(L.1) Judicial Review

Request to the Courts for leave to move for judicial review


Scope of affidavit;
Crystal Palace Campaign;
The Proposed Use;
Crystal Palace Act 1990;
Metropolitan Open Land;
Unitary Development Plan;
Relationship with the Park;
Existing Planning Permissions;
Subsidiary Matters;

FIRST AFFIDAVIT - second applicant

The following is the text of the affidavit sworn in




- and -



ex parte













(12) WENDY GOMEZ Applicants




Top of Page



1. I am the Second Applicant herein and the Chairman of the Crystal Palace Campaign. I make this affidavit in response to that of Stuart Macmillan dated 3rd June 1998. The contents hereof are drawn from my direct knowledge and from a perusal of the litigation papers in this case, and are true to the best of my knowledge and belief.
Top of Page

Scope of affidavit


2. I shall first, very briefly, explain the origin of the Crystal Palace Campaign.

3. I shall then answer the contents of Mr. MacMillan's affidavit in so far as he deals with matters material to the proceedings.

4. Finally, Mr. MacMillan deals with a number of subsidiary matters, for example the extent of the Respondent's consultation and the standing of its Park Competition Panel, which do not appear to be immediately relevant, and I shall deal with such subsidiary matters separately, and briefly.

5. I do not intend to rehearse the contents of the Form 86A, since it appears unnecessary to do so. I confirm that the contents are true to the best of my knowledge and belief.

6. I shall refer to pages in the Applicants' bundle with the preface "A" and those in the Respondent's bundle with the preface "R".
Top of Page

Crystal Palace Campaign

7. The Campaign is a group of local people who oppose the scheme of the London Borough of Bromley to place on Crystal Palace Park a commercial multiplex development. The site is Metropolitan Open Land, a Grade 2* listed park on the Register of Historic Parks and Gardens, and abuts a conservation area and a village. The development is the largest cinema complex in London, consisting of an 18-20 screen multiplex cinema, with 9 restaurants, retail facilities, 3 "leisure boxes" (the mix to be determined by the developer) and parking for 950 cars on the roof, to be reached by external vehicle ramps. A tunnel is also to be driven through the park with its concrete entrance within the conservation area part of the park. Illuminated signage is to be erected in the environs of the park in order to direct traffic, which will emerge onto roads which are not strategic roads, and many of which pass directly through residential neighbourhoods, the opening times of the development to be 7 a.m. to 2 a.m., 7 days per week.

8. The scheme has profoundly concerned the local community, and so the Crystal Palace Campaign arose spontaneously as a protest group and eventually came to co-ordinate the response of that community. The eleven litigants are local residents and members of the Campaign who have offered to stand as names in the litigation.
Top of Page

The proposed use

9. In paragraph 2(g) of Mr. Macmillan's affidavit, he states that Applicants are mistaken in their assertion that the application description includes a cinema, and points out that the illustrative drawings include a multiplex and "it may well be that the developer will include one but he is not bound to do so to comply with the outline permission."

10. This statement causes me serious concern, for the following reasons.

11. There has never been any doubt that members believed they were considering a scheme basically fitting the description of the uses I have set out in paragraph ____________ above. In the report to the Committee at page A22 it is pointed out briefly to members that the detailed content of the building forms part of the application, and that members could impose conditions to control uses within the building. But the report goes on to give substantial details about the proposed uses.

12. In July 1997 the developer submitted a planning impact statement now produced and shown to me marked "PAK1". At paragraph 2.2 it was stated:

"The application is for leisure facilities comprising a multiplex cinema of 20 screens, three leisure areas, 9 restaurants, 3 cafe/retail units and 1,200 car parking spaces..."

13. The planning impact statement then proceeds to deal with cinema and A3 impact issues referring, in the latter context, to the "nine A3 units proposed" (see para 9.12). It also deals with the acceptability of 1,200 car parking spaces. There is therefore no question that the developer was making representations based on a specific scheme. Furthermore, the design philosophy of the building, the external elevations of which are now enshrined in condition 03 of the outline planning permission (in order to meet English Heritage's concerns that this heritage site should be the subject of detailed, not outline, proposals) is based around cinema uses. (See exhibit "PAK " below.)

