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Your Ref:

Our Ref: RGA/00497159/1

Date: 12 August 2021

Attn: Ngaire Thomson, Principal Planning Policy Officer Nick Lynch, Planning Policy Manager Neeru Kareer, Assistant Director, Planning and Building Control By post and email: ngaire.thomson@barnet.gov.uk Nick.lynch@barnet.gov.uk Neeru.Kareer@Barnet.gov.uk

LETTER BEFORE CLAIM

Dear London Borough of Barnet Adoption of the Burroughs and Middlesex University Supplementary Planning Document We act for Richard Lecoat, a resident of Hendon. This is a pre-action protocol letter under the Judicial Review Pre-Action Protocol. This letter has been drafted following the recent decision by the Policy and Resources Committee of the London Borough of Barnet (the “Council”) to adopt The Burroughs and Middlesex University Supplementary Planning Document (the “SPD”). That decision was taken on 20 July 2021. At the outset, we note that one week later, on 27 July 2021, the Council decided, through a meeting of its Full Council,1 to approve the Full Business Case for the proposed “Hendon Hub” redevelopment. Whilst the SPD and the Hendon Hub project may be related (at least in part) – with the SPD seeking to establish the planning framework for an area which will cover regeneration development

1 The matter having been referred to Full Council by the Policy and Resources Committee on 27 July 2021.

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expected to be delivered through the Hendon Hub – the two decisions taken by the Council are entirely separate. This letter is directed only to the unlawfulness of the Council’s decision to adopt the SPD. It is without prejudice to any further pre-action letter that we may send, on behalf of our client, regarding the lawfulness of the Council’s separate decision to approve the Full Business Case. 1. The defendant The proposed defendant is the London Borough of Barnet. 2. The claimant The proposed claimant is Richard Lecoat. 3. Reference details Our case reference is RGA/00497159/1. 4. The details of the matter being challenged The decision by the Policy and Resources Committee of the London Borough of Barnet to adopt the Burroughs and Middlesex University Supplementary Planning Document on 20 July 2021. 5. Details of any interested parties The proposed claimant considers Middlesex University to be an interested party in the proceedings. This letter has therefore been served by post to the following address: Middlesex University The Burroughs Hendon London NW4 4BT Attn: Professor Nic Beech, Vice Chancellor

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6. The issue Background Facts The Council’s Local Plan:

1. The Council’s adopted development plan consists of Barnet’s development plan documents (“DPDs”) (i.e. its Local Plan, including its Core Strategy (2012) and its Development Management Policies (2012)) and the London Plan 2021.

2. The Council is currently in the early stages of reviewing and updating its Local Plan. It has been consulting on the “Regulation 19” version of its Draft Local Plan (the consultation closed on 9 August 2021). Following that, the Draft will need to be subjected to a full and independent examination in public before it can be adopted. According to the Council’s website, adoption of any new plan is not expected until late 2022.2

The SPD and its scope:

3. The Council will be familiar with the SPD and its contents. The SPD is composed not only of the main “Planning Framework” document, but also its “annexes”,3 including:4 (i) Appendix 1 the “Design Guide”; (ii) Appendix 2 the “Landscape Arboriculture Assessment”; and, (iii) Transport Study (May 2020)

4. The SPD first identifies5 a 23.9 hectare area around The Burroughs and Middlesex University in the Hendon area of Barnet, referred to throughout the document as the “SPD area”.

5. That SPD area has not been previously identified in any of Barnet’s adopted DPDs.

6. The SPD further identifies four “character areas” within the SPD area (“Character Areas”):6

2 https://engage.barnet.gov.uk/local-plan-reg-19 3 To which the Planning Framework document cross-refers. 4 We note that the annexes were not included in the “Public reports pack” for the Committee’s meeting on 20 July and we have been unable to locate a published version of the formally adopted SPD with its annexes on the Council’s website. We, therefore, assume that the adopted annexes have not changed since the draft versions consulted on and available here: https://engage.barnet.gov.uk/burroughs-middlesex-spd 5 See SPD at 1.1.1 and 1.1.7, including the reference to the “SPD boundary” in Figure 1 on p. 7 of the SPD. 6 SPD at 4.2.

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(1) Corner of the A41 to St Joseph’s Grove (2) St Joseph’s Grove to Church End (3) Church End to Greyhound Hill (4) East of Church Terrace

7. These Character Areas have also not been previously identified in any of Barnet’s adopted DPDs.

8. The SPD also identifies 8 specific development sites as “Key Opportunity Sites” (“Opportunity Sites”) (see at 1.1.6 and Chapter 5). These correspond to sites that are currently included in the Regulation 19 version of the emerging Draft Local Plan (as sites nos 34-38 and 39-42). However, they have not been allocated as sites for development in any of Barnet’s adopted DPDs.

9. Overall, the SPD has a very broad scope. According to the SPD itself (p.2), it:7

“provides a fit for purpose planning framework which sets the context for change delivered through a cohesive strategy. It will both steer and enable the delivery of regeneration opportunities that provide for the changing needs of the area including how community services are upgraded as well as addressing the requirements of stakeholders such as Middlesex University. All of which needs to be balanced against recognising the importance of the established residential character and the historic significance of the area. (…)”

10. On p.9 of the document at 1.3.1 it states:

“Through this SPD a planning framework has been established to enable the Council, University, local residents and businesses to create a place that thrives and supports an inter-generational community. The SPD sets out the way in which using a design and heritage lead approach, future development can occur that respects the historical context of the area and promotes sustainable forms of transport.”

11. The document goes on to set out various “opportunities” which the SPD

explores, including “The comprehensive regeneration of key sites which collectively have the ability to address issues of safety, movement, heritage and environmental enhancements” as well as “Providing a design guide for future development proposals to ensure the heritage value of the area is

7 Emphasis in underline is emphasis added throughout this document unless otherwise stated.

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recognised” (at 1.3.2). The objectives for the SPD include “Provid[ing] a planning framework to enable good growth while ensuring the identity and sense of place for the area is enhanced through collaborative planning.”

12. The Officer’s Report to the Policy and Resources Committee also highlights the SPD’s scope:8

1.3 “The purpose of the SPD is to adopt detailed planning and design guidance to manage future change and ensure that through development there is the opportunity to create and sustain a healthy area that thrives and supports an inter-generational community in a mixed use environmentally enhanced place. The SPD sets out the way in which, using a design and heritage lead [sic] approach, planning can ensure any future development of identified sites brings physical enhancements to green spaces and public realm as well as linkages between land uses. Future change must also respect the historical and residential character of the area.” 1.4 “…The aim is to secure a comprehensive approach to change and investment and the SPD advocates a future master plan for the 8 sites identified in this document.” 1.7 “…Guidance for design is set out both in the main SPD document and the supporting Design Guide. Four distinct Character Areas have been identified with each providing a unique and distinctive quality that must inform the any [sic] new development in the area.”

