Whitstable Society v Canterbury City Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Dove
Judgment Date15 February 2017
Neutral Citation[2017] EWHC 254 (Admin)
Date15 February 2017
Docket NumberCase No: CO/857/2016

[2017] EWHC 254 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Dove

Case No: CO/857/2016

Between:
Whitstable Society
Claimant
and
Canterbury City Council
Appellants

Daniel Stedman Jones (instructed by Richard Buxtons) for the Claimant

James Goudie QC and Edward Capewell (instructed by Canterbury City Council Legal Services) for the Defendant

Hearing dates: 12 th– 14 th December 2016

Mr Justice Dove

Introduction

1

This case concerns actions taken by the defendant in relation to their ownership of a former outdoor roller skating rink adjacent to the seafront at Whitstable, known for the purposes of these proceedings as the Oval Chalet. On 11 th December 2014 the defendant's Executive resolved to authorise its Head of Property to conclude a sale of the Oval Chalet and on 21 st January 2015 a contract for this sale was entered into. Both of those actions are the target of these proceedings.

2

The challenge is based upon five grounds. Ground 1 is that the notification and consultation proceedings required in relation to open space land owned by a local authority ought to have been gone through in respect of the sale of the Oval Chalet. Ground 2 is that the contract which was entered into was ultra vires the resolution made on 11 th December 2014 and the contract should therefore be quashed. Ground 3 is the contention that the business of the Executive on 11 th December 2014 was improperly and unlawfully advertised in breach of the relevant requirements of the Local Government Act 1972. Ground 4 is the contention that the contract for the sale of the land was entered into at a value which is less that the best which could reasonably been have been obtained for the land and therefore in breach of the relevant legal requirements under the Local Government Act 1972. Finally, by Ground 5 the claimant contends that the defendant was in breach of the Public Sector Equality Duty when they reached the resolution which they did and, consequently, entered into the contract for the sale of the land.

3

The structure of this judgment is as follows. Firstly, I propose to set out the history of the Oval Chalet up to the point in time when the defendant commenced consideration of the disposal of the land in 2013. I then propose to set out a narrative of what occurred from 2013 onwards including the history of these proceedings. I shall then deal with each of the Grounds in turn setting out the relevant legal principles and my conclusions in respect of each of those Grounds. Finally, I propose to turn to the question of whether or not in all of the circumstances relief should be granted to the claimant in the event that I am satisfied that any of the Grounds are made out. I am grateful to all those who were involved in the preparation of this case for the hearing, and also wish to thank counsel for their helpful and focussed submissions.

History of the Oval Chalet

4

The Oval Chalet is part of a wider area of land in Whitstable bounded by Sea Wall in the west and Sea Street in the east. The surface of the Oval Chalet site is below the level of Sea Wall and at various times steps and a ramp have been provided in order to permit pedestrian and vehicular access to it. Beyond Sea Wall is Reeves Beech and the seafront. From about 1914 the Oval Chalet was used as an outdoor roller skating rink together with associated tea rooms. Adjacent to the Oval Chalet site to the south and east is an area which was originally part of a single ownership and used as an indoor roller skating rink for a period of time prior to the Second World War. At some point before 1944 this southern and eastern part of the wider site which is enclosed by a building became separated from the ownership of the Oval Chalet and known as the Tile Warehouse.

5

In 1944 the executors of the estate of Walter Reeves entered into negotiations to sell the Oval Chalet to a local business known as Rybar Laboratories Ltd ("Rybar"). During the course of these negotiations Rybar were approached by a local councillor and as a result a letter was written to Whitstable Urban District Council ("WUDC"), who were the relevant local authority at the time in the following terms:

"We refer to the Oval, Whitstable and our professional purchase through Messrs. J.T Reeves of this site for the sum of £300. When this purchase was made by us we were not aware that the Council had any interest whatever in this property. We now learn, however, through Councillor Bartlett that negotiations were entered into some months back by you through him, and that as far as he was concerned he believed that Mr. Franklin of Messrs. J.T. Reeves had practically agreed a price and that nothing remained except the difficulties surrounding the transfer of the property to the Council. Mr. Bartlett did us the honour of calling on us this morning and we are satisfied that it is our duty and pleasure to withdraw from this purchase in favour of the Council provided that the Council pay no greater sum than that agreed by us namely £300, and that the property is developed and kept as an open space in the interests of the aged of the town."

