If a local authority decides, for financial reasons, not to defend judicial review proceedings, what duties does it have to the Court?  This was a question addressed by Singh J in R (Mid Counties Coop) v Forest of Dean DC [2015] EWHC 1251 (Admin). The case concerned a planning decision.  Singh J observed as follows:-

“148. As I have mentioned, the Defendant has not taken any active part in these proceedings and has left the Interested Party to defend its decision. That is not unusual in a case where, for example, a defendant public authority concedes the claim for judicial review but an interested party wishes to resist the challenge and may well be successful in doing so. What is unusual in the present case is that the Defendant has informed the Court in a letter that it does not concede the claim but, since it cannot afford to take an active part in the proceedings for financial reasons, it supports the Interested Party in its resistance to the challenge. While it is readily understandable that public authorities are facing increasing financial pressures, the stance taken by the Defendant could lead to tension with certain fundamental aspects of the way in which judicial review proceedings are conducted.

149. It is well established that judicial review litigation is not to be conducted in the same way as ordinary civil litigation. This is not only because there are specific provisions in Part 54 of the Civil Procedure Rules 1998 which govern judicial review. More fundamentally, it is because the relationship between a public authority defendant and the court is not the same as that between an ordinary litigant and the court. In particular it has been clear since the decision of the Court of Appeal in R v Lancashire County Council, ex p. Huddleston [1986] 2 All ER 941 that a public authority defendant in judicial review proceedings has a duty of candour and co-operation so as to assist the court in understanding its decision-making process and deal with the issues fairly. It should conduct the litigation with its cards face upwards. This is based on the concept that it acts in the public interest, and not merely to protect a private, commercial interest.

150. There are circumstances in which an interested party will also be subject to the duty of candour and co-operation: Belize Alliance of Conservation Non-governmental Organisations v Department of the Environment [2004] UKPC 6 [2004] Env LR 38, in particular at para 87 (Lord Walker of Gestingthorpe). In that case the interested party and defendant were partners in a joint project. However, this will not necessarily meet all the practical issues which may arise: for example, an interested party may not have in its possession all relevant documents in order to be able to assist the court to understand the decision-making process of the public authority whose decision is under challenge.

151. It seems to me that, if a defendant public authority finds itself in the position where it cannot, for financial reasons, defend its own decision in judicial review proceedings, and in particular where it cannot file a skeleton argument or make oral submissions at a substantive hearing, it should at least consider the following:

1. whether it has complied with its duty of candour and co-operation, by disclosing all relevant documents;
2. whether its duty of candour and co-operation requires it to file a witness statement to assist the court in understanding its decision-making process and dealing with the claim for judicial review fairly;
3. whether it should file an acknowledgement of service, with summary grounds of resistance, even if only in outline form, so that at least the gist of why it maintains that its decision is correct in law is explained;
4. whether a representative of the authority (not necessarily a lawyer) should be present in court at any hearing, so that the authority is in a position to know what is going on and it can rapidly take steps to deal with points which may arise unexpectedly or answer judicial questions if invited to do so.”

In Birmingham City Council v Riaz and others [2014] EWHC 4247 (Fam) the applicant Council applied for, and obtained Injunctions, under the Court’s inherent jurisdiction, in respect of ten male respondents to prevent child sexual exploitation (“CSE”) by ordering them not to have any further contact or association with a vulnerable girl, or with any female under the age of 18 years, previously unknown to them, in a public place.  The Judge (para 7) described the Council as having taken “a bold and novel step”.  The Judge concluded (para 46) as follows: “I am of the firm view that the use of the inherent jurisdiction to make injunctive orders to prevent CSE strikes at the heart of the parens patriae jurisdiction of the High Court.  I am satisfied that none of the statutory or the “self imposed limits” on the exercise of the jurisdiction prevent the Court from making the orders sought by the local authority in this case”.

The Judge also addressed the issue of a Reporting Restrictions Order (“RRO”), balancing ECHR Arts 8 and 10.  The Judge observed (para 61) that “the mere fact that sections of the press and broadcast media may report the matter sensationally or inappropriately forms no ground for making a RRO”.  He concluded (para 153) that he had no doubt that the balance fell clearly in favour of the Art 10 rights of the press and broadcast media.

