The London Borough of Bromley proposes to grant rights to the developer for the construction and thereafter for the use, of a road and tunnel through Crystal Palace Park from Anerley Hill to give vehicular access by customers arriving at the development from that direction. We consider that this is unlawful.
Mr. Ian Livingstone
London and Regional Properties
40 New Bond Street
17th April 2000
Dear Mr. Livingstone,
I think it right that I notify you of two matters.
First, we have today written to the London Borough of Bromley contending that it is unlawful for the Borough to grant to you the right to build and/or use the road and tunnel from Anerley Hill to the development. We do not believe that you would wish to incur the expenditure of building something which you will not be able to use, and so it seemed prudent for us to inform you of our position.
Second, at our public meeting on Saturday 15th April, which was attended by over 1,000 people, all of the leading Mayoral candidates, either in person or through representatives, opposed your development. The two most likely to be elected Mayor, Ken Livingstone and Frank Dobson (whose deputy Trevor Phillips attended), have undertaken to throw their power and influence against your scheme.
A copy of our letter to Bromley, together with a transcript of the meeting, will shortly be available on our web site (www.crystal.dircon.co.uk).
cc UCI Cinemas (UK) Limited
Mr. Robin Cooper
Bromley Civic Centre
Bromley BR1 3UH
17th April 2000
Dear Mr. Cooper,
Multiplex cinema development at Crystal Palace
We write concerning the above development. We note that the London Borough of Bromley proposes to grant rights to the developer a) for the construction and thereafter b) for the use, of a road and tunnel through Crystal Palace Park from Anerley Hill to give vehicular access by customers arriving at the development from that direction. We consider that this is unlawful. We shall demonstrate below that the proposed general right to grant easements etc. over the Park for the purpose of or in connection with the top-site development was expressly removed from the the Bromley London Borough Council Crystal Palace Bill during proceedings before the House of Commons Private Bill Committee in May 1989.
Furthermore, and in any event, we note that by a section 106 agreement entered into on 9th February 1999 between the Borough and the developers, it is intended that part of the works be dedicated as a public highway. The London Borough of Bromley has no power to dedicate any part of Crystal Palace Park as a public highway.
THE PARLIAMENTARY PROCEEDINGS
The Bromley London Borough Council Crystal Palace Bill, as originally drafted, contained a clause 3 which, if enacted, would have permitted, in connection with the use of the proposed building, the grant of an easement within the park generally, including road and tunnel access such as that proposed (see Appendix 1 hereto). It provided:
3.(1) Notwithstanding the provisions of the Act of 1951 or of any other enactment the Council may, for the purpose of or in connection with the provision of an hotel, restaurant, shops, licensed premises leisure facilities, entertainment facilities or other associated uses on such terms and conditions as may be agreed -
a. lease all or any of the land to which this section applies for a term not exceeding 125 years;
b. grant easements, rights, privileges or licences in respect of land within the Crystal Palace and Park.
On 17th May 1989, the London Borough of Bromley (through its Counsel Mr. Lockhart-Mummery) commenced to promote the Bill before the Private Bill Committee of the House of Commons. The Committee expressed concern at the possible width of that clause, as the following exchange shows (Appendix 2 hereto):
Mr. Lockhart Mummery: Perhaps it is helpful to mention now that the area of the Bill land is approximately 13.8 acres from a park of 200 acres.
Chairman: Therefore, the granting of easements, rights and privileges refers merely to the 13.8 ?
Mr. Lockhart Mummery: No, sir. The grant of lease would be empowered for those purposes solely in those 13.8 acres. Sub-paragraph (b) would empower the Council to "grant easements, rights, privileges or licences in respect of land within the Crystal Palace and Park". So, it therefore would extend to the whole park and so its purpose, however, is a very limited purpose, and this relates solely to the necessary rights in relation to the construction and use of the building.
The main example, and it may well be the only example I am advised opposed (sic) the necessity for this, is that there will be the requirement for surface water drainage to this very extensive area (sic) built development including large areas of car-parking. That surface water drainage has to be dealt with, and happily there is a way down in the body of the park a lake, and the proposal is as I am advised that there will be no doubt an underground culvert or drain which will dispose of surface water from that site, but that has to cross the park as a whole. It is only to that form of ancillary provision that sub-clause (b) is directed.
Chairman: That is its purpose?
Mr. Lockhart Mummery: Yes, indeed, that is its purpose.
Chairman: May I ask, were such purposes necessary concurrently; whether the London Borough of Bromley could fulfil those purposes, in respect of land drainage for areas of the park other than that covered by the Heritage Lands?
