Judicial ReviewJudicial Control, Liability and Litigation - James Goudie QC
The Judgment of Lindblom J in The Manydown Co Ltd v Basingstoke and Deane BC  EWHC 977 (Admin) repays attention. The Claimant sought to challenge by judicial review 2 decisions of the Council: (1) the Council’s refusal to reconsider its position on the development of a site that it owns (and is the subject matter of a Joint Development Partnership Agreement with the Claimant); and (2) a decision of the Council’s Cabinet approving a selection of sites for development which did not include this site. The Council had acquired the site under ss226/227 of TCPA 1990 for housing development, and still held it under statutory planning powers. The selection of other sites was in a consultation draft pre-submission Core Strategy which, when adopted, will be the principal component of the LDF for the Council’s area.
There were 3 main issues: (1) whether judicial review was excluded by s113 of Planning and Compulsory Purchase Act 2004; (2) whether the 2 decisions were lawful; and (3) if either or both were unlawful, what relief, if any, should be granted.
On jurisdiction, Lindblom J concluded (paras 81-88) that the proceedings for judicial review were not precluded by s113 of the 2004 Act. The Judge said:-
“83. … the present claim does not seek to question a “relevant document” of the kind to which section 113 refers. It impugns two decisions, each of which, in a different way, affects the parameters of the process that will culminate in the adoption of the Core Strategy under section 23 of the 2004 Act. They are, in that sense, decisions antecedent to, and not part of, the process. …
84. Under the provisions of section 113(1)(c), (2), (3), (4) and (11)(c) it is a development plan document that may be questioned only upon its adoption, and within six weeks of that date – not some prior step on the part of the local planning authority, even one that might vitiate the development plan document itself once it has been adopted. Adoption – or approval, as the case may be – is of more than merely formal significance. It is a defining characteristic of the “strategies, plans and documents” embraced in the statutory jurisdiction under section 113.
85. I cannot see how the preclusive provision in section 113(2) could catch a decision such as that taken by the Council on 15 December 2011. That decision was, in effect, a decision not to promote land owned by the Council in a plan-making process. In my view it lies well beyond the ambit of section 113. It is, however, plainly susceptible to proceedings for judicial review.
86. Nor do I accept that the decision taken by the Council’s Cabinet on 23 January 2012 lies within the reach of the preclusive provision. That decision had the effect of approving a pre-submission draft of the Core Strategy for consultation, the results of which would later inform the preparation of the submission draft. Such a decision does not, in my judgment, constitute a local development document being adopted as such by resolution of the local planning authority. These proceedings were begun before even the pre-submission Core Strategy had crystallized in a document published for consultation. And they do not seek to question any development plan document as such, either adopted or in draft.
87. Therefore, I do not think it is necessary to decide in this case whether a pre-submission draft of a core strategy qualifies as a “relevant document” within section 113. But I would hold that it does not. …
88. The conclusion that these proceedings are not ousted by section 113(2) seems both legally right and pragmatic. In a case such as this an early and prompt claim for judicial review makes it possible to test the lawfulness of decisions taken in the run-up to a statutory process, saving much time and expense – including the expense of public money – that might otherwise be wasted. In principle, it cannot be wrong to tackle errors that are properly amenable to judicial review, when otherwise they would have to await the adoption of the plan before the court can put them right. Improper challenges – including those caught by the ouster provision in section 113(2) – can always be filtered out at the permission stage.”
Turning to lawfulness, at para 94 Lindblom J referred to several “well-known and uncontroversial principles of public law”:-
“(1) When a public body is entrusted with an apparently unfettered discretion, it must exercise its power reasonably and in accordance with the relevant statutory purpose (see Smith v East Elloe RDC  AC 736, in particular the speech of Lord Radcliffe at p.767).
(2) Powers conferred on a local authority by statute can validly be used only in the way that Parliament, when conferring the power, is presumed to have intended (see Porter v Magill  2 AC 357, in particular the speech of Lord Bingham of Cornhill at p.463D-H).
(3) An authority may not exclude or limit the future exercise by it of its powers (see R v Secretary of State for the Home Department, ex parte Venables  AC 407, in particular the speech of Lord Browne-Wilkinson at p.496G to p.497B).
(4) If it asks itself the wrong question or misinterprets its powers or makes a mistake of fact, an authority may unlawfully fetter its discretion (see R v Secretary of State for the Home Department, ex parte Fire Brigades Union  2 AC 513, in particular the speech of Lord Browne-Wilkinson at p.551D-E).