13. The SPD clearly encourages development and regeneration within the SPD

area, and the majority of the document sets out considerable (and detailed) development management requirements that the Council expects future planning applications for the SPD area, Character Areas and Opportunity

8 See also, the way the scope of the SPD is framed in the SPD’s Equality Impact Assessment: …This SPD planning framework provides the context in which the Council seeks to engage comprehensive change delivered through a cohesive strategy. It seeks to enable the delivery of development that provides for the changing needs of the University, while recognising the importance of the residential community and the historic significance of the area. (…) …The role of this SPD is to ensure the planning and design parameters for such investment are clearly established. The SPD is guided by a holistic vision for change and prosperity. (…) Production of this SPD will ensure that a robust planning framework is in place to enable the Council, University and local residents to create a place that thrives and supports an inter-generational community. The SPD sets out the way in which development can occur that respects the historical context of the area and promotes sustainable forms of transport.

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Sites to adhere to. According to the SPD, the Council expects “[n]ew development proposals in the area” to “demonstrate compliance with this SPD…” (at 6.1.1), continuing that “…all development proposals that applies [sic] for planning permission in the SPD area will be required to meet the requirements of this SPD, for instance, demonstrating the design led approach” (6.2.1).

14. Indeed the majority of the document sets out such development management requirements, with the Annexed Design Guide going through each of the Opportunity Sites in turn and addressing specific development requirements on matters such as building heights, massing, footprints, key views, setbacks and landscaping.

15. By way of example only: (i) In relation to the St Joseph’s Grove to Church End Character Area,

the SPD states that (p.16):

“…Redevelopment opportunities in this section will need to acknowledge this established setting and sense of place. Maintaining and where possible enhancing the wider public realm and sense of space this area provides is also important. While large buildings would be in-keeping with the character they need to be designed so as not to dominate or detract from the existing Statutory and Locally Listed buildings, that characterise The Burroughs and Church End/ Greyhound Hill in accordance with Local Plan policy. Particular attention should be given to the residential areas that are in the streets surrounding this section, ensuring impacts, such as, overshadowing and overlooking are designed-out and mitigated. The area borders Conservation Areas to the north and south, new buildings should therefore be designed sensitively to ensure that the views of these are not negatively impacted.”

(ii) In relation to Opportunity Site “A” (Middlesex University carpark), the

Design Guide states that:

“…An academic or mixed-use proposal would be supported for this site. The ground floor should be active and permeable where possible, with public accessibility if this [sic] appropriate. The access through the site to Grove Park should also be maintained. (…)”

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(iii) More generally, in relation to green infrastructure, the SPD provides that:

“4.4.3 New development opportunities across the SPD area should consider landscape at the outset of the design process to transform The Burroughs into a greener, more pedestrian orientated street scene. The enhancement of the existing green space with the introduction of more planting and street trees will also assist in the realisation of improving biodiversity and urban greening across the area and beyond. 4.4.4 … the following priorities have been identified to improve and enhance the natural environment.

• … All developments must deliver a high quality landscape scheme that will ensure new buildings and surrounding spaces are ‘greened’ to provide habitats for nature and visual aesthetics.

• … Urban greening initiatives should be designed and managed to ensure that a biodiversity net gain is also achieved. This would also assist in satisfying the requirements of a 10% biodiversity net gain of the Environment Bill.

• …The identified green link/corridor for nature (fig 5), between St’ Josephs Convent by the A41 on the western boundary north towards Sunny Hill Park should be preserved and enhanced with regards to both the greening and biodiversity, at every opportunity. This would create an enhanced ecological green corridor and a biodiversity chain through the area. The purpose being to improve the amount and quality of habitat in the area to support wildlife and flora also allowing for the movement and dispersal of wildlife and flora along it.”

16. Overall, therefore, the SPD includes a considerable amount of development

management (as well as site specific) policies. It reads as an Area Action Plan that inter alia: (i) identifies a new area for redevelopment and change; (ii) identifies four Character Areas; (iii) identifies 8 Opportunity Sites; (iv) establishes the kinds of development that will be encouraged in the

SPD Area; (v) sets out considerable development management policies to regulate

new development in that area, the requirements of which, it expects future planning applications to meet; and,

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(vi) includes detailed site master-planning requirements for the 8 Opportunity Sites.

Relevant Legal Framework

17. A supplementary planning document is a local development document that is adopted pursuant to section 17 of the Planning and Compulsory Purchase Act 2004 (“PCPA”).

18. Regulation 2 of the Town and Country Planning (Local Planning) (England) Regulations 2012 (“2012 Regs”) defines a “supplementary planning document” as meaning:

“any document of a description referred to in regulation 5 (except an adopted policies map or a statement of community involvement) which is not a local plan.”

19. Regulation 2 also defines “local plan” as meaning:

“any document of the description referred to in regulation 5(1)(a)(i), (ii) or (iv) or 5(2)(a) or (b), and for the purposes of section 17(7)(a) of the Act these documents are prescribed as development plan documents;”

20. Regulation 5 of the 2012 Regs provides:

“5. Local development documents

(1) For the purposes of section 17(7)(za)1 of the Act the documents which are to be prepared as local development documents are— (a) any document prepared by a local planning authority

individually or in cooperation with one or more other local planning authorities, which contains statements regarding one or more of the following— (i) the development and use of land which the local

planning authority wish to encourage during any specified period;

(ii) the allocation of sites for a particular type of development or use;

(iii) any environmental, social, design and economic objectives which are relevant to the attainment of the development and use of land mentioned in paragraph (i); and

(iv) development management and site allocation policies, which are intended to guide the determination of applications for planning permission;

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(b) where a document mentioned in sub-paragraph (a) contains

policies applying to sites or areas by reference to an Ordnance Survey map, any map which accompanies that document and which shows how the adopted policies map would be amended by the document, if it were adopted.

(2) For the purposes of section 17(7)(za) of the Act the documents

which, if prepared, are to be prepared as local development documents are— (a) any document which—

(i) relates only to part of the area of the local planning authority;

(ii) identifies that area as an area of significant change or special conservation; and

(iii) contains the local planning authority's policies in relation to the area; and

(b) any other document which includes a site allocation policy.”

21. In other words, a SPD is distinct from a development plan document (“DPD”). A SPD, therefore, cannot (even in part) cover any of the matters in Regulation 5(1)(a)(i), (ii), or (iv), or (2)(a) or (b); as these matters must be covered by DPDs. In short, “the development plan is the place in which to address policies regulating development”.9

22. Under the 2012 Regs, Local Plans (aka DPDs) are required to go through a much more robust consultation and examination process (than compared to SPDs) before they can be adopted (2012 Regs, Part 6). A key differentiating factor is that DPDs are subject to independent examination by a person appointed by the Secretary of State who will consider any representations made by members of the public and interested parties; by contrast, for SPDs consideration of any objections is for the local planning authority itself, by means of an adoption statement.

