QUEEN'S BENCH DIVISION
B e f o r e :
(Sitting as a Judge of the High Court)
|ON THE APPLICATION OF|
|- and -|
|LEIGHTON LINSLADE TOWN COUNCIL||Defendant|
MR J. HOLBROOK (instructed by Devonshires Solicitors LLP) appeared on behalf of the Defendant.
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"Consultation and the Market Relaunch. Recommendations took place between 25 April 2017 and 26 March 2017 with a number of stakeholder groups in person and online through an information page and survey on the Leighton Linslade Town Council website.
1.2. Traders from the regular and speciality markets were invited to participate in two trader-specific meetings to discuss the recommendations and gather their feedback. The meetings were held following the end of trading on Tuesday, 25 April and Saturday, 29th April. Twenty traders attended the first meeting and eight traders attended the second.
1.3. An online survey was created specifically for those traders not able to attend either meeting and was mailed out to 12 traders, two of whom responded.
1.4. Market stall consultations were held on Tuesday, 2 May and Saturday, 6 May for market shoppers, the general public and any traders who were not able to attend either of the previously scheduled meetings. Interest in the Market relaunch was high and attendance at the stall steady on both days.
1.5. The online public survey was completed by 16 participants and feedback from that survey was included in the overall summary."
Can I thank you so very much. Your kind words were so very welcome. Together with David, your involvement in the entire process has been excellent and, to be honest, if you had not have engaged the unease and distrust would prevail between the Council and the traders.
On a separate note, the points you raise about Sarah are very true. Sarah is my rock and, yes, she is a real asset to both the Council and the residents we serve. The idea of reviewing the way we engage with our traders is a really valuable one and thank you, Victoria, for that and, yes, this may well be a task that I will ask Sarah to lead on. That is to put in place a new method of engagement and communication with the traders. We will ask their traders their opinion and, if agreed, we can then adopt easily the communication model that the Market team will then follow.
I look forward to seeing you on Friday."
"Market Stall Fees
The subcommittee received and discussed a report in respect of the date of the Market relaunch and how the proposed new pitch fee would be introduced. Plans were underway for the launch event and would be presented to a future meeting. Proposed changes to the existing pitch fee structure were explained and discussed. It was agreed that a clear and fair fee structure for all traders was needed and the process of change for existing traders should be gradual in order to give them sufficient time to plan and budget."
"The decisions of the Commercial Services (Financial and General Purposes) sub-committee of the Birmingham City Council (a) to refuse to adjourn their meeting of 27th September 1990 in which they considered a report of Mr Atkins, the Director of Commercial Services, proposing fundamental changes in the methods of assessment and levels of rent for stalls in the Birmingham street markets; and (b) on that date to recommend the implementation of proposals in the report for increases in rent of 135%."
"Three questions arise under this head. The first is whether the applicants have established that there was a legitimate expectation ... To the matters with which this case is concerned. That depends on previous practice, since there is no suggestion of a promise of consultation. The second question, which needs to be considered only if the applicants do not obtain a favourable answer on the first, is whether there was a duty to consult as a matter of fairness, and quite independently of the existence of any legitimate expectation based on previous practice. The third question, which only arises if the applicants obtain a favourable answer on one or other of the first two, is whether such consultation as did take place was adequate."
"I have already indicated that the respondents accept that there was a practice of consultation on the level of rent. Their argument, however, is that this cannot give rise to an expectation of consultation on other matters..."
He looked at the argument and said:
"...all of this has to be seen in the context of a settled policy by the Council of increasing rents broadly in line with inflation and taking account of historical costs."
"I have to say that I find profoundly unattractive the submission that a regular practice of consultation as to the level of rent year after year when that rent is decided on the basis of a broadly consistent formula known to both parties, does not give rise to a legitimate expectation of being consulted about a proposal fundamentally to alter the basis of computation -- as Mr Collins put it, to move the goal posts. How can it be said that the failure of the applicants to raise and secure consultation on matters of principle in previous years is fatal to their claim when there have been no matters of principle to raise?"
