QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|Case No: CO/5244/2003|| THE QUEEN (ON THE APPLICATION OF GIUSEPPE AGNELLO AND FOURTEEN OTHERS, KNOWN AS THE WESTERN INTERNATIONAL CAMPAIGN GROUP)
|- and -
|THE MAYOR AND BURGESS OF THE LONDON BOROUGH OF HOUNSLOW
|- and -
|KIER PROPERTY DEVELOPMENTS LIMITED
|- and -
|WESTERN INTERNATIONAL MARKET TENANTS ASSOCATION LIMITED
|- and -
|Case No: CO/5625/2003||A1 VEG LIMITED
|- and -
|THE LONDON BOROUGH OF HOUNSLOW
|- and -
|WESTERN INTERNATIONAL MARKET TENANTS ASSOCIATION AFI and 36 OTHERS
Crown Copyright ©
Mr Justice Silber:
II The Issues
(1) involved unlawful delegation or abdication of the Council's decision making function to the Tenants' Association Relocation Committee ("the Unlawful Delegation Issue");
(2) was tainted by bias through the involvement of a small group of individuals who were members of the Board of the Tenants' Association (known as the "Relocation Committee") and who were direct competitors of the claimants for trade and/or for units in the New Market with a direct financial interest in the decision to allocate space in the New Market ("the Bias Issue");
(3) was procedurally unfair, in that no opportunity was ever afforded to the claimants or other tenants to make representations about the application to them of the criteria for relocation to the New Market; in particular they did not know the case they had to meet and they were never offered any opportunity to deal with negative factors or any information that it was proposing to rely upon in making the Decision, some of which emanated from their direct competitors in the shape of the members of the Tenants' Association Relocation Committee. The Agnello claimants contend that there were breaches of the rules of natural justice ("the Procedural Unfairness and Natural Justice Issue");
(4) failed to take into account relevant considerations and/or was in any event Wednesbury unreasonable in refusing space in the New Market to A1 Veg, being one of the biggest and most successful traders in the market that amply satisfied the 'primary' criteria of use, financial standing and rent payment record. The Agnello claimants do not make this complaint ("the Wednesbury and Irrationality Issue");
(5) was defective as no or no adequate reasons were given for the decision as the Council had taken a deliberate decision not to do so ("the Inadequate Reasons Issue").
III AMENABILITY OF THE DECISION UNDER CHALLENGE TO JUDICIAL REVIEW
"If there were no statutory requirement that the city council should enter into a contract for its waste disposal operations, and particularly the construction of the incinerator to be the subject of a contract entered into by tender, but if the council had sought voluntarily to enter into a contract by tender deciding to adopt that process of its own volition, then in my view there would be no public law element in such a dispute at all .
I accept that because the statutory powers of the council not to contract by means other than those described in Part II of Schedule 2 of the Act, there is a public law element in this dispute to this extent (but only to this extent): that is a proper subject for judicial review to consider whether the council have complied with section 51(1) and entered into a contract as a result of following the procedure laid down in Schedule 2, Part II of the Act. In my judgment, judicial review has no further place in my judgment in this dispute" (pages 306-307).
"Normally a decision by a local authority to sell or not to sell land which it owns is to be seen as a private law matter unless a public law element is introduced into the decision making process by some additional factor. That is because the starting point is that the local authority, in so deciding, is simply acting as a landowner in such cases and is not performing any public function. There may sometimes be some additional factors present; for example, if the authority has a policy which relates to the retention or disposal of certain types of land, that may make a decision a public law matter (see Pardes House School). A decision to dispose of open space without observing the statutory procedural requirements of section 123(2A) as to advertising the proposal would likewise involve a sufficient public law element. But neither of those factors arises here" (page 812 ).
"63. In my judgment, this argument is wholly unsustainable, at least in respect of the first two claims. Manifestly, the council was not simply acting as a private body when it sought to give effect to its planning policy through the contract. Again, the decision not to permit a change of use, albeit one involving the exercise of discretion under a contract, was taken for the purpose of giving effect to its planning objectives.
64. In my judgment, these factors themselves injected a sufficient public element into the decisions to justify their being subject to public law principles. In any event, I would, with great respect, differ from some of the wider observations of Keene LJ in the Bolsover case, although for reasons I return to below, not the decision itself.
