R v Secretary of State for Defence, ex parte Wilkins and others

Compulsory purchase –– Crichel Down Rules –– Rules 9 and 14(7) –– Construction of rules –– Whether material change in character of land as a whole –– Whether minister entitled to conclude that no obligation to offer land back –– Whether inconsistent application of rules –– Whether failure to consult RAF Kemble was created on 520 acres of land acquired compulsorily, or under threat of compulsory purchase, over a 20-year period from the late 1930s. The airfield had two asphalt runways, three grass-strip runways and extensive taxiways, aprons and roadways. There were 15 hangars, 14 of which were let, together with other buildings. By a letter dated 21 September 1999, the respondent Secretary of State informed the former owners of the airfield that there had been a material change of character of the land within the meaning of r 9 of the Crichel Down Rules, and that nothing under r 14(7), which applied where there was a possibility of a lower price being achieved by a fragmentation sale, required the respondent to offer the land to the former owners. The applicants, who were former owners and two of the occupiers of property on the airfield, challenged the decision on the grounds that: (1) rr 9 and 14(7) had been misinterpreted; (2) the rules had been misapplied because of an irrational conclusion about a material change in the character of the land since acquisition; (3) there had been a failure to treat the applicants consistently with the respondent’s approach in relation by the bui; and (4) the respondent had failed to treat the applicants with fairness. Held: The application was dismissed. Rule 9 had been correctly interpreted. The conditions for the application of the rule applied to the land as a whole and there was no need to give separate consideration to particular parts of the land to which the rules applied. Whether a change in character of the land is material depends upon the degree to which the change has affected the suitability of the land for former use. The conclusion that there had been a material change to the character of the land as a whole was, on the details of the matters considered, within the range of reasonable judgment open to the respondent. Although there had been errors in the application of the Crichel Down Rules to other surplus properties in the past, there was no obligation to make a decision that repeated earlier errors. The respondent was entitled, on the facts, to reach the view that the airfield was not a development site within the meaning of r 14(7)(i). Having regard to the report of his advisers concerning the marketability of the land, the respondent had made no mistake about the application of r 14(7)(ii). The report concluded that there would be a substantial reduction in total sale receipts if the land were offered back to the previous owners. There was no legitimate expectation of prior consultation; the only legitimate expectation of the former owners was that the Crichel Down Rules should be applied. In the present case, it would have been unfair to present the former owners with a fait accompli, but prior notice, and the opportunity to make representations, was given. The following cases are referred to in this report. North Wiltshire District Council v Secretary of State for the Environment (1992) 65 P&CR 137; [1992] 3 PLR 113; [1992] JPL 955, CA R v Commission for the New Towns, ex parte Tomkins (1989) 87 LGR 207; 58 P&CR 57; [1989] 1 EGLR 24; [1989] 12 EG 59; [1988] RVR 219 R v Devon County Council, ex parte Baker [1995] 1 All ER 73, CA R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport [1993] 1 WLR 23; [1993] 1 All ER 289 This was the hearing of an application by the applicants, Maurice Wilkins, Richard Clark, Anthony Clark, Joyce Cheffins, Kemble Farms Ltd, Luke Sampson, Kemble Heritage Group, Edward Biddulph, Jasper Biddulph, Mary Starey and Earl Bathurst, for judicial review of a decision of the respondent, the Secretary of State for Defence, on the application of the Crichel Down Rules. Guy Roots QC and Philip Petchey (instructed by Norton Rose) appeared for the applicants; David Elvin QC and James Maurici (instructed by the Treasury Solicitor) represented the respondent. Giving judgment, Moses J said: On the borders of Gloucestershire and Wiltshire lies an airfield, covering approximately 520 acres, known as RAF Kemble. It was created over a 20-year period from the late 1930s by the compulsory acquisition, or the threat of acquisition, of a number of parcels of land. The applicants comprise all the former owners, save two, and an association of companies that, at present, occupy premises of the airfield and have great concerns as to their position should the land be sold to a third party. The airfield is no longer required by the MOD. Accordingly, the question arises as to whether the former owners should be given the first opportunity to buy back the land. The issue of whether government land purchased compulsorily, or under threat of compulsion, should be offered back to former owners is governed by a policy code known as the Crichel Down Rules*. Those rules have, with various revisions, been adopted by successive governments since 1954 following the Crichel Down affair. * Editor’s note: Disposal of Surplus Government Land: Obligation to Offer Land Back to Former Owners or their successors — the “Crichel Down Rules” On 21 September 1999 the Secretary of State for Defence decided that there was no requirement under the rules to offer back the surplus land consisting of RAF Kemble. The applicants challenge that decision. This