Refused: Proposed Development on Duncombe Hill Green [2020]

Naturescape
#41

I support your individual efforts on this, and hope your view can be proved correct :slight_smile:

As you’ve said before, establishing such a legal basis could block future developments, not just this one battle.

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#42

It is not the task for the Planning Committee to deal with contract enforcement. It’s role is to assess whether the ongoing use as public gardens has altered at any point since 1968 in order to vote on the proposed change of use for the applicant’s land.
A non-terminated tenancy, which had a clear purpose to lay out and maintain public gardens use, binds both JC Decaux and the new owner at present and the transfer of land ownership to the new company owner complicates the issue. However, legal delay is likely to be more of benefit to keeping the site open to all and places JC Decaux and the developer owner on a significant back foot in my view.
Lewisham Council’s legal team will no doubt deal with enforcement matters as a wholly separate matter to Planning concerns.
If Lewisham Planning cannot present evidence of a valid Tenancy termination prior to this Thursday’s meeting, then I will be speaking and requesting that the current application to build on the site is refused due to a legal impediment to a proposed change in land use and due to the enduring terms of the non terminated, legally enforceable Tenancy Agreement dating from 6th May 1968.

I’ll post up any response I receive from Lewisham planning following my contact by email to them last Friday. I anticipate that I will not be contacted and am convinced that JC Decaux sold their land at public auction in 2018 to the applicant owner without a valid termination of the Tenancy beforehand.

It’s going to be an interesting week!

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#43

Below is a copy of my email sent to Lewisham Council Planning before end of day, Friday, 17th January 2020. I will copy paste any response.

Dear London Borough of Lewisham,
I will be speaking at the meeting scheduled for 23rd January 2020 and have already contacted Claudette Minott today to confirm.

One query for your clarification - the agenda refers to a terminated Tenancy Agreement dating from 1968. I cannot source any evidence to substantiate the assertion that the Agreement [which ensured the site would be kept as “public gardens”] was terminated prior to the sale of Part by JC Decaux to the applicant in this matter.

I made a clear request under a Freedom of Information application in July 2019 for disclosure of any relevant contracts held between Lewisham Council and any private company relating to the whole triangular site and only received a copy of the 1968 Tenancy Agreement.

I note that Planning Committee B notes for the meeting on 23rd January 2020 only contains a copy of the Tenancy [addendum].

My simple request is this - kindly provide me with the evidence for the alleged termination of the 1968 Tenancy Agreement.

Yours faithfully,
Mr Austen Jones
Chair of the Ravensbourne Park Gardens User Group SE6

#44

Dear Matt,

I trust that you are keeping pace with my posts. I believe that you need to consider that JC Decaux has sold its land at public auction in 2018 in breach of the 1968 Tenancy requirements “not to assign” its land without permission from Lewisham Council and there is still no evidence that the Tenancy was validly terminated at any point since 1968.

I believe that I have clearly identified the crux of the matter with the best option to proceed and I welcome your revised opinion.

#45

I urge you not to waste too much of the limited and valuable time you have addressing the Committee with rantings about this 1968 Tenancy Agreement.
I believe concentrating on relevant Planning Policy and the Green’s previous use and its value as a community and environmental asset will be far more beneficial.
Obviously, that’s only my opinion but whatever happens, as you said in an earlier post, it’s gonna be a an interesting week - so good luck with it!

3 Likes
#47

Sold at public auction wow shocking!!! Silly me but…
Sorry not everyone was aware about this and now we fight to keep it an open public space. This doesn’t add up and is misleading which makes people want to gather important info!! The whole picture isn’t being painted well from the start so maybe his point is valid. Hidden info shouldn’t be covered up or over looked. It makes sense to why some have little faith when truth starts to unfold. That’s how it seems and though some points about this part argument is challenging and I understandable I do think Austen’s shouldn’t be shut down regardless of it being sold or not!! Hmmm makes you think how this is starting to look. I hope this works out well and fairly. Though I do lean more to the beautiful space we have now and enjoy admiring daily to remain open.

#48

Unfortunately, at the Committee stage, passion doesn’t win Planning arguments.

