Made on behalf of the Claimants
Witness: L.W.Culatto
1st Statement of Witness
Exhibits: LWC1-16
In The Matter of an Application for Judicial Review
BETWEEN
(2) STEVEN HARRISON
(3) GINO BOSSINO
-and-
DEVELOPMENT AND PLANNING COMMISSION
-and-
OEM ROSIA
DEVELOPMENTS LIMITED
First Interested
Party
-and-
Second Interested Party
___________________________
WITNESS STATEMENT
___________________________
I, Lionel W.G.J.Culatto, barrister-at-law of 9 Horse Barrack Lane, Gibraltar say as follows:
1. I am a barrister-at-law currently employed with Messrs Isola & Isola as a consultant. I am a Member of the Honourable Society of the Middle Temple and was called to the Bar by that Society on the 11th April 1972. After pupillage in London, I returned to Gibraltar in 1973 to practice as a barrister.
2. On the morning of the 16th January 2006 I was asked to prepare this report as an independent expert by the solicitors for the Claimants in these proceedings. The instructions were oral and on the telephone and some time later a bundle was delivered to me containing the Witness Statement of Commander J.L. Ballantine and David Gordon Eveson with the accompanying exhibits. I am also a witness of fact as I have been closely involved with heritage matters relevant to these proceedings.
3. I fully understand that my duty as an expert is to the Court and since I have no formal qualifications other than on legal matters I feel it is my duty to include in this statement some detail of the particular experience which I believe qualifies me to provide expert evidence on cultural heritage issues relevant to these proceedings.
4. On my return to Gibraltar I became concerned about the destruction of Gibraltar’s heritage and the lack of public participation in planning. I had become aware of these matters during my student days in London as I had been actively involved in objecting to the destruction of Picadilly Circus and Shaftesbury Avenue, including participation in the public participation exercise conducted by Westminster City Council. Our objections were ultimately taken into account as much as the original destructive proposals were not proceeded with as any visitor to London can now appreciate.
5. In Gibraltar in 1978 I joined with others with similar interests to set up the Gibraltar Conservation Society, and I became the first Chairman. Our purpose was to conserve, not just preserve, Gibraltar’s cultural heritage. That in itself was an important distinction and reflected progressive thinking at the time, since although we were portrayed unjustly by some as wanting preservation for its’ own sake we saw our man-made heritage as a valuable resource which could be re-used for the economic advantage of the local community.
6. There is little doubt that the Gibraltar Conservation Society (hereinafter called “the Society”) raised awareness on heritage issues and it became quite a nuisance to the Government of the day.
7. In the early 1980s the Society became a member of Europa Nostra, a European umbrella group of independent conservation associations, and as a result I attended and participated in annual conferences held by Europa Nostra and the Historic Towns Forum in Europe, including among others Heidelberg, The Hague, Cambridge, Cardiff, Dublin and Istanbul. My attendance in 1988 in Heidelberg is relevant to these proceedings I made a May Day speech highlighting the then proposed development of Rosia Parade showing eight slides of the Rosia area and emphasising the existence in that area of buildings of world importance. A copy of my speech, a report in a newspaper (with translation) and the Society’s press release is attached marked “LWC1”. These conferences are very instructive as they last several days with many topics relating to heritage and conservation being discussed by leading experts and we also have an opportunity to visit tourist and other sites.
8. Following Heidelberg the president of Europa Nostra wrote to the Honourable M. Feetham, the relevant Minister, on 19th March 1990, decrying that Gibraltar’s Heritage as a Royal Naval Base may be eroded (Exhibit “LWC2”).
9. Since it’s foundation the Society, with myself as Chairman, was actively engaged in defending Gibraltar’s heritage and in trying to change Gibraltar’s planning laws to allow more public participation in the planning process and to ensure planning and heritage legislation was updated. This resulted in much coverage in the local and British national press, as well as on TV and radio.
