Underground substation — Decision to grant planning permission — Decision to grant lease to London Electricity Board — Whether council had considered all relevant matters in granting planning permission — Whether council had considered their duty to uphold certain restrictive covenants — Leave to challenge decisions allowed in part
This was an application for leave to seek the judicial review of two decisions of the respondent council. They both relate to the proposal of the London Electricity Board to site an underground electricity substation in Leicester Square, London.
1. On November 17 1988 the respondents granted planning permission for the construction of the substation. It was alleged that in reaching that decision they failed to have regard to certain material considerations: in particular, the importance of the square as an international centre, the effect on traffic, the design of the above-ground-level pavilion and the resulting hot air.
2. On December 9 1988 the respondents decided to grant a 999-year lease of the necessary site to the London Electricity Board. It was alleged that they had failed to take into account their duty to uphold certain restrictive covenants which prevented the erection of buildings and structures in or under the square.
Held 1. Leave to challenge the planning decision was refused. There was no evidence that the respondents had failed to consider the matters raised as being material. The respondents had even considered several smaller substations, but these had been discarded as giving no advantage as to size, cost or efficiency.
2. In the exercise of the discretion of the court, leave was given to seek the judicial review of the decision to grant the 999-year lease of land for the substation. The respondents had considered the restrictive covenants which affected Leicester Square. (They were the subject of earlier litigation in Tulk v Moxbay (1848) 2 Ph 774.) However, any disposal of the land had to comply with the requirements of sections 123 and 131 of the Local Government Act 1972: an authority has no power to dispose of land in breach of any covenant or agreement which is binding on them. The covenants probably restricted building “under” the square, and it was arguable that the benefit of the covenants was annexed to some land and the covenants could still be enforced. Accordingly, these were matters that had not been properly considered.
David Mole (instructed by Osmond Gaunt & Rose) appeared for the applicants; and John Colyer QC and John Male (instructed by the solicitor to Westminster City Council) appeared for the respondents.