"I hold therefore that the applicants have established that they had a legitimate expectation of being consulted as to the levels of charges proposed in the report by Mr Atkins adopted by the Council, and that that legitimate expectation extended both to the bare question of the amount of the charges and to the method of arriving at them. I reach this conclusion on the basis both that a practice of consulting as to the level of rents conceded to exist inevitably on the facts of this case gives rise to a legitimate expectation to be consulted when the Council proposed to move the goal posts; and on the basis that the evidence establishes a practice of consultation when changes of importance were in prospect."
"The conclusion I have reached is that there is nothing in the decisions of ex parte Hook, or the case of Liverpool Corporation, or Wyre Valley which should lead me to hold that, on the facts of the present case, the requirements of natural justice and fairness demanded that the applicants should be consulted about changes in the methods of calculation or the levels of charges."
"41. There is first an overall point to be made. It is that both these types of legitimate expectation are concerned with exceptional situations (see Lord Templeman in Preston at 864; compare ABCIFER  QB 1397 per Dyson LJ at paragraph 72). It is because their vindication is a long way distant from the archetype of public decision-making. Thus a public authority will not often be held bound by the law to maintain in being a policy which on reasonable grounds it has chosen to alter or abandon. Nor will the law often require such a body to involve a section of the public in its decision-making process by notice or consultation if there has been no promise or practice to that effect. There is an underlying reason for this. Public authorities typically, and central government par excellence, enjoy wide discretions which it is their duty to exercise in the public interest. They have to decide the content and the pace of change. Often they must balance different, indeed opposing, interests across a wide spectrum. Generally they must be the masters of procedure as well as substance; and as such are generally entitled to keep their own counsel. All this is involved in what Sedley LJ described (BAPIO  EWCA Civ 1139 paragraph 43) as the entitlement of central government to formulate and re-formulate policy. This entitlement – in truth, a duty – is ordinarily repugnant to any requirement to bow to another's will, albeit in the name of a substantive legitimate expectation. It is repugnant also to an enforced obligation, in the name of a procedural legitimate expectation, to take into account and respond to the views of particular persons whom the decision-maker has not chosen to consult."
"But the court will (subject to the overriding public interest) insist on such a requirement, and enforce such an obligation, where the decision-maker's proposed action would otherwise be so unfair as to amount to an abuse of power, by reason of the way in which it has earlier conducted itself."
"In the paradigm case of procedural expectations it will generally be unfair and abusive for the decision-maker to break its express promise or established practice of notice or consultation. In such a case the decision-maker's right and duty to formulate and re-formulate policy for itself and by its chosen procedures is not affronted, for it must itself have concluded that that interest is consistent with its proffered promise or practice. In other situations – the two kinds of legitimate expectation we are now considering – something no less concrete must be found. The cases demonstrate as much. What is fair or unfair is of course notoriously sensitive to factual nuance. In applying the discipline of authority, therefore, it is as well to bear in mind the observation of Sir Thomas Bingham MR as he then was in Ex p Unilever at 690f, that 'the categories of unfairness are not closed, and precedent should act as a guide not a cage.'"
"Miss Coughlan was a very severely disabled lady. She and seven comparably disabled patients had been given a clear promise by the health authority that a particular facility, Mardon House, would be their home for life. But the health authority decided to close Mardon House which had ceased to be financially viable. The court said this at paragraph 86:
'[The health authority's promise of a home for life] was an express promise or representation made on a number of occasions in precise terms. It was made to a small group of severely disabled individuals who had been housed and cared for over a substantial period in the Health Authority's predecessor's premises at Newcourt. It specifically related to identified premises which it was represented would be their home for as long as they chose. It was in unqualified terms. It was repeated and confirmed to reassure the residents. It was made by the Health Authority's predecessor for its own purposes, namely to encourage Miss Coughlan and her fellow residents to move out of Newcourt and into Mardon House, a specially built substitute home in which they would continue to receive nursing care. The promise was relied on by Miss Coughlan. Strong reasons are required to justify resiling from a promise given in those circumstances. This is not a case where the Health Authority would, in keeping the promise, be acting inconsistently with its statutory or other public law duties. A decision not to honour it would be equivalent to a breach of contract in private law.'"