23. The end result is also different for DPDs vs SPDs. DPDs, once adopted, form part of the “development plan” and thereby have statutory primacy for future decisions on planning applications, due to section 38(6) of the PCPA. By contrast, SPDs do not form part of the plan, but are still material considerations for future planning applications.

24. The question of what can or cannot be included in a SPD has been considered by the courts on numerous occasions and there is now a wealth of authority on the point (see, for example, R (William Davis Ltd) v

9 R (William Davis Ltd) v Charnwood BC [2018] JPL 549 at [61].

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Charnwood BC [2018] JPL 549, R (Skipton Properties Ltd) v Craven DC [2017] JPL 825, West Kensington Estate Tenants and Residents Association v Hammersmith and Fulham LBC [2013] EWHC 2834 (Admin), R (RWE Npower Renewables Ltd) v Milton Keynes BC [2013] EWHC 751 (Admin), and R (Wakil) v Hammersmith and Fulham LBC (No. 1) [2012] EWHC 1411 (QB)).

25. Read together these authorities establish the following legal principles: a. Whether a document is a DPD or a SPD is a question of law, not planning

judgment (Wakil at [81]-[82]; Skipton at [63]).

b. To be a SPD, the document must truly be supplementary to policies in the local plan (Skipton at [91]). SPDs cannot “fill a gap” in policy or “supplement a black hole” (ibid).

c. If a document contains statements which fall into any of (i), (ii) or (iv) of regulation 5(1)(a) then it is a DPD, irrespective of whether it also contains statements which (read alone) would constitute a SPD; that is due to the wording “one or more of the following” in regulation 5(1)(a) (RWE Npower Renewables at [63]-[64]; Skipton at [75]).

d. There can be a degree of overlap between one or more of the (i)-(iv)

categories (Skipton at [77]). e. Any document falling within (i)-(iv) must contain statements which

constitute policies and may contain other statements, of a subordinate or explanatory nature, which are not policies (Skipton at [79]).

f. In order to determine if a document encourages the development and

use of land, regard must be had to the type of statements the document contains, rather than what the effect of those statements might be in practice (RWE Npower Renewables [2013] EWHC 751 (Admin) at [70]).

g. A document can fall within (iv) if it simply contains development

management policies (it does not need to identify the policy as separate from the statements at issue) (Skipton at [93(1)]).

h. For (iv), the real question is whether the document in question contains

development management policies which guide or regulate applications for planning permission – unlike (i), there is no need to find any encouragement (Skipton at [93(5)]).

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Grounds of Claim Ground 1: the SPD needed to be adopted as a DPD

26. It is clear from the scope of the SPD that it needed to be adopted as a DPD under the 2012 Regs framework.

27. The main aim of the SPD is to identify the SPD area in which the Council seeks to “encourage” certain types of development and use of land, such that it falls within the parameters of regulation 5(1)(a)(i) and (ii).

28. In this way, the SPD also falls within the parameters of regulation 5(2), as it (i) relates to part of the Council’s area, (ii) identifies that part as an area of significant change, and (iii) contains the Council’s policies in relation to that area.

29. The SPD also allocates specific sites for particular types of development or uses – i.e. the 8 Opportunity Sites – and then sets out development management and site allocation policies, which are intended to guide the determination of future applications for planning permission. This falls within the ambit of regulation 5(1)(a)(ii) and (iv). Similarly for the four Character Areas.

30. Whilst the Council may currently be proposing the 8 Opportunity Sites as allocations in the Draft Local Plan, crucially that Draft plan is far from being adopted and, as such, the SPD is unlawfully “jumping the gun” on the development plan-making process by allocating these sites.

31. More generally, throughout the SPD and its annexes, there are development management policies which are intended to guide the determination of applications for planning permission in the SPD area. This falls within the ambit of regulation 5(1)(iv).

32. Overall, the SPD is not supplementary to any adopted DPD. As the SPD notes (at 1.1.2) it “expands” upon the existing Barnet Local Plan policy; it identifies new areas of significant change, new allocated sites and new development management policies. It, therefore, needed to be adopted as a DPD and the Council’s failure to do so was unlawful.

Ground 2: the Council has failed to comply with Regulation 14 of the 2012 Regs

33. Regulation 14 of the 2012 Regs provides:

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“As soon as reasonably practicable after the local planning authority adopt a supplementary planning document they must— (a) make available in accordance with regulation 35—

(i) the supplementary planning document; and (ii) an adoption statement; and

(b) send a copy of the adoption statement to any person who has asked to be notified of the adoption of the supplementary planning document.”

34. Regulation 35 provides in relevant part:

(1) “A document is to be taken to be made available by a local planning

authority when— (a) made available for inspection, at their principal office and at such

other places within their area as the local planning authority consider appropriate, during normal office hours, and

(b) published on the local planning authority's website,” (…) (4) “Where—

(a) a local planning authority adopt, or the Secretary of State, the Mayor of London [, a combined authority or an upper-tier county council] approves, a revision to a local plan; or

(b) a local planning authority adopt, or the Secretary of State approves, a supplementary planning document,

as soon as reasonably practicable after the adoption or approval, the local planning authority must incorporate the revision into the local plan or make the supplementary planning document available in accordance with this regulation.”

35. An “adoption statement” is defined in regulation 11 as:

“a statement specifying— (a) the date on which a supplementary planning document was adopted, (b) if applicable, any modifications made pursuant to section 23(1) of the

Act, (c) that any person with sufficient interest in the decision to adopt the

supplementary planning document may apply to the High Court for permission to apply for judicial review of that decision, and

(d) that any such application must be made promptly and in any event not later than 3 months after the date on which the supplementary planning document was adopted;”

36. It has now been over two weeks since the SPD was adopted, but our client

has been unable to locate an adoption statement for the SPD (or a copy of

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the final SPD as adopted) anywhere on the Council’s website. In the circumstances, the Council has failed to comply with the requirements of regulation 14.

37. This matters because the adoption statement is what informs the general public of the ability to apply for permission for judicial review of the decision to adopt the SPD (as well as setting out the correct time limits are for such an application). This is important in this case, because the officer’s report to the Policy and Resources Committee (“OR”) incorrectly stated at 5.5.2 that any legal challenge to the SPD “must take place within 6 weeks of adoption”. We deal further below with why the 6-week time limit does not apply to an application for judicial review of the adoption of a SPD.

38. Furthermore, the above is particularly concerning in light of the fact that a local resident named Brad Britz has informed our client that he had specifically asked for confirmation that the SPD was approved in an e-mail dated 21 July 2021 (sent at 15:55) to the Head of Governance at the Council (copying in the Monitoring Officer). In a reply dated 23 July 2021 (sent at 12:34:58), the Head of Governance provided no further details on the SPD, noting only that the decisions of the Policy and Resources Committee on 20 July 2021 are “currently being drafted”.