10. One of our activities in the early period resulted in the publication of the SAVE report of 1982. In 1979 the Society was most concerned about proposals to build an hotel on Parsons Lodge Battery, which is adjacent to HM Victualling Yard, and intimately connected to it since the Yard was built where it is because of the physical protection afforded by the outcrop under the Battery. In 1979 the Society organised an open day at Parsons Lodge which was very well attended. On the 29th June 1980 a further open day was held and over 1,600 signatures were collected there and in town for a petition stating “The undersigned, conscious of the inestimable importance and value of Parsons Lodge Battery, and the environmental effect that the construction of an hotel thereon would have on the South District, humbly petition His Worship the Mayor of Gibraltar to use his influence to prevent the destruction of Parsons Lodge and its environs”.
11. This petition was delivered to the Mayor on the 19th July 1980. No formal reply was received but a letter dated the 20th January 1981 was received from the Chief Minister rejecting the Battery’s protection.
12. On the 12th February 1981 an article appeared in the prestigious publication “Country Life” (see Exhibit “LWC3”).
13. The editor of “Country Life” at the time was Marcus Binney (recently “CBE”) who was also the Chairman of SAVE Britain’s Heritage. He suggested that the SAVE team should visit Gibraltar and make a report on the non-military architecture of Gibraltar. I agreed to help organise the trip. The team spent nearly a week in Gibraltar accompanied by John Langdon and myself. They were very impressed by the Rosia area and HM Victualling Yard, and although outside their remit, listed the Yard in their final report which was published in 1982 (see Exhibit “JB5” of Commander Ballantine’s Witness Statement”).
14. SAVE also assisted in other ways. For example, in 1986, George Allan produced a discussion paper on public participation in the planning process (see Exhibit “LWC4”). Later in 1995 SAVE published a further report which also featured the Rosia area (see Exhibit “LWC4A”).
15. As I stated before, these activities created an awareness in Gibraltar which filtered through to the Government. Politically they now had to deal with the conservation issue. The then Administrative Secretary, Mr Joe Pitaluga, was therefore instructed by the Government to produce a report on tourism. Mr Pitaluga consulted widely, including myself, and produced his report on the 17th February 1984. The Pitaluga Report recommended the establishment of various committees, including a History and Heritage Committee, and further recommended that I should be a member of that committee for my conservation expertise. The Government accepted most of the recommendations of the report and in June 1984 I became a member of the newly constituted History and Heritage Committee. Another of the committees was the Environment Committee.
16. In 1984, as part of its report the Environment Committee included a paper from Miss Marjorie Hoare which recommended that HM Victualling Yard, among other buildings in the area, should be restored and re-used (see Exhibit “LWC5”).
17. Following the Pitaluga Report it seemed that progress was being made. A heritage conference was held in London on the 26th February 1985, followed by one in Gibraltar on the 19th –21st April 1985, both of which I attended. In time it was proposed by the Government that the Gibraltar Heritage Trust be created. This eventually happened in 1987. The History and Heritage Committee ceased to exist and I was appointed to the first Board of the new Trust. I was also made a member of the management Committee and a member of a sub-committee to scrutinise building applications. One of the issues dealt with by the new Trust was Parsons Lodge and the proposed developments at Rosia Parade, Engineer Battery and Rosia Bay.
18. In an letter dated 12th January 1987 the Honourable A Canepa as Chairman of the Development and Planning Commission wrote to me as Chairman of the Gibraltar Conservation Society stating that Parsons Lodge was not to be developed but restored, but that the Commission had approved the building of an hotel at Engineer Battery, a marina within the Mole and two apartment buildings on Rosia Parade. It later transpired that the actual decisions took place later. On the 23rd January 1987 I wrote to the Chairman designate of the new Trust enclosing this correspondence (see Exhibit “LWC6”).
19. By letter dated 17th March 1987 the Honourable A Canepa wrote to the Chairman designate of the new Trust giving various assurances, including that the Government would ensure that there would be the highest possible degree of consultation with the Trust, that there would be full consultation with the Trust in all matters within its purview and that all matters falling within the general aims and objects of the Trust will be referred to the Board for their views and advice (see Exhibit “LWC7”).