14. The developer also submitted a cinema impact assessment, now produced and shown to me marked "PAK2". On page 1, it is stated:

"The development comprises a 20 screen multiplex cinema, three leisure areas ..... 9 restaurants, 3 retail units and 1,200 car parking spaces."

15. It goes on to analyse the impact of 20 extra screens (see for example para 4.4).

16. In the report to Committee (page A36), those impact reports are treated as though representative of the scheme which was before the Council. If they were not representative, then of course they were quite functionless and the Committee would have been simply misled about their relevance.

17. Furthermore, when the Committee was addressed by Robin Cooper, the Head of Heritage and Urban Design, there was really no question but that they were led to believe that this was a scheme for a multiplex. He said (page A328)

"There will be between 18 or 20 screens, depending on which plan is approved."

18. He also, on the same page, described the number of car parking spaces (now 950) and close details regarding the access into the site, through the tunnel and up the vehicle ramps. At page A329 he referred to:

"the series of restaurants and cafes and two leisure boxes."

19. He made it clear that the contents of the leisure boxes were unknown but he made no such reservations about any other element of the proposal.

20. At page A330 he showed the Committee the plans, and stated:

"So just to take you through the levels, I explained ... the ground floor... the bit which is without windows has a leisure box and a series of multi-screen cinemas, ranging from 18 to 20 screens. We go up to the next level.... there are two more leisure boxes .... and a range of 9 restaurants and some smaller cafe and retail units. And on the top you come up the two ramps ..... and you come to the roof top parking area ... of 950 vehicles on the site."

21. When Mr. Cooper finished his address, Mr. Macmillan reminded Members that this was an outline application with various, specified, matters reserved. But he did not remind them that the contents of the building were also in outline. Indeed, quite to the contrary, he went on to say (page A331):

 ".... bearing in mind the efforts that the architects and consultants have gone to come up with an acceptable scheme from the various experts' point of view, I think it would be essential to ensure that the illustrative plans ... were followed to a greater or lesser extent.."

22. There followed a long discussion about the number of car parking spaces and traffic congestion, which centred on the number of visitors to the development and the proportion arriving by car. This was because of serious concerns being expressed by some Councillors regarding traffic congestion and overspill parking. During that discussion, Mr. Macmillan stated (page A343):

"As far as the building is concerned, we estimate about 4,000 I would think. That would be the number of seats in the cinema."

23. On the following page he referred again to the cinema.

24. So, the proposals were dealt with by the London Borough of Bromley's Planning Committee as a proposal based around an 18-20 screen multiplex. That is how the matter was analysed by the officers, and that is how it was described to members.

25. Furthermore, that is how the matter was put by Mr. Macmillan himself to the Government Office for London, in an effort to persuade the Secretary of State not to call the proposal in. In his letter of 12th September 1997, he stated (page A353):

"So that your division can come to a considered view on the above application I attach an alternative plan submitted by the applicants, London Regional Properties. This plan shows... a reduction in cinemas from 20 to 18 and in seating from 4,800 to 4,100."

26. I also refer to the Respondent's publicity for the scheme, Crystal Palace Update No. 4, which is now produced and shown to me marked "PAK3", which again refers to a 20-screen multiplex cinema.

27. Having been involved with this issue for a year, having attended the relevant meetings together with other meetings attended by Council Officers, having read extensively around the subject, I can say that there has never been any notion that the scheme would be other than one containing a multiplex cinema (18-20 screens), 9 restaurants, 3 cafe/retail units, 3 leisure boxes (mix to be determined by the developer) and parking for 950-1200 cars on the roof.

28. I do not believe that the Councillors as a whole had any appreciation that they were granting permission for a scheme which may have departed from those parameters. A wider or different scheme would have rendered the impact work carried out otiose, would potentially have generated a wholly different set of concerns and considerations by the public and other consultees, and may have been looked at in a different way by the Councillors themselves.

29. I apologise that this is not something raised before. But until reading Mr. Macmillan's affidavit, I had no idea that a scheme different from that advanced as the actual scheme was being considered, or passed, by the Committee on 24th March 1998.

30. - deleted -
Top of Page

Crystal Palace Act 1990

31. Mr. Macmillan confirms the Council's view that the proposed building reflects the architectural style of the original Crystal Palace, so that the building shown on the illustrative elevations complies with section 4 of the 1990 Act. However, he misconceives the importance of this question.