application for judicial review turns on the proper interpretation and application of these rules in their 1992 version. In short, the applicants complain that the Secretary of State has: (1) misinterpreted r 9 and r 14(7) of the rules; (2) misapplied the rules by reaching the irrational conclusion that there had been a material change in character to the land since acquisition; (3) failed to treat the applicants consistently with the ministry’s approach in relation to other airfields12 and similar sites; and (4) failed to treat the applicants with the fairness that the context of the ministry’s decision demands, or to meet their legitimate expectation, by failing to consult with the former owners before reaching the decision to dispose of the land to a third party. Facts The airfield is shown in a plan that identifies the separate plots that belonged to the former owners, and is also shown in the photographs. The airfield has two asphalt runways and three grass-strip runways, and extensive taxiways, aprons and roadways criss-cross the site. There are 15 hangars on the airfield, covering a total of 65,578m2. Fourteen of the hangars are currently let. There are other administrative buildings, former workshops and officers’ mess facilities on site. The buildings on the airfield cover seven different sites. There is infrastructure on the site consisting of electricity, sewage and water. The future of the site has been of concern to some of the former owners since 1996. I shall refer later to correspondence between them and the ministry in more detail when considering the Secretary of State’s duty to consult. The ministry sought, by advertisement, to identify former owners in August 1998. During the same period, the ministry discussed the future of the site with the four relevant local authorities that eventually published the development framework designed to give guidance as to appropriate development on the site. In accordance with instructions given in February 1999, Drivers Jonas reported to the ministry in August 1999 as to the site and the application of the Crichel Down Rules to it. The decision letter that is challenged was dated 21 September 1999. Crichel Down Rules The general scheme of the rules starts with r 5, which provides: The rules apply to all land if it was acquired by or under threat of compulsion. It is not in dispute that they apply to RAF Kemble. Rule 9 sets out the general rule. It provides: Where a department wishes to dispose of land to which the rules apply, former owners will, as a general rule, be given a first opportunity to repurchase the land previously in their ownership, provided that it has not been materially changed in character since acquisition. The character of land may be considered to have “materially changed” where, for example, houses have been erected on agricultural land; mainly open land has been afforested; offices have been built on an urban site; or where substantial works to an existing building have effectively altered its character. The erection of temporary buildings on land, however, is not necessarily a material change. When deciding whether any works have materially altered the character of land, the disposing department should consider the likely cost of restoring the land to its original use. Rule 9 is of particular relevance to this application, and I shall refer to it in more detail below. Rule 10 provides: Where only part of the land for disposal has been materially changed in character, the general obligation to offer back will apply only to the part that has not been changed. The obligation does not apply to agricultural land required before 1 January 1935: see r 13. It is not in dispute that all the land relevant to this application was agricultural land acquired after that date. There are exceptions to the general rule contained within r 14. Rule 14(7) is of particular relevance in this case. It provides: Where a disposal is in respect of either –– (i) a site for development or redevelopment which comprises two or more previous land holdings; or (ii) a site which consists partly of land which has been materially changed in character and part which has not and there is a risk of a fragmented sale of such a site realising substantially less than the best price that can reasonably be obtained for the site as a whole, ie its market value. In such cases, however, any former owner who has remained in continuous occupation of the whole or part of his or her former property (by virtue of tenancy or licence) will be given a right of first refusal of that property or part of property, as the case may be. In the case of land to which (i) above applies, special consideration will be given where a consortium of former owners has indicated a wish to purchase the land collectively. Rule 17 requires the procedures set out in rr 18 to 23 to be followed. Where former owners are ascertained, the procedure to be followed is laid down by r 18, which imposes a timetable; otherwise there is a requirement to advertise: see rr 19 and 20. Where, following an advertisement, an intention to purchase is expressed by former owners, a tight timetable is laid down for negotiating terms: see r 22. The price to be paid by former owners is not concessionary; it is own market value: see r 24. The importance of these rules is not to be underestimated. In R v Commission for the New Towns, ex parte Tomkins (1989) 58 P&CR 57*, Bingham LJ, as he then was, said at p65: * editor’s note: Also reported sub nom Tomkins v Commission for the New Towns [1989] 1 EGLR 24 The public interest underlying this policy is obvious also. When land is