(5) An authority generally has a duty to consider whether it should exercise its powers (see Stovin v Wise  AC 923, in particular the speech of Lord Hoffmann at p.950B).
(6) An authority may not enter into any contract, or take any action, incompatible with the due exercise of its statutory powers or the discharge of its functions (see Birkdale District Electric Supply Co v Southport Corporation  AC 355, in particular the speech of the Earl of Birkenhead at p.364).
(7) An authority owes a fiduciary duty to its taxpayers, which includes the duty to use the full resources available to it to the best advantage (see Bromley LBC v Greater London Council  AC 768, in particular the speech of Lord Diplock at p.829G to p.830F).
(8) An authority must discharge its functions so as to promote – and not so as to thwart or act contrary to – the policy and objects of the legislation conferring the power under which the land was acquired and is held (see Padfield v Minister of Agriculture Fisheries and Food  AC 997, in particular the speech of Lord Reid at p.1030B-D, p.1033A, and p.1045G). In applying the Padfield principle the court must consider the decision-maker’s purpose in the action it took and whether this was it calculated to promote the policy of the Act (see R v Braintree District Council, ex parte Halls (2000) 80 P&CR 266, in particular the judgment of Laws LJ at para.36).
(9) No less clear are the corresponding general principles that govern the functions of a public body as landowner. An authority’s powers as the owner of land are not to be equated with those of a private landowner. It must act to further the statutory object for which it acquired and holds the land, exercising its statutory powers only for the purpose for which those powers were conferred (see R v Somerset County Council, ex parte Fewings  1 WLR 1037, in particular the judgment of Sir Thomas Bingham MR at p.1042G-H and p.1046B).”
As to familiar principles applying to decision-making by a public body, Lindblom J, at para 95, set out the following:-
(1) An authority must not take into account irrelevant material or fail to take into account that which is relevant (see Associated Provincial Picture Houses v Wednesbury Corporation  1 KB 223, in particular the judgment of Lord Greene MR, at pp.233 and 234). It must not act irrationally or perversely (ibid.). In R v Parliamentary Commissioner for Administration, ex parte Balchin  EWHC Admin 152 Sedley J, as he then was, summarized the principle (at para. 27):
“[The claimant] does not have to demonstrate, as respondents sometimes suggest is the case, a decision so bizarre that its author must be regarded as temporarily unhinged. What the not very apposite term ‘irrationality’ generally means in this branch of the law is a decision which does not add up – in which, in other words, there is an error of reasoning which robs the decision of logic.”
(2) An authority’s decision would be unlawful if based on a material mistake of fact (see, for example, the judgment of Sullivan J, as he then was, in Haringey LBC v Secretary of State  EWHC 2101, at paras. 11, 12 and 16).
(3) In applying relevant policy, the decision-maker must understand the policy correctly (see the judgment of Woolf J, as he then was, in Gransden v Secretary of State for the Environment (1987) 54 P&CR 86, at p.94). If he departs from policy he must acknowledge that fact, and set out cogent reasons for doing so (see, for example, the judgment of Purchas LJ in Carpets of Worth Ltd v Wyre Forest District Council (1991) 62 P&CR 334, at p.342). Policy statements are to be interpreted objectively in accordance with the language used, read in its proper context (see the judgment of Lord Reed in Tesco Stores Ltd. v Dundee City Council  UKSC 13, at paras. 17 to 21).”
The Judge concluded that:-
(1) Given the statutory power under which the site was acquired and continues to be held, the notion that the site is not available for development lacked any evidential or logical basis: para 135; and
(2) There was a patent inconsistency between the Council’s ownership of the land for the purpose of promoting the development and its persistence in seeking to prevent the site’s allocation in the Core Strategy: para 137.
The Judge said, at para 141:-
“ … I cannot see any escape from the conclusion that the Council’s decision was not only inconsistent with the purpose for which the Manydown land was acquired and held, but plainly contrary to that purpose. It thus offended the principle in Padfield. It was not calculated to promote the policy and objects of the statutory provisions underpinning the acquisition of the site (see the judgment of Laws LJ in ex parte Halls, at para. 36). … the … submission that the Council was seeking to ensure that the land was excluded from consideration in the Core Strategy process seems a reasonable inference to draw from the facts. … The Council has, in effect, sought to use its control of the Manydown site as a means of delaying the development of land that was acquired, with public money, for the express purpose of promoting development. That is not lawful.”