32. The Select Committee was clearly concerned to guarantee that the style of the original Palace should be reflected in any new development: see page A234. Previous planning permissions had contained conditions relating to the "spirit" of the original Palace, see page A155. But the Committee decided to confine the word "spirit" to the undertaking, and create a new section in the Bill dealing expressly with the architectural style (see page A235-6). The Respondent's Counsel, promoting the Bill, argued that "style" was an excessive constraint (see page A240) and argued for retention of the word "spirit". However, that submission was rejected and the word "style" retained (see page A241).

33. So it is clear that what is required is more than a perpetuation of the spirit of the original Palace: the operative question is whether the new building reflects its actual architectural style.

34. When the original outline application was received, English Heritage expressed strong concern that the application was in outline only, having regard to the possible impact of the scheme on the conservation area and, in the light of national guidance regarding conservation areas. There is now produced and shown to me marked "PAK4" copies of its letters of 29th May and 28th July (of which I only have the first page). There is also a letter of 8th May, which again I do not have. It is clear that English Heritage wished to see detailed designs, and it was supported in its views by the policy guidance in PPG15.

35. The concern about the outline nature of the application was reported to Councillors on page 3 of the officers' report to Committee dated on July 1997. A copy of the report is now produced and shown to me marked "PAK5".

36. To meet these concerns, an attempt was made by the Respondent to enshrine the illustrative designs in the conditions to the outline planning permission. In his address to the Committee on 24th March 1998, Mr. Macmillan stated (page A331):

"I think it would be essential to ensure that the illustrative plans ... were followed to a greater or lesser extent... I know that English Heritage are very concerned about the design of the building for instance and they would like to see the building as close to the illustrative scheme as possible..."

37. The approach of enshrining the illustrative elevations is carried forward into condition no. 3 of the planning permission itself (page A38), which states:

"The details submitted pursuant to condition 01 shall show, inter alia, a building .... generally according with the illustrative elevations accompanying the application ... in all material respects, reflecting the spirit and architectural style of the original Crystal Palace at Sydenham, and within the terms of the Bromley London Borough (Crystal Palace) Act 1990."

38. Mr. Macmillan described the condition to Councillors in the following terms (A336):

"The last point I would make is that whilst it is outline and all the matters are reserved, including the design of the building, it is open to Members, as I said, to restrict those sort of details to be in line with the illustrative plans. And conditions 03, 04 and 05, really, to a great extent, intend to do that, particularly condition 03, to make sure that the details are in accordance generally with the illustrative drawings that are listed there, to make sure that the scheme is of a high standard and the right quality which English Heritage and the other experts and the Council feel ought to be appropriate for this site and to make sure that it complies with the 1990 Act and other relevant legislation."

39. Condition 03 imposed an obligation on the developer to submit details generally according with the illustrative elevations. There is also an obligation on the developer to ensure that the details reflect the architectural style of the original Palace. It is the Applicants' case that those two sub-conditions are mutually inconsistent, so that the outline planning permission is for a building which cannot lawfully be built.

40. Having given the matter the closest consideration, we concluded that it would be appropriate to put this matter before the Court at the earliest possible stage so that the Court can rule on it. The alternative would have been to wait until detailed planning permission had been granted and a contract for the disposal of the site executed. However, since the Respondent and the developer both apparently take the view that the plans as they are accord with the style of the original Palace, it seemed to us that it would be unfair and prejudicial to stand by while further effort is expended on these proposals only for the Court then to be asked to rule that the building would be unlawful, when we had known all along of the likely final form of the building. This is particularly so when the Respondent in its landowning powers is actually promoting this scheme, and it is understood that the Respondent has entered into an exclusive development agreement with the Council in respect of it.

41. The Respondent contends that the illustrative elevations comply with the Act. It has given planning permission for a building which is required to accord with those illustrative elevations. It is proposing to lease the land to the developer so that the permission can be implemented. The Applicants contend that the building does not comply with the Act. Whether it does or not is a matter of fact. So that the parties may know where they stand, and so that the Applicant in its planning and landowning function may know whether the plans already enshrined in the planning permission can ever be implemented, we seek a ruling on the matter at this stage.

