Letter: GVG’s Application for Judicial Review – It’s Not ‘Dismissed’

Published on: 9 Aug, 2013
Updated on: 9 Aug, 2013

From Gerald Bland

Guildford Vision Group (Steering Committee)

I’d like to correct some of the misleading comments circulating about GVG’s application for Judicial Review (JR) of the Bellerby foodstore planning permission.

Background

JR is a ‘discretionary remedy’ in legal parlance. Through a JR, courts supervise the unlawful exercise of public power. It’s a cornerstone of democracy. It’s the antithesis of bringing about change through terrorism, the latter unfortunate comparison having been made with GVG’s actions.

GVG applied for JR of the foodstore planning permission just six months ago. Hermes, the then owner of a great part of the proposed North Street Regeneration Site, had already made a similar application for JR. Hermes sold its entire landholding, including The Friary Shopping Centre, to M&G Real Estate in June. M&G has therefore had effective control of the Hermes JR since then.

Recent Events

Last month Guildford Borough Council (GBC) and M&G applied to the court for a Consent Order to discontinue the Hermes JR. This was because negotiations had then reached an advanced stage for GBC and M&G to jointly redevelop the North Street site. The creation of a landowner partnership between them was announced only this morning.

The court knew that the Hermes JR had been discontinued when the Judge read the GVG JR papers very shortly afterwards. The Hermes JR and the GVG JR were ‘linked’.

GVG‘s JR relied on three grounds for asking the court to quash the foodstore planning permission. After GVG’s JR was issued in the High Court, GBC remedied two of those grounds by:

1)    entering into a binding, enforceable planning agreement with Waitrose, now owners of the ‘Live and Let Live’ Pub (it hadn’t been possible before as Waitrose did not own any Bellerby land at the time the foodstore planning permission was granted and they still own nothing more than the pub); and

2)    procuring a letter from the local office of English Heritage (EH) to say it had no objections (the site is partly within and adjoins a conservation area so EH clearance is required).

So when the Judge read the GVG JR papers the only surviving ground for JR was the proper application of the sequential test – something that M&G had already conceded in its Consent Order.

The Judge’s Decision

The Judge had three options:

1) to allow the case to proceed straight to trial; or

2) allow GVG a preliminary hearing in which to show they had an arguable case; or

3) refuse them a preliminary hearing as GVG’s case was totally without merit.

Unsurprisingly the Judge ruled for option 2), so words used in the GBC press release and a number of articles like ‘JR dismissed’ are inaccurate. The court has since fixed a hearing date for 11 December 2013.

Costs

In the run-up to the hearing, GVG will be inviting GBC to agree a protective costs order (PCO) to enable it to take the case to full trial.

The PCO caps costs payable by, as well as to, GVG and can be ordered by the court in the absence of agreement. It automatically applies to all environmental JR cases made after 1 April 2013 but not to the GVG JR made three weeks earlier.

Start on Site

It is incorrect to suggest that the withdrawal of GVG’s JR is the only matter that prevents Waitrose commencing development. Virtually all the site remains owned by GBC, so in addition to completing their purchase to which I refer below, Highways Act Orders to stop up roads, subways and footpaths will be needed so Waitrose can install the new signalized road junction and new car park access.

Waitrose have recently applied to vary their planning permission so that when they start on site they can immediately install a temporary ‘in/out’ access for construction vehicles rather than the full signalized junction required by the existing planning permission. If that new planning permission is granted it will be several months before that permission itself is ‘bullet proof’.

Under the contract for the sale of the site Waitrose are not bound to complete and pay the full purchase price to GBC until a month after all the conditions precedent in that contract have been fulfilled. Apart from all JR proceedings being ‘finally disposed of’ the unfulfilled conditions precedent include:

1)    the removal of BT cables which lie underneath the site and serve the adjoining BT facility; and

2)    vacant possession being given of the entire site including the Community Centre and PPA dance school, both of which remain operational today; and

3)    potentially at least two more conditions precedent in the Contract the terms of which GBC has declined to disclose to GVG.

Compromise

This is a long and complex contract negotiated by GBC officers under delegated powers and inherited by the current GBC Leader. It still has some way to run whatever the outcome of the GVG JR.

Your readers should be aware GVG tabled ‘without prejudice’ proposals to the GBC Leader and Waitrose several weeks ago in an effort to find common ground for GVG, like M&G, to be able to withdraw its JR.

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