skilfully on behalf of the Campaign by Mr Drabble, QC, is that the court should look at the drawings of the original Crystal Palace, then look at the elevations of the proposed new building and should then instinctively conclude that the new building could not reasonably be said to reflect the architectural style of the original Crystal Palace. If that is the court's conclusion then, he submits, it must follow that either the Council misconstrued what was meant by Parliament when it used the words "reflect the architectural style" or that the Council acted perversely. It is of course conceded on behalf of the Council that if it misconstrued the Act or acted perversely then the court has power to quash the permission.
For my part, I agree with the proposition that the proposed new building does look very different from the original Crystal Palace and my layman's reaction before reading any of the evidence was that the proposed new building does not reflect the architectural style of the old Crystal Palace. So I quite understand why local people felt that the Council must have gone wrong. When I read the evidence I began, on the other hand, to have sympathy with the Council: it had asked for expert advice from architects and had received it from many eminent individuals and organisations. The gist of that advice was that the proposed building did indeed comply with the undertaking and the section. In the light of that expert advice, was the Council committing an error of law in concluding that the proposed building did so comply? That is the question we have to resolve.
The crucial document in the present case is the Officers' report which was in front of the Development Control Committee. That report contained a number of appendices setting out letters from experts who had been consulted. The authors drew the Committee's attention to the summary of the proposal as formulated by Mr Ritchie the architect employed bv the developers. I shall read short extracts from that appendix. Mr Ritchie says this:
"The Bromley London Borough Ccuncil (Crystal Palace) Act 1990, requires any new building to be erected on the site to reflect the architectural style of the original Crystal Palace; and in an undertaking given to the House of Commons Committee (Crystal Palace Bill) to contain a predominance of glass and metal and reflect the spirit of original building by Paxton.The 1990 Act limits the size of any new building's footprint to 50 per cent of the development land area. It is therefore impossible to design a building which could even remotely approach the scale of the original Crystal Palace in Hyde Park, or that of the even larger Sydenham Crystal Palace."
Later on he said:
"Paxton's original Crystal Palace, as built in Hyde Park, was simple. A stepped rectangular cross-section. A central vault was added to avoid removing a tree in the Park.
Later, at Sydenham, the rectangular profile received a vault along its length, intersecting with the central vault. The result was a very much longer and higher building than the one erected in Hyde Park and it lost some of the simplicity and grace of the original.
In both cases, however, the building had rhythm and proportion. Both these buildings could, like their respective parks, accommodate a host of different public activities.
Both Paxton and his engineering consultant, Mr Fox, were inventive, not only technically, but also practically with regard to fast construction through standardisation, demountability, maintenance, and construction economy. This is equally relevant today."
Then he turns to describe the design concept and says this:
"The concept is a glass crystal 256 metres long, which, from the park, floats above the terraced landscape like a polished crystal upon an inclined landscape of quartz aggregate and cascading water. By placing the 'opaque' cinemas at ground level the potential was released to achieve a simple crystalline architectural form of glass and steel which could be integrated with the park landscape. It rise 18 metres above its immediate landscape to create a strong presence at the top of the park."
Then, returning to the report before the Committee, the authors summarised the views of consultees including English Heritage, the Royal Fine Arts Commission and Bromley Council's own independent architectural advisory body known as The Architectural Panel. Their views were also included as appendices. The letter from English Heritage contains these passages:
"The Crystal Palace broke new ground because it was the first occasion on which prefabricated metal systems and walls of glass were given architectural expression on a grand scale. This suggcsted to many contemporaries that the Crystal Palace had established an architectural style of its own. Sir Giles Gilbert Scott in 1858 stated that 'this triumph opens a new field of architectural development', and Ruskin declared that architectural laws would have to be reinterpreted to embrace the new 'metallic construction'."
Later in the letter English Heritage say this:
"You have asked for comments on the extent to which the current design by Ian Ritchie and Chapman Taylor reflects the architectural style and the spirit of the original. The first point to make is that the current building is designed for an entirely different purpose than the original: an exhibition hall could not serve as a commercial leisure building. Nor, indeed, could a replica of the original be built today even if an exhibition hall were required on this site. Present requirements in relation to fire, insulation and environmental control, for example, and the stipulations of the 1990 Crystal Palace Act mean that a faithful reproduction of Paxton's building would be impossible to achieve.