My money’s on a calm & pragmatic approach to highlighting Policy breaches winning the day.

6 Likes
#49

I understand that lol :laughing:

#50

Hi Austen,

Thanks for your further comments.

I’ve gone back to look at the tenancy agreement.

In summary:

  • The tenancy agreement does appear to have been terminated.

  • Even if it had not been terminated, that is not a basis for refusing planning permission.

  • Therefore the objection must be limited to planning issues.

It seems to me that, in all likelihood, the tenancy agreement has been terminated. Clause 3(h) provides that the Company [i.e. JC Decaux] shall “…at the determination of the tenancy … remove all advertisement hoardings and fences erected upon the new site land and to deliver up the land cleared and levelled”. The hoardings were removed several years ago which implies that the tenancy agreement was terminated at around the same time.

Even if that is wrong, and the tenancy agreement was not terminated in accordance with its terms, it is still not a reason for refusing planning permission. This is because the Planning Committee can only take into account “material planning considerations”.

It is well established that a material planning consideration is one which relates to how land should be used and/or what form of development (if any) should take place on it. This is quite a helpful explanation of the concept: https://www.eastriding.gov.uk/EasySiteWeb/GatewayLink.aspx?alId=97933

The tenancy agreement in this case is essentially a private agreement between the Council and JC Decaux. This is quite different from what the Planning Committee are considering, which is whether, in principle, the proposed development is acceptable in planning terms (i.e. good design, no harm to highway safety, adequate level of privacy, etc). The terms of the tenancy agreement have no bearing on the planning issues arising from the development.

This means that the tenancy agreement is not relevant to question of whether planning permission should be granted and is therefore not a basis for refusing planning permission. The officers’ advice is correct and so any objections based on the tenancy agreement would have to be disregarded by the Planning Committee.

Note that the planning permission would not override the tenancy agreement. This means that the Council retains contractual rights under the agreement and could, in theory, sue JC Decaux for breach of contract (although there appear to be no grounds for doing so). However, as the developer was not a party to the tenancy agreement, the Council cannot enforce the contract against the developer. Therefore this process sits entirely outside the planning system and is not a basis for refusing planning permission.

Perhaps we’'ll get a chance to meet and discuss further on Thursday.

Matt

4 Likes
#51

Hi all,
It is now clear that the whole of Duncombe Hill ‘Green’ is still governed by use as “public gardens” requirement under the non-terminated [you guessed it!] Tenancy Agreement from 1968 still held between Lewisham Council and the advertising company, JC Decaux [who have sold their land section to the current developer company].
This legal impediment to the proposed change of land use for the site is a 100% guarantee to have the current application refused at the Planning Committee meeting being held on 23rd January 2020.

Lewisham Council has a number of logical reasons for wanting the tenancy agreement to be viewed by the public as terminated in order to avoid the legal costs of dealing with DC Cadeux’s suspected breach of contract by selling its land without notification/termination and to continue to save money to maintain the site as required under it, for example.

Therefore, it would be completely in the interests of Lewisham Council to voluntarily disclose any held termination notice, but they haven’t because it is apparent that this notice does not exist!

This is a great day for the future of Duncombe Hill ‘Green’.

Tue 21/01/2020 17:34
Dear Planning Committee B/Lewisham Planning,

You have failed to provide any response to my emails to you dated 17th and 21st January 2020 by end of day today, as I clearly requested. Both emails requested a copy of the alleged termination notice served on Lewisham Council by JC Decaux in order to terminate a tenancy agreement dating from 6th May 1968 relating to the use of the applicant’s land as “public gardens”.

It is now abundantly clear for all to comprehend that your planning committee B has outlined under paragraph 7 of its agenda for its meeting to be held at the Civic Suite on 23rd January 2020 [under Section 2 - Site and Context] that a lawful and valid notice was served by JC Decaux on Lewisham Council to terminate the tenancy, but without providing any evidence of such within the agenda or in response to my ongoing correspondence to date.

As such, Lewisham Council is misleading the public and an immediate investigation is required in order for Planning Committee B to understand and publish the name of the source of this false information.