R (Stirling) v Haringey LBC [2013] EWCA Civ 116, (2013) LGR 251, is now entitled R (Moseley) v Haringey LBC. The authority consulted upon a Council Tax Reduction Scheme (CTRS). Following the consultation, the Government announced a Transitional Grant Scheme (TGS). The authority adopted a CTRS without re-consultation, claiming that the TGS did not affect the draft scheme. The consultation process was alleged to be unfair and unlawful because (1) consultees had not been provided with sufficient information to understand that there were alternatives to the draft scheme; and (2) the Respondent should have re-consulted when the TGS was announced.

On 19 June 2014 the Supreme Court heard an appeal from the decisions of the High Court and the Court of Appeal rejecting that argument.  The issues before the Supreme Court are:  (i) the extent of the duty to consult set out in paragraph 3(1)(c) of Schedule 1A to the Local Government Finance Act 1992 in respect of Council Tax Reduction Schemes; (ii) whether the authority was required to provide information to consultees on alternative options to its preferred proposal in circumstances where those alternatives were reasonably obvious; and (iii) whether the authority was required to draw consultees’ attention to a new factor which emerged during the course of the consultation process.  This is remarkably the first occasion on which the Supreme Court has considered the public law principles which govern the content of the duty to consult.

Should an order for specific disclosure be made in a judicial review application even before permission has been granted and where permission has been refused on paper?   That was the issue raised in R (Sky Blue Sorts & Leisure Ltd) v Coventry City Council [2013] EWHC 3366 (Admin), where such disclosure was refused.

Mr Justice Silber observed that the application was “extremely unusual”, having been made after Males J had already determined on the papers that the Claimants’ grounds of review were unarguable.  Silber J noted that neither he nor any of his colleagues knew of any case in which an order for specific disclosure had been made on a judicial review claim before permission had been granted.

The Claimants argued that disclosure of certain documents referred to in the Council’s Summary Grounds of Resistance and supporting materials was “necessary” in order to resolve their application for permission ‘fairly and justly’, as required by the test in Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650.

Silber J rejected these arguments and agreed with the Council that further disclosure was not necessary at this stage. In particular, His Lordship held that:

– “A renewed permission application is a different animal from a substantive hearing”, and permission would be granted where “on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case” (citing Lord Diplock in R v IRC ex p. Nat-Fed [1982] AC 617). In those circumstances, the Claimants already had “enough material to put forward a respectable case (if not their very best case) on most of the issues to be raised on the renewed permission application”; and

– There was no reason why the Claimants could not point to the Council’s decision not to disclose certain documents at the permission hearing, in order to support their argument that permission should be granted to investigate all of the facts in full.

His Lordship also mentioned that, if he had not dismissed the application for those reasons, then he might have dismissed it in any event, if he had concluded that the documents sought were not “highly relevant” to the issues, or because of the Claimants’ delay in making the application, which would have caused “serious prejudice” to the Council if the oral renewal hearing (listed for late November 2013) had to be postponed.

The owners of Coventry City Football Club had been refused permission to seek judicial review of the Council’s decision to loan £14.4m to the company that manages the Ricoh Arena (“ACL”), where the club used to play its home games. 

The Claimants argue that the loan was an unlawful State Aid, and that the Council had made the loan for the improper purpose of seeking “to compel [the Claimants] to relinquish ownership of the Club”. The Claimants also argue that the loan was irrational and ultra vires, and that the Council was guilty of misfeasance in public office.

After considering the application on the papers, Mr Justice Males on 31 July 2013held that:-

The claim had not been brought promptly, having been filed on the last day of the 3 month time limit or 1 day late, and there was no good reason for the delay;

– It was unarguable that the Council’s loan to ACL was a State Aid. The loan was made on commercial terms, and in order to protect the Council’s investment in ACL, in which it is a 50% shareholder; and

– The Claimants’ other grounds of review were also unarguable. The Council took its decision in order to protect its investment in ACL, and not in order to harm the Claimants’ commercial interests or to force them to relinquish ownership of the Club.