Having said that, however, it appears to me that, given these constraints, the Ritchie/Chapman Taylor design does indeed represent a contemporary interpretation of the spirit of Paxton's Crystal Palace. This is a radical and innovative design which includes, for example, inclined planes of glass not used on this scale before. Like the original building, the dominant theme of this design is transparency and a crystal-like quality enabling passers-by to see the activity inside the building envelope. Ian Ritchie, moreover, is renowned for the use of glass in his designs. The proposed new building also utilises modular elements, as Paxton did, to create a rhythm of structural bays. Ritchie, like Paxton before him, takes his inspiration from the technology of the day and develops his designs in close co-operation with industry.
In the opinion of English Heritage, one of the particular strengths of the current design is its relationship to the park landscape. We believe it takes full advantage of its hill-top position, and stunning views across the historic landscape. It responds well to the scale and muscularity of the Paxton landscape, as well as incorporating themes from the proposed Gustafson improvements to the Park.
The final point I would raise relates to the inherent flexibility of the proposed new building, which you will know has been an issue of particular concern to English Heritage throughout the design process. Paxton's Crystal Palace was essentially a magnificent building envelope which demonstrated throughout its 70 year life its capacity to adapt to a series of different uses within. These changes of use were achieved without requiring significant alterations to the external envelope. We believe that this is one of the key qualities of the new building which would enable it to adapt internally without harming the architectural integrity of the design."
The Royal Fine Arts Commission in its letter says that it was asked:
"... to advise on whether the scheme complies with the requirements of the  Act, namely that the building 'shall reflect the architectural style of the original Crystal Palace', and the Council's undertaking to Parliament ..."
It says that:
"The Commission believes that the proposed building reflects much of the spirit of the original Crystal Palace, not least because, as its predecessor, it is at the cutting edge of the construction technology of its day.
On the question of 'reflecting the style' of the original Crystal Palace, the Commission notes that the architect's presentation made it clear that this design was based on a close analysis of the original Crystal Palace, and is envisaged as an exercise in reinterpretation. It also notes the intentions underlying the phrase 'architectural style' referred to in the minutes of Evidence of the House of Commons Committee on the Bill; for example, the reference to 'style in its broadest sense'."
The Architectural Panel in its letter said this:
"[The Panel's] view is that Ian Ritchie scheme is in the spirit and architectural style of Paxton's Crystal Palace.
The Architectural Panel is unable to state whether the building complies with the Act in general terms as this is outside our area of expertise. Our comments are given as practising architect, nominated to this Panel by the RIBA.
We see the use glass and metal in a bold and forward-looking design as being the essential characteristics of Paxton's building. Ian Ritchie's scheme meets these criteria and creates a building which is as much of our time as Paxton's was of his.
One member felt that 'architectural style' was impossible to define. What all members agreed that it did not mean a pastiche of Paxton's design.
I understand that there has been some suggestion that the building should be a close copy of Paxton's and that this is the way in which the Act should be interpreted. Leaving aside all of the practical difficulties in achieving such a building, it seems that if this was what the Act was intended to mean, it could very easily have said so, rather than using the words 'spirit' and 'architectural style' which admit a much wider interpretation."
The authors of the officers' report then summarised the views of objectors including the Crystal Palace Campaign which argued that the development would not evoke the style or spirit of the original Crystal Palace and that it would lead to the worsening of existing congestion and street parking problems.
After dealing with a number of other matters, not presently relevant, the report then draws members' attention to the Crystal Palace Act as well as to the legal considerations which were set out at the end of the report and recommends conditional approval.
The legal considerations cover a variety of matters many of which are of no present concern. However I should read the following passages:
"Clearly Members need to be satisfied that what they are being asked to grant planning permission for is within the provisions of the Act relating to the local planning authority and need to be satisfied that they have been properly advised and have based their decision on a reasonable interpretation of the facts presented to them."
Then follows a list of matters which the authors regarded as relevant under the 1990 Act. They, of course, refer to the style and spirit of the building and say that a judgment as to that is the responsibility of the Development Control Committee. In relation to that they simply refer to the undertaking and the terms of the Act and then continue:
"Advice on the before has been sought from Ian Ritchie Architects, English Heritage, Royal Fine Arts Commission and Bromley's Architectural Panel. The views of these bodies have been received, which are all positive."
