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(L.4) Petition to the House of Lords

Respondents

Petitioners

TO THE RIGHT HONOURABLE THE HOUSE OF LORDS 

THE HUMBLE PETITION OF (l) Crystal Palace Campaign c/o 62 Whiteley Road,
London SEI9 1JT, (2) Philip Alan Kolvin of the same address, and (3) others.

1. Your Petitioners seek leave to appeal from the decision of the Court of Appeal (Kennedy and Schiemann LJJ and Sir Iain Glidewell) on 21 December 1998 dismissing their application for judicial review of a decision of the First Respondent's Development Control Committee dated 24 March 1998.
2. Section 4 of the Bromley London Borough Council (Crystal Palace) Act 1990 provides:
   1. "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 Crystnl Palace."

    A picture of the original Crystal Place is attached as "A".

3. The purpose of the 1990 Act was to facilitate the leasing of land by the First Respondent for the purposes of a proposed hotel development at the site. A picture of the 1990 proposed development is attached as ''B".
   
   
4. The following materials are available and were put before the Court of Appeal.

   (1) The record of proceedings before the Crystal Palace Bill Select Committee shows that: (a) the purpose of section 4 was to "safeguard the historical importance of this site" in relation to "all future developments" on the site; (b) the drafters regarded the 1990 proposal ("B") as satisfying the condition, but underlined the requirement as to the future; (c) they retained the section 4 wording in addition to an undertaking requiring "a predominance of glass and metal or similar materials and that the building should reflect the spirit of the original Crystal Palace"; and (d) they did so in the face of objections that it was a significant constraint.

   (2) Moreover, all four members of the then Select Committee have written letters (available herewith as an Annex) which show that a development such as that of the Second Respondent is contrary to their intentions.

5. The materials referred to in paragraph 4 above are relevant and admissible, at least in Your Lordships' House, for these reasons: (I) They enable the Court, in adopting a purposive approach, to ascertain the statutory objective (and so the mischief which the Act sought to address). (2) They go to the question of whether the Respondents are acting so as to frustrate the statutory purpose. (3) They have a special significance as the matrix within which to construe a Private Act
    
6. By the impugned decision the First Respondent granted outline planning permission to the Second Respondent for a cinema and leisure development at the site. A picture of the proposed development is attached as "C".
   
7. The Court of Appeal refused judicial review on the following basis. (l) Whether section 4 was satisfied was a matter for the First Respondent and in particular for architectural experts whom it consulted. (2) Section 4 should not be read as though it required a "reasonable degree of visual resemblance" (Schiemann LJ) or to require that they be "similar in appearance" (Sir lain Glidewell).
   
8. Schiemann LJ accepted that:
   1. "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 Crystnl Palace. "
9. In the submission of Your Petitioners, the Court of Appeal adopted an approach which was unduly deferential to the Respondents and their experts. The correct conclusion is that the proposal falls foul of the express statutory restriction in section 4. The Court of Appeal's approach is erroneous for five reasons.

   (l) First, because, even as a matter of normal language and common sense, section 4 should be construed as involving (a) overall visual resemblance or reminiscence, (b) approached from the point of view of ordinary people.

   (2) Secondly, because the Act should be construed purposively and in accordance with the known intentions of the drafters. See eg. In re C (A Minor) [1997] AC 489, 501F per Lord Browne-Wilkinson:

   1. "The Act should be construed purposively so as to give effect to the underlying intentions of Parliament".

    As to the legislative purpose, note paragraph 4 above.

   (3) Thirdly, because of the general principle preventing action which serves to frustrate the statutory purpose: Padfield v Minister of Agriculture Fisheries & Food [1968] AC 997. That principle is in play here because (a) the Second Respondent (as a private body acting under constraints in a Private Act) is so acting and/or (b) the First Respondent (as a public body) is consenting to such action.

   (4) Fourthly, because this is a private Act which should be construed in a special manner, restrictively against the developer. See Bennion, Statutory Interpretation at p.832, quoting Scrutton LJ in Harper v Hedges (1924) 93 LJKB 116 117:

   1. "So far as persons not concerned in the Act is concerned, the Act is read strictly against the promoters."

