Aireborough Neighbourhood Development Forum v Leeds City Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lieven DBE |
| Judgment Date | 14 January 2020 |
| Neutral Citation | [2020] EWHC 45 (Admin) |
| Date | 14 January 2020 |
| Docket Number | Case No: CO/3279/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 45 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lieven DBE
Case No: CO/3279/2019
and
Jenny Wigley (instructed by Town Legal LLP) for the Claimant
Juan Lopez (instructed by Leeds City Council Legal Services) for the Defendant
Matthew Fraser (instructed by Walker Morris LLP) for the Second Interested Party
James Corbet Burcher (instructed by Shoosmiths LLP) for the Third Interested Party
Hearing dates: 12th December 2019
Approved Judgment
This case concerns an application under s.113 of the Planning and Compulsory Purchase Act 2004 by Aireborough Neighbourhood Development Forum (the Forum) challenging the decision of Leeds City Council, (the Council) dated 10 July 2019 to adopt the Leeds Site Allocations Plan (the SAP). The issue before me on the preliminary issue, is whether the Forum has the capacity to bring the claim. The Council and the Second and Third Interested Parties argue that as an unincorporated association the Forum does not have legal capacity to bring the claim.
The Claimant was represented before me by Ms Wigley; the Defendant by Mr Lopez, the Second Interested Party by Mr Fraser and the Third Interested Party by Mr Corbet Burcher.
The background to the Forum is explained in the second witness statement of Jennifer Kirkby. It was formally constituted in March 2014, and its aims and objectives include the good planning of the Aireborough neighbourhood.
The Forum has a written constitution, a bank account, a steering group and an identifiable membership. It was designated as a Neighbourhood Forum by the Defendant under s.61F of Town and Country Planning Act 1990 (the TCPA) on 15 July 2014. Under the statute the designation lasts for five years and therefore expired on 15 July 2019. The Forum had applied to the Council for re-designation on 13 July 2019 and that application remains outstanding. There was a good deal of debate between those representing the Forum and those representing the Council as to why the application to redesignate had not yet been determined, but I cannot see that has any impact on the decision I have to make. It is not in issue that the Forum was not designated on the date the claim was made in the High Court.
One of the objectives of the Forum is to prepare, in partnership with the Council, an effective Neighbourhood Plan, as a statement of the needs and visions of the Aireborough Neighbourhood Plan area. The Forum made representations throughout the SAP process on what the nature of future development within its area should be, including what sites should be allocated and for what form and scale of development.
The SAP is a Development Plan Document (DPD) which has been prepared by the Council and which, as the name suggests, sets out its proposed allocations for planning purposes of land throughout the Leeds area. It has a very important future role in the planning process in Aireborough, because it is part of the development plan for the purposes of s.38(6) of the PCPA, and as such its allocations or non-allocations will be a highly material matter in future planning decisions.
The claim is a challenge to the SAP brought under s. 113 of the Planning and Compulsory Purchase Act 2004 which states, as relevant;
“(2) A relevant document must not be questioned in any legal proceedings except in so far as is provided by the following provisions of this section.
(3) A person aggrieved by a relevant document may make an application to the High Court”.
It is relevant to note at the outset that the challenge is a statutory challenge, not a judicial review, and there is a statutory time limit of 6 weeks, s.113(3B). The 6 week time limit is a strict one, and is not amenable to the more flexible approach to the time limits in judicial review.
The Defendant and the Second and Third IPs argue that the Forum does not have legal capacity to bring this claim. Mr Lopez's principal argument is that the Forum is an unincorporated association and as such it is not a “person” aggrieved. He places strong reliance, particularly in his Skeleton Argument, on the fact that the Claimant is no longer a designated neighbourhood forum under the statute. His secondary argument is that on the specific facts of the case, even if in principle an unincorporated association could be a person aggrieved, the Forum is not such a person.