20. This letter must be read in context with certain events at the time. On the 4th July 1987 a permit had been granted by the Commission to demolish the old Command Education Centre in Cornwall’s Parade/Bell Lane. In August of that year John Langdon and myself applied for a stay of the permit and a judicial review of the grant of the permit. The case was heard by Mr Justice Alcantara and on the 1st September 1986 he made a declaration that the demolition permit issued by the Commission was contrary to the City Plan and therefore not in conformity with the Town Planning Ordinance.
21. The full judgement was delivered on the 26th September 1986. The Judge, at page 20, makes clear that the permit was ultra vires the powers of the Commission under the 1976 City Plan. That Plan had stated that the old Command Education Centre was to be conserved and the proposed scheme involved its total demolition. He refused certiorari and prohibition because the grant of the permit was not an utter or blatant disregard of the law. He felt that it was a mistake. However he thought that the declaration would serve a useful purpose in that it would emphasise public participation in planning and would confirm that the issue of the permit was a wrong exercise as a power and thus ensure that the Commission was made aware for the future of not only their powers, but also their duties under the Town Planning Ordinance. (See Exhibit “LWC8”).
22. The effect of this judgement is that the Commission was made aware of what they did wrong and any similar action on their part would not be treated so lightly and would be more likely to result in the permit being quashed rather than a declaration granted. The planning legislation has been changed since that decision and I have considered the changes and concluded there is nothing in the new law which abrogates this decision.
23. Following the decision the demolition continued in blatant disregard of Mr Justice Alcantara’s ruling. There were numerous press reports in Gibraltar and the UK condemning the Government’s action. A selection of these reports, including some correspondence to the press, is exhibited hereto as “LWC9”. Of particular interest are the two letters by Gibraltar lawyers, the current Chief Minister among them, condemning the Commission’s actions. The bundle also includes a letter from SAVE to the Minister.
24. In the end the Government must have been advised that its actions were illegal and that it had to conform to the City Plan in their decisions as the Ordinance was amended for a limited duration to allow the Commission to give permits not in conformity with the City Plan. This action produced a swift response from Europa Nostra. The executive committee passed a resolution disapproving this action as it effectively suspended public participation as the Government would then not be obliged to amend the City Plan (see Exhibit “LWC10”). It is for this same reason that the argument of the Commission then and now that the City Plan/Development Plan is flexible and not binding must be wrong, as otherwise there will never be a need for public participation. In fact this is what is happening now. The Commission is approving applications that are contrary to the 1991 development plan, despite what Mr Justice Alcantara said in 1986 and despite the fact that if they want to change planning policy they could easily do so by producing a new plan and presenting it to the public for their comments.
25. I was personally very concerned at the proposed developments in Rosia and did my best to stop them, either through the Society or as a Trustee of the Gibraltar Heritage Trust. On the 23rd February 1988 the Society wrote to the Attorney General giving particulars of my earlier allegations that the proposed developments at Rosia were illegal. Earlier, in a letter of the 24th December 1987 the Trust had written to the Chief Minister objecting to these developments (see Exhibit “LWC11”).
26. The current planning scheme for this area is contained in the Gibraltar Development Plan 1991. The introduction makes clear at paragraph 1.5 that it sets out the Government’s planning policies in order to enable both local residents and also potential developers/investors to understand how it is intended that future development proposals will be dealt with. Paragraph 1.6 expands on this.
27. Prior to the 1991 Development Plan the previous Government published the Gibraltar City Plan Final Draft 1987 and invited the general public to comment. The Society responded in a 29-page document. Page 25 section 16 deals with our comments on the Rosia area. Paragraph 7 specifically refers to the tanks (see exhibit “LWC12”). The Gibraltar Heritage Trust also objected to the proposals for Rosia (see “LWC 11”). From my recollection I do not believe that the 1987 plan was actually approved by the Governor.