"These cases illustrate the pressing and focused nature of the kind of assurance required if a substantive legitimate expectation is to be upheld and enforced."
"It might be thought that the decision was a generous one. However, again, the affected persons were few in number. And Roch J's reason for upholding the expectation was expressed thus (324D – E):
'There could well be cases where the withdrawal of a travel pass would mean that the child would have to change schools, and it would seem right and sensible that the local education authority should pay some regard to the effect that a change of schools would have on that particular child before finally deciding whether to withdraw that advantage.'"
"On the history here, I consider that to reject Unilever's claims in reliance on the time-limit, without clear and general advance notice, is so unfair as to amount to an abuse of power."
"I apprehend that the secondary case of legitimate expectation will not often be established. Where there has been no assurance either of consultation (the paradigm case of procedural expectation) or as to the continuance of the policy (substantive expectation), there will generally be nothing in the case save a decision by the authority in question to effect a change in its approach to one or more of its functions. And generally, there can be no objection to that, for it involves no abuse of power. Here is Lord Woolf again in Ex p Coughlan (paragraph 66):
'In the ordinary case there is no space for intervention on grounds of abuse of power once a rational decision directed to a proper purpose has been reached by lawful process.'
Accordingly for this secondary case of procedural expectation to run, the impact of the authority's past conduct on potentially affected persons must, again, be pressing and focused. One would expect at least to find an individual or group who in reason have substantial grounds to expect that the substance of the relevant policy will continue to enure for their particular benefit: not necessarily for ever, but at least for a reasonable period, to provide a cushion against the change. In such a case the change cannot lawfully be made, certainly not made abruptly, unless the authority notify and consult."
"A very broad summary of the place of legitimate expectations in public law might be expressed as follows. The power of public authorities to change policy is constrained by the legal duty to be fair (and other constraints which the law imposes). A change of policy which would otherwise be legally unexceptionable may be held unfair by reason of prior action, or inaction, by the authority. If it has distinctly promised to consult those affected or potentially affected, then ordinarily it must consult (the paradigm case of procedural expectation). If it has distinctly promised to preserve existing policy for a specific person or group who would be substantially affected by the change, then ordinarily it must keep its promise (substantive expectation). If, without any promise, it has established a policy distinctly and substantially affecting a specific person or group who in the circumstances was in reason entitled to rely on its continuance and did so, then ordinarily it must consult before effecting any change (the secondary case of procedural expectation)."
Ms Harvey, you probably want a break. Do you want a break?
MS HARVEY: I wouldn't mind a very short one. That is very kind of you. I do not want to hold you up, sir. I will concentrate much better.
JUDGE DIGHT: Let us have ten minutes.
"It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken."
"Fairness is a protean concept, not susceptible of much generalised enlargement. But its requirements in this context must be linked to the purposes of consultation."
"First, the requirement 'is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested' (para 67). Second, it avoids 'the sense of injustice which the person who is the subject of the decision will otherwise fee' (para 68). Such are two valuable practical consequences of fair consultation. But underlying it is also a third purpose reflective of the democratic principle at the heart of our society. This third purpose is particularly relevant in a case like the present, in which the question was not 'Yes or no, should we close this particular care home, this particular school etc.?' It was 'Required, as we are, to make a taxation-related scheme for application to all the inhabitants of our Borough, should we make one in the terms which we here propose?'"
"The cases in this field demonstrate to my mind that the court should only intervene if there is a clear reason on the facts of the case for holding that the consultation is unfair. It is for the court to decide whether the obligation of fairness has been broken.
28. Moreover, the application of the duty of fairness is intensely case-sensitive. This is not an area of law where it is possible to provide statements of general principle. As Sullivan J held in R(Greenpeace Limited) v Secretary of State for Trade and Industry  EWHC 311 (Admin):
'Judgments are not to be construed as though they were enactments of general application, and the extent to which judicial dicta are a response to the particular factual matrix of the case under consideration must always be borne in mind.'