   In Stourbridge Canal Company v Wheeler (1831) 2 B & AD 792 per Lord Tenterden CJ said at 793-794:

   1. " The canal having been made under the provisions of an Act of Parliament, the rights of the plaintiffs are derived entirely from that Act. This, like many other cases, is a bargain between a company of adventurers and the public, the terms of which are expressed in the statute; and the rule of construction in all such cases is now fully established as this, - that any ambiguity in the terms of the contract must operate against the adventurers, and in favour of the public; and the plaintiffs can claim nothing which is not clearly given to them by the Act. This rule is laid down in distinct terms [in the authorities ...]. Adopting this rule, we are to decide whether a right to demand some compensation for the use of this part of the canal, is clearly and unambiguously given to the plaintiffs by this Act of Parliament; and we think it is not."

    Lord Tenterden CJ referred again at 797 to:

   1. "the principle of construction ... that the company are entitled to impose no burden on the public for their own benefit except that which is clearly given by the Act."

   (5) Fifthly, because the Court has a primary role in deciding whether section 4 is infringed.

   (a) Section 4 is a direct, express statutory prohibition. Parliament did not use a formula such as "the Council is satisfied that the development (etc)". In R v Secretary of State for Foreign and Commonwealth Affairs ex p World Development Movement Ltd [1995] 1 WLR 386 it was held to be:

   1. "a matter for the courts and not for the Secretary of State to determine whether, on the evidence before the court, the particular conduct was, or was not, within the statutory purpose."

   (b) Were these private law proceedings between Your Petitioners and The Second Respondent, for example for declaratory relief, the Court would be entitled to decide whether the Second Respondent is proposing to act unlawfully (cf. Wheeler, above: "we are to decide"). The Courts have long since abandoned a technical approach to the choice of private or public law proceedings (see, most recently, Dennis Rye [1998] 1 WLR 840). There is no procedural deficiency or impediment here: the Second Respondent is a respondent and the relief sought includes:

   1. "(2) A declaration that construction of the building in accordance with the planning permission would be contrary to s. 4 of the Bromley London Borough Council (Crystal Palace) Act 1990. "

   Your Petitioners respectfully suggest that Lord Falconer of Thoroton QC put the matter correctly in a letter to Ian Bruce MP on 11 December 1997 when he pointed out in the present context that:

   1. "It is the function of the courts to consider and apply Acts of Parliament, whether public or private. Anyone with sufficient locus standi could bring proceedings. If the courts find that the building does not comply with the Act and it cannot therefore go ahead, then the developer would have to seek to amend the Act."
10. Your Petitioners submit that the proposed development ("C") is not clearly and unambiguously permitted by the Act. On no sensible view is there an overall visual resemblance or reminiscence of the original Crystal Palace ("A"). An ordinary member of the public would not so conclude.
    
11. What has happened in this case is that: (1) the Second Respondent has put forward, the First Respondent has permitted, and the Court of Appeal has deferred to, intellectual and linguistic exposition instead of plain common sense; and (2) the Second Respondent is being permitted to avoid the further Parliamentary scrutiny which section 4 serves to secure.
    
12. Your Lordships' House is also asked to bear in mind that: (1) this would be a first and only appeal (the Court of Appeal having reserved the substantive hearing to itself on granting leave to move); and (2) Your Petitioners' points are short ones.
    
13. Your Petitioners submit that leave to appeal to Your Lordships' House should be granted for the following among other

(l) BECAUSE the Court of Appeal adopted a fundamentally erroneous approach to an express statutory prohibition.

(2) BECAUSE the case involves important questions as to the approach to a private Act of Parliament, including: (a) whether a purposive approach should be adopted, (b) what constraints there are on the use of Parliamentary materials, (c) whether the Padfleld rule applies, and (d) whether the approach of strict construction against the developer applies.

And Your Petitioners will ever pray.

[RICHARD GORDON QC]
MICHAEL FORDHAM

18 January 1999

Leigh Day & Co.
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London EClM 4LB
Ref Richard Stein
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