compulsorily purchased the coercive power of the state is used to deprive a citizen of his property against his will. He is obliged to take its assessed value whether he wants to or not. This exercise is justified by the public intention to develop the land in the wider interests of the community of which the citizen is part. If, however, that intention is not for any reason fulfilled, and the land becomes available for disposal, common fairness demands that the former owner should have a preferential claim to buy back the land which he had been compelled to sell, provided he is able and willing to pay the full market price at the time of re-purchase, that price reflecting the development potential of the land. The name Crichel Down by which this policy is known adequately conveys the public sense of what fairness ordinarily demands in this situation. The decision letter dated 21 September 1999 read: The reason for this… (for saying there was no requirement to offer the land back) is that there are two exceptions to the general obligation to offer land back which apply in the case of Kemble. These are as follows: 1. There has been a material change in character of the whole of the Site (Rule 9). 2. In any event, even if MOD were incorrect as far as Rule 9 is concerned there has undoubtedly been a material change in character of part of the Site, and the disposal of the individual parcels of land remaining would achieve a substantially lower price than the best price which could be achieved if the Site was sold as one parcel (Rule 14(7)(ii)). MOD has also concluded that as a result of the two exceptions applying to Kemble there is no requirement to give “special consideration” to a consortium of former owners. This is because: 1. There is no requirement to give a consortium “special consideration” if there has been a material change in character of the whole of the Site. 2. Even if Rule 14(7) applied, the requirement to give a consortium “special consideration” only applies to a disposal which falls under Rule 14(7)(i). It does not apply to Rule 14(7)(ii) where there has been a material change of part of the Site and a sale of the Site in parts which lead to a substantially reduced price. The purpose of a consortium is to resolve the fragmentation of the whole of the Site being disposed of under Rule 14(7)(i) (where, but for fragmentation, the whole Site would be offered back). Under Rule 14(7)(ii), however, the part which has materially changed does not fall to be offered back to the former owner in any event. Whilst writing I can inform you that it has been decided to place the Site on the market for sale by public competition. This will allow all parties interested in acquiring Kemble the opportunity to bid for it. Proper interpretation of r 9 The applicants contend that the Ministry of Defence misconstrued this rule. The ministry took the view that the pronoun “it” in the first sentence of r 9 within the proviso refers to the whole of the land for disposal; that was the view expressed in the Drivers Jonas report by its author, Mr Andrew Lomax. It is confirmed both by him and by Mrs Lucy Robins, who sets out the view of the ministry within her statement.13 The applicants contend that r 9 requires the Secretary of State to look at each parcel of land as originally acquired and to consider whether each separate parcel has materially changed. The ministry has, as I have said, accepted that that was not its interpretation. In my judgment, r 9 requires consideration of the whole of the land that the department wishes to dispose of. The pronoun “it” refers back to the land in respect of which former owners are to be given, as a general rule, a first opportunity to repurchase. That land is all the land owned by all the former owners. That that is the correct construction is confirmed by r 10, which refers to “part of the land for disposal”. True it is that the phrase “the land for disposal” is not used in r 9, but, as Mr David Elvin QC, on behalf of the Secretary of State, pointed out, there is no consistency in the drafting of the rules of the policy. Rule 9 refers to land to which the rules apply; r 5 identifies the land to which the rules apply, namely the land for disposal. Rule 14(1)-14(5) refers to “the land”. Rule 14(7) refers variously to “a Site, land holdings and land”. There is, thus, no consistency in identifying the land for disposal. Rule 9 creates a general rule in relation to all the land to be disposed of. It applies to land that: (1) was acquired by or under threat of compulsion (r 5); (2) the department wishes to dispose of (r 9); and (3) has not been materially changed in character: see the proviso to the first sentence of r 9. In my judgment, the submission of the applicants confuses the effect of the rule with the conditions for its application. The conditions for its application apply to the land as a whole. It is correct, as Mr Guy Roots QC, on behalf of the applicants, submitted, that the purpose of the general rule is to afford an opportunity to all former owners to acquire land that they previously owned. But it does not seem to me that that consideration provides any warrant for separate consideration of particular parts of the land to which the rules apply. I reject the submission that the Secretary of State misconstrued r 9. It was argued on behalf of the Secretary of State that, in any event, r 9 was reasonably capable of two interpretations, and it was open to the ministry to adopt the approach of considering the land as a whole: see R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport [1993] 1 WLR 23. If, contrary to my preferred