Chairman of Committees Special Report



Special Report by the Chairman of Committees

London Docklands Railway (Lewisham) Bill

(London Docklands Railway (Lewisham) Act 1993)

Undertaking as to Entrance to Station at Cutty Sark

Determination under Standing Order 130

  On 30th July 1999 I gave the following determination on an application to me under Standing Order 130 of the Private Business Standing Orders concerning an undertaking given by the Promoters of the London Docklands Railway (Lewisham) Bill in the Session 1991-92 to the Select Committee of this House that considered the bill.

  "1.  I am concerned in these proceedings with an application for a determination under Standing Order 130 of the Private Business Standing Orders. It relates to a difference that has arisen concerning a decision given on the bill for the London Docklands Railway (Lewisham) Act 1993 by the select committee of this House to which the bill was referred. The decision concerned the siting of the entrance to the station at Cutty Sark. The application is made by a body known as the DLR Monitoring Group.

  2.  The basis for acting under SO 130

  I start with a preliminary matter, namely, the basis for exercising my jurisdiction under SO 130 in this case. So far as material the Standing Order provides as follows:

    "It shall be a condition of the acceptance by any committee of this House of ¼¼ any undertaking given to the committee by or on behalf of the promoters or any [other party appearing before the committee] that any difference arising, after the discharge of the committee, between ¼¼ the persons concerned with the undertaking, in relation to the same shall be determined by the Chairman of Committees."

That provision gives rise to two questions in this case: (1) what undertaking is involved here; and (2) are the applicants concerned with the undertaking? In order to deal with the first question I must give an account of what took place in the proceedings of the committee on the day on which the Chairman, Baroness Stedman, announced the committee's decisions.

  3.  There were several decisions and the Chairman indicated at the end of her statement announcing them that they required undertakings from the Promoters and that the committee would adjourn to allow the Promoters to consider them. The decision about the Cutty Sark station had at that stage been couched in the following terms

    "So far as regards Cutty Sark station, we accept by a majority that the site of the station should be that proposed in the Bill. However, we believe that the main entrance should be at 53 Greenwich Church Street and that there should be active frontages along the station concourse at this point."

When counsel for the Promoters returned after the short adjournment what he offered in response to that particular decision fell well short of an unequivocal undertaking:

    "The Promoters have noted the Committee's expression of belief in relation to that entrance and on behalf of the Promoters I am able to offer that we will enter into discussions with the relevant land owners, who I believe will be Thamesworld and the London Borough of Greenwich, to achieve the Committee's wishes in relation to that entrance, and I hope that will be satisfactory as far as the Committee is concerned."

Clearly the committee did not find that acceptable because, after exchanges had taken place on all the other decisions announced earlier, the committee again adjourned for a short time and when they returned the Chairman stated that what followed was intended to clarify the decisions.

  4.  She then turned first to the Cutty Sark station and stated as follows

    "We insist that the entrance to the Cutty Sark station be placed at 53 Greenwich Church Street and if the Promoters cannot achieve that then there should be no station at all. To put it bluntly, the Promoters should get on with taking the necessary action to achieve this."

Nothing was said in response to that by the Promoters' counsel. In the circumstances, I treat the Promoters as having given by implication an unqualified undertaking to give effect to the decision. That conclusion is in my view inescapable given the uncompromising terms in which the decision was then expressed and the fact that the committee had earlier stated that their decisions required undertakings on the part of the Promoters. It is further supported by the fact that on another of the clarified decisions (that relating to double-glazing) the Promoters' counsel indicated that they could not give the undertaking sought by the committee.

  5.  On the first question concerning my jurisdiction under SO 130, therefore, I proceed on the basis that the Promoters must be taken to have given an undertaking that the main entrance to the Cutty Sark station would be placed at 53 Greenwich Church Street and that if it could not be placed there there would be no station at Cutty Sark. On the second question - are the applicants "concerned with the undertaking" within the meaning of the Standing Order - the applicants, the DLR Monitoring Group, start with the difficulty that they were not parties to the proceedings on the bill. I am, however, prepared to treat them, for present purposes, as standing in the shoes of the DLR Steering Group who were parties to the proceedings, as petitioners against the bill. The Monitoring Group were established following the effective demise of the Steering Group. Apart from the fact that they do not have representatives from the Greenwich Borough Council their membership is similar to that of the Steering Group, both as respects individuals and community organisations, and they have similar aims. Their Chairman, Mr Alan Brett, was also, at the time of the proceedings on the bill, Chairman of the Steering Group and gave evidence for the Steering Group on their petition.

  6.  Treating the Monitoring Group as standing in the shoes of the Steering Group does not in itself, however, dispose of the second question. I have to be satisfied that the Steering Group were "concerned with the undertaking". In their petition they opposed having a station at Cutty Sark at all. Given, therefore, that the committee accepted the case for having the Cutty Sark station and that the undertaking was concerned with where the entrance should be placed it could plainly be argued that the Steering Group were not concerned with the undertaking. The committee's decision, however, and the resulting implied undertaking, specifically contemplated the possibility that there might have to be no station at Cutty Sark. To that extent, therefore, they did get some benefit from the undertaking and that is a ground on which I have felt able to treat the Steering Group as being concerned with it. There is another ground also on which, if the matter had been argued in the proceedings (see below), I might have come to that conclusion. It appears in the written response of the applicants to paragraphs 17, 18 and 19 of the respondents' written submission. For the reason that appears below, however, it would serve no purpose, as things have turned out, for me to take a concluded view about that.