42. The Applicants intend to call expert evidence as to the question of whether the building shown in the elevations reflects the architectural style of the original Palace. There is now produced and shown to me marked "PAK " a true copy of a letter from the architectural writer and historian Dan Cruickshank expressing the strong view that the building does not reflect the architectural style of the original Palace.

43.- deleted -

44. I rely on the views of Mr. Cruickshank. I also wish to point out the following matters.

45. First, the Court is referred to the illustrative elevations at page A308 and 309. There is an artist's impression of the east (parkside) elevation shown at the bottom of page A302. This of course does not show the concrete vehicle ramps at the side and front of the building. Nor does it fully show the solid wall at the ground floor level which is the cinemas, which cannot of course have windows. The Court is then invited to compare the design with the photographs of the original Palace shown at pages A302 and 303. The Court is invited to consider, whether as a matter of common sense, the latter can be said to reflect the architectural style of the former.

46. There has been some confusion in the Respondent's thinking in this matter, which appears to have permeated the design process. For example:

(1) in its Leisure Development Opportunity Brochure (R37) the

Respondent stated:

"In accordance with the provisions of the Act, the Council will require a development which is in essence of light and airy construction, and is predominantly of glass and metal or similar materials.."

(2) similarly, at page R72 is the Respondent's terms of reference issued to architects developing the Crystal Palace site 1995. It states:

"... the design should conform with the requirements of the Crystal Palace Acts and the undertaking given to the House of Commons by the London Borough of Bromley, namely that the building would contain a predominance of glass and metal or similar materials and that the design should reflect the spirit of the original Crystal Palace." (my emphasis)

(3) in its newsletter "The Acanthus", now produced and shown to me marked "PAK6" it was stated that the architect's brief was to:

"produce a new design for the external envelope of the building which would reflect the spirit of the original whilst looking forward to the new Millennium." (my emphasis)

47. While Mr. Macmillan has asserted (para 4(d) of his affidavit) that all relevant experts concurred that the proposed design did reflect the style of the original Palace, it is clear that a proper reading of those documents shows this not to be the case, and that Mr. Macmillan has unwittingly misled himself, and councillors, as to the matter.

48. Mr. Ritchie himself does not claim that the building is in the same architectural style. In the Executive Summary of the Design, he says it is a "coherent architectural response to the essence and style of the original". He says that the building is in the "same spirit of technical innovation and use of materials as the original" (page A55).

49. This is apparently because he, understandably, understood his instruction as relating to spirit rather than style. There is now produced and shown to me marked "PAK " an extract from his Design Approach and Project Description." In it, he says:

"The requirement for an outstanding design in glass and steel originates from an Act of Parliament dating from 1936 (sic) which requires any new building to be erected on the site to be in glass and steel and in the spirit of the original building by Paxton. The new building should evoke the spirit of the original Paxton building through the use of glass and steel, but should not attempt simply to ape it. It should capture the essence of the original.

"To achieve an economic and exciting architecture in the spirit of Paxton's original, together with an environmentally performing enclosure requires both innovation and creativity in design and engineering and a responsive industry.... Organising the different tenant uses: cinemas, restaurants, ten-pin bowling, family centres etc., into a coherent and functional design is paramount, and must also respect the inherent transparency necessary to capture the spirit of the original Crystal Palace."

50. Thus, Mr. Ritchie appears to have designed to the spirit of the original Palace, not its style.

51. English Heritage claims that the new building represents (A57):

"a contemporary interpretation of the spirit of Paxton's Crystal Palace."

52. It goes on to explain that this is because it is:

"a radical and innovative design""

53. The Royal Fine Arts Commission believes that the building (A61):

"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" (my emphasis).

54. As to style, the Commission balks at saying that it reflects the style, stating instead that:

"the current proposals accord with the intentions underlying the wording of the Act."

55. The Respondent's architectural panel considered that the buildinwas in the same architectural style, but its grounds are, respectfully misconceived. They are as follows (page A62):

"We see the use of glass and metal in a bold and forward-looking design as being the essential characteristics of Paxton's building. Ian Ritchie's design meets these criteria and creates a building which is as much of our time as Paxton's was of his."

56. That neatly encapsulates, in my submission, the difficulty with the design. It is not a question of producing an uncompromisingly modern design in the same materials. It is a question of reflecting the architectural style of the original building. While a dictionary definition of the term has been given in paragraph 20 of the Form 86A, I shall not hazard my own. But I do submit that ultimately the buildings must at least resemble each other, and must be built in the same idiom. None of the sources adduced by the Respondent comes close to saying that the new designs pass those basic criteria.

