Camden Council is in discussions with UCLH Charity after it lost its high court battle over the building of 30 social rented homes on the former Middlesex Hospital Annex and Strand Union Workhouse site on Cleveland Street in Fitzrovia.
The judgement in favour of UCLH Charity was actually made in May this year but Camden’s planners have kept quiet about it, and the debacle has not been formally reported to the councillors on the Policy and Performance Planning Committee.
UCLH Charity was simultaneously taking the council to court to challenge the legality of a s106 agreement struck in 2004 which included a clause that would allow Camden to buy the site for £1 if the 30 social housing units were not built.
After the decision by the planning inspectorate Camden pledged to fight in the High Court for the social rented homes to be built.
“The High Court will soon consider the enforceability of the original obligation for the 30 legacy units and the associated £1 clause, and the council will seek to defend our position robustly,” it said in December last year.
The concluding remarks from the judgement by Mr Justice Kerr published on 5 May 2023 explain why.
“While a private contractor cannot […] plead poverty as an excuse for nonperformance of a contractual obligation, in the statutorily underpinned planning system it happens all the time,” he wrote.
In other words, “custom and practice” of re-negotiating planning obligations is an important aspect of this judgement and Camden would have been aware of this.
“Camden knew (and the reasonable reader would know) in 2004 that its power to enforce the 2004 affordable housing obligation was not unlimited. The 2004 agreement could be modified, either with Camden’s consent or, on appeal, without it,” stated Kerr.
This was reinforced by the fact that Camden “could have served notice to invoke the £1 clause at any time from 2 June 2010 to 14 January 2018, but chose instead to renegotiate in a manner that could, and in the event did, render the £1 clause inoperable”, stated Kerr.
Therefore Camden had produced a legal agreement that was possibly unenforceable then sealed its fate by its subsequent supine behaviour towards UCLH Charity. It reaped what it sowed. Its first mistake is forgivable; the second mistake, perhaps not so.
All this should have been reported to the Policy and Performance Planning Committee. But neither the planning appeal result of December 2022 nor this latest debacle has been formally reported in public.
The most recent committee was on Monday and its reports contained no mention of this major planning department failure. The last reference of anything to do with the Middlesex Annex site was on the 6 October 2022 and no public statement has been made to councillors on either the appeal nor the high court decision since.
Planning officers, it seems, have better things to do. Besides, the elected councillors can read about it in Fitzrovia News and the Camden New Journal. Or perhaps councillors should ask officers more questions?
A spokesperson for Camden Council told Fitzrovia News: “We are currently discussing the final terms of the settlement with the Charity following the court’s decision. Once these have concluded we will be able to provide a further update. We anticipate to be in this position in approximately a month.”
We’ll report on that in due course.