R (Island Farm Development Ltd) v Bridgend County Borough Council

JurisdictionEngland & Wales
JudgeMr Justice COLLINS:
Judgment Date25 August 2006
Neutral Citation[2006] EWHC 2189 (Admin)
Docket NumberCase No: CO/2586/2005
CourtQueen's Bench Division (Administrative Court)
Date25 August 2006
Between:
R(island Farm Development Ltd)
Claimants
and
Bridgend County Borough Council
Defendant

[2006] EWHC 2189 (Admin)

Before:

Mr Justice Collins

Case No: CO/2586/2005

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Nigel Jones, Q.C. & Mr David Lawson (instructed by Eversheds ) for the Claimants

Mr Andrew Arden, Q.C. & Mr Christopher Baker (instructed by The Legal Services Department of the Council) for the Defendant

Mr Justice COLLINS:
1

The claimants seek to set aside a resolution by the defendant Council to refuse to sell some land owned by it to the claimants. The resolution in question was made as long ago as 26 January 2005 and these proceedings were instituted on 22 April 2005. It is unfortunate that it has taken such a long time for them to be finally dealt with. Permission was refused on the papers by Sullivan J on 27 May 2005. On 28 September 2005 Mr Michael Supperstone Q.C., sitting as a deputy judge, granted permission on limited grounds.

2

Local authorities can acquire or dispose of land. The only constraint is that any disposal must not (without the consent of the Secretary of State) be for a consideration which is below the best obtainable: see Local Government Act 1972 s.123(2). Decisions in relation to disposal of land may well not engage public law if they are what might properly be regarded as ordinary commercial undertakings. The defendants have not asserted that the decision in issue in this case does not involve public law considerations and so this claim is properly brought in order to seek to overturn the decision.

3

For some years, there has been what is called a Science Park on the edge of the built up area in Bridgend. This has been most successful and has been considered to be a potential attraction for adjoining high technology developments. In 1992, the former Mid Glamorgan County Council purchased for £1.5 million, using funding provided by the Welsh Development Agency (WDA), 19.8 acres of land which had been used as a POW camp during the Second World War and on which was one of the huts used to house prisoners. This was a listed building because of its historical significance in that there had been one of the few successful escapes of German prisoners of war from it. In March 1996, a total of 13.71 acres of further land was purchased for £750,000, £250,000 of which was funded by the WDA. In April 1996, this land became vested in the defendants following local government reorganisation. Thus the defendants own some 33 acres (or about 13.5 hectares). The site is known as Island Farm.

4

This holding is included in an area which has since 1984 been allocated as a specialist site for high technology uses, designed to attract good quality employment and requiring stringent environmental standards. In the current Unitary Development Plan (UDP) that allocation has been maintained. The claimants have planning permission to develop approximately 25 acres, at present farm land adjoining the Science Park and the defendants' land. There is in addition a small area of some 6.5 acres, known as the Merthyr Mawr land, which, though not directly involved in this claim, will be affected by any development which takes place. If the UDP allocation is followed, up to 1300 new jobs could be created, all of which would be of high quality.

5

Island Farm Development Ltd (IFDL) is a wholly owned subsidiary of Macob Projects Limited, itself part of the Macob Group, a major engineering, construction and development enterprise. It has been set up in order to carry out the development of the land which is owned by the second claimant, Berigull Ltd. Berigull has agreed to sell the relevant land to IFDL.

