R (on the application of Ise Lodge Amenity Land Committee) v Kettering Borough Council

Local authority passing resolution to dispose of land — Whether offer of land to claimant amounting to disposal under section 123 of Local Government Act 1972 — Whether authority’s decision susceptible to judicial review — Claim dismissedIn 1967, a parcel of land was given to the defendant council, which resolved to use it as public open space. Thereafter, it was used as amenity land, in particular as a means of access to neighbouring woodland and a local school, although no right of way was ever registered. In 2000, the council placed a nil value upon the land, describing it as amenity land. In 2001, the council consulted ward members about a disposal of the land to the claimant. The consultation included a postal survey of householders and a discussion with the residents’ association. The land was then revalued at a substantial price, but no evidence was provided as to how the figure had been reached. Members of the public were invited to address the council on the issue at a public meeting, although the council failed to discuss at the meeting their previous, unrescinded resolution to maintain the land as public space. In 2002, the claimant was granted permission to apply for judicial review. It contended that the council’s actions, in offering the land to it, amounted to a disposal of the land under section 123 of the Local Government Act 1972, and that their failure properly to inform the claimant of the basis upon which the land was to be sold, and the manner in which it had been valued, amounted to an error in law. The issues were: (i) whether the council, in resolving to sell the land, were exercising a public function sufficient to render the matter susceptible to judicial review; and (ii) if so, whether there was any relevant error of law. Held: The application was dismissed. The council were under no obligation to keep the land as amenity land in perpetuity, and, provided they acted lawfully, they were entitled to change their policy from one year to the next. In offering the land to the claimant on a first-refusal basis, the council were not disposing of the land for the purposes of section 123 of the Local Government Act 1972, but were merely resolving to dispose of the land at a later date. Therefore, although there was no proper valuation of the land, or information as to the grounds upon which the land would be sold, this could be provided at a later stage. The passing of the resolution itself could amount to a public law decision. The current law was that found in R (on the application of Pepper) v Bolsover District Council [2001] 3 LGR 20: a local authority’s decision to sell land could be subject to judicial review if it introduced some public law element into the decision-making process. That was the case here. The claimant had a legitimate expectation that any decision departing from the previous policy and practice regarding the land would be reached rationally. But, so long as the council considered the nature of, and opposition to, the proposed sale, they were entitled to pass a resolution to sell. It was clear that all the relevant issues had been discussed by the council and had been thoroughly considered by the time they passed the resolution. It was to be noted that although section 123 did not apply at this stage, it would provide protection for the public at the point of disposal. Although valuation of the land was sufficient for the purposes of passing the resolution, it would not be sufficient for the purposes of disposal under section 123, and neither would the consideration given to the objections raised. Although the claim for judicial review failed at this stage, if the council were to proceed with the sale, they would have to comply with the requirements of section 123. Failure to do so would render their actions open to review. Hannah Markham (instructed by Wood Shawe & Co, of Kettering) appeared for the claimant; Simon Bird (instructed by Sharpe Pritchard) appeared for the defendants. Vivienne Lane, barrister