Ground 3: Failure to comply with the Public Sector Equality Duty

39. The Council must comply with the public sector equality duty (“PSED”) in relation to the exercise of all of its functions. Consequently, it must have “due regard” to the need to (section 149 of the Equality Act 2010):

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

40. The relevant protected characteristics are: age; disability; gender

reassignment; pregnancy and maternity; race; religion or belief; sex. Section 149 provides further detail as to what having due regard to the need to “advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it” and “foster good relations between persons who share a relevant protected characteristic and persons who do not share it” means (see section 149(3) and (5)).

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41. The key legal principles applying to the PSED were helpfully summarised by the Court of Appeal in Bracking et ors v SSWP [2013] EWCA Civ 1345 (see at [25]). These include the fact that: (i) The duty must be “exercised in substance, with rigour, and with an

open mind”. (ii) The duty must be fulfilled before and at the time when a particular

policy is being considered. (iii) An important evidential element in the demonstration of the discharge

of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements.

42. In this case, an equalities impact assessment (“EqIA”) was carried out in

relation to the SPD. The OR summarises that the EqIA “highlighted one negative impact in terms of the protected characteristic of faith and religion as the consequences of potential reductions in car parking spaces arising from development of car parks on The Burroughs” and that that impact would be mitigated through the SPD’s requirement that a detailed assessment of the level and pattern of car park usage is submitted at the planning application stage (OR at 5.6.1).

43. The SPD’s EqIA found inter alia that: (i) There were no significant impacts identified under the protected

characteristic of age, noting that “[t]here is nothing proposed within the draft SPD that will benefit or disadvantage one age group over another.”

(ii) There were no significant impacts identified under the category of disability and, again, it noted that “[t]he draft proposals in the SPD are not expected to disadvantage any disability groups over another”.

(iii) There were no impacts identified in relation to race.

44. One of the sites that is allocated in the SPD is the Meritage Centre. As noted in the Regulation 19 Draft Local Plan, this site provides a community service for elderly people. We understand that it is also home to inter alia the Citizens Advice Bureau, African Cultural Association, MENCAP, Meridian (formerly Chinese Mental Health), the Hendon Scout Troop, Barnet Wellbeing Hub, a newsagent, PDSA, a community legal service, and a community hall. The SPD envisions redevelopment of this site (which is identified as Opportunity Site B in the SPD) and this will clearly require the relocation of these services to alternative sites. Yet there is no evaluation whatsoever of the impacts that all of this may have on people with protected characteristics. This is notwithstanding that, as the OR recognises at 1.18, the “potential loss of other community and social resources in the area such as the Meritage Centre was also raised in [consultation] responses.”

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45. We also note that the SPD recognises at 6.3.2 the possibility of a need for

CPO powers:

“Given the range of ownerships within the SPD area, land assembly may be required before some opportunities can progress. The Council anticipates that this process will be carried out via negotiations and private treaty where practical. In cases where there is a compelling case in the public interest, the Council will consider the use of its compulsory purchase powers to assemble sites within the SPD area. For the Council to promote a Compulsory Purchase Order or series of CPO’s, any CPO Scheme will (in accordance with current MHCLG guidance on CPO) needs to fit with the planning policy framework and deliver economic, social or environmental well-being to the area. The Council will also need to be satisfied that any CPO scheme proposals would be viable, fundable and deliverable.”

46. Notwithstanding that the SPD refers to this, there is no consideration (even at a high policy level) of the potential impacts that this might have on people with protected characteristics (for example, should the Council need to acquire (whether compulsorily or via agreement) people’s homes and businesses).

47. Overall the Council’s failure to consider the above impacts means that the Council has failed, in substance, to have due regard to the matters in section 149 of the Equality Act 2010. It has, thereby, failed to comply with the PSED.

48. The Claimant reserves the right to add to or vary the above grounds in relation to any claim that it may bring.

7. Action the defendant is expected to take We request that the defendant consents to the quashing of the adoption of the SPD and agrees to pay our client’s costs in obtaining legal advice, sending this letter and any subsequent action needed to obtain a quashing order.

8. ADR proposals

The Claimant would be open to alternative dispute resolution should the Defendant have a proposal in this regard, however the Claimant thinks it is unlikely that this matter can be settled through alternative dispute resolution.

9. Information / records

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The claimant requests that the following be provided by way of disclosure:

1. Copies of any information, including all correspondence; meeting notes; drafts; memorandums; text messages; WhatsApp messages; Teams, Zoom or Slack chats; recordings of Teams, Zoom or Slack meetings; and telephone conversation notes relating to whether the SPD should have been adopted as a DPD.

2. Any further information, including correspondence; meeting notes; drafts; memorandums; text messages; WhatsApp messages; Teams, Zoom or Slack chats; recordings of Teams, Zoom or Slack meetings; and telephone conversation notes relating to consideration of equalities impacts of the SPD.

3. Any video or audio recordings of the Policy and Resources Committee Meeting of 20 July 2021 and the Regulation 19 local plan consultation meeting of 5 August 2021.

For the avoidance of doubt, any reference above to a form of communication refers to any internal or external communication with any employee, contractor or member of the defendant.

10. Proposed reply date

In accordance with the pre-action protocol, we propose that the Defendant responds to this letter within 14 days from service by email. The proposed deadline for reply is therefore 4pm on 26 August 2021. We note that the OR has stated that the 6-week time limit will apply to any potential judicial review of the SPD (OR at 5.5.2). We do not agree. CPR rule 54.5(5) does not apply because the decision to adopt the SPD is not a decision under the “planning acts”. Nor does the time limit in section 113 of the PCPA apply because the adoption of a SPD is not covered by its terms (see section 113(1)). Therefore, any claim for judicial review of the Council’s decision to adopt the SPD must be brought promptly and in any event not later than 3 months after the grounds to make the claim first arose. Please confirm if you agree with us on this point and if not, on what basis you disagree.

11. Address for reply and service of court documents: Our office address is: Leigh Day Priory House 25 St. John’s Lane London

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EC1M 4LB However, please serve any reply to this letter or any other documents by email to rgama@leighday.co.uk. 12. Aarhus Convention claim The Claimant considers this to be an Aarhus Convention claim for the purposes of CPR 45.41 and 45.43. The Claimant qualifies as a member of the public for these purposes and the claim plainly concerns a challenge to an act, or alternatively the omission, of the Defendant on grounds that it contravened provisions of national law relating to the environment. Yours faithfully

LEIGH DAY

Direct Dial: 020 7650 1232

London Borough of Barnet Hendon Town Hall The Burroughs Hendon NW4 4BG

Email: rgama@leighday.co.uk

Your Ref:

Our Ref: RGA/00483966/2

Date: 20 September 2021

Attn: Cath Shaw, Deputy Chief Executive; Stephen McDonald, Director of Growth By post and email: cath.shaw@barnet.gov.uk; stephen.mcdonald@barnet.gov.uk

LETTER BEFORE CLAIM

Dear London Borough of Barnet Approval of the Hendon Hub Redevelopment Full Business Case We act for Richard Lecoat. This is a pre-action protocol letter under the Judicial Review Pre-Action Protocol. This letter has been drafted following the recent decision by the London Borough of Barnet (the “Council”) on 27 July 2021 to approve the Hendon Hub Redevelopment Full Business Case as well as to make a number of further determinations,1 including the delegation of a number of powers to Council officers, in relation to the progression of the Hendon Hub Redevelopment scheme (the “Decision”). You will note that we have previously sent a separate pre-action letter concerning the unlawfulness of the Council’s decision to adopt the Burroughs and Middlesex University SPD. On 9 September 2021, the Council formally stated, in its pre-action response, that the Council had not yet adopted the SPD. Without

1 We note that the minutes of the Council’s meeting on 27 July 2021 are yet to be published, but we understand that the Council, through its Decision, followed all 16 of the officer’s recommendations in the officer’s report for agenda item 12.4 of that meeting. For brevity’s sake, we do not list all 16 of these recommendations here, but where we refer to the “Decision” we refer to all and any of these recommendations as appropriate in the context.