57. Mr. Macmillan himself understands the difference, for he addressed the Councillors in these terms (page A338):

"The fundamental principle of this scheme, as I understand it, is to have simplicity, a straightforward scheme, rather than the sort of style of the original Crystal Palace..... But my personal view is that the illustrative elevations and the illustrative scheme is entirely appropriate for this sort of site in the 1990s and the Millennium."

58. Mr. Macmillan in his affidavit uses the pejorative terms "parody" and "pastiche" as matters to be avoided (R8). It is not for me to comment on whether a parody or pastiche would be desirable. But the fact that a design is a parody or pastiche would not prevent it from complying with the 1990 Act.

59. In fact, it is possible to go further in contradiction of what Mr. Macmillan says. During the passage of the Bill an application for development on the Palace site (89/1690) was before the House of Commons Select Committee and the Respondent. An illustration of this building is now produced and shown to me marked "PAK ". This is the kind of design Mr. Macmillan would term a parody or pastiche. Yet the Chairman of the Select Committee said (A235):

"The consideration here did not, and does not, apply to the current development which we feel does clearly conform to the spirit and style of the original Crystal Palace."

60. In the light of that evidence, I submit that it is impossible for Mr. Macmillan to assert that something which copies the original Palace is not what was intended by the Act: rather, the reverse seems to be the case.

61. It is also pertinent to point out that two of the members of the select committee which inserted section 4 of the Act have denounced this design as having nothing to do with the style of the original.

62. Graham Allen has stated (A316):

"The proposed design at first sight appears to owe more to a greyhound stadium grandstand than the original Crystal Palace."

63. Ian Bruce has stated (A317):

".... I can say without a shadow of a doubt that the Committee would not then have described the new proposed design as meeting the criteria we specifically wrote in to paragraph 4 of the Act.

"I think anybody looking at the original proposed design would see how reminiscent it was of the original Crystal Palace and that the new design couldn't possibly remind anybody of anything other than a poor example of a football stadium stand. For that design to go ahead, there would in my view need to be a new Act of Parliament and, quite frankly, for anybody to propose that that should be built and saying it is in compliance with the Act is talking absolute nonsense."

64. I submit that what is not open to the Respondent as the landowner or as the planning authority is to sidestep the Act by bringing forward a design which is in an uncompromisingly modern style, not reflecting the original, but praying in aid its modernity and use of similar materials as a reason why the style of the original is reflected.

65. I make no comment about the undertakings regarding "spirit" because that is a matter for Parliament and not the Court.
Top of Page

Metropolitan Open Land

66. There is little I wish to add to the Form 86A, paragraphs 13, 32 and 33.

67. Mr. Macmillan refers to the original RPG3, in paragraph 5(d) of his affidavit. There is now produced and shown to me marked "PAK " a true copy of the material parts of the earlier guidance. It will immediately be seen that the new guidance, set out in paragraph 13 of the Form 86A, is far more stringent.

68. I wish to note that the new guidance post-dated the adoption by the London Borough of Bromley of the UDP in March 1994.

69. When Mr. Macmillan reported to Councillors in July 1997, he omitted to mention the significance of the MOL designation, or the contents of the new RPG. I found this perplexing, since I considered that that was specifically his function, particularly since this was reinforced guidance post-dating the adoption of the UDP, and which might therefore have had an effect on the application of policies in the UDP. The report has already been produced at exhibit "PAK___________. The material passage appears on the page numbered 46 within that report.

70. Therefore, at short notice, the Crystal Palace Campaign wrote to Mr. Macmillan to remind him of his responsibilities (A72). Mr. Macmillan advised the Committee that the new RPG was complied with, pointing out that it states that: "wider recreational facilities for which there is great public demand" could be located in Metropolitan Open Land. He also paraphrased, not entirely accurately, the stricture that in such a case there should be a specific alteration to the UDP which enables all the issues to be clearly and publicly addressed. He stated that he considered that Bromley's UDP achieved that (A76).

