'Hackney versus Hackney': Bizarre High Court battle over Colvestone Primary School leaves campaigner with bill for thousands
PUBLISHED: 09:42 18 May 2017 | UPDATED: 09:42 18 May 2017
Judith Watt has been told she might have to pay thousands in legal bills - even though she won her planning battle. To make matters worse, she believes the council could have stopped the case before it began. Emma Bartholomew unravels her Kafkaesque journey through the High Court.
A woman could be landed with a legal bill for tens of thousands of pounds despite winning her planning battle in the High Court.
Now Judith Watt has urged the council to investigate the peculiar case that effectively became “Hackney versus Hackney”.
The town hall used public money to both defend and challenge the decision to sign off a three-storey block of flats bordering Colvestone Primary School – which was made on misleading information from developer Chan and Eayrs.
Ms Watt launched a judicial review against the planning committee’s decision in September 2015. She believed a report on how much light would be lost in the nursery school playground had got its sums wrong – and she was proven correct.
At one stage during the judicial review, the council considered using a historic covenant on the school’s land to fight the developer it had previously given the go-ahead.
The restriction was written into the property deeds by Hackney Council in 2001 when the land – previously in public hands – was sold off to Chan and Eayrs.
It stipulated the school’s “right to uninterrupted and unheeded access of light and air”.
In November 2015, when the Gazette reported on this development in the case, a spokesman for the council said: “We are looking to enforce the restriction to title regarding access to light and air and are taking appropriate professional advice.
“All parties will be kept informed of progress in this matter.”
But a barrister advised them that the covenant actually referred to light within the school building rather than light in its playground.
The town hall was asked by the Gazette how much it cost to get the legal advice – but it has not responded.
But she believes the costly process was “completely unnecessary” because the man who actually wrote the report said in court he had made the council aware of his error just a few weeks later.
Quashing the planning permission in September, a senior High Court judge said the flawed report had been a “critical issue” and had created a “misleading picture” that “influenced the decision-making process”.
The report, commissioned by Chan and Eayrs, had been drawn up by Oliver Westover before planning was granted. Instead of basing his calculations on the brick wall that borders the grounds in Colvestone Crescent and Birkbeck Road and, obviously, blocks out sunlight completely, architect Mr Westover worked as though there was a fence there letting light through.
The amount of sunlight said to be lost in the flawed report was 12 per cent – but the actual figure is now known to be 30pc.
The school’s own nursery head pointed out the mistake to planning officer Gareth Barnett twice before the meeting. Ms Watt did so again during the meeting – but he did not order a new report to be drawn up, claiming it would “make no difference”.
Yet it emerged in May 2016 – several months into the judicial review – that Mr Westover had been asked by Chan and Eayrs to re-run the model with the missing part of the playground wall amended just weeks after the planning decision. For what it was worth, the re-modelling was still wrong, because it only included one of the brick walls. All the same, it showed a significant decrease in light reaching the playground.
In a statement to court 12 months ago, Mr Westover said he had sent those results to his client and the town hall at the time.
The bizarre case saw the Learning Trust, which was fighting the school’s side, order the council’s property services department to commission and pay for yet another light report in April 2016. This finally proved the inaccuracy of the developer’s report – which the planning department was still using as evidence in court.
“Essentially we were getting down to Hackney versus Hackney,” said Ms Watt.
Now the council’s legal director has refused to investigate the matter of who knew about Mr Westover’s recalculation from November 2015. Writing to Ms Watt, Yinka Owa pointed out the developer’s revised figure for light in the playground was still more than recommended minimum, but Ms Watt says it should have sounded alarm bells anyway.
Her solicitor, Bill Parry-Davies, said: “Given the planning authority is supposed to act impartially for the common good it is extraordinary that it was left to a separate council department to spend public money to prove not only that the developer’s report had glaring errors which misled the planning committee, but that they were so significant that the court overturned the planning permission.” Mr Parry-Davies is currently in discussion with the council’s legal team over what costs Ms Watt must bear.
Hackney Council did not answer the Gazette’s questions about the cost it incurred through the case, or when various departments at the council became aware of the November recalculation. A letter from Ms Owa to Ms Watt maintains the town hall wasn’t told at the time.
A spokesman said: “Any suggestion that the council withheld information from the planning sub-committee and the court was dismissed by the court.” Chan and Eayrs declined to comment.