28. The 1991 Plan was exhibited and representations were requested. Despite the short time available the Society responded on time. It was felt at the time that the short period given for responses was done purposely. Rosia is specifically dealt with on pages 7-8 although there are comments elsewhere within the document of relevance. These objections were made public (see Exhibit “LWC13”).
29. I am not able to state whether or not the Commission reverted to me as required under the Ordinance. My vague recollection is that the Plan was approved by the Governor without any amendments following the public consultation exercise.
30. Page 23 of the 1991 Gibraltar Development Plan, together with the accompanying map on the next page, deals with the Rosia area. The map delineates the Victualling Yard marking it so, and it is clear that it includes the Tanks. The colouring suggests “shops and other commercial users”. It is most definitely not coloured as “primarily residential”. The text on page 23 is not very detailed, but paragraph 12.3 states “there is also a victualling yard dating from 1808”. At paragraph 12.7, policy Z17 states “the principal land uses at Rosia Bay/Camp Bay/Little Bay will be leisure, tourist and residential orientated. Proposals should take account of the potential for the following developments:- (1) Rosia Bay – tourist schemes at Parsons Lodge and the Victualling Yard including car parking (2)…”.
31. Clearly therefore residential development on the tanks is contrary to the current development plan and therefore the outline planning permit and/or demolition permit is ultra vires.
32. I have been involved in other reports touching the Rosia area. When I was a Trustee of the Gibraltar Heritage Trust and following the Government’s decision referred to earlier to save Parsons Lodge, I was one of 3 authors of the Parsons Lodge report. This report, published in 1989, was made public at the time. The report recommended a high quality restoration of the battery as a potential catalyst for the area. That was never accepted, and the battery is being gradually repaired over time with minimal funds (the report is Exhibit “LWC 14”). In that report there was an appendix (page 48 onwards recommending inter alia an RML Museum from Napier to Alexandra Batteries and a Naval and Maritime Museum based on the Victualling Yard, including of course the Tanks.
33. In March 1996 at the invitation of the Gibraltar Heritage Trust, Colin White produced a report entitled “Gibraltar and the Sea – proposal for a Maritime Museum for Gibraltar” (see exhibit “LWC15”). Although our 1989 report is mentioned in the bibliography I personally had no input into that report. The report does not go into great detail about the buildings at the Victualling Yard, but is definitely enthusiastic about creating a Maritime Museum.
34. For completeness I should also mention the report prepared jointly by J.S. Langdon and myself on Engineer Battery, following the developer’s decision not to build an hotel in accordance with their original planning application referred to earlier (the report is reproduced without Plan A and B as exhibit “LWC16”). The recommendation was that the scheme for a row of houses should be rejected. Needless to say, and despite the fact that the original application was approved because an hotel was proposed, our advice was rejected and a row of houses was approved by the Commission and built.
35. Recently, just to the east of that site, a development has been approved contrary to the original tender offer of the Government which involves the demolition of many interesting and historic buildings and the construction of blocks of flats, which by their scale are inappropriate for this area. I believe that parts of the Grand Magazine will also be destroyed or damaged.
36. I have dwelt at some length on the recent history of the Rosia area as I believe it is useful for the Court to appreciate that for many years the importance of the Victualling Yard and adjoining areas has been publicly known. Successive ministers and officials have been made aware of this directly and I do not believe that the Government needs reminding. Indeed I have said publicly in an interview on television that the Government is being irresponsible in its attitude to the tanks.
37. It is of course regrettable that the proposals over the years to successive Governments to respect the area have, to a large extent, been ignored.
38. As a result Gibraltar itself is a lot poorer, and a marvellous opportunity has been lost. However, I believe that it is still possible to implement the two main proposals contained in the appendix to the Parsons Lodge Report of 1989, namely the RML Museum and the Naval and Maritime Museum.