The appeal to the Supreme Court in Woodland v Essex County Council [2013] UKSC 66 arose from a tragic incident at a swimming pool in Essex when the appellant suffered a serious hypoxic brain injury during a school swimming lesson.  She was then aged 10.  She was a pupil at a Junior School for which the County Council as local education authority, was responsible. The swimming lesson took place in normal school hours, as required by the National Curriculum.

The appellant was assigned to a group being taught by a swimming teacher.  A lifeguard was also in attendance. It was alleged on the appellant’s behalf that both negligently failed to notice that she had got into difficulties in the water, causing her to suffer the injury. Neither was employed by the Council.  Their services had been provided to the Council pursuant to a contract.

The appellant issued proceedings for negligence against a number of parties, including the Council. Her case against the Council included an allegation that it owed her a “non-delegable duty of care”, with the result that it was liable for any negligence on the part of either the teacher or the lifeguard.  The Council denied that it owed such a duty.  It applied to strike out this allegation against it.

The allegation was struck out in the High Court.  This decision was upheld in the Court of Appeal.

However, the Supreme Court unanimously allowed the appeal against the order striking out the allegation of a non-delegable duty. The case will now return to the High Court to determine whether the appellant was in fact a victim of negligence.

The question before the Court was the scope of the Council’s duty to pupils in its care: was it a duty to take reasonable care in the performance of the functions entrusted to it only if it performed those functions itself, through its own employees; or was it to procure that reasonable care was taken in their performance by whomever it might get to perform them – a non-delegable duty?

The starting point is that non-delegable duties of care are inconsistent with the fault-based principles on which the law of negligence is based.  They are therefore exceptional.   However, English law has recognised that non-delegable duties can arise in cases with the following characteristics:

 (1)              the claimant is a patient or child or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury;

(2)              there is an antecedent relationship between the claimant and the defendant independent of the negligent act or omission itself (i) which puts the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm in the performance of those obligations and not just a duty to refrain from conduct which will foreseeably damage the claimant;

(3)              the claimant has no control over how the defendant chooses to perform those obligations;

(4)              the defendant has delegated some function which is an integral part of the positive duty which he has assumed towards the claimant and the third party is exercising the defendant’s custody or care of the claimant and the element of the control that goes with it; and

(5)              the third party has been negligent in the performance of the very function assumed by the defendant and delegated by the defendant to him.

The Supreme Court says that it is fair, just and reasonable to impose such duties. It is consistent with the long-standing policy of the law to protect those who are inherently vulnerable and subject to a significant degree of control. It is wholly reasonable that a school should be answerable for the performance of part of its own educational function. Parents are required by law to entrust their child to a school and have no knowledge or influence over the arrangements that the school may make to delegate specialised functions, or the competence of the delegates. It is not an open ended liability and will only cover functions which the school has assumed for itself a duty to perform rather than to arrange for its performance, and only where control over the child has been delegated. The recognition of this duty has become more significant as a result of increased outsourcing of educational and supervisory functions but only replaces duties which the school formerly owed when the functions were performed by its staff.

On the facts of this case, as pleaded by the appellant, the Council had delegated the control of the appellant to third parties to carry out an integral part of its teaching function during school hours, in a place where the school chose to carry out this part of its functions. If it is found that the third parties were negligent, then the Council will be in breach of duty.

The Civil Procedure (Amendment No.4) Rules 2013, SI 2013/1412 (L.14), in force from 1 July 2013, provide that planning judicial reviews must be brought within 6 weeks, procurement judicial reviews must be brought within the same time limits as in the Public Contracts Regulations, and that claims certified as totally without merit on the papers may not renew to an oral hearing.

Section 77 of the Building Act 1984 (“the 1984 Act”) relates to dangerous buildings.  If it appears to a local authority that a building or structure, or part of a building or structure, is in such a condition, or is used to carry such loads, as to be dangerous, the authority may apply to a magistrates’ court, and the court may, where danger arises from the condition of the building or structure, make an order requiring the owner thereof to execute such work as may be necessary to obviate the danger or, if he so elects, to demolish the building or structure, or any dangerous part of it, and remove any rubbish resulting from the demolition, or where danger arises from overloading of the building or structure, make an order restricting its use until a magistrates’ court, being satisfied that any necessary works have been executed, withdraws or modifies the restriction.