The Defendant and IPs' case turns on an analysis of the caselaw on this issue and it is therefore necessary to set that caselaw out in some detail. It is agreed by all parties that there are cases at High Court level which reach different conclusions on the question of whether an unincorporated association can bring a judicial review. Mr Fraser for the Second IP, adopts Mr Lopez's argument but also focuses on an argument that there is a distinction between whether an unincorporated association can bring a judicial review and whether it can bring a statutory challenge. Mr Corbet Burcher supports these arguments.
The three cases which deal with the specific point of whether an unincorporated association can bring a judicial review are, in order of time, R v Darlington BC ex p Association of Darlington Town Taxi Owners [1994] COD 424 (Auld J); R v Leeds City Council ex p Alwoodley Golf Course [1995] NPC 149 (Harrison J); and R v Traffic Commissioners of the North Western Traffic Area ex p Brake [1996] COD 248 (Turner J). I have been taken to full transcripts of all three judgments. There are also a number of cases which touch on, though do not decide, the point and further authorities where it has been assumed that an unincorporated association can bring a judicial review without argument. There is only one case before me which concerned a statutory challenge rather than a judicial review, Williams v Devon CC 2015 EWHC 568 and 2016 EWCA Civ 419.
The first case in time where the point arose was a decision of Sedley J in R v London Borough of Tower Hamlets ex p Tower Hamlets Combined Traders Association [1994] COD 325. Unfortunately I do not have the full judgment, but only a digest. It is therefore not possible to determine the degree to which the issue was fully argued. However, the digest says;
“(1) The status of the applicant. In principle it did not matter that the application was an unincorporated association lacking legal personality since out of its constituent associations could be spelt the names of individuals who constituted the association.”
In Darlington, Auld J was considering a challenge to the decision of the Council to limit concessionary fares. The Council applied to set aside the grant of leave for judicial review on the grounds that the Association was not a legal person and therefore the judicial review proceedings were not properly constituted. Auld J found for the Council on the issue. The most relevant parts of his analysis are as follows;
“The general rule, as stated in Halsbury's Laws, 4th Ed., Vol. 9, paragraph 1201, citing London Association for the Protection of Trade v. Greenlands Ltd. [1916] 2 AC, 15, HL, is that, subject to certain well recognized exceptions of which this is not one, unincorporated associations cannot sue or be sued in their own name. The researches of counsel have not identified any case in which the court has held that an unincorporated association is capable of applying for judicial review. Mr. Beloff referred me to R. v. Liverpool City Council, ex p. Liverpool Taxi Fleet Operators' Association [1972] 2 QB 299, CA, a case in which an unincorporated association was permitted to apply for a prerogative order. However, it appears to have been assumed that the applicant association was capable of applying for relief, the question being whether it was a “person aggrieved”, as was then the test. Lord Denning MR, with whom Roskill LJ and Sir Gordon Willmer agreed, said, at 308–9:
“The taxi cab owners' association come to this court for relief and I think we should give it to them. The writs of prohibition and certiorari lie on behalf of any person who is a ‘person aggrieved’, and that includes any person whose interests may be prejudicially affected by what is taking place. It does not include a mere busybody who is interfering in things which do not concern him; but it includes any person who has a genuine grievance because something has been done or may be done which affects him: see Attorney General of the Gambia v. N'Jie and Maurice v. London County Council. The taxi cab owners' association here have certainly a locus standi to apply for relief.”
See also the succeeding application for judicial review by the same association: R v. Liverpool City Council, ex p. Liverpool Taxi Fleet Operators' Association [1975] 1 WLR 701, DC.
“In my judgment, the question of capacity is one for dispositive decision at the leave or setting aside of leave stage. The court should not merely consider whether it is sufficiently arguable to grant or not to disturb the grant of leave, as the case may be. It precedes and is quite distinct from the issue of locus or sufficient interest. It is not, therefore, affected by the guidance of the House of Lords R. v. Commissioners of Inland Revenue, ex p. National Federation of Self-Employed and Small Businesses Ltd. [1982] AC 617, namely, that, save in the simplest cases, that threshold question should be reserved to the substantive hearing where it can be considered in the legal and factual context of the issues raised by the application. Sufficiency of interest may well depend upon the factual...
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