I trust that the agenda will be amended in advance of the meeting [on 23rd January 2020] and to show quite clearly that it appears that a legal impediment to a change of use of the applicant’s land has now been accepted by Planning Committee B due to the enduring nature of the 1968 Tenancy Agreement.

Yours faithfully,
Mr Austen Jones

#52

Austen,

I suggest that you also write a formal letter to Lewisham Council’s Chief Executive asking him to investigate your complaint.

3 Likes
#53

@Austen_Jones I personally think @Anotherjohn, @Sherwood and @matt_l are exactly right.

Pursuing the legal basis for protection has a lot of merit and should be pursued, but it is not of material concern for the planning committee - especially where the case notes already dismiss this argument.

Do you still plan to speak at the meeting on the 23rd, or do you think a single statement from Matt would be the most effective use of the allowed 5 minutes at that meeting?

2 Likes
#54

In my email to planning this morning I pointed out that Matt’s objections differ to mine and that both of us should be permitted to speak unless they object to that. Therefore, I will be speaking as it currently stands.
I am baffled that your opinion is that the USE of land is not of material concern to planning and reject that the legal basis found under the tenancy to continue its use as public gardens is an irrelevance when they will be considering a CHANGE OF USE to build on the site. I’m simply stunned.
Also, that you have accepted the agenda’s conclusion under para 10 without requiring any proof that the tenancy was terminated.
I’ve requested proof of the termination from Mayor Egan, Lewisham Greenscene officer Vince Buchanan and the planning department and still no copy of the alleged notice to terminate the tenancy which governs the USE of the land. This also does not resonate with you and others.

I would like to hear Matt’s opinion on the above in order to coordinate the approach.

#55

I think the rules are that only one objector is allowed to speak, and only for five minutes.

Ideally (in my opinion), the community should choose who they would prefer to represent their concerns:

  • Matt Lewin
  • Austen Jones
  • Don’t mind
  • Other (please comment)

0 voters

1 Like
#56

The results of this will not be relevant. There are only 2 planning applications being considered and it will be down to the Committee to decide on the night…

#57

No, I simply suggest it is pursued apart from the planning meeting - which already has advice to dismiss this argument.

Good.

I think that’s a bit presumptuous and rude to be honest.

1 Like
#58

I believe I have been polite throughout.
Let’s agree to disagree. I respect your position and I trust that you respect mine.
I don’t need to exchange further on the subject with you now that we are both clear on the issue.

#59

@matt_l and @Austen_Jones thanks both for giving up your free time to look into these issues, and detailing them here.

@Austen_Jones your arguments seem valid to me but I am no expert in law, or this area. As @matt_l actively practices law in this field, and will have I expect lots of experience, it might be wise to defer to his opinion as the expert as such and have a chat with him beforehand, and perhaps afterwards in the terms of the points you detail.

It will be important to use the 5 minutes as effectively as possible, and if @matt_l 's view is the approach he has outlined is the best to ensure success, it’s something we should support in my view. That’s not a slight on your points, which as I say seem perfectly valid and could be explored at another juncture, if required.

Thanks everyone.

edit - if you practice law in this field my apologies.

5 Likes
#60

Just one point for all to consider - I’ve requested a copy of a single page document from Lewisham Council since July 2019 from all relevant departments to prove a valid termination notice of the tenancy which governs the use of the Green as publicly accessible space.
Even a Freedom of Information application on the same subject yielded zero to suggest that any such document exists. The planning committee have failed by end of day today to provide it.

There is a clear determination by Lewisham Council to withhold this document from public view due to the reasons posted in my other posts to outline that huge importance of the Tenancy Agreement from 1968, which I’m afraid Matt Lewin has not thought to be relevant.

I believe that Matt’s opinion is 100% incorrect at law and that is why I will be speaking as an objector.

#61

If you think the results of this poll are irrelevant, why have you voted? (for yourself!)

Please… Your passion for this cause is both admirable and much appreciated - but your intransigence and refusal to back off on the side issue of the land agreement, at least for now, could water-down the effectiveness of our chance to give a planning barrister free reign in front of Committee.

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