  7.  In coming to these conclusions on the basis for exercising my jurisdiction under SO 130 I have felt free to take a broad approach to the construction of the Standing Order and to approach the questions that arise in that connection on the footing that, within the bounds of reasonableness, I should favour a view of them that enabled me to deal with this case under the Standing Order. I might not have felt free to do so if I had had to consider arguments challenging the use of the SO 130 procedure and, as will appear from paragraph 8 below, at one time such a challenge seemed likely. I felt free to proceed in that way because, as will also appear from paragraph 8 below, even if I had concluded that this was not a case where I could exercise my jurisdiction under the Standing Order I would nevertheless have regarded it as my duty to give a ruling on the matters that arise in this case.

  8.  The question of a challenge to proceeding under SO 130, referred to in paragraph 7 above, arose at a stage before the delivery of the written submissions. The respondents made it known to my counsel that they proposed to challenge whether I had jurisdiction under SO 130 in this case. Subject to studying the material relating to the membership and constitution of the applicants they contemplated challenging whether it was right to treat the applicants as standing in the shoes of the Steering Group; and they proposed in any event - regardless of that point - to argue that the Steering Group were not "concerned with the undertaking". I made it known to them through my counsel, however, that even if the respondents succeeded in persuading me that I had no jurisdiction under SO 130 in this case I would feel bound to give a ruling on the questions at issue, on the basis of my general responsibility for the oversight of private bills. I pointed out that in that general capacity I certainly have a duty to concern myself with any allegations that any undertaking given to a private bill committee is not being complied with. Furthermore, in this case we were concerned with a committee decision that was expressed in unusually emphatic terms and affected what might fairly be termed the Greenwich environment and community. Moreover, the original proposal for the entrance that provoked the complaint of non-compliance that was raised with us last November had looked like a proposal that would indeed not have complied (as was later admitted to be the case - see paragraphs 12 and 13 below). I pointed out that in all those circumstances, coupled with the fact that the matter had received considerable publicity, I had concluded that it would be wrong for me to part with this matter without giving a ruling on the effect of the Lords decision. Not surprisingly, in the face of that no challenge to my jurisdiction under SO 130 materialised.

9.  Background to present proceedings

  I turn now to the background to the present proceedings. We are concerned, as I have indicated, with an undertaking that the Promoters of the bill must be taken to have given. The Promoters are accordingly the respondents to these proceedings but in this case "Promoters" is something of an umbrella, covering a number of bodies. From the outset, it was recognised that bodies other than the actual Promoters of the bill were involved. When the Chairman of the Lords committee indicated that the various decisions of the committee which she had announced required the Promoters to give undertakings to the committee she continued as follows:

    "Technically the Promoters are London Regional Transport but for practical purposes the Promoters may now be regarded as DLR Ltd as the body on whom the powers are to be conferred and the LDDC as the owners of DLR Ltd. So with regard to Promoters' undertakings, it is to be understood that they are being given on behalf of these two bodies as well."

Things have, however, moved on again since then. The matter is complex but for present purposes I need mention only the following: (1) LDDC were dissolved in 1994; and (2) all DLR functions as to the construction and maintenance of the Lewisham extension, together with all contractual obligations and undertakings relating thereto, are for the time being vested in a concessionaire, City Greenwich Lewisham Rail plc (CGLR). So LDDC and LRT are now out of the picture, and the party now immediately liable on the undertaking is CGLR, though DLR remain ultimately liable. It is DGLR and DLR, therefore, who are the respondents in these proceedings.

  10.  In the background, however, are two other key players: English Partnerships, a government Agency, and Centros Miller Ltd, a building and construction firm (I hope that describes then with reasonable accuracy), who are together concerned with the surface development of the whole area bounded by Greenwich Church Street and three other Greenwich streets, Creek Road, Welland Street and Thames Street, this being the area under which lies Cutty Sark station (to which there is at present no entrance). This area, which I will call "the Cutty Sark surface area", was the subject of a compulsory purchase order made by Greenwich Borough Council in 1996 as part of the process to forward the development.

  11.  Under a series of related contracts the responsibility for procuring that development - that is to say, the redevelopment of the Cutty Sark surface area - lies with English Partnerships and in doing so they are obliged to comply with all undertakings and other requirements arising out of the bill and relevant to Cutty Sark station. Centros Miller are English Partnerships' contracted developer and are likewise bound to comply with those undertakings and requirements. They have played a key part in the events that have led up to these proceedings.

  12.  Those events started, so far as I am concerned, with a letter last November from the applicants to my counsel. The letter made two complaints of alleged non-compliance with undertakings given to the Lords committee. The one with which I am concerned in these proceedings was a complaint that there was on foot a proposal for the entrance to the Cutty Sark station that was not in conformity with the decision that it should be placed at 53 Greenwich Church Street. I will call that "the original proposal". That proposal was included in an application for planning permission and conservation area consent that related to the whole Cutty Sark surface area and had been approved by the planning committee of the Greenwich Borough Council. A letter from the solicitor's department of the Council to my counsel described the entrance under this proposal as "placed at nos. 51 and 53 Greenwich Church Street" (it would have involved the demolition of No. 51) and stated that in the Council's view it complied "with both the letter and the spirit of the undertaking given to the House of Lords". I found that view somewhat surprising but subsequent events made it unnecessary for me to take any decision on the original proposal. Indeed, in the course of her address to me during the oral hearing in these proceedings, Mrs Gorlov, appearing for the respondents, expressly acknowledged that that proposal would not have been compliant.