Section 78 of the 1984 Act relates to emergency measures in the case of dangerous buildings. Subsection (1) provides that, if it appears to a local authority that a building or structure, or part of a building or structure, is in such a state, or is used to carry such loads, as to be dangerous, and immediate action should be taken to remove the danger, they may take such steps as may be necessary for that purpose.

Subsection (7) of Section 78 provides that where in consequence of the exercise of the powers conferred by Section 78 the owner or occupier of any premises “sustains damage”, but Section 106(1) of the 1984 Act does not apply, because the owner or occupier “has been in default”, the owner or occupier may apply to a magistrates’ court to determine whether the local authority were justified in exercising their powers under this section so as to occasion the damage sustained, and if the court determines that the local authority were not so justified, the owner or occupier is entitled to compensation, and section 106(2) and (3) applies in relation to any dispute as regards compensation arising under the subsection.

Section 106 provides (emphasis added):-

            “(1) A local authority shall make full compensation to a person who has sustained damage by reason of the exercise by the authority, in relation to a matter as to which he has not himself been in default, of any of their powers under this Act.

(2) Subject to subsection (3) below, any dispute arising under this section as to the fact of damage, or as to the amount of compensation, shall be determined by arbitration.

(3) If the compensation claimed does not exceed £50, all questions as to the fact of damage, liability to pay compensation and the amount of compensation may on the application of either party be determined by, and any compensation awarded may be recovered before, a magistrates’ court.”

Manolete Partners PLC v Hastings Borough Council [2013] EWHC 842 (TCC), Judgment on 12 April 2013, concerned the entitlement of the Claimant to make a claim against the Council under Section 106 of the 1984 Act for compensation as a result of the Council exercising its powers to prevent access to Hastings Pier under Section 78.  The Council’s main defence was that the Claimant was “in default” and therefore Section 106 did not apply.  Ramsey J rejected this defence.  He held that “default” required breach of an obligation to do something imposed by the 1984 Act itself, and did not extend to breach of a provision of another statute. The Claimant tenant of a bingo hall and amusement arcade on the Pier was not in default of any of the provisions of the 1984 Act.  The party in default was the owner of the Pier structure, who was responsible for its dangerous condition or state.

Richmond-upon-Thames LBC v Kubicek [2012] EWCA 3292 (QB) is not a judicial review case, but it is of significance in relation to a judicial review or similar challenge based on a material error of fact giving rise to unfairness.  The Richmond case was itself a statutory appeal.  It raised an issue as to when, if ever, it is permissible for a County Court, hearing an appeal under s204 of the Housing Act 1985, on “any point of law” arising from a review decision made by a local housing authority in a homelessness case, to receive evidence on, and decide a question of fact relevant to, the review decision.  It is well established that an appeal “on any point of law” is in substance the same as a judicial review.  One of the issues on the appeal was whether new evidence which Mrs Kubicek sought to adduce was relevant to any issue on the s204 appeal.

It was common ground that under the statutory scheme of Part VII of the 1985 Act questions of fact are generally for the local housing authority making the review decision to determine.  For that reason, the usual process on any appeal pursuant to s204 is for the matter to be determined on the basis of submissions as to the rationality and propriety of the review decision in the light of the material before the reviewing officer at the time of the decision. Evidence which was not before the reviewing officer is not usually relevant.  The authorities, however, indicate that there are two purposes for which fresh evidence may be relevant on a s204 appeal. One such purpose is to show how the review decision was reached, including what material was before the reviewing officer and what procedure was followed. These matters may be relevant where, for example, it is alleged that there has been a failure to comply with the requirements of natural justice. An allegation that the decision-making process was tainted by misconduct on the part of someone involved in it would fall into this category. Where such an allegation is made, it is for the court to find the relevant facts, and evidence will be relevant and admissible to prove the misconduct or other alleged procedural impropriety.