65. In my view, the fact that a local authority is exercising a statutory function ought to be sufficient to justify the decision itself being subject in principle to judicial review if it is alleged that the power has been abused. Nor do I see any logical reason why an abuse of power made pursuant to some policy should be treated differently to one made on a specific occasion" (page 348).
"Unless the source of power clearly provides the answer, the question whether the decision of a body is amenable to judicial review requires a careful consideration of the nature of the power and function that has been exercised to see whether the decision has sufficient public element, flavour or character to bring it within the purview of public law. It may be said with some justification that the criterion for amenability is very broad, not to say question-begging, but it provides a framework for the investigation that has to be conducted" .
"The power being exercised by [the County Council] would have had that public element or flavour .. the fact that the power was being exercised in order to control the right of access to a public market is a most important feature" .
IV THE DELAY ISSUE
"The court observes that the requirement was a proportionate measure taken in pursuit of a legitimate aim. The applicants were not denied access to a court ab initio. They failed to satisfy a strict procedural requirement which served a public interest purpose, namely the need to avoid prejudice being caused to third parties who may have altered their position on the strength of administrative decisions".
"Unless and until the issue is resolved adversely to the rule, the obligation to file the claim form promptly remains a feature of English law, in my view, and the presence of the word "promptly" in the rule should not be ignored. Those who seek to challenge the lawfulness of planning permissions should not assume, whether as a delaying tactic or for other reason, that they can defer filing their claim form until near the end of the three-month period in the expectation that the word "promptly" in the rule is a dead letter" .
"In my judgment, where a decision sought to be challenged relates to something such as a licensing decision by a licensing authority, in a commercial context, based upon competitive bids from a number of commercial organisations, the duty to make the application promptly is an exacting one. In my judgment this application simply was not made promptly" .
V THE UNLAWFUL DELEGATION ISSUE
(i) Did the Council alone make the decision or was it a decision of the Council and the Tenants' Association?
"The tenants to be reallocated be approved in accordance with the criteria set out in section 6 and authority be delegated to the Head of Project Coordination and Strategic Property, in consultation with the Lead Members for the project, to make decisions as required".
"I am now pleased to recommend that the tenants shown in green on the attached list be approved as the tenants to be relocated to the proposed New Market. The remaining tenants (in red) will be kept under review and, if space becomes available as a result of any of the "green" tenants not wishing to proceed will be reconsidered for space in the proposed market".
(ii) What was the role of the Tenants' Association or the Relocation Committee in the Decision-Making Process?
VI THE BIAS ISSUE
(a) in order to determine whether there was bias in a case where actual bias is not alleged "the question is whether the fair-minded and informed observer, having considered the facts would conclude that there was a real possibility that the Tribunal was biased" (per Lord Hope of Craighead in Porter v. Magill  2 AC 357 at 494 ). It follows that this exercise entails consideration of all the relevant facts as "the court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased" (ibid ).
(b) "Public perception of a possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v. Johnson  200 CLR 488, 509 at paragraph 53 by Kirby J when he stated that "a reasonable member of the public is neither complacent nor unduly sensitive or suspicious"" (per Lord Steyn in Lawal v. Northern Spirit Limited  ICR 856, 862 ).
(c) in ascertaining whether there is a case of unconscious bias, the courts must look at the matter by examining other similar analogous situation. "One does not come to the issue with a clean slate on the contrary, the issue of unconscious bias has cropped up in various contexts which may arguably throw light on the problem" (per Lord Steyn in Lawal v. Northern Spirit Limited (supra), 862 ).
(d) the approach of the court is that "one starts by identifying the circumstances which are said to give rise to bias .. [a court] must concentrate on a systematic challenge and apply a principled approach to the facts on which it is called to rule" (per Lord Steyn in Lawal v. Northern Spirit Limited (supra) 864-5 ).