  13.  The next event to which I must refer (which suggested that the respondents accepted that the original proposal would not have complied with the Lords decision) was the receipt of a letter from the agent for the respondents to my counsel early in March. That letter stated that:

    "Under instruction from English Partnerships to devise a design which complies with the select committee's decision, Centros Miller has produced a revised scheme".

I will call this "the first revised scheme". The letter enclosed plans and sketches of the scheme. It showed an access to the station via a crescent opening directly onto Greenwich Church Street over the site of No. 51 with the part of No. 53 that adjoins No. 51 shown as the entrance, albeit that the entrance via No. 53 was simply a way of going on to the crescent. This would therefore have involved passengers, if they used the entrance at No. 53, doing so simply in order to get on to the crescent when they could have gone straight on to the crescent from the street without going into No. 53. I am bound to say that the scheme did not on the face of it appear to me to constitute a compliance with the Lords decision and it seems likely that the respondents came to the same conclusion because it was never put to the applicants.

  14.  What was put to the applicants, in mid April, was what looked like a slight variation of the first revised scheme. The applicants responded by asserting that it would not comply and asked formally for a determination under SO 130. Those determination proceedings were, however, aborted and replaced by the present proceedings.

  15.  The immediate background to these present proceedings starts with two planning applications made to Greenwich Borough Council ("LBG"). The first was an application made in April by Mowlem Civil Engineering on behalf of CGLR. It was an application for approval of details, pursuant to the Town and Country Planning (General Permitted Development) Order 1995 Class A of Part 11 of Schedule 2, for works to No. 53 Greenwich Church Street. The works are designed to provide an entrance to the station at that building. I should explain in this connection that the effect of these provisions of the General Permitted Development order is that there is general permission for any development authorised by a private Act which designates specifically the nature of the development and the land on which it may be carried out, but this is subject to certain conditions one of which is that the approval of the planning authority is required for the detailed plans and specifications of any development consisting of the erection, construction, alteration and extension of any building. The second application was a revised application made in May by Centros Miller, for planning consent and conservation area consent relating to the whole of the Cutty Sark surface area, which would place the entrance to the station at the site of No. 53 Greenwich Church Street but would involve the demolition of that building. It would relocate the crescent that appeared in the first and second revised schemes so that instead of coming into Greenwich Church Street over the site of No. 51 it would come in over the site of No. 53. Approval of the first application had already been given before the present proceedings started and in early July Greenwich Borough Council granted planning consent pursuant to the second application.

  16.  The proposals embodied in those applications, which I will refer to as, respectively, the CGLR proposal and the Centros Miller proposal, thus now represent the current proposals for the entrance to the station at Cutty Sark. It was accordingly proposed by the respondents early in June, and agreed by the applicants, that the questions for my determination should in effect be whether either or both of the proposals would conform with the House of Lords decision. I set out the precise formulation of the questions below but I must first explain why there are these two different proposals now on foot. The Centros Miller proposal is part of their plan for the development of the whole Cutty Sark surface area though it is of course subject to the outcome of these proceedings. In order, however, to cater for the possibility that the development of the Cutty Sark surface area might be delayed, the CGLR proposal has been put forward to make sure that there is a station entrance available when the Cutty Sark station is opened. This is ostensibly, therefore, a temporary measure but there is nothing to preclude its long term retention.

17.  The questions for determination

  The formulation of the questions for my determination was proposed in a letter of 7 June from the agent for the respondents to my counsel and was accepted by the applicants. The questions were formulated as follows:

    "Whether placing the entrance to the station at Cutty Sark in the position shown on, and described in-

      (a) the site plan (drawing 6739/DR/30/CUS/10/20715 D/P annotated A06299), modified elevations (drawing DR/10/GRN/65/50283/C/A) and brief description of works all of which are the subject of an application to the London borough of Greenwich for approval of reserved matters (application no. 990853/R); and

      (b) ground level site plan (drawing no. 028/TPA/SK52E), elevation (part of drawing no. 028/TPA/SK58C) and description of Cutty Sark Station development all as forming part of Centros Miller's application for planning consent for the entire block (applications nos. 99/1075/R and (conservation area consent) 99/1078C);

    would conform with the decision of the House of Lords Select Committee that the entrance be placed at 53 Greenwich Church Street, each alternative to be the subject of a separate determination."

  18.  In short, therefore, the questions are: (a) does the DGLR proposal conform with the Lords decision that the entrance to the station be placed at 53 Greenwich Church Street; and (b) does the Centros Miller proposal conform with that decision. As a preliminary point I should mention, incidentally, that the submissions of both applicants have by implication assumed, rightly in my opinion, that by "entrance" in this context the committee meant the point at which passengers leave the street to go into what I may call the station complex.

  19.  Plainly, in order to determine these questions I have to come to a general view about what the Lords committee had in mind in specifying that the entrance to the station be placed at 53 Greenwich Church Street. That view must be derived from the actual words used and from a consideration of the evidence and arguments presented to the committee. That proposition seems to me to be axiomatic and I would not in the ordinary course have laboured the point further. The written argument of the respondents, however, contained certain general submissions in this connection to which I think I should refer. In paragraphs 2 and 3 they in effect argued for the proposition I have just adumbrated. Paragraph 3 finishes with the sentence: "Any interpretation [of the words used by the committee] must be based on the facts and evidence as they were at the time." Paragraph 4 then opens by inviting me "to agree that, even armed with this information, absolute certainty is impossible". I am happy to agree to that. If absolute certainty were possible it would be unlikely that the present proceedings would have taken place or indeed that there would ever be much room for proceedings under SO 130. I do not, however, find the analysis that followed in paragraph 4 a helpful way of approaching the matter in hand. It proceeded as follows ( and the bold in what follows here represents bold in the original):

    "The evidence may suggest a conclusion, but any view taken by another person seven years after the event must be speculative. The surviving members of the Select Committee no doubt have their own recollection (as do others who attended the Committee proceedings), but memory cannot be certain. In light of this it is submitted that where there is a choice between -

      (a) the speculative approach i.e. forming a view of the Select Committee's intention based upon somebody else's assessment of what they might have been thinking, and

      (b) the logical conclusion to be drawn from the evidence as presented, logic should prevail.".