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prejudice to our client’s position as to whether or not the Council is correct that the SPD has not yet been adopted, our client is willing to agree not to commence judicial review proceedings in relation to the adoption of the SPD until the council indicates that it has formally adopted the SPD. However, we note that we subsequently asked2 the Council to confirm that the SPD will be given no weight in any planning determination unless and until it is adopted. We wish to put the Council on notice that our client may determine it necessary to seek declaratory relief from the court to that effect, should the Council not be in a position to confirm this point. We further note that in view of both the timings and the clear interrelationship between the SPD and the Decision (that is, the focus of this letter), which both concern the same underlying development scheme, it may well be prudent in such circumstances to seek to join proceedings. 1. The defendant The proposed defendant is the London Borough of Barnet. 2. The claimant The proposed claimant is Richard Lecoat. 3. Reference details Our case reference is 00483966/2. 4. The details of the matter being challenged The Decision by Full Council of the London Borough of Barnet taken on 27 July 2021 to approve the recommendations as set out in the report to the Policy and Resources Committee included as Annex 1 of the officer’s report to the Council on Agenda Item 12.4; including (but not limited to) the approval of the Full Business Case for the Hendon Hub. 5. Details of any interested parties The proposed claimant considers Middlesex University to be an interested party in the proceedings. This letter has therefore been served by post to the following address: Middlesex University The Burroughs Hendon London NW4 4BT

2 In a letter dated 10 September 2021.

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6. The issue Background Facts

1. The Hendon Hub is a major redevelopment scheme for proposed mixed-use development in Hendon, Barnet. The scheme is being developed by the Council itself, in conjunction with its strategic partner Middlesex University, and will comprise a mixed-use development in The Burroughs area of Hendon, involving the redevelopment of three key sites: (i) Ravensfield, Fenella and Town Hall Car Park, (ii) the Meritage Centre, and (iii) Building 9, which includes the Hendon Library building. Third-party properties will also need to be acquired (whether by agreement or through compulsory purchase) to enable the scheme.

2. The Full Business Case (FBC) is a 118-page document that inter alia

recommends how this scheme should be funded and structured. It recommends that the scheme should be privately (not publicly) financed and, more particularly, that it should be financed through “private placement” as opposed to through an “income strip” deal. It states a “strong preference” that any deal is based on Middlesex University’s covenant rather than a guarantee by the Council itself, albeit it recommends that this decision be delegated to the section 151 officer of the Council.

3. Furthermore, the FBC concludes/recommends for approval:

(i) That the procurement for a contractor be undertaken via an existing framework; more specifically, the stated preference is to utilise the Crown Commercial Service (CCS) Framework Lot 4 (£30m-£80m).

(ii) That a special purpose vehicle (SPV) be set up as part of the structuring of the transaction.

(iii) A number of proposed changes to the substance of the scheme, including for example a reduction of 26% in the number of student accommodation units from 792 to 583 and the removal of the Large Burroughs Car Park and Osidge Lane Car Park from the scheme.

4. On 20 July 2021 the Chairman of the Policy and Resources Committee

presented an officer report (OR) to that Committee which made 16 recommendations. These included the recommendation that the Committee approve the FBC and, furthermore: That the Committee approves, in principle, private financing for the development, in particular private placement relying on the Middlesex University (MDX) covenant. That the Committee further approves in principle that, in the event that market conditions are such at the time of

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seeking final funding offers, meaning that it is not possible to secure a funding offer using the Middlesex University covenant consistent with the parameters set out in the business case, a London Borough of Barnet (LBB) guarantee is made available subject to suitable risk management.

5. The OR made a number of recommendations for the Committee to

delegate powers to Council officers (see, for example, recommendation nos. 3, 4, 9, 10, 12, 15 and 16).

6. At their meeting on 20 July 2021, the Policy and Resources Committee

determined, following the request of three Members of the Committee, to refer the decision to Full Council for determination (pursuant to Article 2.3(e) of the Council’s Constitution).

7. Subsequently, Full Council considered the matter at its meeting on 27 July

2021 and voted in favour of following the officer’s recommendations in the OR.

Relevant Legal Framework

8. The relevant legal framework will be addressed in relation to each ground of claim.

Grounds of Claim Ground 1: Failure to consult as required under section 3 of the Local Government Act 1999

9. Section 3 of the Local Government Act 1999 (LGA 1999) states as follows:

(1) A best value authority must make arrangements to secure continuous

improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness.

(2) For the purpose of deciding how to fulfil the duty arising under subsection (1) an authority must consult— (a) representatives of persons liable to pay any tax, precept or levy to

or in respect of the authority, (b) representatives of persons liable to pay non-domestic rates in

respect of any area within which the authority carries out functions, (c) representatives of persons who use or are likely to use services

provided by the authority, and

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(d) representatives of persons appearing to the authority to have an interest in any area within which the authority carries out functions.

(3) For the purposes of subsection (2) “representatives” in relation to a group of persons means persons who appear to the authority to be representative of that group.

(4) In deciding– (a) how to fulfil the duty arising under subsection (1), (b) who to consult under subsection (2), or (c) the form, content and timing of consultations under that

subsection, an authority must have regard to any guidance issued by the Secretary of State.

10. As a local authority, we do not expect the Council to dispute that it is a

“best value authority”. The courts have stressed that the ambit of the section 3(1) duty is broad (“notably broad” (R (oao Nash) v Barnet LBC [2013] EWCA Civ 1004 at [50]) – with “functions” meaning “all the duties and powers of a local authority” (Hazell v Hammersmith and Fulham [1992] 2 AC 1 at 29). We, therefore, also do not expect the Council to dispute that the Decision (as described above) fell within section 3(1)’s ambit.

11. The duty to consult in section 3(2) is a strict one and the focus of that consultation needs to be on the real point at issue – i.e. the question of how to exercise the Council’s functions, and what the most efficient/economic/effective way of doing so is. See Nash at [32] – a case concerning decisions by Barnet to outsource considerable services to the private sector in which Barnet had argued that it had consulted on certain budgets thereby discharging the s3(2) duty. The High Court found that that consultation was too “indirect” – the consultation needed to be on the “central issues raised by the substantive duty” i.e. the actual question of whether to outsource or not (the Court of Appeal did not reach a contrary view on this point, albeit the claim was ultimately unsuccessful due to being out of time).