The Council was referred to the relevant appendices, parts of which I have already read.
The authors of the report then identified two main questions with which the Council had to grapple:
"a. Does the current proposal contain a predominance of glass and metal or similar materials?"
As to this the authors say it would appear that the building as proposed on the illustrative plans does contain a predominance of glass and metal. The second question which they identify is:
"b. Does the current proposal reflect the architectural style and spirit of the original Crystal Palace?"
They then refer to various dictionary definitions of style, reflect and spirit and they go on to say this:
"Original in the above context refers to the Crystal Palace erected at Sydenham not the earlier Crystal Palace at Hyde Park. This was the interpretation put on the term by Bromley Council's counsel during the Parliamentary hearing."
I interpose to say that that interpretation was adhered to by all parties before us. The authors of the report go on as follows:
"No-one could seriously contend that the proposed building is a copy of the original Crystal Palace, or that it should be. It would be physically and legally impossible (because of the restraints) as well as aesthetically undesirable, to try and replicate the original. There are site constraints on the scale of the building from the new bus terminus, the BBC transmitter station and the reservoir site. Equally, transmissions from the BBC mast would be adversely affected by a building the height of the original Palace (70 metres). It is clear therefore that it is not possible to replace the original Palace with an identical building and this was not the intention of Parliament.
The original Palace at Sydenham was a landmark building erected as a focal point in the Park. The first building at Hyde Park was simple. A stepped rectangular cross-section with a central vault. Later at Sydenham, the rectangular profile received a vault along its length, intersecting with the central vault. The result was a much larger building than the one at Hyde Park and lacked the simplicity and grace of the original. In both cases the buildings had rhythm and proportion. They were buildings that could, like their parks, accommodate a host of different public activities.
The present building is set at a focal point in the Park. It is orientated on the same axis both along Crystal Palace Parade and to take advantage of and emphasise the Paxton central walkway which is re-landscaped under the Katherine Gustafson proposals. The central axis and walkway will pass right through the middle of the proposed building and out into a new public square onto Crystal Palace Parade. The building will therefore become a modern interpretation of the style and spirit of the original yet does not set out to become a pastiche.
One of the great features of the original Crystal Palace was its transparency, its appearance as a glorified greenhouse based on the glasshouse at Chatsworth. The proposed building also respects the inherent transparency necessary to capture the style and spirit of the original Crystal Palace by using a predominance of glass and metal and inviting views both into and out of the building.
The original Crystal Palace was designed to take full advantage of the formal landscaped gardens and terraces around the building. The proposed building will, from the Park, sit in a revitalised landscape designed by Katherine Gustafson. Her reinvention of the grand water feature tradition of the Park and magnificent landscaped areas will literally start at the building where the incorporation of water features cascading down the side of the structure and becoming part of the three hour Park water spectacular. Integration of landscaping and building are essential ingredients of the style and spirit of the original and proposed buildings.
The present proposals reflect the rectangular and repetitive nature of the original Palace. The engineering, fabrication and assembly of the Sydenham Crystal Palace were remarkable and allowed for a quick realisation of the project. The proposed building will also be at the forefront of technology using for the first time in the United Kingdom a low-iron glass which has no body colour. The glazing techniques have never been used before. Inclined glass walls at 45 degrees of the type illustrated by the plans have never been built before or at such a scale. The proposed building is repetitive and modular like the original.
The detailing does reflect the verticality and rhythm of the original Paxton design. The roof structure exploits standard depth beams like the original. The proposed materials of the design, steel and glass, reflect the aspirations of the Act and the manner in which they have been conceived in the fabrication and assembly also reflects the innovative style and spirit of the original.
Whilst the proposed building does not have a central transept it can be concluded that the building does sufficiently reflect the architectural style and spirit of the original Crystal Palace at Sydenham to comply with the terms of the 1990 Act. However, Members should be advised that there is no absolute test one can apply and that they can reconsider this aspect at the detailed planning stage as the present drawings are only illustrative at this stage. Views were requested from other learned authorities. Members will need to give all these views due weight before reaching a conclusion."