  20.  So far as the reference to the surviving members of the Select Committee is concerned (sadly, the Chairman has died since the enactment of the bill) I can put on record the fact that I have not discussed the matter with any of them. I have to form my own view of the conclusion suggested by the evidence to the committee. That seems to place me, however, squarely within the first sentence quoted above ("The evidence may suggest a conclusion, but any view taken by another person seven years after the event must be speculative" - and in that connection Mrs Gorlov confirmed during the oral hearing that "another person" was intended to refer to anyone other than members of the select committee). I find it difficult to accept that, particularly given that the reference to "speculative" in that sentence is clearly intended to tie in with (a) of the two possible choices suggested by the respondents. It seems to me that there is in any event a certain falseness in the antithesis suggested by (a) and (b). To adapt the language there used, I accept that I should not, in coming to my determination, speculate on what the committee might have been thinking. It seems to me, however, that in a sense I do have to form a view of what they were thinking. I would prefer to put the question of my general approach in a quite different way. I think I should ask myself this question: given the words used by the committee and the evidence and submissions to them, what would a reasonable and disinterested person have taken the committee to mean in stating that the main entrance to the station should be placed at 53 Greenwich Church Street?

  21.  I must also mention some other general propositions put forward in the written submission of the respondents. In paragraph 5 they suggested that the question whether any entrance proposals comply with the Select Committee's decision will need to be measured against appropriate criteria and in that connection they suggested two questions have to be considered:

    1.  Did the Select Committee mean their decision to refer to No. 53 Greenwich Church Street alone or to include also No.55 i.e. the passageway alongside the flank of the building at No.53?

    2.  Was the decision concerned solely with location or did it extend to the design of the station entrance?

They then submitted that the replies to these questions provide the only criteria needed in order to ascertain whether any given set of proposals complies with the Select Committee's decision. I touch on the 53-55 question later in connection with the submissions of the applicants on the CGLR proposal but it was not in fact an issue between the parties and I do not think I need say anything about the quite substantial part of the respondents' argument devoted to that question. The other question is certainly a crucial one because it seems to imply that there is no middle ground between the decision being, on the one hand, concerned solely with location and, on the other, extending to the design of the station entrance. I return to that below.

  22.  There were many petitions against the bill upon which the committee received evidence and submissions but only four were concerned in any way with the station at Cutty Sark. One of these was the petition of the DLR Steering Group in whose shoes I am treating the applicants as standing, but that petition was not concerned with the entrance to the station. It objected to having a station at Cutty Sark at all. The only petition that was concerned with the entrance to the station was the petition of the Greenwich Borough Council (to whom I will refer as "LBG"). In their petition, and in the case presented in respect of it, the question of the entrance to the station was a major issue. In particular, LBG pressed for the entrance to be at 53 Greenwich Church Street. There is therefore an irresistible inference that the committee's decision about the entrance must be attributed to the evidence and submissions of LBG. I think that that is accepted by the applicants and the respondents and inevitably a good deal of their respective submissions related to the case presented by LBG. I turn now to those submissions. I shall hope to deal with all the many points they raise. If, however, I omit one or two of them it will not be because I have not noticed them: I have given close attention to all of them.

23.  Question (a): the CGLR proposal

  This proposal, as I have indicated earlier, would place the entrance to the station at the building No. 53 Greenwich Church Street and one might suppose, on the face of it, that that would fall squarely within the committee's decision. The applicants submitted, however, that it does not. In their written submission they partly invoke in this connection the "Design Guidance Note", a document put in by LBG as part of its evidence to the committee, which figured prominently in the committee's proceedings. Their submission was that (i) contrary to the Design Guidance Note only a portion of the ground floor of No. 53 would be used for access under the CGLR proposal; and (ii) the width of what would be used, being only 5m at the front (reducing to 4m at the rear) did not satisfy "the minimum width of 6m which we were given to understand is required by HM Railway Inspectorate (HMRI)". I can say at the outset that I do not consider that the applicants' case stands up on either of these points.

  I will deal first with (ii) because there is rather less to say about it. The applicants in effect acknowledged that there was no evidence before the committee that there had to be a minimum width of 6m. It was a figure that they had noted from information given in evidence at the public inquiry into the LBG compulsory purchase order for the Cutty Sark surface area to which I have referred earlier. The respondents, in their written response to the applicants' written submission, indicated that I might "find it helpful to know that HMRI does not specify minimum entrance widths. These are calculated by reference to the number of people who might be expected to need to be evacuated from the station in an emergency". Given the view I take on this point I do not need to make a finding on that and indeed I have no actual evidence on which to do so. Nor, it seems, did the committee. At any rate, I have not had referred to me by either party anything to show that the committee had evidence about this specific matter though there was a good deal of evidence about the role of HMRI, from which the committee would have known generally that - to adopt words used by the respondents - the requirements of HMRI must be accommodated if the station is to operate.