29. It is also clear from the authorities that the courts have to allow the consultant body a wide degree of discretion as to the options on which to consult: as the Divisional Court held in The Vale of Glamorgan Council v Lord Chancellor and Secretary of State for Justice  EWHC 1532 (Admin) at :
'...there is no general principle that a Minister entering into consultation must consult on all the possible alternative ways in which a specific objective might arguably be capable of being achieved. It would make the process of consultation inordinately complex and time consuming if that were so. Maurice Kay J recognised this in [Medway], at para 26:
'other things being equal, it was permissible for him (that is, the Secretary of State) to narrow the range of options within which he would consult and eventually decide.
Consultation is not negotiation. It is a process within which a decision maker at a formative stage in the decision making process invites representations on one or more possible courses of action.'"
She then cited Lord Woolf of in the Coughlan case.
"Thank you very much for the constructive meeting this morning you kindly took to investigate the two issues. One, whether LLTC counsellors were aware/informed of the significant effect on rent costs on some stallholders as a result of the standardisation of rents and pitch sizes. Two, whether the public consultation on the Market and the officer report for the Market Committee 6 June 2017 were in line with/accorded with the duty of fairness re Sedley and Mosley 2014. As part of this issue, it was agreed that the detailed comments by the public from the consultation were in the room. You will ask if they were actually looked at by the counsellors."
"Confirmation of your new market pitch details. But, firstly, thank you for taking the time to meet with council officers to discuss your pitch. [That is the reference to the one-to-one meetings.] I now write in order to confirm the outcome of our discussion and, in doing so, advise you that you will need to sign and return the trader pitch agreement slip enclosed."
"Discussions with traders have allowed officers to identify what points of clarity are needed for all traders as we move towards the Market relaunch. You will no doubt appreciate that the Council has a whole market approach, whilst traders may have an individual trader prospective. For this reason, the Council has sought a reasonable middle ground approach on issues such as agreeing use of additional space, because not all traders have the same opportunities simply due to where their pitch is placed."
"Keen to seek your opinions on further improvements we can make to the Market and the way it operates after relaunch."
"please can I confirm that…
Unless your rent is reducing, rents will remain unchanged until 1 April 2018. During the coming months, we want to hear your opinion on market rent and encourage your views on the way we reward loyalty and long service to the Market."
"In terms of the survey conducted by Victoria, I will in the usual way pass this on to members for their own individual consideration."
"Looking forward, we will be engaging with the market trader reps and, undoubtedly, market rents will be a subject we will be seeking their opinion on."
"The Committee received a verbal update on the Market Relaunch Project. The relaunch on the whole had been well received and the meetings would commence with trader representatives and officers in the coming weeks. Three traders had received support from a consultant on the best way to advertise and display their products in the space available to them. Support will also be offered on the use of social media to advertise their business in the most effective way.
A concern was raised and discussed on how valuable the town council subsidy was to the Market and the Committee agreed the town council were committed to the Market and would continue with the subsidy to the benefit of the community. The rents charged would remain very competitive compared to markets in other towns and would be discussed further in meeting with traders in the coming weeks."
"There is a problem arising from the increases in April. He is not happy about paying by square metres and would not pay the massive increase on his stall as it is not viable. His rents go back to when TC took over so why increase? TC pointed out that was then and that no increases have been implemented since. TC said that historically reviews take place and this is where we are today.
DG said he was not happy at the method of obtaining rents re space taken not frontage. Emma said this is all about fairness to all traders. KY questioned the disparity of fee charged to casuals in comparison to regular traders. All agree to review pricing for casuals."
"MS said moving forward the traders should add proposals to the table to help process and we can then all go away and come back with ideas and collate for the better of the Market as a whole. DG says that we should start with the large stalls and work back when discussing price/rents. KY reiterated that casuals should be charged a premium for their stalls to get them to sign permanent. PE agreed."