I should indicate at this point that Mr Drabble makes no complaint before this court that the proposals are at variance with the Parliamentary undertaking. He does, of course, maintain that they are at variance with the Act. The reaction of Councillor Booth, who moved that planning permission be granted and whose motion was accepted by the Committee, to the report was:
"I do consider myself competent to judge architectural style but if we've have employed these experts to give us advice then I don't think really we need to bark ourselves as well, although obviously we all do have our personal opinions."
The individual thought processes of every Member of the committee are inevitably not known. However, on the evidence it is reasonable to suppose that a decisive number of them were influenced by passages in the report and the experts' letter.
Mr Drabble submits that the officers and experts committed an error of law and thus unintentionally misled the Council and that this entitles this court to quash the permission. For my part, I agree that if the compilers of the report did indeed mislead the Council as to the law then that would entitle the court to quash the permission.
Mr Drabble relied on the case of R v Monopolies and Mergers Commission ex parte South Yorkshire Transport Limited 1WLR  at page 23. That case arose in these circumstances. In March 1990 the Secretary of State for Trade and Industry, pursuant to his powers under section 64 of the Fair Trading Act 1973, made a reference to the Monopolies and Mergers Commission in relation to the acquisition by the first applicant of certain bus companies operating in that area. The Commission, accepting the reference, considered that the jurisdictional precondition in section 64(3) of that Act, namely that the reference area should be "a substantial part of the United Kingdom", was met. The House of Lords stated that on their true construction the words "a substantial part of the United Kingdom~ in section 64 connoted a part of such size, character and importance as to make it worth consideration for the purposes of the Act. Mr Drabble does not, of course, rely on that particular finding as such but to the approach of the court to a question which, he says, is not dissimilar.
The leading judgment of the court was delivered by Lord Mustill who said at page 28:
"... I believe that the interpretation of section 64(3) must be proceed by two stages. First, a general appreciation of what 'substantial' means in its present context. Second, a consideration of the elements to be taken into account when deciding whether the requirements of the word, so understood, are satisfied in the individual case."
A little later at page 29 Lord Mustill said:
"The courts have repeatedly warned against the dangers of taking an inherently imprecise word, and by redefining it thrusting on it a spurious degree of precision."
At page 32 of the report Lord Mustill said this:
"But this clear-cut approach cannot be applied to every case, for the criterion so established may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational."
Mr Drabble submitted that the local planning authority had two tasks. Its first task was a purely legal one, namely to identify the intellectual concepts referred to in the section which we are required to construe; namely what was meant by "architectural style" and "reflect".
He submitted that this task of identifying the concepts was a purely legal one; a hard edged task subject to the control of the court. He submitted that the task of identifying the intellectual concepts in play had to be carried out in the light of the existence of the Parliamentary undertaking and by asking oneself, "What was Parliament seeking to achieve by the insertion of this section into the Act which it had not already achieved by the undertaking?" He submitted had the local planning authority correctly carried out this legal task then it would have then been faced with a second task, namely, to determine whether or not the relevant requisites had been complied with in the instant case. That second task involved a weighing of planning merits which this court, he accepts, is not empowered to undertake. He submitted that the local planning authority had wrongly elided these two tasks and had indeed left the legal task largely to the architectural rather than the legal experts and that the Council and the architectural experts had either not consciously carried out the right legal task or alternatively done it in such a manner as to commit an error of law which entitled this court to interfere.
Mr Drabble's submission is that, as a matter of law, reflecting the architectural style of the original Crystal Palace means producing something which "has a reasonable degree of visual resemblance to the original". He points out that the proposal does not look like the original, that none of the experts said that it did look like the original and if they had done so they would have made themselves look ridiculous. That, he submits, is the end of the case. It was seductively put.
However I am not persuade that it is open to this court to substitute a requirement that the new building should have "a reasonable degree of visual resemblance to the old Crystal Palace" for the phrase used by Parliament, namely, that the new building should "reflect the architectural style of the original Crystal Palace". Mr Drabble accepts that Parliament cannot have intended to require that the new building should be a replica of the old. That is quite clear because elsewhere in the Act Parliament prescribes the maximum size of the footprint of the new building and that maximum size is significantly smaller than the size of the original. Moreover, Mr Drabble accepts that Parliament cannot have required the new building to be the same shape as the old. He would, I think, accept that Big Ben reflects the architectural style of the Houses of Parliament although it is clearly a different shape. I think he accepts that the Sydenham Crystal Palace reflects the architectural style of the Hyde Park Crystal Palace. Once one accepts that, as he has to, the test of a "reasonable degree of visual resemblance" cannot be fulfilled. At best one can get features in the new building which remind one of features of the old building. I suspect it was because Mr Drabble saw the force of this point that he at one stage in his oral submissions suggested that the test was whether the proposed building "made a visual allusion" to the original Crystal Palace.