  24.  I understand the applicants' concern on (ii) given the very large number of passengers expected to use the station. They referred me to the current estimate of around 2.5 million during the year 2000. In my view, however, it simply is not credible to suppose that the committee, in specifying that the entrance should be at 53 Greenwich Church Street, intended to specify inter alia the minimum width that should be adapted to deal with the expected number of passengers. It is only fair to add that although in their oral argument the applicants continued to maintain (ii) it appears that right at the end they may have abandoned this point. After various exchanges with my counsel, in almost his last words, Mr Brett, who appeared for the applicants, assisted by their architect Mr Binns, read out a note passed to him from Mr Binns to the following effect: "The railway concessionaires' proposals comply but only in part because they only use a section of the ground floor of 53 and not the whole of the ground floor of 53". That suggests that at that point they would be content to rely only on (i).

  25.  I return then to (i) of the applicants' written submission on the CGLR proposal: that contrary to the Design Guidance Note only a portion of the ground floor of number 53 would be used under that proposal. I must start my consideration of that by mentioning a confusion that arose in the proceedings as to which version of the Design Guidance Note was actually before the committee. That document, numbered LBG15, was, as I have said above, one of the documents put into the committee by LBG as part of their evidence. It is a document of which there were successive drafts but the only version of it that appears in the papers on the bill held in the House of Lords Record Office is designated as a draft of February 1992. The version to which the applicants referred in their written submission, however, was a later one, namely, a version designated May 1992, which I understand was not a further draft but the final version. Not unnaturally, since the committee proceedings did not take place until July 1992, the applicants assumed that it was the later one that was put before the committee. It may well have been a mistake that it was the February version that was put before committee. It may even be that by mistake two different versions, both the February and the May, were handed in. The only one I can be sure was before the committee, however, is the only one that appears in the House of Lords Record Office, namely, the February version and that, it appears, is also the one that appeared in the papers still held on the bill by the Agents who acted for the Promoters, of whom Mrs Gorlov is a partner. Where I refer later, therefore, to LBG15 that is the one to which I am referring. That said, I do not think that the discrepancy affects the substance of the argument in the applicants' written submission. In that, they refer to a plan and a drawing shown respectively in Annexes 4 and 5 of their submission. According to their version of the Design Guidance Note they appear as Figures 1 and 2 in section 2.1 of the Design Guidance Note. They do not, however, appear in section 2.1, or anywhere else, of LBG15 (which has two plans labelled "Option A and Option B" showing a possible orientation and layout of the station). The plan and drawing shown in Annex 4 and 5 of the applicants' submission do, however, appear as DH13 and DH15 respectively of the blue folder of various plans etc. handed in by the Promoters as part of their evidence, and I will refer to them by those labels.

  26.  In saying in their written submission that in not utilising the full width of the ground floor of No. 53 the arrangement proposed by CGLR "falls short of that envisaged in the Design Guidance Note" (page 5 of the submission) it seems clear that the applicants were referring back to page 3 of the submission. There they point out that DH13 and 15, as I am calling them, show the Greenwich Church Street entrance (there was also going to be a subsidiary one in Creek Road) as being both at No. 53 and at the alleyway between nos. 53 and 57, leading to No. 55 which is at the rear. At DH13 is a plan of the proposed layout of the whole station while at DH15 is a drawing of an artists' impression showing how No. 53 could be adapted to provide the entrance, the adaptation showing the entrance covering the full width of No. 53 and extending that building over the above mentioned alleyway. However, in adopting DH13 and 15 as their argument for saying that the DGLR proposal would not comply with the committee's decision, the applicants put themselves into a self-contradictory position. I say that because in both their written and oral submissions they argued that the CGLR proposal would comply if it were modified so as to utilise the full width of No. 53 alone. That is re-enforced by the fact that in their written response to the respondents' written submission they averred that the extensive argument in the latter submission about "the 53/55 question" was irrelevant and "confusing when, in the end, the conclusion reached is that No. 53 means exactly that and nothing else". They confirmed this again at the oral hearing and, when the point was put to them by my counsel, accepted that there was a contradiction in this respect between their original written submission and their subsequent submission. An element of self-contradiction does not of course necessarily invalidate their case. What is really damaging to their case is that in accepting that "No. 53 means exactly that and nothing else" they had to abandon the element of their argument that relied on the drawing at DH15. That drawing, however, represented the only actual design for an entrance at 53 that was canvassed by LBG (certainly I have found no other in the evidence and none has been suggested to me by either of the parties). Once the applicants abandoned reliance on that there was nothing, it seems to me, to support their contention that, in not utilising the full width of the ground floor of No. 53, the CGLR proposal "falls short of that envisaged in the Design Guidance Note".

  27.  It is, in any event, clear in my view that the drawing at DH15 represented no more than an illustration of one way of utilising the building at No. 53 as the main station entrance. On the matter of the design of any alteration of No. 53 required to make it into a main entrance I am satisfied that the committee would have seen DH15 as only illustrative and would have assumed that the design details would be a matter for approval of details by LBG under the GPDO. Mrs Gorlov, for the respondents, demonstrated from evidence before the committee that they would have understood the effect of the GPDO in this respect (it was actually its predecessor, the General Development Order, at the time of the bill, but the effect was the same) and the applicants accepted this when the point was put to them during the oral hearing.

28.  Conclusion on the CGLR proposal

  In short then, the CGLR proposal manifestly places the entrance at No. 53 within the ordinary meaning of those words and I cannot accept either of the grounds on which the applicants contend that it nevertheless fails to comply with the committee's decision. I accordingly determine in answer to question (a) that the CGLR proposal does conform with the committee's decision.