39. I shall now deal specifically with the tanks. We are in an unfortunate position that the records on overseas stations are not complete, at least in the Public Record Office. Whether useful records exist here in Gibraltar, or elsewhere, is a matter for investigation. With this present lack of documentary evidence it is difficult to give an accurate picture of the heritage value of this site. However, with the information currently available I have no hesitation in stating that the tanks should be listed (together with the rest of the Victualling Yard complex). There are two main reasons for this. The first concerns the historical context in which these buildings were built and the second concerns the buildings themselves.
40. It is well known that on the 24th July 1704 Gibraltar was captured by an Anglo/Dutch force led by Sir George Rooke. Prior to that capture Gibraltar had been used by the Royal Navy and indeed on several occasions in the 17th Century proposals were put forward for its capture. Even when Britain had Tangier Gibraltar was used by the Royal Navy for victualling, and in particular for careening. Indeed in the 1680s there was a formal agreement with the Governor of Gibraltar for this purpose. Careening at Gibraltar was carried out by the South or New Mole which had been reconstructed earlier that century.
41. During much of the 18th Century the dockyard was sited at the New Mole but the victualling was concentrated at the North Mole. There were two main stores, one at Waterport and the other at the White Convent in Irish Town. During the Great Siege these facilities were found most inconvenient as they were too close to the enemy lines. With the loss of Minorca and the alienation of Britain in the Mediterranean following the American War of Independence, victualling and in particular the supply of water, became a major problem for the Royal Navy. It also became clear that it was unlikely that Minorca would ever again be permanently available.
42. John Jervis, Lord St Vincent, had been appointed Admiral in Charge of the Mediterranean Fleet, and in 1799 whilst staying ashore through ill health in one of the houses in Rosia Parade, known then as “Rosia House” (part of that house is now St Vincent House – originally St Vincent House and the adjoining house was one larger house) recommended the re-siting of the victualling yard to Rosia, adjacent to his house. The site was particularly suitable as there was access to Rosia Bay and was protected from the seaward gunfire by the outcrop known as Parsons Lodge Battery. Furthermore it was out of range of the enemy guns at the North Front.
43. The works were carried out by a local contractor, John Maria Boschetti, and it seems that his original quote in 1799 was for just over Ł22,000. This estimate in 1807 was just over Ł40,000 but in 1808 his estimate had risen to over Ł62,000. What his final bill was has still not been ascertained nor what he was finally paid. It may also be that he quoted for different parts of the project and that the Ł22,000 was just for the tanks. This requires research.
44. It is generally accepted that the tanks were commenced in 1799 and completed in 1804. However, although they were aware of the proposed scheme in 1799 the Navy board only approved the project in 1807 and again it is not clear whether that was only the dry stores. It is not unusual (in Gibraltar certainly) for works to be carried out without formal approval, especially if they were perceived to be urgent. It is generally accepted that the whole complex was completed in about 1812, although the dry stores themselves may well have been completed earlier.
45. One important unanswered question is who designed the complex? Sometimes it is suggested that Broschetti was the architect, either by himself or with the assistance of some Royal Engineer officer in the Garrison at the time. For myself I am intrigued by the possibility that the famous engineer Sir Samuel Bentham may have been involved in some way. A few years earlier in 1795 Bentham had been appointed Inspector General of Naval Works. Although an Admiralty appointment, it trespassed firmly into preserves normally the responsibility of the Navy Board, a situation which led to great friction. Bentham’s instructions included, inter alia, looking at all aspects relating to the victualling of ships.
46. In Portsmouth in 1799, Bentham proposed the conversion of the old north basin into a water tank with dry stores above, all built as brick vaults. Interestingly the superficial area of the Portsmouth building is some 35,000 square feet, not that dissimilar to the tanks in Gibraltar. The scheme was approved by the Admiralty in April 1800, with the Navy Board approving it in June of the same year. The original estimate was nearly Ł19,000 but I cannot say what the final cost was.