view, it is open to take more than one interpretation of r 9, then, certainly, the ministry’s construction was within the range of views it was entitled to take. Was the Drivers Jonas opinion that the character of land had materially changed rational? The applicants point to a number of features of the report that, they contend, were so plainly wrong and of such significance as to vitiate the conclusions in the report that the general rule did not apply and the character of the land had materially changed. The conclusion of the report was: Under Rule 9, the exception to the obligation to offer back does apply because the whole Site should be regarded as materially changed in character. Under Rule 10, it may be held that only part of the land for disposal has been materially changed in character but that under Rule 14(7)(ii) fragmentation would give rise to significantly less value than the sale of the whole, and as such the exception to the obligation to offer back does apply to the whole site. (See pp18-19 of the report.) In brief, the applicants contend that that conclusion was irrational in the Wednesbury sense. I accept Mr Roots QC’s formulation as to what is meant by “material change in character”. It is almost inevitable that, after compulsory acquisition by a ministry, there would have been some change. But the crucial question is whether that change is material. Whether that change is material depends upon the degree to which the change has affected the suitability of the land for its former use. The examples in r 9 illustrate that proposition. A further example is afforded in the instant case. Site D (elsewhere called site F) is to the south east of the airfield. It has two buildings on it. The development plan says that they should be used for agricultural purposes and that the peripheral buildings at area D, where the vehicular access is particularly poor, should be used for agricultural purposes. Thus, that particular part of the site at site D has been changed, but the change is not material because the buildings now on that site should be used for the original purpose, namely agricultural use. That is the very use to which the former owners of the site, who farmed the adjoining land, wish to put the land that they previously owned. There has been a change, but it is not material. Whether there has been a material change is a matter for judgment, but the applicants rely upon a number of fundamental errors. First, they rely upon an error in describing the extent to which the site was altered by construction work. Para 4.6 of the Drivers Jonas report says: The character of the whole land has been transformed from what was acquired. When it was acquired it was, we understand, in agricultural use and had no buildings upon it. Whereas currently it has been extensively built upon. We have estimated that approximately 57% of the Site has been altered by either having buildings, runways, taxiways or hardstanding built upon it. Mr Ronan Harvey, the director of Kemble Heritage Group plc, says that that view seemed totally at odds with its perception of the level of development at Kemble. Thus, in para 16: KHG undertook a review of the property at Kemble and concluded that some 3.86 per cent of the Site had buildings upon it and some 13.28 per cent was covered with runways, taxiways and hardstanding. Mr Lomax, the author of the Drivers Jonas report, commented upon those views, saying that he carried out the exercise of measurement following the applicants’ criticism and came to the view that the area built upon was approximately 25%. I comment that it was surprising, at first blush, that that measurement was not carried out by him at the time of the report. Mr Harvey has returned to that matter, and has reached the conclusion that 25% is correct, with the result that 75% of the site had not been built over: see paras 5.5 and 5.6 of his second witness statement. If the report had been based upon a finding that 57% of the land had been built over, whereas, in truth, only 25% had been built upon, I would agree that the foundation for the conclusion that the land had been materially changed was so undermined as to be irrational and worthy of fresh consideration. However, I do not agree that in comparing the two percentages, 57% with 25%, like was being compared with like. A proper reading of the Drivers Jonas report reveals that the percentage of 57% did not represent land actually built upon, but rather reflected Mr Lomax’s judgment as to the effect of construction work on surrounding land viewed as a whole. At p11, para 4.8 of his report, he sets out the changes to the site. He then says at para 4.9: These items cumulatively affect the character of the whole. It is right to recognise that not every single square inch of the site is covered in buildings, structures or runways but very little space is not devoted to a purpose which is connected to the operational aerodrome. In our opinion it does not make sense to treat the areas which have not been built on separately from the whole Site and the Site as a whole has materially changed from what was originally acquired. It is that passage that explains what he means by “approximately 57% of the site has been altered by either having buildings, runways, taxiways or hardstanding built upon it. That was ambiguous, but is explained by the later passage in the report. It is plain when one considers appendix 7 to the report that the 57% was designed to convey Mr Lomax’s judgment as to the effect of building work on adjacent land, as well as on land upon which building and the like persist. That is confirmed by