England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE BEAN)

		Royal Courts of Justice Strand London, WC2
		19th September 2006

1. LORD JUSTICE LAWS: This is an application for permission to appeal against a judgment of Bean J, given in the Administrative Court on 23rd June 2006, by which he refused judicial review permission to challenge a decision of the Lambeth Borough Council, taken on 22nd February 2006, to make an application to the Secretary of State for the transfer of housing stock on the Clapham Park Estate to a company by name Clapham Park Homes Limited. For reasons I have indicated in the course of argument I am going to adjourn the application, so I will just explain the history quite shortly.
2. Following a bid supported by the Lambeth Borough Council for what is called New Deal for Communities Funding for the Lambeth area, a social regeneration grant was awarded, as I understand it, by central government to Clapham Park for the regeneration of the community there.
3. In June 2001 an institution called the Clapham Park Project was constituted as a limited company and a master plan to revitalise the area was put in hand. After consultation, a decision was made that a stock transfer of the local authority's properties on the Clapham Park Estate to a new community housing association would be the most viable way of achieving the aim of the master plan. There is then a history of consultation which the applicant considers to have been unsatisfactory.
4. For reasons into which I will not go at the moment, the matter culminated in a resolution on 13th February 2006 by the local authority executive to approve an application being made to the Secretary of State for consent to the transfer. Such an application was required by force of section 106A and schedule 3A to the Housing Act 1985 as amended.
5. On 20th February, a week later, judicial review papers were lodged and an interim injunction was sought but refused. On 22nd February 2006 the full council met and, on the face of the papers, then resolved that an application be made to the Secretary of State for consent for the transfer of the land and properties included in the Clapham Park NDC area to Clapham Park Homes.
6. The matter thereafter went forward to the Secretary of State, to whom solicitors then instructed by the applicant wrote on 19th June 2006. The Secretary of State gave consent to the transfer later, on 23rd June.
7. The judicial review proceedings meanwhile came before Henriques J on the papers. He refused permission.
8. The case was restored before Bean J, who advanced the date of the hearing because of the perceived urgency of the matter. As I have indicated, he refused judicial review permission. He indicated in the course of his judgment that although the judicial review papers had been lodged on 20th February, they were apt to include a complaint relating to the 22nd February meeting.
9. In fact, what Mr Akinsanmi, and a large number of those who think as he does about this matter, desire is in effect an order to quash or set aside the decision of the Secretary of State to approve the consent. There are all sorts of procedural and formal difficulties in relation to that. As the brief chronology I have set out shows, the consent was given quite a long time after the judicial review was launched.
10. Bean J dealt with matters that had been raised in the solicitor's letter. He thought there was nothing in the points there taken. His reasoning about that is at paragraphs 9 to 16 of his judgment. I have say it seems to me that everything he says there is entirely correct.
11. On reading these papers yesterday I could not discern any legal error in the council decision of 22nd February 2006, or anything to infect the Secretary of State's decision on 26th June 2006. This morning, however, Mr Akinsanmi has produced some new material. He, first of all, has provided a report by the Advertising Standards Authority upon certain complaints made about advertisements, in the shape of posters put out by Clapham Park Homes at a time later than the statutory consultation. The ASA upheld complaints, and I summarise, to the effect that in certain particular respects the adverts might be regarded as misleading. I cannot see that those matters, though naturally of some concern to Mr Akinsanmi, could affect the legality of what had been done by the council or the Secretary of State.
12. What seems to me to be more significant is first that there is evidence in the shape of a witness statement by the leader of the Conservative Group in the Lambeth Council, Mr Whelan, to the effect that on 22nd February there was a guillotine procedure at the council meeting. The guillotine fell after a lengthy debate on the council's budget. That was at 10.00 p.m. The item concerning the transfer of the housing stock had not been reached. It was item 7.2. Mr Whelan says in his statement that:

"The mayor, Lib Dem, discussed the items before 7.2, announced 'we are resolved then' and moved straight to the items which had been tabled. Item 7.2 was not announced, discussed or voted on."

13. There is secondly a statement in the bundle, which appears immediately after the formal minutes of the relevant council meeting, from a lady by name Phillipa Jane Stone. She was at the meeting on 22nd February. She says the item concerning the Clapham Park transfer was not announced or voted on. She is not, as I understand it, a councillor, but a member of the public who, like Mr Akinsanmi is opposed to the transfer.
14. The letter to the Secretary of State of 19th June, on which as I have said Bean J passed comment, did not include any complaint that the crucial item on the council agenda had not even been voted on, nor does that matter appear in the very full written argument that Mr Akinsanmi has prepared, I think in person, in support of his application for permission to appeal. It is quite right that that document does refer to the guillotine procedure under paragraph 1, following a heading "leave to appeal should be granted on the following ground", but there is no suggestion there that there was not actually any vote.
15. In addition, it is right to say -- and Mr Bhose for the local authority, who has very helpfully addressed me this morning, points out -- that the formal minutes of the meeting of 22nd February suggest, indeed effectively state, that the matter was voted on. At any rate, this appears under the heading "7.2 Clapham Park Stock Transfer Resolve":

"That an application is made to the Secretary of State for consent for the transfer of the land and properties included in the Clapham Park NDC area and so forth."

clearly implying that the matter had been put before the council, and, albeit it may not have been discussed because of the guillotine, nevertheless was voted on.

16. The situation is unusual and, to my mind, troublesome. There may be an argument -- I emphasise may, I decide nothing today -- that if there was no vote on 22nd February that circumstance infects the procedure for application being made to the Secretary of State for his consent and ultimately the grant of that consent. As I have already said, the applicants face formidable difficulties. I do not understand the Secretary of State's decision to be formally within the frame of the judicial review application, although certainly Mr Akinsanmi would have me treat it as such.
17. In the circumstances, and with a good deal of misgiving -- because I think that I should make it clear to the applicants that their hopes are not to be raised -- I have decided that it would be right to ascertain whether some more information that might resolve what happened on 22nd February can be obtained. I therefore propose -- as I have said, I have indicated as much already -- to adjourn this application for permission to be restored in front of myself at 10 o'clock one morning as soon as it can be arranged after the commencement of the Michaelmas term; so it will be the week after next, or possibly the week following that. At that hearing the court will be assisted by Mr Bhose, if he appears again on behalf of the council, armed with such information as the council can provide that may resolve this apparent disparity between the two witness statements I have mentioned and the council minutes. I am not indicating that there would necessarily be permission to appeal even if there was no vote on 22nd February. That would have to be decided if that proved to be what had happened. I merely indicate that I have concluded it would be right for the court to seek this further information. The matter will be restored in front of me and on that occasion I will decide whether to grant or refuse permission to appeal. It is highly unlikely that there will be any further adjournments.