Land Disposal

January 26th, 2015 by James Goudie KC

In R (Galaxy Land) v Durham County Council [2015] EWHC 16 (Admin) the authority’s decision to dispose of land was held to have been flawed.  Section 123 of LGA 1972 did not require any particular process, but the authority had not been provided with the information necessary in order to enable it to take into account obviously relevant considerations, and the disposal had not been publicized notwithstanding that the land, which had been used for public recreation, was open space.

Cranston J said, at para 44, having referred to the relevant parts of Section 123:

“44.       Under these provisions the grant of an option to purchase is a disposal of land: Trustees of the Chippenham Golf Club v North Wiltshire District Council [1991] 64 P&CR 527. Ordinarily a decision of a Council to sell land is a private law matter, not amenable to judicial review. However, judicial review is possible where there is a public law element to the decision making process: R v Bolsover District Council ex parte Pepper [2000] 3 LGLR 20. An attempt to give effect to planning policy or objectives is sufficient to inject a public law element into a decision. In R (on the application of Molinaro) v Royal Borough of Kensington and Chelsea [2001] EWHC (Admin) 896, Elias J held that the fact that a local authority is exercising a statutory function ought to be sufficient to justify the decision itself being subject in principle to judicial review if it is alleged that the power is being abused: [65]-[64]. In my view the position here is that there is a public law element to the disposal, given the circumstances I have outlined.”

Having referred at para 48 to R (Salford Estates) v Salford City Council (2011) LGR 982 and R (Midland Cooperative Society) v Birmingham City Council (2012) LGR 393, Cranston J continued:

“49.       In my judgment the Cabinet was not provided with the necessary information so that it could take into account obviously relevant considerations. The Salford Estates and Midland Cooperative Society cases make clear that while section 123 does not require any particular process, a purported discharge of a duty under the section can be impugned on ordinary public law principles. I preface my remarks by observing that the Cabinet did not need to be appraised of everything which was within the knowledge of the officers. The officers are there to digest material and to bring to bear their expertise, which the Cabinet members will not have. The Cabinet can rely on the officers’ fair summary of relevant matters and their balanced evaluation of the implications. If the officers have given proper consideration to different arguments and then come to a conclusion there is no necessary error should the report not refer to the different contentions but only to the conclusions reached.

50.        With that as background my difficulty with the Cabinet report in this case is threefold. First, there is no evidence before me that the officers had considered and resolved a number of obviously relevant issues behind the recommendations being advanced.”


Comments are closed.