R (Giuseppe Agnello and Fourteen Others, known as the Western International Campaign Group) v The Mayor and Burgess of the London Borough of Hounslow
| Jurisdiction | England & Wales |
| Judge | Mr Justice Silber,MR JUSTICE SILBER |
| Judgment Date | 16 December 2003 |
| Neutral Citation | [2003] EWHC 3112 (Admin) |
| Docket Number | Case No: CO/5244/2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 December 2003 |
[2003] EWHC 3112 (Admin)
The Honourable Mr Justice Silber
Case No: CO/5244/2003
Case No: CO/5625/2003
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Monica Carss-Frisk QC (instructed by Appleby Shaw of Windsor) for the Claimant in case CO/5625/2003
Paul Brown (instructed by Bircham Dyson Bell) for the Claimant in case CO/5244/2003
Michael Fordham and Ben Jaffey (instructed by Norton Rose) for the Defendant in both cases
Joseph Harper QC (instructed by Dale & Newberry of Staines) for Western International Market Tenants Association Limited for the Interested Party in both cases
None of the other Interested Parties were represented or present
Two applications for judicial review are before the court in which the claimants each occupy, either themselves or through companies owned by them or through their director's business purposes, one or more units at the Western International Market, Southall, Middlesex (“the Existing Market”). The London Borough of Hounslow (“the Council”) is the freehold owner of the market, which has some 232 stands occupied by 80–100 traders, of whom the majority act as wholesalers of fruit, vegetables and flowers.
In 1996, the Council decided to build a New Market (“the New Market”) on nearby land, which would replace the Existing Market. The proposed New Market is to be about two-thirds of the size of the Existing Market and therefore many of the occupants of the units at the Existing Market will be unable to obtain units at the New Market. This application concerns the procedure by which the tenants for the new site were selected. The claimants were unsuccessful applicants, who are dissatisfied with the procedure followed and the decisions arrived at.
Many of the claimants, but not all of them, are members of the Western International Market Tenants’ Association Limited (“the Tenants’ Association”), which has been an association to which most of the occupants of units at the Existing Market belonged. The project for the New Market was discussed at various meetings of the Tenants’ Association starting in 1995 and going on until 2000.
On 6 December 2000, the Council and the Tenants’ Association wrote a joint letter (“the 6 December 2000 letter”) to all tenants to inform them of the proposal to develop a new smaller market to replace the Existing Market and to invite tenants of the Existing Market to indicate whether they wished to take up tenancies in the New Market. As the New Market would be approximately two-thirds of the size of the Existing Market, the letter explained that selection among the tenants would have to take place “and the decision as to who shall relocate will be based, primarily, on use, financial standing and rent payment received”. It was also pointed out that “ultimately the Council will make the decisions, but this will be done in conjunction with the [Tenants’ Association] Board”.
On 2 March 2001, the Tenants’ Association entered into a cooperation agreement with the Council and Kier Property Developments Limited (“Kier”) in connection with the New Market. On 1 July 2003, the Council entered into a written agreement (“the Development Agreement”) with Kier, for Kier to build the New Market.
In order to assist in selecting tenants for the New Market, a Relocation Committee was set up by the Council which included representatives of the Council and members of the Tenants’ Association who had stands in the Existing Market. The existence of the Relocation Committee was disclosed to the members of the Tenants’ Association but the identity of its members was kept secret from tenants until after the decisions had been made on who was to be offered space in the New Market so as to avoid its members being lobbied by applicants for units in the New Market.
The Tenants’ Association duly wrote to tenants of units at the Existing Market, explaining that the Council was currently considering in conjunction with the Tenants’ Association “relocation issues” and it asked for the supply of financial information.
In November 2002, the project for the New Market was discussed again at the Tenants’ Association's Annual General Meeting as it had been at the previous one in November 2001. In April 2003, the Tenants’ Association held an Extraordinary General Meeting concerning the project for the New Market.
By letters dated 9 July 2003 (“the decision letter”), the claimants were among those who were informed by the Council of the decisions that they were not included in the “initial list of possible tenants for the New Market”. It is this decision, which is the subject of the present challenges. Some of the claimants engaged in correspondence with the Council and at least one meeting took place, but all the claimants have been unsuccessful in persuading the Council to allocate them space in the New Market.
Thereafter, two claims were brought against the Council to challenge the Council's communicated decision by the decision letter refusing to give them space in the New Market (“the decision”). The first claim was brought by A1 Veg Limited (“A1 Veg”), which is a wholesale supplier of fruit and vegetables and whose Directors are the lessees and who trade from four units at the Existing Market. The second claim has been brought by Giuseppe Agnello and fourteen other people (“the Agnello claimants”) who are either tenants, licensees or the proprietors of business entities, which are tenants or licensees at the Existing Market.
On 18 November 2003, Maurice Kay J ordered that both claims should be listed together as “rolled-up permission and substantive hearings” to be heard as a matter of urgency with expedition. The reason for the urgency is that the Development Agreement is conditional upon the Council securing by 1 January 2004, 80% take-up of executed Pre-Let agreements as otherwise the Development Agreement could be terminated by Kier. It is common ground that if the claimants are successful on their application, the Council may be unable to comply with its obligations.
Because of their urgency, these claims have come on for hearing very speedily. I must pay tribute to the legal teams for all the parties not only for meeting very demanding timetables but also for the clear and cogent written and oral submissions that have been placed before me.
The Tenants’ Association is an Interested Party on both applications and it has adduced evidence and it has been represented at the hearing. Those who have been offered tenancies at the New Market have been joined as Interested Parties in the claim brought by A1 Veg but they have not adduced evidence, made submissions or participated in the hearing. Kier were joined as an Interested Party in the Agnello claim but it has neither filed evidence nor been represented at the hearing.
II The Issues
The claimants contend that the process which led to the decisions under challenge was seriously flawed and conspicuously unfair, resulting in unsustainable decisions to refuse the claimants space in the New Market. The complaints of A1 Veg and the Agnello claimants overlap and between them their submissions are that the decision:-
(1) involved unlawful delegation or abdication of the Council's decision making function to the Tenants’ Association Relocation Committee (“the Unlawful Delegation Issue”);
(2) was tainted by bias through the involvement of a small group of individuals who were members of the Board of the Tenants’ Association (known as the “Relocation Committee”) and who were direct competitors of the claimants for trade and/or for units in the New Market with a direct financial interest in the decision to allocate space in the New Market (“the Bias Issue”);
(3) was procedurally unfair, in that no opportunity was ever afforded to the claimants or other tenants to make representations about the application to them of the criteria for relocation to the New Market; in particular they did not know the case they had to meet and they were never offered any opportunity to deal with negative factors or any information that it was proposing to rely upon in making the Decision, some of which emanated from their direct competitors in the shape of the members of the Tenants’ Association Relocation Committee. The Agnello claimants contend that there were breaches of the rules of natural justice (“the Procedural Unfairness and Natural Justice Issue”);
(4) failed to take into account relevant considerations and/or was in any event Wednesbury unreasonable in refusing space in the New Market to A1 Veg, being one of the biggest and most successful traders in the market that amply satisfied the ‘primary’ criteria of use, financial standing and rent payment record. The Agnello claimants do not make this complaint (“the Wednesbury and Irrationality Issue”);
(5) was defective as no or no adequate reasons were given for the decision as the Council had taken a deliberate decision not to do so (“the Inadequate Reasons Issue”).
The Tenants’ Association contend that the Council's decision under challenge not to give the claimants units in the New Market is not amenable to judicial review....
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