29.  Question (b): The Centros Miller Proposal

  Under this proposal passengers would leave Greenwich Church Street at the site of No. 53 to go into what I have called the station complex, but the building No. 53 would be demolished. So the crucial question here is whether the words "at 53" in the committee's decision mean, as the applicants contend, at the building No. 53; or mean, as the respondents contend, simply at the place where that building is situated.

  30.  The applicants' case for saying that "at 53 Greenwich Church Street" meant at the building can be put shortly. First they say, in effect, that the natural meaning of those words is at that building. I say "in effect", because what they actually said on this in their written submission was (the bold in what follows representing bold in the original): "The Select Committee's decision was that the entrance to the station should be at No. 53. There is no mention of the entrance being instead of or in place of No. 53". A similar point is made in their written response to the respondents' submission, with reference to paragraph 40 of which they say, inter alia: " 'At 53' can only mean where No. 53 is and not where it once might have been".

  31.  Second, and as, I think, their main point, the applicants draw attention to the fact that throughout the proceedings on the bill, both in LBG15 and in the oral evidence of their witness on this topic, Mr Higham, the position of LBG was that there should be a minimum of demolition and in particular, so far as material for present purposes, that the buildings in Greenwich Church Street should be preserved. The whole of the relevant area was a conservation area and all the buildings in Greenwich Church Street had been locally listed by LBG. Furthermore, and most tellingly from the applicants' point of view, LBG indicated specifically that they favoured the use of the building at No. 53 for the station entrance. In this connection the applicants' written submission quoted from Mr Higham answering question 5 on page 82 of the transcript for day 10 of the committee proceedings. I set out the whole of this answer here because the respondents also quoted from it, though only from the first part of it, and I shall refer to it again later. The question was "What about the access to Cutty Sark, do you have a point on that, Mr Higham?" The answer was as follows:

    "Yes. We feel it is appropriate that the station's main pedestrian entrance should be situated at the heart of the town centre at a convenient location for visitors to Greenwich's many tourist attractions. The most appropriate location for the station's main entrance is therefore at Greenwich Church Street, which London Transport themselves acknowledge will be the busiest access. We feel this should provide a generous and attractive entrance, in keeping with the scale and character of the historic town centre. To this end it would be most appropriate to make use of the building at 53 Greenwich Church Street, as the main station entrance, with development of the land to the rear of 53 and 55 Greenwich Church Street, to ensure activity at ground floor level throughout the station concourse."

The applicants submit that having regard to all the matters in the foregoing part of this paragraph, which I will call "the conservation and aesthetic context", the committee, in referring to "53 Greenwich Church Street", must have been referring to the building. It is a cogent argument.

  32.  For their part, the respondents accepted what I have described as the conservation and aesthetic context. They argued, however, that it played no part, or must be taken to have played no part, in the committee's decision. There are several strands in their argument and I shall try to deal with each.

  33.  They sought first to lay the groundwork, as it were, in paragraph 4 of their written submission. There they set out what they invited me to agree should be my general approach to the whole matter. I have already indicated why I regard that part of their submission as unsound. As I have indicated above, I think the right approach is to consider the words used in the committee's decision and to ask myself what a reasonable and disinterested third party, in the light of those words and the evidence and submissions to the committee, would have understood the committee to mean. During the oral argument Mrs Gorlov accepted that approach and suggested that it was no different in fact from what was proposed in paragraph 4 of the respondents' submission. I am glad that we have agreement on that though I have to say that I do not see the paragraph 4 approach as, on the face of it, amounting to the same thing as mine.

  34.  In paragraph 5 of their submission the respondents then set out two questions the answer to which they submitted are the only criteria needed for deciding whether any proposal for the station entrance complies with the committee's decision. One of those questions was the "53/55 question" but in the event there was no issue there. Their submission on that was that, in spite of a certain ambivalence in the evidence on this question, the committee, in referring to 53, meant 53 alone. That was accepted by the applicants, as I indicated when dealing above with the CGLR proposal, and I am happy to proceed on the same basis.

  35.  The other question in the respondents' paragraph 5 is "was the decision concerned solely with location or did it extend to the design of the station entrance?" I have already noted that that appears to suggest that there is no middle ground between the two matters mentioned and that that was a crucial question to which I would return. I now do so. My counsel put it to Mrs Gorlov during the oral proceedings that there is a middle ground: that the committee could have intended the entrance to be at the building No. 53 while recognising that the design details for that proposal would be a matter for approval by LBG pursuant to the GPDO. There was a series of exchanges with Mrs Gorlov on this point but it is probably fair to say that she did not really give any ground on it. She accepted that there was a middle ground "in theory" but that as placing a station entrance in a particular building was itself a matter of design a reasonable committee (if I may paraphrase what she said) could not proceed on the basis that it should not concern itself with design and at the same time decide that the station entrance should be at a particular building. That is a beguiling argument but I am not persuaded by it. The word "design" in the respondents' argument and in the evidence to the committee is used in a very broad sense. It is, in my view, unrealistic to suppose that a reasonable committee would not have perceived a distinction between design in the broad sense of placing the entrance at a particular building and design in the sense of the actual details of how the building should be adapted for that purpose. I do not therefore approach the matter on the footing that if I accept that the committee's decision did not extend to "design" I must also accept that it was concerned only with location.

  36.  That brings me to the more specific arguments advanced by the respondents, one of which was that the evidence showed that the committee would have understood the general effect of the GPDO and would accordingly have understood that the design of, inter alia, the station entrance would require the approval of LBG. I have already indicated, in relation to the CGLR proposal, that I accept that. I also accept the elaboration of that point put forward by the respondents to the effect that matters of station design were not finally settled at the time of the proceedings on the bill. For the reason I have given in paragraph 35 above, however, I do not see that as forcing me to the conclusion that the committee could not have intended the entrance to be at the building No. 53.