47. I have been inside the dry stores of the Yard but never into the tanks. I have also not seen the tanks at Portsmouth. Some useful information could be gathered from an inspection of both sites. On my last visit to the Yard I was impressed by the fact that many original features and fittings were still intact.
48. The true value of the site from an engineering/architectural viewpoint cannot of course be fully appreciated until a thorough physical investigation and research is carried out. It would be most exciting if it were to establish who was the designer and even more so if it were Bentham.
49. The construction of the tanks and the rest of the Yard was of tremendous help to the Royal Navy. This was well-emphasised during the Napoleonic Wars. Gibraltar played an important part in ensuring the Royal Navy was well-supplied and thus well able to defend British interests and in particular the growing mercantile fleet.
50. I mentioned earlier that the whole Victualling Yard is worthy to be listed and I would repeat that opinion on the following grounds:
(a) the buildings were constructed before 1840 – buildings before that date are normally listed just for their antiquity;
(b) the buildings are exceptional in themselves being a series of brick walls covering an enormous area. Further research may show innovative use of materials especially hydraulic lime;
(c) the type of building is rare in itself, both in Gibraltar and elsewhere;
(d) as a victualling yard it is a unique surviving example;
(e) subject to further study it could be an important example of a particular architect, whether Bentham, Boschetti or someone else;
(f) the buildings as a whole make an important contribution to the townscape;
(g) there are important cultural and/or historical connections with the growth of British naval power from the 1800s onwards;
(h) the buildings are an important part of Gibraltar’s naval heritage which stretches back many centuries.
51. It is to my mind tragic that these buildings (apart from the gateway) have not been listed. I do understand why. From my own experience, serving on various bodies, including the Heritage Trust I am aware of political pressure preventing the addition of sites to existing lists. Basically the Government does not want sites listed unless the Government has no use for them. Economic pressure is also used. I know that one of the reasons that the Gibraltar Heritage Trust did not take action to stop the building of flats on Rosia Parade in 1988 was the fact that the Government made a grant of Ł50,000 to the Trust. It is only natural not to “bite the hand that feeds you”.
52. Furthermore, the present Government have been promising new heritage legislation, and with that excuse has discouraged the Trust from recommending adding to the list of protected buildings. To my mind this is unsatisfactory. The Government knows these buildings should be listed and the fact that they are not listed (a fact of their own making) to justify their actions, especially since the listing process is supposed to be non-political and based on the merits of the particular building. To ensure impartiality and independence the Gibraltar Heritage Ordinance entrusts the Governor with the job of deciding whether to list or not, and of issuing permits. Under the law the Government is not directly involved in the decision making, but of course it can be consulted as anyone can be and as the Trust must be.
53. I should also mention that for many years I have been a member of the Fortress Study Group, and for a while was a member of its management committee. As a member I have been on several study tours around the world, for example Ireland, Western France, Eastern France, Belgium, the Netherlands, Poland, the Channel Islands and several places in mainland Britain, and I am therefore able to put Gibraltar’s heritage assets in context. I can honestly say that there is nowhere with such a concentration of important sites in such a small area, and that accordingly Gibraltar well deserves to be recognised as a world heritage site.
54. As we destroy more of these heritage assets and their setting, we destroy the uniqueness that makes Gibraltar so important. This would be a great loss to world heritage. Moreover Gibraltar will lose a valuable resource that not only makes Gibraltar a different and better place to live in, but also could make Gibraltar a fabulous tourist destination with the resulting financial benefits.
55. I have had very little time to prepare this statement and there may be matters which I have overlooked. I should also mention that I am in correspondence
with H.E. the Governor as I have requested that the tanks be listed. In due course I shall produce a supplemental statement with these matters, or any others, that should be before this honourable Court.
I confirm that insofar as the facts stated in this written statement are within my own knowledge I have made clear which they are and I believe them to be true, and that the opinions I have expressed represent my true and complete professional opinion.
Dated the day of 2006
This Witness Statement is filed by Messrs Cruz & Co, Solicitors for the Claimants.