As it seems to me the appearance of any building is an amalgam of many elements. If one is charged with reflecting the appearance of one building, in circumstances where an identical building is ruled out, inevitably some of the elements which contributed to the appearance of the original will not appear in the new building. Moreover any new building may also, while nevertheless reflecting the appearance of the old building, contain elements which in themselves could not be said to reflect that appearance. Parliament did not refer to appearance but rather to "architectural style~. But Parliament did not refer to a style in the abstract -- as it might have referred to Norman, Early Perpendicular, and so on -- but rather to the architectural style of a building which, on the evidence, appears not to have been preceded by any other building which looked similar, with the possible exception of the Hyde Park Crystal Palace which had been dismantled after the Great Exhibition and of which the Sydenham Crystal Palace was, to a degree, an echo. In those circumstances the question which had to be answered at the end of the day is no doubt whether what is proposed reflects sufficient of the elements of the original to constitute a reflection of its architectural style.
While no doubt everyone can have an opinion as to what are the elements which contribute to the style of the original and as to the degree to which those elements are reflected in the proposal, manifestly the most competent people to express an opinion on whether one building reflects the architectural style of another are architects rather than councillors or judges. If a person not trained in harmony and composition were asked, say, whether Britten's Cantata Academica reflected the style of Bach's Art of Fugue written two centuries earlier he would turn to a musician who was trained in making such judgments. As it seems to me it was eminently reasonable for the Council to turn to architects for advice on whether the architectural style of the old Crystal Palace was reflected in the proposal. A number of eminent independent bodies agreed with the eminent architect who designed the proposed building that it did reflect the architectural style of the original Crystal Palace.
Mr Drabble makes the fair point that the experts themselves differ in some respects in what they identify as the salient features of the old Crystal Palace which are allegedly reflected in the proposal. He submits that this shows that they did not define the abstract concept of architectural style in the same manner and therefore their opinions should be seen as worthless and should have been perceived as such by the Council. In my judgment this is altogether too abstract an approach. Style is the result of a combination of many different factors and differing experts and laymen will consider different elements of that combination important.
At the hearing we were furnished with a list of similarities as between the original Crystal Palace and the proposal and a counter-list of dissimilarities. Once one accepts that total similarity is not required, those lists carry one no further than showing that a judgment has to be made as to whether the architectural style of the one is reflected in the other. I have already quoted the words of Lord Mustill in relation to:
"[a] criterion [being] so imprecise that different decision-makers, each acting rationally, might reach different conclusions when applying it to the facts of a given case."
Parliament in 1990 plainly envisaged the construction of a building which would serve a commercial purpose and did not in terms require the new building to look like the old Crystal Palace. The phrase used is much vaguer. Parliament must have envisaged that the question whether a particular proposal reflected the architectural style of the original Crystal Palace would in due course be put to architectural experts for their opinion and that the decision-maker, whether that be the Council or a court having to decide on injunctive relief, would gain such help as it could from such opinions. No doubt different architects would find the reflection in different aspects of the proposal. In the present case, the Council were faced with numerous experts each of whom for overlapping reasons found reflections of the old in the proposal. We do not know which parts of which letter which councillor found persuasive. However, I would adopt the words of Sullivan J at page 13C of the transcript when he said:
"I find it quite impossible to say that these experts bodies, all of whom had the question put to them, all of whom grappled with it in their own non-legal language, all misdirected themselves or deliberately tried to duck the issue. I recognise, of course, that whether something is of a particular architectural style can be the subject of legitimate professional disagreement. The scope for disagreement is even greater where the question is: Does something reflect an architectural style? This is perhaps more likely to be the case where the original building was an unusual building, as was the Crystal Palace which, in a sense, set its own style rather than fell within one of the more common general descriptions of style, Victorian, Georgian, or whatever. It does seem to me that, looking at the characteristics of the original building, in particular, factors such as the extent to which it was innovative in constructional terms, questions of the utilisation of modular elements, the rhythm of structural bays and so forth, all of those were matters which were properly taken into account by those who advised the Council that the requirements of section 4 were met."