Mr. Lockhart Mummery: If I understand the Honourable Member's question, at the moment of course Bromley control the whole of the park and they could lay a drain across part of the park they thought was proper. The purpose of this is to remove the granting of such an easement to a private individual, a private company, for the purpose of the operation of this hotel, and since the purpose of the drain which is serving inter alia a hotel might not be in the powers of the 1914 and 1951 Act this provision is inserted in the Bill.
Chairman: My concern, and it is one you will no doubt meet in your remarks, is that the wording of (b) could go wider than the purposes that you have elaborated, and those purposes may be able to be met by means other than a sub-clause (b).
Mr. Lockhart Mummery: Sir, may we respectfully take on board what the Chairman is indicating to us
Mr. Hughes: The remains of the building, should that have an easement right?
Mr. Lockhart Mummery: Future maintenance?
Mr. Hughes: Yes.
Mr. Lockhart Mummery: Yes, there may arise circumstances in which for maintenance the hotel operator would have to have a right across the park for his vehicle or for building material, or the like. It is that sort of circumstance that this is intended to provide. It is not in any way intended to provide a carte blanche to enable the hotel operator to exercise rights over the park, because they could not because Bromley remain freeholders of the whole of the park subject to the leases in other hands in any event.
Chairman: Counsel was saying this would be something you would consider, the point I make.
Mr. Lockhart Mummery: Yes, certainly.
Chairman: (b) of course would apply merely to the onus or the building of the hotel would apply to the London Borough?
Mr. Lockhart Mummery: Yes, indeed. The London Borough already have these powers. What is sought is powers to grant those necessary rights for the purpose of this development.
Chairman: But certainly if that could be made more specific that may even ease the minds of the petitioners, I do not know.
After the short adjournment, Counsel, having taken further instructions, stated:
Mr. Lockhart Mummery: Before I conclude, could I just say to the Committee that we have given a brief thought in the time available to the Committee's concern which it provisionally expressed in relation to clause 3(1)(b) and the scope of the power in relation to easements and other rights within the park as whole. Sir, as I saying to the Committee, the purpose of this is, I think, not in doubt, it was the scope of the words that was giving the Committee concern. The purpose of the provision is simply to provide below ground services, such as drainage and the like, and emergency fire access. Plainly the building will require (indeed it could not operate without) proper emergency access for the fire services. Sir, may I leave it like this for the time being: that we will seek to bring before the Committee when it resumes here tomorrow a clause or a form of wording that gives effect to those limited rights.
On the following day, the Borough presented a revised clause 3(1)(b) in order to meet the Committee's concerns, as appears below.
Mr. Lockhart Mummery: Last, but by no means least, the Committee expressed concern during yesterday's proceedings over two matters in the clause of the undertaking that we put before the Committee. If I can refer the Committee to the Bill, the first matter related to Clause 3(1)(b) and, sir, you will recall the purpose of this was to provide the necessary infrastructure to enable the development to take place, but the words used left concern that wider opportunities might, at least in theory, be available. We have prepared an amended clause which we invite the Committee to accept which would be in substitution for the whole of sub-paragraph (b). (Same circulated) This would then read as follows:
" grant easements, rights, privileges or licences as may be required (i) for the provision of underground services; and (ii) for the emergency services; in respect of land within the Crystal Palace and Park."
Sir, the underground services are matters such as surface water, foul drainage, telephone communications, electrical wiring and so forth. It is, as I hope I accurately stated to the Committee yesterday, those infrastructure services that the matter is directed to and we have restricted it in that way. The only overground service that we can conceive as being necessary at this stage is for emergency service access which will specifically be fire access. The Committee should have come into the site from the left of that plan. There is already a vehicular access there and a new car park and new way created by the Borough, but the fire access for the development would be along the top of the terraces and plainly the operators of the site will be required to have the necessary rights of access. That is what sub-paragraph (ii) is dealing with.
Chairman: We will take this away and consider it in relation to how specific it is as it is currently worded.
In the event, the Committee was content to accept that form of wording, and the clause was enacted as follows:
3.(1) Notwithstanding the provisions of the Act of 1951 or of any other enactment, the Council may for the purpose of or in connection with the provision of an hotel, restaurant, shops, licensed premises, leisure facilities, entertainment facilities or other associated uses on such terms and conditions as may be agreed -
lease all or any of the relevant land for a term not exceeding 125 years;
grant easements, rights, privileges or licences as may be required for the provision of underground services; and
(ii) for the emergency services; in respect of land within the Crystal Palace and Park.
