Council seeking to regenerate area – Claimant developer seeking to persuade council to accept its proposed scheme – Council selecting competitor’s scheme – Claimant seeking to quash council’s decision – Whether decision unfair – Whether abuse of power or breach of legitimate expectation – Claim dismissed
Wyre Borough Council (the respondents) sought to regenerate part of the centre of Fleetwood through a major retail, food store-based development. Two developers, Dransfield Properties Ltd (the claimant) and CityPark Realty Ltd, each with the backing of a food store operator, obtained planning permission for what they considered to be the appropriate form of development. The two proposed stores were similar in floor area, but the claimant’s scheme was larger overall.
Subsequent correspondence between the respondents and developers referred to the criteria that the respondents would be considering in choosing a scheme. Those criteria included, under the heading of financial viability, the impact that the scheme would have on the single regeneration budget (SRB) moneys and timescale. In June 2000 the respondents decided to select the CityPark scheme.
The claimant sought to quash that decision, contending that the determining factor behind the selection of the CityPark scheme was a conclusion by the respondents that that scheme would not require recourse to SRB or other public funds, whereas the claimant’s scheme would. The claimant submitted that: (i) it had been given every impression that that was not a matter of concern to the respondent; (ii) had it known the true position, it could have addressed the decisive factor successfully; and (iii) it had been denied the opportunity to do so. It therefore contended that the respondents’ decision was so unfair as to constitute an unlawful abuse of power, or was in breach of a legitimate expectation.
Held: The claim was dismissed.
1. The respondents had not acted unfairly. First, no unfair advantage was given to either developer: no opportunity was given to one that was denied the other, and there was no change in the rules or criteria by which the respondents’ decision was to be made. Nor was the decision reached in an unfair manner. In the instant case, each party had presented the package that it thought would be the most attractive. It was a matter for commercial judgment. CityPark, rather than the claimant, successfully anticipated what the majority of councillors would find most attractive, and the claimant had had as much opportunity to devise such a scheme.
2. The criteria, or list of relevant factors, was neutral. It made no claim for benefit or disadvantage over the use of the SRB, any more than it did over the scale of the scheme. Nor could it be said that the council changed the rules. No steer was given as to the advantage or disadvantage of using the SRB or having a larger site. No promise was given that the extent of SRB funding would be irrelevant, such that no advantage at all could accrue from a less SRB-demanding scheme. The respondents’ decision could not be said to be irrational: R v National Lottery Commission, ex parte Camelot Group plc [2001] EMLR 3 considered.
Keith Lindblom QC and Hereward Phillpot (instructed by Herbert Smith) appeared for the claimant; James Findlay (instructed by Sharpe Pritchard) appeared for the respondents.
Sarah Addenbrooke, barrister