12. The case-law also clarifies that the section 3(2) consultation duty bites on

the overarching policy and strategic decisions, of which the Decision is one.

13. The Council has failed to consult on the Decision pursuant to section 3(2). In particular, whilst the Council may have consulted on the merits of the underlying Hendon Hub re-development scheme itself (as shown in the Consultation Report by GL Hearn, dated 5 July 2021) it has failed to consult on the questions underlying the FBC including how to fund and/or structure the development scheme and whether to fund it privately. As a

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result, the Council acted in breach of a statutory duty and therefore acted unlawfully.

Ground 2: Unlawful Delegation

1. As has been noted above, the Council has – through the Decision – delegated considerable powers to Council officers (see the OR recommendations, including recommendations 3, 4, 9, 10, 12, 15 and 16). In particular, through approval of recommendation 10, the Council delegated authority to the Dep. Chief Exec (in consultation with the Chairman of Policy and Resources Committee) to: …negotiate, approve finalise and complete all legal and other documentation and associated actions in connection with and to give effect to: a. Related s106 and CIL agreements; b. Any and all other Agreements to Lease and/or other occupational

arrangements on the Hendon Hub site (retail units/CBAT leases/health uses/affordable housing and others as required)

c. Related construction contracts d. Any other matters required, such as the appropriation of land required

for planning purposes and any non-material or minor amendments to the scheme.

14. Notwithstanding that it is premature to delegate authority to complete “related s106 and CIL agreements” in relation to a development for which there has not yet been any planning application submitted, it is obvious that the parameters of this delegation are substantial. In particular, through point (d), the Deputy Chief Executive has delegated powers to approve “any other matters required” (without specification of what they may be required for) including “the appropriation of land required for planning purposes”. The scale and potential cost of such approvals is entirely unspecified.

15. Similarly, recommendation 15 states: The Committee delegates to the Deputy Chief Executive, in consultation with the Chairman of Housing and Growth Committee and the Chairman of Policy and Resources Committee any actions required to take the scheme forward in relation to property and title aspects to deal with any appropriation, statutory consultation and applications for consents or statutory and/or procedural compliance in order to lawfully deliver the scheme.

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16. Again, this affords the Deputy Chief Executive powers to take “any actions required to take the scheme forward in relation to property and title aspects” including dealing with “any appropriation”. In view of the need for third party property acquisitions to deliver the Hendon Hub development, such delegation (without further specification) is considerable.

17. We also note recommendation 4, which states: The Committee approves the procurement, through an approved framework, of a professional advisor to secure final funding bids and advise on the structuring of the transaction. The development of the procurement process, including the negotiation and completion of legal agreements is delegated to the S151 Officer, in consultation with the Chairman of Policy & Resources Committee after taking appropriate legal and financial advice, and acting in the best interests of the Council.

18. We note that the cost of such procurement is unrestricted.

19. Finally, and perhaps most notably, recommendation 3 essentially

delegates to the Section 151 Officer the final decision on the structure of the financing arrangement for the scheme, including the final choice of funding partner(s): The Committee approves the process of obtaining formal funding offers from the market, the decision on final structure of the deal, the final choice of funding partner(s), and the negotiation and completion of the legal agreements are all to be delegated to the S151 Officer, in consultation with the Chairman of Policy & Resources Committee after taking appropriate legal and financial advice, and acting in the best interests of the Council.

20. A council is bound to act within the confines of its own constitution, such that a failure to follow its constitution can render a decision unlawful (R (Bridgerow) v Cheshire West and Chester BC [2014] EWHC 1187 (Admin) at [35]-[36]).

21. According to the Council’s constitution, Chief Officers (which includes both

the Deputy Chief Executive and the Section 151 Officer) cannot be delegated authority to make “key decisions”. See, for example, Article 9.1(b)(i) (see also Articles 10.4): Chief Officers (Deputy Chief Executive, Executive Directors for Adults, Children and Environment, Director of Resources and Director of Assurance) have the following delegated powers in respect of all matters which are not key decisions (as defined in Article 2) and not reserved for decision by the Council or by a Committee of the Council: (…)

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(emphasis added)

22. See also Article 10.3 to similar effect: Apart from matters reserved to Full Council, committees and sub-committees will be responsible under their terms of reference for all decisions which are key (as defined in Article 2). (…)

23. A “key decision” is defined in Article 2.3(e) as (see also Article 10.8): Key Decisions – a key decision is one which will result in the council incurring expenditure or savings of £500,000 or more, or is significant in terms of its effects on communities living or working in an area comprising two or more Wards.

24. Through its Decision, the Council has delegated powers that could easily,

and indeed are likely to, be “key decisions” to Chief Officers. Clearly, the final decision on how this major development scheme will be financially structured (which is expected to have a lifespan of at least 40 years) and who will be the funding partner (recommendation 3) will have ramifications beyond £500,000. Not only that, but in view of its potential financial ramifications for the Council, it is easy to see it affecting significantly the communities living or working in two or more Wards.

25. There is nothing that restricts the considerable delegation in recommendation 10 from resulting in decisions which incur expenditure of over £500,000. Indeed, it is highly likely that decisions on the appropriation of land (whether through agreement or by compulsory purchase) will do so. Nor is there anything within the terms of delegation in recommendation 4 which prevents the procurement of a professional advisor for a contract value of above £500,000.

26. The Council therefore acted unlawfully in acting beyond the confines of its Constitution.

Ground 3: breach of section 2(3) of the Localism Act 2011

27. Paragraph 5.10.6 of the OR refers and relies on the Council’s general power of competence under section 1 of the Localism Act 2011 as a basis for the powers sought to be exercised through the Decision.

28. Section 1 does afford a general power of competence but section 2(3) then provides: The general power does not confer power to—

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(a) make or alter arrangements of a kind which may be made under Part 6 of the Local Government Act 1972 (arrangements for discharge of authority's functions by committees, joint committees, officers etc);

(b) make or alter arrangements of a kind which are made, or may be made, by or under Part 1A of the Local Government Act 2000 (arrangements for local authority governance in England);

(c) make or alter any contracting-out arrangements, or other arrangements within neither of paragraphs (a) and (b), that authorise a person to exercise a function of a local authority. (emphasis added)

29. The Decision, by approving the FBC which recommended the private

financing of the Hendon Hub development scheme (including by way of a SPV) clearly was a decision concerning arrangements which authorise a legal person to exercise the “function” of a local authority. Such functions will include the power to acquire and dispose of land and develop land.

30. As a result, the Decision to approve the FBC could not be taken under the Council’s general power of competence under section 1 of the Localism Act 2011. The Decision was unlawful to the extent it was (incorrectly) based on the general power of competence.