Mr Lomax in his witness statement at paras 11 and 12. I reject the submission that there is an inexplicable disparity between the 57% and 25% figures. When one examines appendix 7, one sees that the percentage of actual land built upon is set out within that appendix, so that, in respect of various parcels of land, it is accepted that there are no buildings upon those parcels. But the final figure of 57% is a view of the effect upon the site as a whole not merely caused by the building14 of land upon it, but the effect upon adjacent land of those buildings, spread as they are on various parts of the site. The applicants’ submission on that point fails because they are not comparing like with like. The second fundamental error, it is said, relates to costs of restoration. The ministry was required to consider the costs of restoration under r 9. At para 4.16 of the report, it is said that the total costs of restoring the site are estimated at between £6.45m to £10.3m, with the minimum cost of removal of hardstanding £4.45m. This is to be compared with the total value of agricultural land for the 536 acre site, which is estimated at £1.34m: see para 4.7. Those figures were derived from a report from Symonds. It is said that the Drivers Jonas report failed to appreciate Symonds’ report as to costs of removal. That report stated at para 3.31, under the heading “option 1”: This is the most favourable option as there is most likely to be a credit situation if a local market can be found. In the worst situation the removal costs will be nil. It is said that the Drivers Jonas report failed to reflect the fact that there would be likely to be a credit situation, as it is called, and, at worst, the removal cost would be nil under option 1. In my view, no such error has been exposed. The minimum figure of £4.5m takes into account option 1, namely the credit to be allowed if a local market could be found. The reason why the minimum cost is not nil is that under those three options in Symonds’ report there reads: All the above options will have the same reinstatement costs… The applicants have failed to allow for the fact that there will be, even under option 1, reinstatement costs, and the fact that there is a minimum figure for removal of £4.5m merely reflects the credit that it would be hoped to be received under option 1. Third, the applicants contend that the report has failed to have regard to the fact that much of the land is capable of reuse as agricultural land, and not just site F, to which I have already referred. It is capable of reuse as agricultural land without the need to remove the buildings, and, in those circumstances, the costs of reinstatement have been overestimated. The ministry, through Mrs Lucy Robins, senior estates surveyor, has said that most of the hangars are much larger than is needed for storing grain that is likely to be produced on that land. The applicants say that is it nothing to the point. At the end of the day, the experts are divided as to whether it would be possible to turn this land back to agricultural use. A feasibility study as to potential future use was obtained and took the view that it was not feasible. Mr Lomax’s views were that it was not. Mr Mark Hill, who is a partner in the firm of Moore Allen & Innocent, chartered surveyors and land agents, acting on behalf of some of the former owners, takes the view that the land would be suitable for agricultural use, and points out that it is already so used when the grass is mown and it is used for silage for livestock. But his views, which, of course, command respect, are merely to be set against the views of others. They are differing views as matters of judgment, and there is nothing this court can do to resolve that dispute. I conclude that the view that there has been a material change to the character of the land as a whole was within the range of reasonable judgment open to the ministry. The features relied upon to show fundamental errors do not disclose any fundamental error that would entitle the court to intervene. Consistency The applicants contend that, in the light of the ministry’s approach to disposal of other surplus airfields and similar sites, the ministry has acted inconsistently in relation to RAF Kemble. They have drawn attention to a number of other sites where the mere presence of substantial airfields, buildings and infrastructures proved no bar to first offers being made to former owners. Mr Harvey, on behalf of the applicants, referred to the retention of Mr Lee Paul, who is a past MOD estate manager. He has drawn attention, for example, to RAF Elvington, comprising some 400 acres, with 150 acres of runways, taxiways and hardstanding, where he said the general rule was applied. He also referred to St George’s Barracks, Sutton Coldfield, which was disposed of under the general rule. He took the view that the level of building at those barracks exceeded the percentage level at Kemble. Mr Paul has amplified that evidence referring to a number of former MOD premises. Mrs Lucy Robins, on behalf of the ministry, has commented in some detail upon the sites with which the applicants sought to compare RAF Kemble. She refers to RAF Elvington, which, she says, was factually different in relation to the effect of a valuation of a fragmented sale. She says the rules were misinterpreted in relation to RAF Elvington and the site should not have been offered to a consortium because r 14(7)(i) did not apply. She makes a similar comment in relation to St George’s Barracks as to the application of r 14(7)(ii). The importance of paying heed to the need to be consistent was