The Judge continued (emphasis added):-
“142. … the decision taken by the Council on 15 December 2011 was such as to fetter its discretion to revisit earlier decisions and to act in the light of circumstances as now they were. … Its effect was to prevent the Council from considering whether to end its self-imposed moratorium on the promotion of development on the Manydown land in time to seek the site’s allocation in the Core Strategy. If the Council’s powers as local planning authority were left unrestrained by the decision, its powers as landowner plainly were not.
143. … The site’s unavailability was, in reality, no more than a self-fulfilling prophecy. If the site was regarded by the Council as being unavailable for development, this was only because the Council itself had decided to treat it as if it were. And it had decided to do this only because it had suspended its promotion of the site for development. At any rate, it should have seen that this was an impediment it could remove, and, with it, the only remaining barrier to its promotion of the site for development …
144. It also seems to me that the decision made by the Council on 15 December 2011 was flawed by a failure to have regard to the purpose for which the Manydown land was acquired. This remained a relevant consideration, and an important one, notwithstanding that the Council was under no specific obligation to promote the site for development at any particular time, or for any particular scheme. …
145. Finally, I think the Council’s reliance on section 1 of the Localism Act was misplaced. … that was not the power under which the Manydown site was acquired, nor the power under which the Council had been managing the land. And, plainly, the Council was not purporting to act under section 1 of the Localism Act when reaching either of the two decisions challenged in these proceedings. That provision is not available to rescue an authority from the consequences of unlawful actions taken before it came into effect. And in my judgment it would not be right for this new power to be relied upon to justify an authority’s use or management of land inconsistently with the statutory purpose for which that land was acquired.
146. I turn to the Council’s Cabinet’s decision of 23 January 2012. In my judgment, in re-affirming its intention to proceed with the presubmission Core Strategy, and approving that document for consultation in a period running from 10 February 2012, on the basis that the Manydown land was not available for development within the meaning of that concept in PPS3, the Cabinet took an unlawful decision. …
147. It is not necessary to repeat everything I have said about the Council’s decision of 15 December 2011. Essentially the same analysis applies. The abiding problem was this. Either the members confused the concept of the site’s availability with the concept of its active promotion for development, or, if they did not, there was no rational basis for considering the land to be unavailable, or unlikely to become available if it commended itself to the Core Strategy Inspector as a strategic allocation. Whichever way one looks at it, therefore, the Cabinet’s decision was flawed.”
Finally, Lindblom J, at para 157, did not accept that he should withhold relief for the unlawfulness. The Claimant’s participation in the Core Strategy process does not afford it an alternative procedure by which to have the lawfulness of the Council’s conduct as landowner of the site subjected to independent scrutiny. At paras 160/161 the Judge said:-
“160. If relief is not granted, it seems unlikely that the Council will relent and consider its position afresh. Above all, however, the Council’s conduct as landowner is not, in itself, a matter for consideration in the plan-making process. The Inspector will have to judge whether the Core Strategy itself is sound, not whether the prior decisions of the Council as landowner were lawfully taken. And … until the Council as landowner has properly addressed its responsibilities in that role, and has done so with a firm grasp of the statutory purpose for which it acquired the Manydown land, the claimant will face an unfair disadvantage as a party to the Core Strategy process. Without the intervention of the court, there seems little prospect of that disadvantage being removed in time for the Manydown site to be effectively and fairly considered in the consultation and subsequent stages of the Core Strategy process.
161 In my judgment, therefore, the unlawfulness in the decisions challenged in these proceedings can and should be addressed by suitable relief. Both quashing and mandatory orders are, in principle, appropriate. The remedies must be sufficient to compel a reconsideration of each of these two decisions, within a reasonable time, but without dictating an outcome that goes further than it should, and without causing needless delay to the Core Strategy process. It is necessary to require the Council to do two things: first, to reconsider its position on the promotion of the Manydown land in the light of what I have said about its responsibilities as landowner, and second, to reconsider the form of its pre-submission Core Strategy in the light of what I have said about its responsibilities as local planning authority. The effect of the order I intend to make should not be misunderstood. It is not to force the Council as landowner to promote the Manydown land for allocation in the Core Strategy. Nor is to force the Council as local planning authority to support such an allocation, or to depart from the strategy it has chosen. Rather, it is to ensure that neither as landowner nor as local planning authority, and neither by anything it does nor by anything it fails to do, will the Council prejudice its own Core Strategy process.”