"The meetings are informal and we take the opportunity to discuss general operational issues, as well as specific issues such as reviewing the pitch fees. These meetings are not where decisions are made. They are consultative and as such ideas and issues are explored so that feedback may inform operational practices and policy decisions."
"As said, these meetings happen monthly. Importantly, we can opt to meet more frequently if needed and we have agreed to meet again in a couple of weeks' time to continue exploring the options on future pitch fees and both traders and officers are listening to each other's views and issues. Discussion is therefore ongoing. Please do feel free to approach your trader representative with ideas and issues that can be brought to these joint meetings. Likewise, your trader representatives are there to liaise with all traders so that they can bring your issues and ideas into future meetings."
"VC outlined the approach being taken to help with proposed pitch fees and the Council's financial modelling.
- Increasing the pitch fee for casual traders.
- Revisiting the charge to the additional square metres used over the agreed maximum sized pitch.
- Financially recognising long service; a staged approach based on the number of attendance years, which secure reduction in pitch fees."
"Over the last few weeks, we have sat with your trader representatives, listened to the views shared on your behalf about pitch fees, pitch space and general operational issues and shared our own views and concerns too. It is fair to say that all parties are facing difficult financial strains.
In your newsletter dated July 2017 No.2, the Council outlined our Committee endorsed new pitch fees and sizes and the timetable for their introduction. The original decisions are provided below against our proposed updates to the original approach. The updated proposals will go to the next Cultural and Economic Services Committee on 12 March 2018.
As always stated, the town council has sought to achieve, and indeed been asked by traders to achieve, parity among all traders with regard to pitch fees."
"The proposal is to bring back a two-tier pricing tariff between permanent and casual traders."
"The town council considers this to be both practical to traders and a benefit to the longevity of the Market and our commitment to residents and customers to have markets. This financial approach prioritises traders and not the income needed for operational costs."
"To date, for 12 out of 29 permanent number of traders the new pitch fee proved immediately more beneficial and these traders commenced payment of reduced pitch fees from 23 September 2017. Nine of these will again benefit if they have long service. Their fees will reduce again. 14 out of 29 permanent traders will have an increased pitch fee ranging between a 1 per cent and 97 per cent increase. NB. If a trader was paying less than the correct pitch fee prelaunch, the increase will of course be much greater. 18 out of 29 traders will benefit from a reduced fee in recognition of their long-term service."
"Fees have remained unchanged since the Town Council took over the management of the Market in 2012. We will continue to work with those traders who are unsure as to how this new fee structure will affect them."
"The threat of stallholders quitting Leighton Buzzard Market due to planned rent increases looks to have been reduced by a new pricing proposal which will recognise the loyalty of longer serving traders."
"It is a pretty good proposal. Some people will be paying less because of the loyalty reduction. Our own rent was going to be £95 a day. We have done 20 years so our increase will be minimal, up to £2, but we need to negotiate because some traders' increases are still a lot of money, because, as it stands, we will lose them. We hope we can come to some compromise with the Council. The friction has been going on for long enough."
"Four members of the public spoke during the public session, three spoke in relation to the street market agenda item 10. A statement was read out by a market trader representative stating that traders wanted on fair system for rents and that many did not agree with the proposed long-service discount. This had been reflected in a petition submitted to the Council on 6 March. It was stated that communications were felt to be misleading due to some errors. A second speaker and market trader spoke to suggest that the Council should allow traders to form a cooperative and run the Market themselves.
A member of the Public and Town Council Centre retailer questioned the justification for use of Central Bedfordshire Council grant monies for the market relaunch project and whether there would be evidence to show the project had benefited the Market. It was noted that the retail sector was experiencing challenging times and that everyone wanted the market to succeed. The market traders at the end of that part of the meeting left."