71. However, the advice was flawed, for 4 clear reasons:

(1) he failed to point out that the UDP was drawn against the previous, less stringent, protection given to MOL, whereas now the protection was greater;

(2) he misinterpreted the RPG which, in referring to recreation facilities, is not referring to multiplex cinemas, pubs, take-away restaurants, bingo halls and the like;

(3) he failed to address the question of whether there was in fact "great public demand";

(4) the UDP proposal, which is for "hotel, leisure centre and associated facilities" does not contemplate a development of this nature.

72. It is plain that Mr. Macmillan ought to have advised the Committee that this proposal amounted to a breach of regional planning guidance. Had he done so, the nature of the analysis and consideration by the committee may, and I submit ought, to have been quite different.

73. Mr. Macmillan also relies on the letter from GOL stating that the development accorded with the UDP. I found this difficult to understand and still do. I have engaged in correspondence with the Government Office for London on the matter, the upshot of which is that the Government Office for London has refused to give reasons for that finding. The correspondence is now produced and shown to me marked "PAK ". I accept that point 2 of my letter of 21st March 1998 was in error. Since there are no reasons for the finding, I am not sure what reliance Mr. Macmillan places on it, or on what grounds.

74. Mr. Macmillan refers to the breadth of the consultation, which does not appear relevant to this issue, so I return to it as a subsidiary issue below.
Top of Page

Unitary Development Plan

75. The UDP policies of course merit separate consideration.

76. Again, there is little to add to the Form 86A, which deals with this issue in paragraphs 9 - 12 and 28 - 31.

77. In his July 1997 report, Mr. Macmillan failed to point out the protective nature of policies G6 and G7. So, again, it was necessary for the Crystal Palace Campaign to notify him of his omission (page A73). Mr. Macmillan replied by praying in aid proposal 8 in the UDP (A75). But proposal 8 is for "hotel, leisure centre and associated facilities (outline planning permission exists)". There could be no doubt that if a proposal came forward for a hotel and leisure centre, it would have been in compliance with the Plan. But this was not of such a nature.

78. Mr. Macmillan advised the committee that it was "in partial fulfilment" of the Plan. But, respectfully, this was thin at the time and does not appear to be pursued in his affidavit. At best, he can say that a form of development is set out in the proposals schedule, but that is a hotel and leisure development. This scheme does not contain an hotel, and it cannot reasonably be said that the UDP contemplated a development of this nature.

79. The fact that Mr. Macmillan believes that one day a hotel may become commercially viable on this site (paragraph 5(e) of his affidavit), does not assist the current proposal to comply with the UDP. In any event, I myself have never seen any evidence that a hotel may one day be viable on this site, and I am certain that no evidence to that effect was ever placed before the Committee. Quite to the contrary, the Committee was informed that there was no demand and the developers believed it would not be viable (page A23).

80. I regret that I must also criticise the Respondent's treatment of policies E10 and E11. This is dealt with in paragraphs 12 and 31 of the Form 86A.

81. Policy E10 was not referred to at all, but is clearly material to the development proposed. It deals specifically with scale as compared to other buildings "in the area". That there are other buildings in the area is graphically demonstrated by page A79, the site location plan. These show buildings opposite, albeit at a lower level, and at the south-west corner of the plan the start of the village high street, Westow Hill. The proposed development is vastly out of scale with these buildings, being over 800 feet long by 70 feet high. There is nothing whatsoever in the vicinity remotely matching the scale of this proposal. The Committee was not adverted to the policy or asked to consider it in any way at all, but it clearly raises a material consideration.

82. It will be noted that the London Planning Advisory Committee's letter was quoted (A25). But Mr. Macmillan did not quote the serious concerns LPAC had regarding scale, in particular that:

"it would be necessary to consider the scale of the proposal in relation to the scale of Upper Norwood. It is a small shopping centre, characterised by small units, with just one large retail unit, and no large leisure complexes. The Crystal Palace proposal might overwhelm Upper Norwood; it seems much more appropriate for centres such as Croydon."

83. A copy of LPAC's letter is now produced and shown to me marked "PAK ".

84. Despite LPAC's specific statutory responsibility to give advice to local councils on development matters, its concerns were not relayed to the councillors. The question of scale is of course fundamental in planning (see para 17 of PPG1). But the committee, regrettably, failed to consider its own UDP policy relating to scale.