I accept that the experts did not always separate out as a discrete issue the question whether the proposal complied with the undertaking or complied with the Act. For my part I see no necessity for them to do so. I cannot definitively answer Mr Drabble's question as to why section 4 should have been enacted given the existence of the undertaking. But there are a number of possible reasons not the least of which is that the undertaking does not bind the Secretary of State who might well be in a position to grant planning permisslon over the head of the Council, whether on an appeal against a refusal or on a call-in.
I would therefore reject Mr Drabble's main ground of challenge.
I turn to his subsidiary ground concerned with parking. Some of the local objection to the proposal was based on the residents' fear that it would attract a lot of traffic which would inconvenience residents in as much as it would render it more difficult for them to drive around their area and park outside their houses. The Council and the developers accepted that the development would attract a lot of people and that some of these would come by car. The Council were advised that if enough on site car parking were provided to cater for all who might wish to drive to the development then 1,200 car parking spaces would need to be provided. Notwithstanding that advice, the Council decided to impose a condition that no more than 950 spaces should be provided on site. The fear of the residents is that this deliberate decision not to meet the calculated demand will result in visitors to the development spilling out onto the local streets and parking there thus adding to congestion and difficulty of parking for the residents. This fear is understandable. Why then did the Council not insist on the provision of 1,200 spaces? That is what puzzles the residents.
The answer is to be found in a change in national strategies in relation to parking and congestion. A consistent aim of planning control over the last 30 years has been to seek to facilitate a free flow of traffic on the highways of this country. Because parking on streets causes traffic congestion it used to be common to impose conditions on the grant of planning permission requiring that the developer provide enough on site car parking to meet demand. Then it was realised that if on site car parking is provided people drive to the development site and that cars being driven on roads cause just as much traffic congestion as cars parked at the roadside. Although the aim of facilitating the free flow of traffic has not changed the policy designed to achieve that aim has changed through 180 degrees. Now, instead of developers being required to provide on site car parking they are forbidden to provide enough on site car parking to meet demand. This newer policy runs the risk that visitors to the development will park on nearby streets which was, of course, precisely the risk which it was sought to overcome by the adoption of the original policy. In order to minimise this risk it is now policy to try and improve public transport facilities to developments and to control parking by the use of Controlled Parking Zones. It is hoped that the combination of carrot and stick will persuade a greater proportion of visitors to developments to come by public transport.
There can be no doubt on the evidence before us that the Council was advised to adopt and deliberately adopted the new strategy of not providing enough car parking to meet unconstrained demand and that, in order to meet the problems which this might cause, moves were afoot to improve public transport and to use Controlled Parking Zones. The Council knew, when they imposed the condition limiting the car parking, that this might cause a problem and sought to meet it in that manner.
Now the residents were not convinced that the problem would be met. That however is a disagreement concerning the merits which is a matter over which the courts have no jurisdiction. So their lawyers sought to find a legal basis for their challenge in these proceedings. The original legal basis upon which they put their case failed to impress either Sullivan J or the Court of Appeal as being even arguable. However, the Court of Appeal having given leave to challenge the grant of permission on the basis that the Crystal Palace Act had been misconstrued, Mr Drabble in front of us asked for leave to amend his Form 86A so as to raise a different legal challenge to the grant of planning permission, namely, a new way of attacking the manner in which the Council had dealt with the parking problem.
In the face of opposition from both the Council and the developers, but without hearing either of their counsel, we granted leave. This was essentially a pragmatic decision by the court. To hear the arguments for and against granting leave would, in the present case, have taken the same amount of time as to hear the arguments on the substantive point. If we came to the conclusion that the substantive point was a good one then the arguments against granting leave could be deployed in submissions as to how the court should exercise its discretion to grant relief. I would however wish to emphasise that it is the duty of applicants for judicial review to put all their case in the original application and that in principle the court will be slow to allow applicants to raise new points in circumstances where the only reason that the point was not raised earlier was, to use Mr Drabble's words, that "the penny did not drop".