(1) GRANT OF PRIVATE RIGHTS
The London and Regional Properties scheme involves building a road in from Anerley Hill which then passes through a tunnel, emerging near to a vehicle ramp at the southern end of the building. The road and most of the tunnel are not within the "relevant land" for the purposes of section 3(1)(a). They fall within the "Crystal Palace and Park", which is governed by section 3(1)(b). The purpose of the road and tunnel is for customers' vehicular access to the development. This is not a purpose which falls within either section 3(1)(b)(i) or (ii). As such, it is not permitted.
It will be seen from the above that the only rights over the Park as a whole which the London Borough of Bromley may grant (as the statute puts it) "for the purpose of or in connection with" the proposed development are underground services and emergency services. This is not only what the statute says. It also accords directly with the intentions both of the Borough and Parliament, as clearly demonstrated by the above exchanges.
We consider that there can be no ambiguity as to the above.
However, in any event, we further contend that two fundamental rules of construction point against the right of the London Borough of Bromley to permit the proposed road and tunnel.
First, this is a private Act, which should be construed in a special manner, restrictively against the Borough as promoter. See Bennion, Statutory Interpretation at page 832, quoting Scrutton LJ in Harper v Hedges (1924) 93 LJKB 116, 117:
"So far as persons not concerned in the Act is concerned, the Act is read strictly against the promoters."
In Stourbridge Canal Company v Wheeler (1831) 2 B & AD 792, Lord Tenterden CJ said (@ p. 793-4):
"The canal having been made under the provisions of an Act of Parliament, the rights of the plaintiffs are derived entirely from that Act. This, like many other cases, is a bargain between a company of adventurers and the public, the terms of which are expressed in the statute; and the rule of construction in all such cases is now fully established as this, - that any ambiguity in the terms of the contract must operate against the adventurers, and in favour of the public; and the plaintiffs can claim nothing which is not clearly given to them by the Act. This rule is laid down in distinct terms [in the authorities]. Adopting this rule, we are to decide whether a right to demand some compensation for the use of this part of the canal is clearly and unambiguously given to the plaintiffs by this Act of Parliament; and we think it is not."
Again, at page 797, Lord Tenterden CJ referred to:
"the principle of construction . that the company are entitled to impose no burden on the public for their own benefit except that which is clearly given by the Act."
Second, the Act is to be construed purposively and in accordance with the known intentions of the drafters. See e.g. In re. C (A Minor)  AC 489, 501F per Lord Browne Wilkinson:
"The Act should be construed purposively so as to give effect to the underlying intentions of Parliament."
In this case, of course, there can be no question of what the underlying intention of Parliament was, because it is clearly spelled out in the evidence of the Private Bill Committee proceeding. It excludes the proposal at issue here.
We contend that the proposal falls foul of the general principle preventing action which serves to frustrate the statutory purpose: Padfield v Minister of Agriculture Fisheries and Food  AC 997. That principle is directly in play here, because the developer, as a private body acting under constraints in a Private Act, is so acting, and the Borough, as a public body, is consenting to such action.
Finally, that the 1990 Act governs this development is beyond doubt, and has been accepted, indeed asserted, by the London Borough of Bromley on many previous occasions. I point to (a) its evidence and submissions in the Crystal Palace Campaign's application for leave to move for judicial review before Sullivan J.; b) its evidence and argument on two occasions before the Court of Appeal in that case; c) the London Borough of Bromley's response to our own planning application for a model of the Crystal Palace on the site; (d) many reports to, and meetings of, the Development Control Committee in relation to the instant proposal, both at the outline and reserved matters stages, including legal appraisals contained therein; (f) reports to, and meetings of, the Leisure Services Committee; (g) the Borough's response, through the U.K. Government, to the European Commission's investigation into our complaint to that body etc.
(2) PUBLIC HIGHWAY
We note that it is proposed that the first part of the road should become a highway maintainable at public expense. The proposal to drive a public highway through part of the Park is quite clearly outwith the Borough's powers in relation to this Park. We do not consider the contrary to be arguable.
The matter is, of course, of great importance to those living on Anerley Hill. We have previously published studies showing that 8,500 vehicle movements will take place at that entrance each Saturday, until 2 o'clock in the morning, which is plainly of great concern because Anerley Hill is a residential area. We have invited the Borough on a number of occasions to comment on our traffic analysis, but the Borough has always declined to do so.
We are setting the matter out in some detail because we want to give you the fullest opportunity to consider it. Thereafter, we invite you to give your full and considered reply so that we may consider the courses of action open to us. We have previously been pointed by you to the requirement to adopt a "cards on the table" approach, especially since the coming into force of the Civil Procedure Rules. We so do, and we invite you to respond in kind. If you fail to do so, then should this matter come to litigation, we will place this letter, and your reply, before the Court on the question of costs.
We look forward to your early reply.
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