85. Mr. Macmillan now seeks to justify the proposal in terms of policy E10. But, respectfully, that cannot cure the omission of the Respondent through its Development Control Committee, to consider the policy at all.

86. The Committee similarly failed to take the whole of policy E11 into account.

87. It will be seen that policy E11 refers to views into Crystal Palace (in sub-paras (i)(a) and (iv)(b)) and out of Crystal Palace in para (i)(b) (A256 and 352), and to the status of Crystal Palace as a major skyline ridge. There is now produced and shown to me marked "PAK " a photograph showing the long, unbroken tree-topped ridge line, save for the mast, which is a landmark structure of long-standing. As a local resident, I can say that this ridge line is one of the best loved features of south east London, and is highly prominent from many miles around. This ridge line would be broken by the building. The Committee never considered whether to break that ridge line was or was not desirable. I submit that such an exercise was precisely that contemplated by the policy, otherwise there would be no point referring to the ridge-line as worthy of protection in the UDP.

88. Mr. Macmillan points to the fact that the original Palace was bigger. This is accepted, but its relevance is not. (Crystal Palace Parade was not even built then, the area was sparsely populated, the motor car had not been invented, and Town and Country Planning, as we understand it, had not been thought of.) He also refers to the imperative that the new building must be a significant building and a significant landmark. That is a matter of opinion, but it does not absolve Mr. Macmillan's authority from taking into account that if it is then, potentially at least, it breaches UDP policies. Mr. Macmillan, with respect, confuses the desire for a big building with the question of whether such a building conforms with the UDP.

89. The failure to deal properly with UDP policies concerns me greatly, because of the impact of section 54A of the Town and Country Planning Act 1990, and the well-known guidance as to the consequences of breach. Had the Committee started with the viewpoint that this proposal actually conflicted with the UDP, the outcome may well have been quite different. Even for this reason alone I ask that the matter be remitted to them for further consideration.
Top of Page

Relationship with the park

90. The Respondent had always planned for an integrated approach to the development of the park, and had repeatedly said that no one element could be successful without the other. This is because the park and the building design were highly stylised, and would be incongruous the one without the other. This is reflected in the report to Committee (A37), cited in para 25 of the Form 86A. So also, in the Respondent's letter to GOL, seeking to persuade the Secretary of State not to call the application in, it said (page A355)

"... [the building] will also integrate with the new design for the park itself. The two schemes are intrinsically linked and neither can be truly successful without the other".

91. This precise sentiment was also reflected in the Respondent's publicity for the scheme, contained in Crystal Palace Update No. 4. (exhibited at "PAK " above).

92. In its Update no. 3, now produced and shown to me marked "PAK " it was stated that the landscaping would "unify the key elements of the Park".

93. Mr. Macmillan himself referred to the broader regeneration initiatives in the park as a relevant consideration in his note of responses to the Campaign's objections: page A78.

94. Only a week before the planning meeting, the Respondent had held a national media briefing, the press pack for which, now produced and shown to me marked "PAK ", had stated that:

"the park restoration project is central to the entire regeneration scheme."

95. The report to Committee itself also confirms the fact that the Respondent was promoting an integrated approach to the park, as observed in paragraph 25 of the Form 86A, quoting from page A37. The existence of the plans to restore the park were listed as a planning consideration at page A29.

96. It does not appear to be disputed that Mr. Macmillan learned of the failure of the £26m Heritage Lottery Fund bid to re-landscape the area around the building on the day of the planning meeting. It seemed to me at the time imperative that the Council pause to reflect on the materiality of the revelation, to see whether an alternative source of funding was likely to be found, or whether the scheme would founder, and if so what the consequences would be for the proposed development, given that presumably the Respondent did not wish to see it stand in grounds which it considers derelict.

97. It also seemed to me that since the Secretary of State's decision not to interfere in the planning decision had been procured partly on the basis that this was part of a wider regeneration initiative, the Council ought at least to consider whether the Secretary of State ought to have been notified that he had proceeded on the basis of a factual state of affairs which had now changed.

98. But protesters were (not improperly) forbidden from speaking at the meeting.

99. Mr. Macmillan read out a letter which had been prepared in great haste by the Campaign Vice-Chairman asking the Committee to refuse or defer the application on the basis that the two schemes were interlinked.

Mr. Macmillan's total comment was:

"in the Telegraph this morning there was a comment that the money for the Park scheme was not going to be fully available so that is an issue that Members ought to have taken into account."