A second purpose for which it is now clear that evidence may be relevant is to demonstrate that the decision subject to appeal was based on a material error of fact giving rise to unfairness. In the leading case of E and R v Home Secretary [2004] QB 1044, the Court of Appeal reviewed the authorities bearing on the question of whether, and if so when, a decision reached on an incorrect basis of fact can be challenged on an appeal limited to points of law. Carnwath LJ, as he then was (who gave the judgment of the Court) concluded at [66]:

“In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are … First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.”

In the Richmond case Leggatt J made four observations about this important statement of principle. The first is that in the way that this ground of review has been analysed by the Court of Appeal the purpose for which evidence is potentially relevant can be seen as an extension of the first purpose – that is, to show how the review decision was reached. In connection with this ground, evidence may be relevant to show not only what material was before the reviewing officer but also that evidence was available which was not placed before the reviewing officer and how that came about.

Second, although the Court of Appeal explained this ground of review as based on a principle of fairness, it is clear that the question whether there has been unfairness is not to be determined independently of the four requirements identified by the Court of Appeal; rather, the unfairness arises from the combination of factors which exist when those requirements are all met: see the analysis at [63].

Third, although the Court of Appeal suggested that the principle may be limited to “those statutory contexts where the parties share an interest in co-operating to achieve the correct result”, it is difficult to think of any context in which it would not be said that a public authority exercising a statutory function has an interest in ensuring that its decision is made on an accurate factual basis. Certainly decisions about housing assistance must fall within the scope of the principle as much as the decisions about asylum and planning control to which Carnwath LJ referred at [64].

Fourth, the second of the four requirements stated by Carnwath LJ is clearly of critical importance, but may possibly need some fine tuning. If, in order to decide that there has been a material mistake of fact, the court was entitled or required to resolve a factual dispute itself, then the court would be substituting its own finding of fact for that of the public body to which Parliament has given that task. Accordingly, to require that the fact has been “established” in the sense of being not merely objectively verifiable but uncontentious seems to be essential if a workable distinction between errors of law and errors of fact is to be maintained. It is less obviously essential that, where the fact about which a mistake is said to have been made is the availability of evidence on a particular matter, the evidence and not just the fact of its availability must be uncontentious. A court would not necessarily be usurping the function of the fact-finding body if it were to require the body to reconsider a decision made without knowledge of credible, even if not uncontentious, evidence which, if the decision-maker had been aware of it, might have led to a different result. A requirement that the evidence must have been uncontentious might also be thought to defeat the point of the Court of Appeal’s indication that the availability of evidence on a particular matter may itself be a relevant fact; for if evidence of a particular fact is uncontentious then so presumably is the fact itself.

In Walton v The Scottish Ministers [2012] UKSC 44, concerned with the construction of an Aberdeen bypass, Lord Carnwath observed, at para 103, that the issue of discretion may in practice be “closely linked” with that of standing, and may be “important in maintaining the overall balance of public interest” in appropriate cases. Lord Carnwath said:

” … I see discretion to some extent as a necessary counterbalance to the widening of rules of standing. The courts may properly accept as “aggrieved”, or as having a “sufficient interest” those who, though not themselves directly affected, are legitimately concerned about damage to wider public interests, such as the protection of the environment. However, if it does so, it is important that those interests should be seen not in isolation, but rather in the context of the many other interests, public and private, which are in play in relation to a major scheme …”

At paragraph 112 Lord Carnwath said:

“The applicant will be refused a remedy, where he complains only of a procedural failure (whether under statutory rules or common law principles), if that failure has caused him personally no substantial prejudice. Where, however, a substantive defect is established, going either to the scope of the statutory powers under which the project was promoted, or to its legality or rationality … the court’s discretion to refuse a remedy will be much more limited. These general principles must of course be read in the context of the statutory framework applicable in a particular case.”

The Judgment of Lindblom J in The Manydown Co Ltd v Basingstoke and Deane BC [2012] 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 [1956] 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 [2002] 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 [1998] 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 [1995] 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 [1996] 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 [1926] 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 [1983] 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 [1968] 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 [1995] 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 [1948] 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 [1996] 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 [2008] 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 [2012] 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.”