Three Preliminary Points
Discussion of apparent bias in relation to A1 Veg
(a) the sources of important information to the Council, which was the decision-maker in this case, concerning A1 Veg's application for a unit in the New Market, were some members of the Relocation Committee, who were people (i) whose businesses of acting as wholesalers of European fruit and vegetables competed with those of A1 Veg and (ii) who were also competing with A1 Veg for units in the New Market;
(b) the fair-minded observer would have been concerned because the best interests of the business of the supplier of the information (namely the members of the Relocation Committee) would not be or might not be to have A1 Veg competing with them in the New Market;
(c) the reason for (b) is that the fair-minded observer would have been concerned that as A1 Veg had a very substantial business, its presence in the New Market might well reduce either the volume of sales of the Trading Members of the Relocation Committee or the prices that they could charge; indeed, it might have both consequences;
(d) A1 Veg did not have and would not have had any opportunity of disabusing the Council of the truth of that representation. Thus the Council would not be able to consider A1 Veg's comments on or criticisms of the information supplied about it by one of its competitors;
(e) so, the information so provided about A1 Veg by the Trading Members of the Relocation Committee was likely to be and was in effect accepted by the Council and was likely to influence the decisions taken by the Council on A1 Veg's application;
(f) there was intense competition for units in the New Market and any detrimental comment from the Trading Members of the Relocation Committee is likely to have been of decisive or of substantial importance;
(g) there was a need for even-handedness by the Council so as to ensure that A1 Veg was given an opportunity to answer criticisms made of it to the Council by the Trading Members of the Relocation Committee;
(h) no cogent evidence was adduced to justify the failure of the Council to obtain the comments of A1 Veg on information made about it to the Council by the Trading Members of the Relocation Committee;
(i) the Trading Members of the Relocation Committee would be and were consulted on the final decision that would be taken on A1 Veg's application but because they competed with A1 Veg for business and for units, they would have had little incentive to put forward positive factors supporting A1 Veg's application.
Waiver or Surrender of Claim for Bias by A1 Veg
The position of the Agnello Claimants
VII THE PROCEDURAL FAIRNESS AND NATURAL JUSTICE ISSUES
Opportunity to disabuse decision-maker
"Each Commissioner's view in relation to each of the applications and to provide background material to Asha would be an undue burden upon any Commission. It would make their task impossible. It certainly would be impractical as a matter of good administration" .
Criticisms of the Criteria set by the Council
VII THE WEDNESBURY AND IRRATIONALITY ISSUE
VIII THE INADEQUATE REASONS ISSUE
"28. One of the issues that the Commission had to decide in this case was the question of eligibility. If the Commission had concluded that the application fell down because it did not meet the eligibility criteria, then in my judgment it would be necessary for the Commission to point out in their decision why the application did not comply with the eligibility criteria. However, when considering the question of whether or not to grant an application which is eligible, differing situations can exist. There may be situations where the Commission conclude: "We reject the application, although it is eligible, on a particular ground". If that is the basis for the decision, then the Commission must say what the particular ground is. Certainly this is the case if they choose to make a promise, as was made in this case.
29. But there are other kinds of decisions of the Commission where a realistic assessment of what is appropriate dictates a different conclusion. When the Commission is engaged in assessing the qualities of the different applications which were before them in competition with each other, the difficulties which would be involved in giving detailed reasons become clear. First, the preference for a particular application may not be the same in the case of each commissioner. Secondly, in order to evaluate any reasons that are given for preferring one application to another, the full nature and detail of both applicants has to be known. If the Commission were to be required to do what [counsel for Asha] submits was their obligation here, the Commission would have had to set out in detail each commissioner's views in relation to each of the applications and to provide the background material to Asha so that they could assess whether those conclusions were appropriate. This would be an undue burden upon any commission. It would make their task almost impossible. It certainly would be in my judgment impracticable as a matter of good administration".
"The Council will explore with the Court issues of practicality and timetable The Council's position will be it is imperative that any tenants who wishes to have any information or representation taken into account on any reconsidered decision should prepare that information or those representations as a matter of urgency".
"However, I point out that you should take account of the ramifications of your threat to place the matter in the hands of solicitors as this may prejudice your chances of being offered space in the New Market should such space become available".
"I have to say that this was interpreted as a threat by the Borough Solicitors by Messrs. Norton Rose, the Council's external legal advisers and also by myself I do not follow exactly what you are saying but would hope that you are saying that your sentence was not intended as a threat .. I see little point in continuing this correspondence and would inform you that the Council will not respond to any further letters .."