100. What Mr. Macmillan, unfortunately, did not tell the Committee was that none of the £26m needed to re-landscape the area around this development had been granted. Nor did the Committee make any enquiry whatsoever as to the effects of the refusal of the grant, and nor was it discussed in any way. It seemed to me then that the Council simply failed to consider in any way at all the implications of the refusal of which their senior officers had full details, and of which the Committee itself had some information.

101. Mr. Macmillan attempts now to say that the Respondent intends to carry out the landscaping in any event, and is in discussion with other agencies (para 5(f)). But that could not have been known about on 24th March 1998, and in any case I put Mr. Macmillan to proof that the scheme is now remotely viable, which would conflict with information which I have received lawfully, but confidentially.

102. Mr. Macmillan's also attempts to disunite the separate proposals. This runs counter to the Respondent's entire thinking on the subject hitherto, and I submit that it is really only a thin attempt to gloss over the error of proceeding precipitately to a decision when a crucial element of the overall regeneration initiative was clearly in serious jeopardy.

103. Further, Mr. Macmillan states in paragraph 6(e) of his affidavit that members considered that it would not be appropriate to defer consideration of the planning application before them. But this is not true. As the transcript shows, members gave no consideration to the matter whatsoever. Not only was this crucial issue not discussed, but members never even touched on the question of deferring consideration of the application.

104. In the circumstances, there was a failure to take into account a highly material consideration.
Top of Page

Existing planning permissions

105. I rely on the matters pleaded in the Form 86A (paras 8 and 34, and see pages A23, A73, A74, A77). The matters of law will be argued by Counsel, namely, that it was an error for the Committee to be advised that previous planning permissions had considerable weight, notwithstanding that there was no possibility of their implementation.
Top of Page

Subsidiary matters

106. In paragraph 5(c) Mr. Macmillan speaks of an extensive consultation exercise. I take issue with this. In fact, the community's concern at these proposals is founded on the Respondent's apparent indifference to the community upon whose park it is promoting these proposals.

107. It will be noted that the Park Competition Panel contained no local residents at all. Nor did it contain anyone from Lewisham, Croydon, Lambeth or Southwark Councils, albeit that they all abut the park. There was no significant consultation on what is a proposal to put the biggest multiplex in London on a highly protected open space, until after the developer and the scheme had been selected and an application for grant funding for it had been made to the Single Regeneration Budget, and also after the radical Gustafson re-landscaping scheme had been selected. In those circumstances, it has been strongly felt in the local community that the consultation exercise has been purely formal.

108. Mr. Macmillan says that 30,000 leaflets in the style of the document at Appendix 6 were distributed. But the document he produces is not a leaflet but a news release. I have never seen the news release before. He refers to a local newspapers, but there is no single newspaper covering the areas shown on the map on page R87. In any event, it seems to me that a consultation exercise carried out in the free press is not likely actually to be read by a wide audience. Finally, it will be noted that the entire consultation period seems to have been 23 days from the date of the news release. This is hardly adequate consultation for a scheme of this size, nature and consequences for the green and built environment.

109. The Respondent arranged a meeting in a small venue, the Anerley Town Hall, and was surprised by the number of those attending and the ferocity of the opposition. It did not try again. By now the Campaign had formed as word of this development seeped out in the local community. It arranged a meeting at a local hotel, so that members of the public could be appraised of the issues. It invited the Respondent's officers to attend and make a full presentation. It was the Campaign's attempt at proper consultation.

110. Six hundred people attended the meeting, politely heard out a series of speeches by Council officers justifying the scheme, asked questions, and then voted by 600 votes to nil to reject the proposals. I do not mind if Bromley adopts this meeting as a consultation exercise by it. I have always minded that the strength of local feeling, from a community (that had sensibly demonstrated its willingness to live with the far smaller hotel proposals) has had no discernible effect on the Respondent's seemingly absolute resolve to put this development on this site.
Top of Page


111. This is a community challenge brought on limited funds to a decision which will have far-reaching implications for local residents, but which also involves a nationally important heritage site. We would ask the Court for leave to move for judicial review.


 - - - - - - - - - - - - - - - - - - - - - - - - -

Top of Page

Return to Legal Index

Last updated: 6/4/99