  37.  Another point of the respondents relating to planning matters was that the committee would have understood from the evidence that there would in due course be development of the Cutty Sark surface area and that this "over-station" development would not have the benefit of the general permission in the GPDO but would be subject to the ordinary planning procedures. The general drift of the argument behind that point is, I think, that bearing in mind that there would ultimately be a surface developer - it is now of course English Partnerships and Centros Miller - who would be subject to the ordinary planning regime, the committee cannot have intended that the building at No. 53 should remain, because that would mean that that particular part of the surface development would remain subject to the GPDO regime. It would accordingly be subject to a different planning regime from that governing the rest of the surface development. The committee would then, moreover, have been deciding the nature of the future planning treatment of the building. Related to that is another argument of the respondents, namely, that it was made plain on behalf of the Promoters that the matter of the surface development was not a matter for them. Further on that subject, Mrs Gorlov pointed out during her oral argument that the Promoters' successors for this purpose, CGLR (and DLR) are in the same position as the Promoters. While they may have an indirect interest in the surface development, because it provides the environment of the station, they have no direct interest: "They are railway undertakers. They are not property developers".

  38.   It seems to me, however, that there would be no anomaly in the station entrance being in a different position from the rest of the surface area. That is one part of the surface development in which the Promoters would always have had a continuing direct concern and so, now, do CGLR and DLR. That is because it is an essential part of the station development itself: a station entrance/exit is plainly a key part of the station. I accordingly do not see this general argument about the surface development as requiring the conclusion that the committee's decision was concerned only with location.

  39.  A more specific aspect of the respondents' argument relating to the surface development was concerned with the petition of Thamesworld Ltd and its shareholders. This is an argument I can deal with briefly. I have read all the evidence given by Miss Harris for Thamesworld and although she contemplated development of the upper part of No. 53 I can find nothing in her evidence indicating that she contemplated that building's demolition. To my eye the indications of her evidence are quite to the contrary but I do not think it is necessary for me to come to any conclusion about that. One thing is clear about Thamesworld and that is that they had obtained an undertaking from London Transport which, as things stood at the time of the committee proceedings, would have prevented effect being given to the committee's decision. The committee certainly understood that because, as the respondents pointed out in their written submission, London Transport had in the course of their oral evidence to the committee indicated that while they did not in principle oppose having the entrance at No. 53 that would conflict with the above-mentioned undertaking. That is clearly why, as the respondents also pointed out to me, the committee's decision about the entrance recognised that it might not be possible to have it at all.

  40.  I turn now to an argument raised by Mrs Gorlov in the oral proceedings that was not, as far as I can see, raised in the respondents' written submission. She argued that the committee could not have intended to decide that the entrance should be at the building No. 53 because if that is what "at 53" means "it presupposes that the building will stand there forever". She argued that only Grade 1 listed buildings are supposed to do that whereas in practice it was unlikely that No. 53 would have a life, at a guess, of as much as 150 years. That is an ingenious argument but I do not find it in the least persuasive. The committee, so far as they thought about he point at all, must have understood that the building would have a natural life. It seems to me fanciful to suppose that if the committee intended the entrance to be at that building they must have intended to give it a cloak of preservation comparable to that of a Grade 1 listed building - any more than LBG must be taken to have intended that by giving it a local listing.

  41.  I turn finally to what I see as the most crucial part of the case concerning the Centros Miller proposal. I have cited earlier the answer by LBG's planning witness, Mr Higham, to question 5 on page 82 of day 10 of the proceedings. The applicants relied heavily on that because in the latter part of it Mr Higham states that it would be most appropriate to make use of the building at 53 Greenwich Church Street. That of course echoed what was in LBG 15, which Mr Higham had indeed been closely involved in preparing. The respondents' case, however, is that the committee's decision was entirely related to the earlier part of the answer, that is to say it was entirely related to the fact that No. 53 was at the heart of the historic town centre, and was not concerned with what I have called the conservation and aesthetic context. That seems to me to be very difficult to sustain.

  42.  It is to be noticed that the early part of the answer is saying that Greenwich Church Street is at the heart of the town centre, not specifically No. 53: "We feel it is appropriate that the station's main pedestrian access should be situated in the heart of the town centre in a convenient location for visitors to Greenwich's many tourist attractions. The most appropriate location for the station's main entrance is therefore at Greenwich Church Street, which London Transport themselves acknowledge will be the busiest access". It is to be noticed too that having an entrance in Greenwich Church Street was not an issue between LBG and London Transport. The latter's own proposal, at the time of the bill proceedings, had an entrance in Greenwich Church Street, in the passageway right next to No. 53. The preference of LBG for using the building at No. 53 as the entrance, rather than London Transport's proposed Greenwich Church Street entrance, was not that No. 53 was at the heart of the town centre - so was London Transport's entrance - but that it was more "befitting the character of the historic town centre and more appropriate and attractive" than the adjacent narrow passage at that stage proposed by London Transport. That appears quite explicitly from the answer to questions 2 and 4 on page 83. From this it is quite clear that LBG had appearance in mind as well as location. Indeed that was expressly confirmed in the answer to question 1 on page 83, which comes immediately after the answer to question 5 on page 82: "Q. Because that is a matter of external appearance perhaps? A. Yes". So far, therefore, from the committee's decision being related entirely to the fact that No. 53 was at the heart of the town centre it appears to have been related largely to the appearance and character of the building No. 53. To the extent that there was a location issue between London Transport and LBG, apart from the choice between No. 53 and the adjoining passage, it was only that LBG' proposal would, it seems, have made the Creek Road entrance the main one whereas LBG wanted to give dominance to the Greenwich Church Street entrance.

