Theresa Blake and Others v London Borough of Waltham Forest
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Simler DBE |
| Judgment Date | 07 April 2014 |
| Neutral Citation | [2014] EWHC 1027 (Admin) |
| Date | 07 April 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6173/2013 |
[2014] EWHC 1027 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Simler DBE
Case No: CO/6173/2013
Mr Jamie Burton (instructed by Irwin Mitchell Solicitors) for the Claimants
Ms Eleni Mitrophanous (instructed by L B Waltham Forest) for the Defendants
Hearing dates: 26 February 2014
This is an application for judicial review of a decision dated 17 April 2013, by London Borough of Waltham Forest (referred to below as 'the Council') terminating Christian Kitchen's licence to operate a "soup kitchen" at the Mission Grove car park, London E17 (referred to below as 'Mission Grove'), a Council owned car park, open 24 hours a day. Christian Kitchen, the Third Claimant, is a registered charity, whose trustees organise the soup kitchen (used, inter alia, by the First and Second Claimants). It is staffed entirely by volunteers from a consortium of local churches, preparing and serving hot meals and hot drinks to homeless vulnerable people in Walthamstow for more than 25 years. It provides about 80 hot meals per night and is open for one hour seven nights a week, all year round. Although the Council no longer provides funding (and has not done for many years) it has supported the soup kitchen by permitting Christian Kitchen to use Mission Grove for more than 20 years. The soup kitchen is a well-known local institution attracting praise from politicians and is strongly supported locally. However, anti-social behaviour (including street drinking, violent and intimidating behaviour) has been associated with users of the soup kitchen (albeit its extent is hotly contested) and Walthamstow High Street is undergoing substantial physical regeneration works leading the Council to conclude that the licence at Mission Grove should be revoked.
It is common ground that the Council was neither providing the soup kitchen service, nor was it under any mandatory duty to facilitate the continued operation of the soup kitchen, either at Mission Grove or elsewhere and was legally entitled to terminate the licence at Mission Grove (subject of course to compliance with any public sector equality duty engaged by such a decision). It is also common ground that the Council's decision to terminate the licence engages the Public Sector Equality Duty ("the PSED"). Although under no obligation to do so, the Council offered an alternative site for relocating the soup kitchen, on Walthamstow Avenue (referred to as "the lay-by at Crooked Billet") as a way of mitigating the impact of the revocation of the licence at Mission Grove. Christian Kitchen has rejected the alternative site offered on grounds of safety and accessibility. Despite efforts by Christian Kitchen to find its own suitable, alternative site, it has not been able to do so; but has been permitted by the Council to continue to operate from Mission Grove pending the outcome of this judicial review challenge.
The original grounds for judicial review challenged the Council's revocation decision on a wider basis than by reference to the PSED. In particular there was a rationality challenge in relation to the alternative site offered; a challenge to the reasonableness of the rejection of the Town Hall complex car park site proposed by Christian Kitchen as a suitable alternative location; a challenge to the failure to consider alternative means of addressing alleged anti-social behaviour in areas close to Mission Grove; and a challenge to the decision on the basis that there was no adequate evidential foundation for the conclusion that such behaviour was caused or contributed to by the presence of the soup kitchen. Permission having initially been refused on all grounds, at a renewed permission hearing the Claimants were given permission (by Mr John Bowers QC, sitting as a Deputy) to proceed on the PSED ground alone, and subsequent clarification established that permission was limited to paragraphs 45 to 49 and 51 of the claim form.
Despite the limited scope of permission, at the beginning of the hearing, the Claimants sought permission to rely on expert evidence in the form of a report by Clive Ashby of CA traffic solutions dated 21 January 2014 (served on the Council on 29 January 2014). The report addresses the suitability of the lay-by at Crooked Billet as an alternative location for the soup kitchen as a way of mitigating the impact of its decision to revoke the licence. The Claimants contend that issues regarding safety and accessibility of this alternative site are directly relevant to the question whether the Council complied with the PSED when making its decision. Accordingly whilst expressly disavowing any reliance on the report to maintain that the lay-by at Crooked Billet is unsafe for a soup kitchen location, the Claimants maintain that the expert report is relevant, admissible evidence validating Christian Kitchen's view that the alternative site is unsafe as justifiable and not frivolous. Moreover the Claimants maintain that they are relying on their expert evidence in exactly the same way that the Council relies on its officer evidence that the alternative site is safe. This application was opposed by the Council who contest the conclusions of the expert and the relevance of the evidence in any event. The Council maintain that the assessment of suitability of the alternative site offered is for the Council to determine subject only to the requirement of reasonableness. Since permission to argue that the offer was unreasonable has been refused, it is not open to the Claimants to resurrect this ground by relying on this expert evidence; the expert evidence seeks impermissibly to question the Council's opinion regarding safety, and is irrelevant so ought not to be admitted.
Given that the Claimants have permission to argue that the Council's approach to the PSED was flawed for failure to engage with the risk that the soup kitchen would close because of practical concerns raised by Christian Kitchen, the expert evidence is relevant to the validity of Christian Kitchen's views and to demonstrate that Christian Kitchen was justified in reaching these views. However, the evidence cannot be relied on to second guess the decision-maker's opinion; and it is no part of this court's role on this application to determine questions of safety. Subject to those limitations, I concluded that the evidence might be of assistance and in the absence of any identified prejudice to the Council, I gave permission for the Claimants to rely on it. In the event, given a concession made on behalf of the Council it was not relying on any argument that the concerns expressed by Christian Kitchen are unreasonable or frivolous, I have not found it necessary to refer to Mr Ashby's report.
The Claimants contend that the decision to revoke the licence at Mission Grove means that the soup kitchen will close because no suitable alternative site has been identified. This being the case, the Council should have considered the likely impact of its decision on vulnerable, disabled and elderly users of the soup kitchen on that basis, rather than on the wholly unrealistic basis that soup kitchen users would suffer little or no detriment because the soup kitchen could relocate to the lay-by at Crooked Billet. The failure to do so was a failure to discharge the PSED and renders the decision unlawful. Put simply, the Claimants contend that there was no proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them and as such the Council could not be clear precisely what the equality implications would be of its decision.
The Council denies that it has acted unlawfully. It maintains that the decision to revoke the licence was not contingent on an alternative, suitable site being offered so that any criticism of the offer of the alternative site is irrelevant. Moreover the criticism of the alternative site offered relates to its safety and accessibility which are matters for the Council to determine subject only to questions of reasonableness (not in issue on this judicial review application). In any event the Council maintains that it plainly complied with its public sector equality duty.
The factual background
I have been provided with a number of witness statements and exhibits on both sides, all of which have been considered carefully. Even if not expressly referred to, the parties can be assured that all the evidence has been considered.
On behalf of the Claimants, I have received four witness statements together with exhibits from Norman Coe, chair of the Christian Kitchen Trustees, who acts on a voluntary basis. He provides supervision and management of the soup kitchen and is employed as a specialist support worker for the Branches Hostel for the street homeless in Walthamstow. He regularly visits the soup kitchen each week and knows most of the street homeless people in the area. There are three statements from Theresa Blake and one from Marlon Morrison, the First and Second Claimants. I also have a witness statement from David Williams, a trustee of Christian Kitchen since May 2013 and a volunteer at the soup kitchen for over 17 years. For the Council I have three witness statements from Keith Hanshaw. He is the Divisional Director Public Realm in the Council's Environment and Regeneration Directorate and had delegated authority to determine the licence at Mission Grove. His...
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