R Victoria Harvey v Leighton Linslade Town Council
| Jurisdiction | England & Wales |
| Judge | Dight |
| Judgment Date | 15 February 2019 |
| Neutral Citation | [2019] EWHC 760 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2538/2018 |
| Date | 15 February 2019 |
[2019] EWHC 760 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
HIS HONOUR JUDGE Dight CBE
(Sitting as a Judge of the High Court)
CO/2538/2018
Ms V. Harvey appeared in Person.
Mr J. Holbrook (instructed by Devonshires Solicitors LLP) appeared on behalf of the Defendant.
I have before me two applications. First, a substantive application for judicial review and, secondly, an application issued on 6 February 2019 for an order pursuant to CPR 46.19 to set aside or vary a costs capping order made on the grant of permission to seek judicial review. I will turn to the application in respect of the cost capping order after giving judgment in the substantive application.
The application for judicial review is brought with permission of Mr Richard Clayton QC, sitting as a deputy High Court judge, on 24 August 2018. By this application, the claimant challenges the decision (“the decision”) of Leighton Linslade Town Council (“the Council”) made on 12 March 2018 in respect of revised market pitch fees or rents at the market held in Leighton Buzzard town centre and known, as I understand it, as the Leighton Buzzard Market (“the Market”).
The essence of the claimant's case is that the decision is unlawful because a fair process of consultation in respect of the alteration in market pitch fees brought about by the decision did not take place in accordance with the principles set out in R v Brent London Borough, ex parte Gunning [1985] 84 LGC 168. I will turn to that decision in due course.
The defendant submits that in essence, first, there was no duty to consult over the changes in the fees before they were determined, on the facts of this case. Secondly, in any event, the duty was adequately discharged and, thirdly, if the duty was not adequately discharged, the Court should not grant relief in any event.
I want to mention the claimant, if I may, before I move on. I want to commend her. She is a local citizen, not a market trader, raising an issue of local importance as was recognised by Mr Clayton's order. She has some serious medical conditions, which I need not set out in detail in this judgment, which makes her heavily reliant on the Market, she tells me. It is of great importance both to her and to others in the community. She has represented herself throughout these proceedings and has demonstrated not only that she has a comprehensive knowledge of the factual material which comprises the background to this case, but also an impressive understanding of the relevant legal principles to be derived from the case law, which she has cited both in the course of her skeleton argument and in oral submissions. She was able to cope well with questions from the Bench about the application of those principles. The local market traders can be rightly proud of their advocate.
While I have read all the material which the claimant has provided me with, including the statements of local people as to the impact of the decision and a significant number of the reported cases to which my attention has been drawn, I will not have time in this short judgment to refer to all of them, but that does not mean that I have not taken them into account in reaching my conclusion. The decision was not, as I read it, to increase pitch fees for everybody, but to provide for a system of differential charges for permanent as opposed to casual traders and to give discounts for longstanding attendance by traders at the Market. Pitch fees themselves had not been increased since 2012 and, as I read the evidence, a variety of different rates were in place until 2017.
The context of the decision is that there had been an increase in the standard rate of fees on 24 July 2017 and the creation of a uniform approach to charging for pitches. That decision is contained in the minutes of the Culture and Economic Services Committee for the Council of 24 July 2017. In respect of market stall or pitch fees, the Committee resolved in essence, first, to standardise pitch size and the method of charging, moving from imperial measurements to metric measurements. Secondly, they altered the method of calculating fees, which had previously been by measuring the frontage of the pitch, to calculating the square metreage occupied by the pitch Thirdly, they standardised the rate at £19 for a three square metre pitch. Fourth, there was to be no increase for existing traders until April 2018. Fifth, there was to be an incremental increase thereafter. There was to be a review in six months or so. That decision is not the subject matter of challenge before me although it is the root and starting point of the decision which is challenged.
The decision itself is that dated 12 March 2018, again recorded in the minutes of the Culture and Economic Services Committee of that date, from which it can be seen that the Committee resolved, first, that casual market traders, as opposed to permanent traders, should pay a higher rate per standard sized pitch at £23 per pitch rather than £19 per pitch. Secondly, that addition square metreage space beyond the standard size should be charged at 50p per square metre. Thirdly, that there should be what is described as “a long service discount” for permanent but not casual traders in respect of the whole pitch occupied by that trader according to the number of years that they had been at the Market, ranging between five per cent at the bottom end for those who had been there five years and 20 per cent at the top end for those who have been there for 20 years or more. Lastly, they re-endorsed the decision to increase the rents for permanent traders by increments of no more than ten per cent per month at a rate of no more than an upper limit of £4 per pitch. Those are the two relevant decisions.
The claimant asserts that in effect the earlier decision was overtaken and that the 2018 decision was a fresh decision on the level of rents. She says that that is apparent from some of the material in the bundle which she took me to, including various emails towards the end of 2017 when there were discussions about the rates of pitch fees. She says therefore that the second decision itself was a full review of the pitch fees and therefore of the first decision and that therefore there is no need to challenge the first decision. The defendant says that the second decision was just the implementation of a discount applied to the rates decided on in the first decision. The evidence, which I will come to in due course, shows in my judgment that the defendant is correct on this point that the analysis of the two decisions is that the second decision was simply tweaking the first decision, providing for a discount in relation to rates that had already been resolved on. The minutes of the two decisions, which I have made reference to, in my judgment justify that conclusion. The defendant submits that the irony is that if the claimant succeeds in her application the result will be that the second decision is quashed, that discounts would be removed and that fees would increase for a number of traders.
There is considerable historical background to this market, which I will briefly mention. It is apparent that the Market is first mentioned in the Domesday Book in 1086. The right appears to have been recognised as a royal monopoly enjoyed by the then lord of the manor and passed on as a property right, ultimately by conveyance in 1219. There has been reference to what is perhaps a red herring. In 1208 it is apparent that King John granted a charter to his Treasurer, William of Ely, in respect of a specific market, but there are doubts whether this is the source of the monopoly right which has ultimately been enjoyed by various local authorities in succession. There is now a weekly market on Tuesdays and Saturdays consisting of permanent traders, those with a regular pitch, and casual traders who have no guaranteed pitch and now pay a higher tariff in respect of their occupation of their pitch on the Market.
Bringing us into the present century, the Market management was delegated to the defendant in 2011 from the Central Bedfordshire Council, but the Market rights themselves, as I read the material before me, remained with the Central Bedfordshire Council. It was only the right to manage the Market that moved. The documents show that the Council is to pay a fee of £150,000 to CBC over a period of six years. In taking over the management of the Market, they came up with a three-year business plan in December 2011, which was intended to invigorate the Market and lead to a better service for the local community.
The Market until that time had been managed by a business known as Wendy Fairs, whose agreement with the previous owners of the Market expired on 26 May 2012. At about the same time, the...
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...be set aside where there has been material non-disclosure at the point of application: R (Harvey) v Leighton Linslade Town Council [2019] EWHC 760 (Admin) at para 112. However, this is not such a case. What the Claimant seeks is an order which permits it to recover – in respect of costs al......