  43.  I think the foregoing really deals with enough of the respondents' submissions to enable me to come to a conclusion on the Centros Miller proposal. I will, however, deal with one or two others that I think deserve some mention. In one they sought to rebut any suggestion that the committee's decision was at all attributable to what I have called the conservation and aesthetic context by saying that even if the committee had any regard to that they must not be taken to have reflected such matters in their decision unless there was an express indication to that effect. As an example of the reasoning behind that proposition I cite the following from Mrs Gorlov at the oral hearing:

    "Had they intended to secure the permanent retention of No. 53, they would have said so. The reason for that is that they were only adjudicating on a railway scheme. They were not controlling and were not seeking to control any surrounding development. Had they wanted to circumscribe the development associated with the railway in such a way as to prevent any overall redevelopment of the area being carried out in a particular way, they would have said so and they did not."

I then asked her (after a few more words of hers) whether she also said, taking that one step further, that it was part of her case that the committee "did not give consideration to wider conservation aspects of this matter". Her reply was as follows:

    "I am sure they considered them, my Lord, but they could not opine on them. If they had said anything, if they had expressed any preference regarding those issues, it could have been no more than that because the promoters of the Bill had no control over development other than purely related to the railway. Indeed, that is what is being exercised today."

This takes me back to paragraph 38 above and I can only repeat what I said there, namely, that whatever might be the position regarding the surrounding development in general the station entrance must be regarded as part of the station itself and the Promoters did indeed keep control of it, by the chain of agreements that reaches down to Centros Miller and requires all concerned to comply with the Lords decision. Mrs Gorlov expressly alluded to that in the last sentence I have quoted from above. There is to my mind, therefore, no reason, so far as the station entrance is concerned, why the committee should not have had conservation and aesthetic considerations in mind and it will be seen from paragraph 42 above that in my view it is clear that in fact they did.

  44.  In any event, the very terms of the committee's decision seem to me to demonstrate that the committee did not feel quite the inhibition against entering into planning matters that Mrs Gorlov submits that they must, or at any rate should, have felt. The terms of their decision when they first announced it, in paragraph 8 on page 2 of the transcript of the proceedings of day 16, not only indicated that the main entrance to the station should be at 53 Greenwich Church Street but added "and [that] there should be active frontages along the station concourse at this point".

  45.  Another argument of the respondents in playing down the conservation and aesthetic context was to emphasise that LBG 15 was only a guidance note. For example in their written response to the applicants' written submission they said:

    "The status accorded to the Design Guidance Note by the DLR Monitoring Group is misconceived. The document is a guide and it raises essentially planning issues. It was clearly intended as a set of recommendation, not design details which were to be imposed at that stage."

To this Mrs Gorlov added during the oral hearing that as Mr Higham's evidence to which I have referred above was merely following LBG 15 that evidence should be looked at in the same way as the note. There are two things to be said about that. First, the underlying conservation and aesthetic context can hardly be regarded as a "design detail". That context was, it will be remembered: "that the station should be located so that the existing locally listed buildings on Creek Road and Greenwich Church Street are all retained. These are situated within a conservation area and form an important part of the historic town centre's established street scene" (LBG 15 paragraph 2.2.1 and Mr Higham quoted in paragraphs 31 and 42). Second, that however one looks at Mr Higham's evidence, any disinterested third party who heard the proceedings on the bill and heard the committee's decision on the Cutty Sark station must inevitably have concluded that the decision was attributable to that evidence. They manifestly, therefore, took that evidence at face value.

46.  Conclusion on the Centros Miller proposal

  My conclusion on the Centros Miller proposal will, I think, be apparent from the foregoing. Purely as a matter of language, I think most people would agree with the applicants' contention that the natural meaning of "at 53 Greenwich Church Street" is at the building of that number. Moreover, this particular proposal simply involves an access crescent coming straight on to Greenwich Church Street, with no sort of building at all. As a matter of language that does not, to my eye, fit well with the notion of a station "entrance", which, especially when combined with "placed at", would in my view suggest to most people some sort of building or structure. I do not, however, think that much turns on what is the "natural meaning" of the words used. It seems to me that the intent of the words used is apparent from a consideration of the evidence.

  47.  The conclusion from the evidence seems to me to be inescapable. As I have already indicated, the committee's decision is unarguably attributable to the evidence of Mr Higham. It reflects exactly what he said in answer to question 5 on page 82 of day 10 (quoted at paragraphs 31 and 42) where he states that "it would be most appropriate to make use of the building at 53 Greenwich Church Street". I have explained in paragraph 42 above why I regard it as quite clear that that passage of the evidence showed that LBG's preference in this respect was not simply directed to location: it was directed also to appearance - the visual attraction and fittingness of that building as a main entrance. Indeed, on the actual issue between London Transport and LBG as to the entrance (and decisions of select committees can only be directed to the actual issues before them) it seems to have been very largely about appearance.

  48.  I cannot doubt, therefore, that any reasonable and disinterested person who had seen and heard the evidence and heard the words of the committee's decision would have concluded that the reference to 53 was a reference to that building. For the reasons I have given earlier I do not accept the various arguments of the respondents to the contrary. I accordingly determine in answer to question (b) that the Centros Miller proposal would not conform with the committee's decision."


 
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