The new point is a short one. It consists of two propositions.
1. It is a serious possibility, judging by the officers' report to Committee and a transcript of part of the hearing before the Committee, that some or all members were misled as to how the unconstrained demand figure of 1,200 cars was arrived at. They may have thought that it was calculated on the basis that 65 per cent of the anticipated visitors to the site would travel by car whereas in truth it was calculated on the basis that 50 per cent of the anticipated visitors to the site would travel by car.
2. It is a serious possibility that had the Committee realised that the correct basis of calculation was 50 per cent rather than 65 per cent then they would either have refused permission altogether or imposed a higher parking maximum than 950 and therefore the court ought to quash the permission.
For my part, I would accept the first proposition and reject the second. It is clear from the material before us that the Committee was aware that unconstrained demand for parking was not being met under the proposals and that there were fears among the objectors that the result of this might be to create traffic problems. Had the Committee been persuaded as to the overriding importance of those fears in the context of this development they would, it seems to me, either have refused the permission altogether or imposed a condition requiring a minimum number of car parking spaces to be provided. They did not do this. They imposed a condition requiring that:
"At no time shall more than 950 car parking spaces be provided on site."
The developers are content with this limitation and have not appealed it. The Council were told in the officers' report that to provide less than 1,200 spaces:
"will require a continued emphasis on increasing the proportion of users arriving by public transport."
Nonetheless the council imposed a maximum. They clearly had in mind a reduction from 1,200 to 950 and deliberately decided to impose it notwithstanding the difficulties this might create for the local residents. Conscious as I am that judgments are for the Council rather that the court, I do not regard it as a serious possibility that they would have come to a decision to refuse planning permission if it had been clearly explained to them that the 1,200 was arrived at by assuming that 50 per cent rather than 65 per cent of the visitors would arrive by car. As for the possibility that the Council might, had matters been explained better, have decided to substitute for 950 a higher number, that is not a reason for quashing the permission. Should the developers wish for that condition to be relaxed and should the Council be persuaded of the case for such a relaxation then it can be done without any interference by the court. Should the developers not wish for a relaxation of the condition then whether or not the figure in the condition is increased is of no practical significance.
I would dismiss this application.
SIR IAIN GLIDEWELL: The question we are asked to answer on the main issue can be framed, "Did the words 'reflect the architectural style of the original Crystal Palace', properly understood, entitle the Council, acting rationally, to conclude that the building proposed satisfies section 4 of the Act of 1990?"
Nobody has dissented from the adoption for this purpose of the Oxford English dictionary definition of architectural style as "a definite type of architecture distinguished by special characteristics of structure or ornamentation". There is no doubt that very frequently buildings which share a sufficient number of such characteristics as to justify them being described as being in the same architectural style will, as a result of those characteristics, have a similar appearance.
But is it essential, as Mr Drabble contends, that buildings in the same architectural style should look alike? To my mind this is the nub of the argument. In the end I have concluded that buildings can be said to be one of architectural style if they share a sufficient number of characteristics to justify classing them together even though they are dissimilarr in appearance.
Some may doubt whether the Crystal Palace exemplified or was part of an architectural style at all. But the phrase "the architectural style of the original Crystal Palace" in section 4 must be given a meaning. Mr Ritchie in his affidavit has adopted the title "The Victorian Engineering Aesthetic" for the buildings and structures which had the same or similar characteristics of structure as the Crystal Palace: iron or steel and glass, a modular repetitive structure resulting from the use of industrial techniques, and the other matters referred to in his evidence, as well as in the letters from those who were consulted to which Schiemann LJ has already referred. Clearly other buildings in that style which shared those characteristics did not look alike. I am satisfied that the phrase "reflect an architectural style" justified the Council in deciding that the building proposed could properly be said to satisfy section 4.
For these reasons, and for those given by Schiemann LJ with which I agree, I also agree that the challenge on section 4 fails.
On the car parking issue I entirely agree with what my Lord has said and I wish to add nothing of my own. I also would therefore refuse the application.
LORD JUSTICE KENNEDY: For the reasons given by my Lords, with which I agree, this application, in my judgment, should be dismissed.
ORDER: Application dismissed. Costs be for first respondent only. Application for leave to appeal to the House of Lords refused.
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