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The proposed redevelopment of the Elephant & Castle shopping centre and the site of the London College of Communication is a huge project within the area of the London Borough of Southwark. The planning permission, granted in 2019, is for a mixed use scheme including several new buildings (the highest rising to 35 storeys), 979 residential units and the remodelling of the adjacent Underground station. The associated construction period is more than 9 years. Jerry Flynn is a member of the 35% Campaign, which seeks to ensure delivery of 35% of new housing development as affordable housing. Mr Flynn’s judicial review challenge to the planning permission was dismissed at first instance, whereupon he subsequently obtained permission to appeal to the Court of Appeal. There were 6 grounds of challenge, broadly raising 3 main issues. The first issue concerned the scope of the planning committee’s delegation to the Director of Planning and whether the subsequent section 106 agreement departed from the committee’s resolution. The second issue concerned the lawfulness of the arrangements for the “build to sell” fall-back position on part of the site. The third issue principally concerned the availability or otherwise of grant funding from the Greater London Authority and whether the planning committee members were materially misled by officers on the point. In its Judgment of 28 May 2021, the Court of Appeal rejected all the grounds of challenge and dismissed the appeal. It is of particular interest for its discussion and conclusion on the first main issue. The instrument of delegation, held the Court, was the committee’s resolution as opposed to the officer’s report or specific passages in it. It was “broadly framed”, it “handed to the council’s officers responsibility for obtaining the requisite section 106 agreement” but it “did not require the legal agreement to be on terms specified or indicated by particular paragraphs in the officer’s report.” The resolution looked only for “an” appropriate section 106 agreement, and it “allowed for the possibility that there were several forms” in which the agreement could be “appropriate”. Whilst it was implicit in the resolution that the concept of “an appropriate legal agreement” was not unlimited, and had to be understood in the light of the officer’s report, the officer’s advice was not prescriptive. The Court at [48] endorsed the proposition that the Mansell approach to reading officer reports is not confined merely to cases where an error in the officer’s advice is alleged. There is no unanimity of opinion on the origin of the “Elephant & Castle” name. But the conclusion of the litigation removes the legal question mark over its redevelopment, and the shopping centre is now in the process of being demolished. What of the famous Elephant & Castle statue? It is undergoing refurbishment, awaiting its triumphant return to the site in due course. Dan Kolinsky QC successfully represented the London Borough of Southwark. Russell Harris QC and Stephen Whale, together with Nicholle Kingsley, successfully represented Elephant and Castle Properties Co Ltd. For a copy of the Judgment, click here.