31. We note that the OR refers to section 111 of the Local Government Act

1972 as well, which in short affords local authorities certain subsidiary and

“incidental” powers in relation to the discharge of their functions. Case-law

makes clear that it is necessary when considering section 111 to identify

the relevant statutory functions to which such powers are incidental to (see

Credit Suisse v Waltham Forest LBC [1997] QB 362 at 373-4). We note

that in relation to the power to make arrangements for the discharge of

functions by local authorities, section 101 of the Local Government Act

1972 contains prescriptive provisions which do not themselves allow for

the type of private venture recommended by the FBC to be entered into

(see eg. Credit Suisse at [374] finding that these powers did not entitle a

local housing authority to discharge any of its functions by means of a

partly-owned company).

32. Credit Suisse at [374] also makes clear that in considering section 111, it

is necessary to consider the context in which the implied powers are to be

exercised and where Parliament has made detailed provisions as to how

certain statutory functions are to be carried out there is no scope for

implying the existence of additional powers that lie outside the statutory

code. Section 70 of the Deregulation and Contracting Out Act 1994 and

the relevant statutory instruments made under it result in a detailed

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statutory code for contracting out local authority functions to the private

sector. We are unaware that any Ministerial order applies to such

arrangements in the context of the functions being exercised in relation to

the Hendon Hub.

33. In the absence of a statutory power to underpin it,3 the Council’s Decision

in this regard was, therefore, ultra vires and unlawful.

34. The Claimant reserves the right to add to or vary the above grounds, on

the basis of the Council’s response to this letter. 7. Action the defendant is expected to take We request that the defendant consents to the quashing of the Decision and agrees to pay our client’s costs in obtaining legal advice, sending this letter and any subsequent action needed to obtain a quashing order.

8. ADR proposals

The Claimant would be open to alternative dispute resolution should the Defendant have a proposal in this regard, however the Claimant thinks it is unlikely that this matter can be settled through alternative dispute resolution.

9. Information / records

The claimant does not request any information at this stage but his position is reserved.

10. Proposed reply date

In accordance with the pre-action protocol, we propose that the Defendant responds to this letter within 14 days from service by email. The proposed deadline for reply is therefore 4pm on 4 October 2021.

3 Hazell v Hammersmith and Fulham LBC [1992] 2 AC 1, 22, a local authority is “not a sovereign body and can only do such things as are expressly or impliedly authorised by Parliament”.

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11. Address for reply and service of court documents: Our office address is: Leigh Day Panagram 27 Goswell Road London EC1M 7AJ However, please serve any reply to this letter or any other documents by email to rgama@leighday.co.uk. 12. Aarhus Convention claim The Claimant considers this to be an Aarhus Convention claim for the purposes of CPR 45.41 and 45.43. The Claimant qualifies as a member of the public for these purposes and the claim plainly concerns a challenge to an act, or alternatively the omission, of the Defendant on grounds that it contravened provisions of national law relating to the environment. Yours faithfully

LEIGH DAY CC:

- The Interested Party, by post, at the address mentioned above; - Mrinalini Rajaratnam, by email at: Mrinalini.Rajaratnam@harrow.gov.uk.

Direct Dial: 020 7650 1232 Mrinalini Rajaratnam Harrow Council, PO Box 2 Civic Centre Station Road Harrow HA1 2XY By email only: mrinalini.rajaratnam@harrow.gov.uk

Email: rgama@leighday.co.uk

Your Ref: MNR/01791

Our Ref: RGA/RGA/00483966/1

Date: 10 September 2021

Dear Mrinalini Adoption of Burroughs and Middlesex University Supplementary Planning Document I refer to your letter to this firm dated 9 September 2021 in response to the pre-action letter sent on behalf of our client, Richard Lecoat, dated 12 August 2021. Our client is grateful for your confirmation that the council does not consider that the SPD has yet been formally adopted. Without prejudice to our client’s position as to whether or not the council is correct that the SPD has not yet been adopted, our client is willing to agree not to commence judicial review proceedings in respect of the lawfulness of the SPD until the council indicates that it has formally adopted the SPD. To that end, please confirm that you will inform us as soon as possible and in any event within 24 hours of the council taking such steps as it considers necessary in order to adopt the SPD. Please also confirm that the council will take no point on timing should a claim for judicial review be brought promptly and in any event within three months following such confirmation from you. For the avoidance of doubt, we do not intend to serve a further pre-action letter in respect of any such claim for judicial review, unless the amendments which you refer

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to give rise to amended grounds of challenge. We do not consider that they would give rise to amended grounds, given that they are described as “minor”. We would also be grateful if you could confirm when the council expects the SPD to be formally adopted (in the manner set out in the pre-action response). As we have noted, the Chief Executive was only given delegated authority to make “any necessary minor changes…before final publication”, so we are surprised that this has not already occurred (and expect it will occur shortly). Please therefore confirm the expected timings. You refer at paragraph 4.1 of your letter to the fact that the Emerging Barnet Local Plan is a material consideration in planning decisions and that the weight to be given to it is a matter for the decision maker having regard to the relevant guidance in the NPPF (i.e. paragraph 48). We agree. However, the SPD is not an emerging development plan document and does not benefit from paragraph 48 of the NPPF. An SPD cannot be given any weight unless and until it is formally (and lawfully) adopted. Please confirm that the SPD will be given no weight by the council until it is adopted. This letter is sent in direct response to your pre-action response and concerns the ongoing prospect of judicial review proceedings. We, therefore, ask that the council responds, addressing each point above, as soon as practicable, but in any event no later than one week’s time (i.e. by Friday 17 September). Yours sincerely

Ricardo Gama Solicitor Leigh Day

Leigh Day Panagram, 27 Goswell Road, London EC1M 7AJ By email only: rgama@leighday.co.uk

Date: 17th September 2021

Our Ref: MNR/01791

Your Ref: RGA/00483966/1

Dear Sirs Adoption of Burroughs and Middlesex University Supplementary Planning Document (“SPD”) We write with reference to your letter of 10 September 2021 and our subsequent correspondence on this matter. We are please that your client has agreed not to commence judicial review proceedings, as the SPD has not been adopted yet. In response to your queries, we can confirm that we will notify you within 24 - 48 hours of any delegated report being published in connection with the adoption of the SPD, with a link to view the document. With regard to giving you an indication of when the SPD may be adopted, this is proving to be more difficult as at this stage we do not know whether any changes will be made to the emerging Local Plan. Therefore, the Council will only know when this will be, when the Local Plan is at a more advanced stage. We hope your client will be satisfied that we will inform you as soon as the delegated report is published, and that they will have 3 months from then to bring a challenge, should they feel aggrieved. Yours faithfully

Mrinalini Rajaratnam Tel: 020 8420 9568 Email: Mrinalini.Rajaratnam@harrow.gov.uk HB Public Law

Direct Dial: 020 7650 1232 Mrinalini Rajaratnam Harrow Council, PO Box 2 Civic Centre Station Road Harrow HA1 2XY By email only: mrinalini.rajaratnam@harrow.gov.uk

