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Garner vs. Elmbridge: decision by Mr Justice Ouseley

Naturally I am disappointed at Mr Justice Ouseley’s ruling, dismissing our legal challenge on both heritage and flooding grounds. Elmbridge Council will be saying today that they are vindicated in their decision to grant planning permission, but this is not the case.

The information we brought to the court in October shows that Elmbridge Councillors were seriously misled by the documents put before them in December 2008 when they voted to give planning permission for this scheme. The scale of development proposed is not necessary to achieve the public benefits envisaged by the 1999 development brief for the site, such as the refurbishment of the William Tite station building.

The profits that Gladedale and Network Rail will make out of this development are excessive and disproportionate. Gladedale’s development appraisal, which was released to us a few weeks before the hearing, shows that Gladedale will pay Network Rail £4.5million for the Hampton Court Station site. The £4.5 million is not a cost, but rather an excess windfall profit for Network Rail, over and above the profit Gladedale is making.

Gladedale and Network Rail are development partners. Both of their names appear on the planning application form dated 10th June 2008, and both have been fighting me in court. The development partners have bought the site off of themselves.

Indeed, it is clear that a development of half the size - and without the two storey underground car park - could achieve the benefits envisaged by the 1999 development brief, whilst giving Gladedale and Network Rail a reasonable - rather than an excessive - profit. At the very least the Jolly Boatman site itself would not need to be developed, and English Heritage’s aspiration to keep this part of the site entirely free of development could be fulfilled.

Had Elmbridge Council commissioned their own independent assessment of Gladedale’s development appraisal (as I did as part of our preparations for this court case) they would have known that the level of profit Gladedale and Network Rail stand to make is excessive. Councillors would then have had the opportunity to turn down the application or request changes to the scheme, to lessen its impact on Hampton Court.

On the positive side, two good things have come out of the case so far:

Firstly the Royal Star & Garter Home has found a new site in Langley Avenue, Surbiton following their withdrawal from the project last year. This is a far superior site compared to Hampton Court Station, free from any flood risk and not suffering from the same air pollution problems that afflict the Hampton Court Station site. I wish them well.

(Incidentally, the Langley Avenue site, on Ditton Hill, is approximately where the “Trianon” for William III was to have been built in the late 1690’s, to the designs of William and John Talman; the site chosen presumably for its elevated and salubrious position.)

The departure of the Star & Garter also makes it very difficult for Gladedale and Network Rail to continue with the development unless they can find another residential care home provider. In that sense the legal challenge has been a success.

Secondly, the ruling at the hearing in the Appeal Court on 29th July last year, granting me the Protective Costs order, has very wide ramifications for other individuals and groups bringing environmental cases. The ruling incorporated the requirements of the Aarhus Convention into UK law, which requires costs for claimants in environmental cases not to be prohibitive. I am very glad to have been able to assist in this.

In the coming days, my legal team will be studying the judgment to see whether there are grounds for an appeal. For now, I would like to thank all of the individuals and organisations who have supported me this far in bringing the legal challenge.

Keith Garner

31st January 2011

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