6

On 18 th December 1944 the minutes of the Town Planning and Public Works Committee of WUDC recorded the following resolution:

"9/33 The Oval

The Chairman of the Committee reported upon negotiations undertaken for the purchase of The Oval site and stated that Messrs. Rybar Laboratories Ltd., had agreed to cancel their negotiations for the purchase of the site, subject to the property being developed and kept as an open space in the interests of the aged of the town.

Resolved – That if approved the purchase price of The Oval be included in the Draft Annual Estimates for the next financial year." (The text struck through reflects the original document)

7

On the following day, 19 th December 1944, the Acting Clerk to WUDC wrote to Rybar in the following terms:

"I am in receipt of your letter of the 18 th instance, and have to inform you that your letter of the 5 th instant was duly submitted to the Town Planning and Public Works Committee of my Council yesterday, when it was resolved that I should convey to you my Committee's thanks for your public-spirited action in connection with the conveyance of the above property, and to state that the purchase of The Oval at £300 will be carried through by the Whitstable Urban District Council, and that the property will be developed and kept as an open space by them."

8

Pursuant to this exchange of correspondence, on 1 st May 1945 the executors of Mr Reeves' conveyed title to the land to WUDC. Within the conveyance there are no covenants entered into which restrict the use of the land, nor is there anything within the conveyance which stipulates the purpose for which WUDC were acquiring and proposed to hold the land.

9

On 29 th April 1946 having advertised the premises for letting purposes WUDC resolved to grant a lease of the Oval Chalet to a Mrs Comber from 1 st June 1946 to 1 st March 1947. The purpose of the letting was to enable the Oval Chalet to be used as a "good class tea rooms and during winter months as a Youth Club". No plan of the premises or the land which was let exists as part of the archive in relation to this or indeed any of the other land agreements until the subsequent agreement reached between WUDC and the Whitstable Yacht Club ("WYC") to which I shall turn below.

10

On 17 th February 1947 Mrs Comber wrote to WUDC asking, amongst other matters, whether they had any thoughts about what she described as the tiled area adjoining the Oval Chalet and which was, as she described, "untidy and unused". She was also seeking a renewal of her lease. It seems that the lease to Mrs Comber was not renewed and in March 1947 WUDC are recorded in committee minutes as resolving to inform the incoming tenant, a Mr Collins, that "he may have the use of the Oval Area for purposes in connection with his café business…if he is prepared to execute, at his own expense, the work of clearing and tidying the site".

11

It appears that at some point in 1947 an offer to lease the Oval Chalet was accepted from a Mr Thomas for the purposes of a snack bar selling teas, ice cream, sweets and fancy goods. On 28 th April 1947 WUDC's clerk wrote to a Mr Bennett, a resident of Sea Wall the adjacent street, as follows:

"In reply to your letter of the 29 th instant. I have to inform you that arrangements are being made with the new tenant of the Oval Chalet for the paved area to be cleaned and tidied with a view to its being used in connection with his catering business, i.e. setting it out with tea tables and chairs.

It is proposed to erect a new boundary fence along Sea Wall.

Apart from this, I am not aware of any immediate plan in the Council's programme involving the development of this property."

12

In 1947 it appears from committee records that WUDC seem to have had some internal discussions about the future development of the Oval Chalet site. By 1950 the site had been let again to a Mr Mann. There is within the archive a draft lease which it appears from correspondence was executed and sent to Mr Mann, which contains within it a covenant of quiet enjoyment of the premises in his favour. The correspondence shows that after the lease had been entered into Mr Mann raised complaints about parking in the Oval Chalet obstructing access to his café. WUDC wrote to Mr Mann explaining that they were prepared to permit parking for Mr Mann's café patrons in what is described in the correspondence as the yard. It appears a reasonable inference that is a reference to the open part of the site which had previously been used for roller skating.

13

The claimant has produced witness evidence from local residents who recall using the site during the 1950's and the currency of Mr...

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