6

Macob has for some time been interested in the possibility of developing the site in question. Mr Philip Morgan, the managing director of Macob Projects Limited, a resident of South Wales who has always looked out for potential development sites, has been responsible for pursuing discussions with the defendants about development of the site. In early 1998 an approach was made on behalf of Macob with a view to an extension of the Science Park. In September 1999 it was apparent that the proposal was not achievable and the defendants were accordingly considering the most appropriate method of marketing the site. The WDA, which had an interest because it had funded the bulk of the purchase of the land by the Council, having learnt that the Macob proposals would not proceed, approached the Council to explore the possibility of a joint development scheme. Various studies were commissioned and carried out and a programme was prepared which envisaged work commencing in 2001 with a view to delivering a high quality business environment. Heads of Terms were prepared and there was to be a joint application for grants from Europe. However, on 13 December 2001, before any positive steps had been taken to implement the programme, the Council learnt by way of an article in the Glamorgan Gazette that the Welsh Rugby Union (WRU) had, in conjunction with Berigull Ltd, 'given the green light' for the construction of a 'sporting school of excellence' on the Island Farm site. In fact, the Council had since early 2001 been aware of the possibility that the WRU would want to place its 'school of excellence' in Bridgend and that the Island Farm site was the proposed venue. It seemed to the claimants that the proposal would appeal to the Council and so was likely to come to fruition and this led Macob to incorporate IFDL to pursue the development.

7

At that time, the Council was controlled by the Labour Party. Its leader was Councillor Jeff Jones. It seems he may have taken the initiative in approaching the WRU and suggesting that the land owned by the Council should form part of the proposed development. It is clear from his subsequent actions that he was very much in favour of what I shall call the WRU development. But it is equally clear that the proposal did not find favour with a substantial body of local opinion and it was not in accordance with the UDP. However, if he did take the initiative, he did so with no formal approval of the Council so that his actions were his own and not those of the Council. Once it was clear that the WRU were keen to have their facilities at Bridgend, the question whether the disposal of the Council's land should be approved to enable such a development to take place was put to a Council meeting held on 30 January 2002. It was resolved, as the minutes record:-

"that, in its role of landowner, negotiations with Berigull Limited and the Welsh Rugby Union be authorised in principle for the potential disposal of the Council's land holding at Island Farm subject to the appropriate legal and property advice being obtained."

As is apparent from its wording, this resolution did no more than permit negotiations and did not indicate that the land would be disposed of or that the scheme was one of which the Council approved.

8

Before going further, I should deal briefly with the UDP. In June 2000 the Council approved a pre-deposit draft version of the plan as a basis for a major public consultation. Inter alia, it was proposed that there should be a number of what were called 'green wedges'. They were described as:-

"anti-coalescence planning policies … intended to complement the proposed strategic Green Belt around Cardiff, and to protect locally sensitive areas of countryside in the County Borough, and its neighbours, from inappropriate and visually intensive developments".

One such wedge (numbered EV11(15)) included all the land owned by Berigull. The consultation produced only two objections to EV11(15), one being on behalf of the family holding a controlling interest in Berigull. It was said that that land was 'suitable to accommodate a major comprehensive development, comprising prestige sporting, leisure and recreational facilities, an hotel, employment uses (Class B1) and residential uses'. A meeting of the Council was held on 23 March 2001 to consider the draft UDP in the light of the responses to the consultation exercise. Shortly before the meeting, Councillor Jeff Jones said that he proposed to move that the Island Farm land be removed from the Green Wedge designation in EV11(15). This was obviously in the light of his discussions with the WRU and his concern that it should be possible for a School of Excellence to be established: indeed, he made it clear that he believed that the door should not be closed for such a development. His motion was carried, and the land was designated as 'white land', that is to say, land which was not allocated for development but not specially protected. The balance of the Island Farm site, including all land owned by the Council and the Merthyr Mawr land and some 17 acres of land owned by Berigull (which has been called the Berigull red land) is designated for special employment. Policy E6(1) identifies the site as one which:

"must be developed to the highest design and environmental standards and [is] reserved specifically for high technology business and manufacturing, research and development and prestige office development, and for no other purpose."

This allocation was in due course upheld by the inspector who conducted the public inquiry into the UDP. There were two objectors to the policy, one being Mr Joseph who, unsurprisingly, because of his interest in the Berigull land, proposed that there should be a 'mixed use development based on a national academy of sporting excellence, on a site which would include the E6(1) land and land to the south'. The other objector was the Campaign for the Protection of Rural...

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