"The Committee received a report and was asked to consider the recommendations therein regarding proposed market pitch fees. The Committee was reminded management of the Market was a discretionary service to the community and that as such there was no legal requirement for consultation. However, in line with good practice, the town council had undertaken consultation over a period of time. The Committee was reminded that a previous fee structure had been agreed in 2017, but it had been agreed to defer implementation of any increases until 1 April 2018 to allow time for traders to plan and budget accordingly.
Ongoing discussions had taken place in respect of the agreed fee structure and the revised proposals were as a direct result of feedback given by traders and trader representatives. The fee for additional space beyond the maximum of three standard pitches had been reduced from £2.10 per square metre to 50p per square metre. In addition, it was recommended to all traders long-service discounts on pitch fees.
It was reiterated that no pitch fee changes had been implemented since town council took over the running of the street market in 2012, but the time had come to standardise fees and ensure a fair transparent fee structure which would apply equally to every trader. Under the revised proposals, eight out of 30 permanent traders would see no change in their pitch fee, 11 would see a reduced fee as a result of the long-service discount and 11 would see an increase, which would be implemented in a gradual process depending on the amount of the increase. Up to 24 months would be allowed in order for rent equalisation to be achieved.
Committee members expressed support for the proposals, but recognised that the complexity might be difficult for some to clearly understand. The Council was asked that each trader be given clear personalised communication as to the nature of their own fee and how the recommendations would affect these.
A query was raised regarding turnover of traders. It was noted that the market industry is one with frequent fluctuations and that it was a particularly challenging retail environment at present. This very fact had necessitated the Market Relaunch Project with every effort being made to ensure the Market would change, grow and develop in order to survive into the future.
On being proposed and seconded, the four recommendations being put to the Committee were agreed unanimously."
"I suffer from Chronic Fatigue Syndrome/ME and am in receipt of ESA, income related, and am applying for a protective costs order."
"The claimant, who is acting in person, has applied for cost protection. She states that this is an Aarhus Convention claim, which I reject, and also seeks a protective costs order, which has now been superseded by a cost capping order under s.88 to s.90 of the 2015 Act. The claimant suffers from Chronic Fatigue Syndrome/ME and is in receipt of social security benefits; ESA/income related.
On the material before me, I am satisfied that in the absence of a cost capping order the claimant would withdraw the application for judicial review or cease to participate in the proceedings and it would be reasonable for the applicant for judicial review to do so in accordance with s.88(6)(b)(c).
The claim itself is a fairness challenge to a consultation in respect of market pitch fees based on an alleged breach of Gunning principles and I am satisfied and I find that the claim is a public interest claim in accordance with s.88(6)(a). Accordingly, I limit the claimant's cost liability to £4,000."
"A costs capping order may not be made by the High Court or the Court of Appeal in connection with judicial review proceedings except in accordance with this section and sections 89 and 90."
"Rules of court may, in particular, specify information that must be contained in the application, including—
(a) information about the source, nature and extent of financial resources available, or likely to be available, to the applicant to meet liabilities arising in connection with the application ..."
"The court may make a costs capping order only if it is satisfied that-
(a) the proceedings are public interest proceedings
(b) in the absence of the order, the applicant for judicial review would withdraw the application for judicial review or cease to participate in the proceedings, and
(c) it would be reasonable for the applicant for judicial review to do so."
"(1) The matters to which the court must have regard when considering whether to make a costs capping order in connection with judicial review proceedings, and what the terms of such an order should be, include—
(a) the financial resources of the parties to the proceedings, including the financial resources of any person who provides, or may provide, financial support to the parties..."
"The court should not set aside a JRCCO unless there is an exceptional reason for doing so."
"(i) why a judicial review costs capping order should be made, having regard, in particular, to the matters at sub-sections (6) to (8) of section 88 of the 2015 Act and sub-section (1) of section 89 of that Act;
(ii) a summary of the applicant's financial resources;
(iii) the costs (and disbursements) which the applicant considers the parties are likely to incur in the future conduct of the proceedings; and
(iv) if the applicant is a body corporate, whether it is able to demonstrate that it is likely to have financial resources available to meet liabilities arising in connection with the proceedings."
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