R v Bolsover District Council and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE KEENE |
| Judgment Date | 03 October 2000 |
| Judgment citation (vLex) | [2000] EWHC J1003-6 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1450/2000 |
| Date | 03 October 2000 |
[2000] EWHC J1003-6
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
Royal Courts of Justice
The Strand
Mr Justice Keene
CO/1450/2000
MR D MANLEY (Mr M Carter 3.10.00) (Instructed by Messrs Taylors, Lancashire BB1 7JN) appeared on behalf of the Applicant.
MISS M COOK (Mr Brown 3.10.00) (Instructed by Bolsover District Council, Derbyshire S44 6NF) appeared on behalf of the Respondent.
The applicant in this case owns a parcel of land in Clowne, Derbyshire, within Bolsover District. That parcel is about 4 1/2 acres in extent on the north side of a road called Clune Street. Adjacent to this land, on the west side, is a recreation ground owned by the respondent district council and occupied and used by the Clowne Parish Council. That recreation ground enjoys access to Clune Street via a short spur road.
Outline permission for housing on the applicant's land was granted in March 1990 but in due course that permission expired. A further outline permission for a residential development was granted by an inspector on appeal by a decision dated 11 April 1997. The inspector noted that any access would have to be from Clune Street and he imposed a condition to that effect, clearly envisaging access across the council's land to the existing spur road. Details of means of access were a reserved matter on that planning permission but the housing site enjoyed no direct access itself to Clune Street.
By a resolution dated 24 January 2000 the respondent's executive committee decided that it would not sell the 0.32 acres of recreation land required for the access to the applicant's land. It is that decision which is now challenged.
The principal basis of challenge is an argument of legitimate expectation, either that the respondent would sell the land needed for access or, alternatively, that the respondent would at least give the applicant an opportunity to make representations on the decision whether or not to sell. It is also contended that the respondent was under a duty to give reasons for its decision and that it has failed to do so adequately. The respondent for its part denies that there was any legitimate expectation of either kind, but it also contends that the decision of 24 January 2000 was not a public law matter and is therefore not susceptible to judicial review. As to reasons, the council disputes the duty to give any reasons but asserts that it gave adequate reasons in any event. The grounds in Form 86A include a challenge based upon an alleged improper purpose to the respondent's decision, but that has been expressly abandoned.
As so often with arguments about legitimate expectation, it is necessary to go back in time to a certain extent when considering the facts. In addition the issue as to whether this is a public law or private law matter cannot be resolved without looking at the facts in some detail.
One can begin back in 1989 when a company called Wilcon Homes Northern Limited ("Wilcon") applied for residential planning permission on the applicant's land of which Wilcon were prospective purchasers. Before permission was eventually granted in 1990, that company applied to the respondent authority to purchase the land needed for access. The respondent resolved on 19 June 1989 that:
"the access land at Clune Street, Clowne be sold to Wilcon Homes Limited subject to terms and conditions to be negotiated by the District Valuer including the appropriate requirements of Clowne Parish Council regarding the re-location of recreational facilities."
So there was at that time a conditional decision by the respondent to sell the access land to Wilcon Homes Northern Limited. However in May 1990, as a result of investigations into the physical stability of the housing site, Wilcon decided not to proceed further with the project.
Another development company appeared on the scene in 1991, Cannon and Jones Limited. The respondent instructed the District Valuer to negotiate with that company's valuer over the access land. But, on 28 October 1991, the respondent's Finance and Land Committee resolved that consideration of the proposed sale be deferred pending receipt of the parish council's views and requirements. A further company then also expressed interest and the committee resolved on 9 December 1991:
"that the Chief Executive Officer be authorised to discuss the sale of the land at Clune Street, Clowne, with both interested parties and to make them aware of the Council's intention to fully co-operate with the reasonable wishes of Clowne Parish Council in respect of the sale and a further report be submitted to the Committee."
It was in fact only Cannon and Jones Limited who put forward proposals for solving certain problems identified by the parish council. On 27 April 1992 the Finance and Land Committee of the respondent resolved to recommend that the access land be sold to that company on terms and conditions agreed and subject to:
"1. agreement being reached with the Parish Council and the District Council for the resiting of the Parish Council football pitch prior to commencement of any works on site, after a site meeting with the Parish Council and other interested parties,
2. The Council reserve a right of access over the land being sold and require also a similar right of access over the land as shown shaded on the plan contained in the report."
However, in October 1992 Cannon and Jones Limited informed the respondent that it could not proceed with the purchase on the terms set out in the District Valuer's report because of the change in the financial climate and so it wished to renegotiate. The respondent's committee decided in November 1992 that it would not renegotiate the terms. The company's response, communicated by a letter dated 8 February 1993, was that in those circumstances it could not proceed.
That in effect was the end of what one might call the first phase. I so term it because nothing much of significance seems to have taken place then for over four years. A further planning permission for housing already referred to was granted on appeal in respect of the applicant's land in April 1997 and the applicant's agent then wrote to the respondent's chief executive on 28 April 1997 to say that he had been instructed to "open negotiations …. for the purchase of the access land".
The respondent's response dated 8 May 1997 was expressly marked "Subject to Contract". It stated:
"Whilst this matter has not been considered by Committee recently, you should be aware that previously it had been resolved that:—
1. any disposal of the land would be subject to agreement being reached with the Parish and District Councils, for the re-siting of the football pitch, prior to site works commencing,
2. the Council reserve a right of access over the subject land and the spur road from Clune Street."
The letter added that the District Valuer would be instructed to negotiate.
The District Valuer subsequently set out the terms he was prepared to recommend to the council in a letter marked "Without Prejudice" and "Subject to Contract". The applicant's agent replied to the District Valuer on 26 July 1997, broadly agreeing those terms but emphasising that this was subject to contract. He underlined those words in his letter. The following correspondence was all marked in a similar way including a letter dated 19 September 1997 from the respondent to the applicant's agent which referred to the parish council's interest in the access land and stated:
"Prior to any disposal being considered, I shall require the Clowne Parish Council to surrender their interest in the land and for agreement to be reached in respect of the relocation of the football pitch."
Before the parish council's views had been made clear, the respondent placed its draft local plan upon deposit. As it failed to show the applicant's land allocated for housing, an objection was lodged on his behalf. A report was duly written by a planning officer to the Local Plans Committee some time in early 1998. Some reliance is placed by the applicant on this report. It noted that planning permission had been granted for the applicant's land and therefore:
"It is a commitment and now the council has agreed to release the access strip to the site it is likely that development will begin within the plan period."
So the report recommended that the settlement framework for Clowne be amended so as to include the applicant's land. That was approved by the committee. The parish council set out its views about the works needed if the access land were to be sold and negotiations continued during 1998 and on into 1999. Eventually, in August 1999, the clerk to the parish council wrote to say that the proposed development would be of maximum disturbance with minimal gain, but that the decision would rest with the district council by whose decision the parish council would abide. The agents for the applicant began pressing the respondent for a decision.
On 9 December 1999 the Economic Development Officer of the respondent replied by fax saying:
"I note your client would like an early determination of his request to purchase some freehold land owned by Bolsover District Council.
You will recognise my role is to seek such early determination from my client —not to deliver a sale."
That fax was marked "without prejudice and subject to contract" as was further correspondence by letter and fax passing between the parties up to the time in late January 2000 when the applicant's agents were notified that the council's Executive...
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