Email: rgama@leighday.co.uk

Your Ref: MNR/01791

Our Ref: RGA/RGA/00483966/1

Date: 12 October 2021

Dear Mrinalini Approval of the Hendon Hub Redevelopment Full Business Case (“FBC”) I refer to your letter dated 4 October 2021 responding to our pre-action letter dated 20 September 2021. We do not consider that your letter responds to the proposed grounds of challenge. However, it is vital that our client is able to settle the question of potential costs liability before deciding whether to pursue a claim, particularly in light of his linked claim in respect of the resolution to adopt the associated Burroughs and Middlesex University Supplementary Planning Document (“SPD”), which our client intends to pursue (in light of your letter dated 23 September 2021) and which we will file shortly. We disagree that the proposed challenge to the FBC “would manifestly not be an Aarhus claim”. Both the European and the domestic courts have taken a broad interpretation of Article 9(3) of the Aarhus Convention1. Furthermore, we hope that you will agree that it is important that the residents of the borough have access to justice in administrative matters which affect them.

1 See for example SSCLG v Venn [2014] EWCA Civ 1539.

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Our client’s fundraising efforts have been directed towards funding the costs of the claim in respect of the SPD. In practice, unless a costs cap can be agreed in respect of the proposed challenge to the adoption of the Full Business Case (“FBC”) capping his potential costs liability to the other parties’ costs to nil, such a claim will be prohibitively expensive, even to take to the permission stage. We therefore request that the council agrees not to seek its costs in respect of any claim challenging the adoption of the FBC. Our client would reciprocally agree to cap the council’s potential costs liability for his costs in such a claim to £20,000 inclusive of VAT. We consider that the proposed reciprocal costs cap would comply with Article 9(3) of the Aarhus Convention and request that you therefore consider the proposal in this letter with counsel. If the council will not agree to the proposal for a mutual cost cap, effectively shutting out its own residents from access to justice in this matter of public interest, our client will make a complaint to the Aarhus Convention Compliance Committee alleging a breach of Article 9(3). We consider that the proposed costs cap would be reasonable in the circumstances. Please indicate whether you agree first, that a cost cap should be made in principle and whether you agree the suggested figures. If you will not agree to the proposed cost capping agreement please indicate what level of cost caps you would be prepared to agree. Given the three month deadline for judicial review is 27 October (notwithstanding your submissions regarding promptness, to which we would provide a response on filing a claim), we request a response to this letter by Friday 15 October. If you wish to discuss please do not hesitate to contact me sooner. Yours sincerely

Ricardo Gama Solicitor Leigh Day

Direct Dial: 020 7650 1232

Mrinalini Rajaratnam Harrow Council, PO Box 2 Civic Centre Station Road Harrow HA1 2XY By email only: mrinalini.rajaratnam@harrow.gov.uk

Email: rgama@leighday.co.uk

Your Ref: MNR/01791

Our Ref: RGA/RGA/00483966/1

Date: 20 September 2021

Dear Mrinalini Adoption of Burroughs and Middlesex University Supplementary Planning Document I refer to your letter dated 17 September 2021 in response to our letter dated 10 September, in which you have responded to a number of enquiries that we raised. Our letter dated 10 September noted that an “SPD cannot be given any weight unless and until it is formally (and lawfully) adopted” and asked for your client’s confirmation “the SPD will be given no weight by the council until it is adopted”. No response has been provided to this question. For the avoidance of doubt, our client has agreed not to commence judicial review proceedings both on the basis that the SPD has not been adopted and on the assumption that no weight will be given to it prior to its adoption. If the council disagrees with us on the weight to be given to the SPD, then our client reserves the right to seek declaratory relief from the court on this issue (and it would appear prudent for him to do so in advance of any determination of future planning applications).

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We hope that the failure to respond to this final question was an oversight, and on that basis that the council will be able to provide a swift response. We therefore suggest a deadline for response of 4pm on Wednesday 22 September. Yours sincerely

Ricardo Gama Solicitor Leigh Day

Leigh Day Panagram, 27 Goswell Road, London EC1m 7AJ By email only: rgama@leighday.co.uk

Date: 14 October 2021

Our Ref: MNR/ 01791

Your Ref: RGA/RGA/00483966/2

Dear Ricardo, Approval of the Hendon Hub Redevelopment Full Business Case (“FBC”) Thank you for your letter of 12th October 2021. We disagree that our letter of 4th October 2021 does not respond to the proposed grounds of challenge, and you have not explained this assertion. We understand the caselaw on Aarhus costs. We do not accept that this case falls within the Aarhus regime. It does not involve an alleged breach of national law relating to the environment. It is about best value consultation, the Council’s internal delegations and legislation concerning contracting out. We of course recognise the importance of the principle of access to justice. However, the Council is manifestly entitled to decline your client’s request which is not only that the Council agree to apply the Aarhus costs regime, but to agree a non-reciprocal nil costs cap. The Council contends, entirely properly, that this is not an Aarhus claim. It is entitled to have that matter determined by the Court, should a claim be brought. In so doing it is not “shutting out its own residents from access to justice”. Further, the Council has a quasi fiduciary duty in respect of public funds which means that it would have been very unusual for it to apply the Aarhus regime when it contended entirely properly, and on the basis discussed, that the regime did not apply. In response to your question, therefore, the Council declines to agree to apply the Aarhus costs capping regime. For the avoidance of doubt, had it been minded to agree to such a regime, it would have rejected your client’s offer by which he was entirely protected from costs liability and the Council remained liable for up to £20,000.

You say that if the Council does not comply with your client’s request, your client will make a complaint to the Aarhus Convention Compliance Committee alleging a breach of Article 9(3). We do not understand what you mean to complain about, and see no basis for any complaint. Further, if you are suggesting that your client will complain about the Council, this is misconceived. The ACCC considers certain matters in relation to the role of the Parties to the Convention, and may make non-binding decisions. The Council is not a party to the Convention. Yours sincerely,

Mrinalini Rajaratnam Mobile: 07845053747 Tel: 020 8420 9568/ Email: Mrinalini.Rajaratnam@harrow.gov.uk HB Public Law

Student & Legal Affairs

The Burroughs

Hendon

London

NW4 4BT

www.mdx.ac.uk

Main switchboard:

020 8411 5000

22nd October 2021

By Email: rgama@leighday.co.uk Dear Sirs Re: CO/3519/2021 – LECOAT V LONDON BOROUGH OF BARNET I refer to your letter of 18th October 2021. I acknowledge receipt the claim and supplementary bundle, which you filed in Court on 15th October and which we received on 21st October 2021. Please mark for my attention , any correspondence on this matter which is addressed to Middlesex University. My address is the address in Hendon indicated above. My email and telephone number are specified below underneath my signature. Yours sincerely

Thami Nomvete Senior Legal Advisor Student & Legal Affairs T.nomvete@mdx.ac.uk 020 8411 4124