emphasised by Mann LJ in North Wiltshire District Council v Secretary of State for the Environment [1992] 3 PLR 113. At p122F he said: Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. That applies with equal force to the instant case. It was somewhat dispiriting to note that the exercise undertaken by Mr Harvey and Mr Paul, of seeing how the ministry had behaved in the past, was not undertaken by the ministry itself. The ministry should not have waited until the applicants made their own inquiries. It should have looked in advance to see whether or not there had been consistency. But now that those other examples have been brought to their attention, in my view Mrs Robin’s judgment as to the differences, and the fact that the rules were erroneously applied in the past, cannot be faulted. The ministry was entitled to take the view that those sites could not be properly compared with RAF Kemble. Furthermore, if there had been an erroneous departure from the rules in the past, the ministry was not under any obligation to repeat those errors in a wish to be consistent. If, as I have concluded, the view that there had been a material change in character to the site as a whole cannot be impugned, the next question arises as to the operation of r 14(7). Rule 14(7) Rule 14(7)(i) applies where there has been a material change, but the site is a site for development or redevelopment that comprises two or more previous landholdings, and there is a risk of a fragmented sale realising less than the best market price for the whole. In such a case, the department is bound to give special consideration to a consortium that would avoid the effect of a fragmented sale occurring if there were a number of purchasers. But the rule has no application unless the site is for development or redevelopment. The development plan does not support the view that RAF Kemble is a development site. True it is that there are development proposals for the site designated site A; but not elsewhere. In relation to site A, there exists only permission to convert the existing buildings to a different use or to demolish and rebuild, but to no greater floor area than the existing buildings. The ministry was entitled to reach the view that that would not constitute development within r 14(7)(i). The next issue relates to r 14(7)(ii). It depends upon the alternative basis for the ministry’s decision that r 10 applies. If r 10 applies –– in other words, part of the whole of the site has been materially changed, but part has not, and there is a general obligation to hand back the part that has not –– there is no obligation to make an offer in respect of the unchanged part in circumstances where the risk of a lower price, as described, exists. It is contended that Drivers Jonas and the ministry misconstrued the exception to r 10. Rule 14(7)(ii) requires a comparison to be made between the amount that might reasonably be obtained for that part of the land that has not been materially changed, and that the ministry is under an obligation to offer first to former owners, as compared to the price that could reasonably be obtained for the land as a whole. Both sides agree that that is the correct construction. Fragmented sale, within15 the full-out words of r 14(7), does not mean fragmented into each separate parcel previously owned by separate former owners, but means fragmented by virtue of the distinction made in r 10 between that part of the land that is materially changed and that part of the land that has not materially changed. It is contended by the applicants that the ministry fell into error because the Drivers Jonas report compared the price reasonably to be obtained for the land as a whole with each separate parcel of land owned by each individual former owner. At p13 of the report, the heading under 4.20 is: Market value of the whole site compared with the value of the aggregated Market Value of the individual parts. At p15 the heading is: Value of the individual parts in isolation. Looking at those headings as a whole, one can see why the applicants contend that there was an error of construction. But when one looks at the body of the report, particularly at p15, it can immediately be seen that no such error has been made. At para 4.31, the reference to the effect of the marketing of the land without the benefit of the ownership of the open areas is clearly referring to the landholding as a whole. Similarly, it is the landholding as a whole, part of which has not been changed, to which reference is made at paras 4.32 and 4.44. The conclusion also demonstrates that at 4.42: Our appraisals have shown that there would be at least a 25% deduction in total sale receipts which we consider to be substantial. For this reason, the exception to offer back would apply under Rule 14(7)(ii) to all the former ownerships. Reading the report as a whole in relation to impact upon total receipts and the effect of selling off merely the part that has not been materially changed, it is clear to me that no error of construction took place. Consultation It is contended that there was no consultation before the decision was reached in September 1999. That failure, it is argued, frustrated the applicants’ legitimate expectation. In any event, it is submitted, the circumstances demanded that a fair procedure be adopted that entailed prior consultation. I say at the outset that there was no legitimate expectation of prior consultation. The only legitimate expectation the former owners had was that the Crichel Down Rules should be applied. Those rules make no provision for consultation save in the limited circumstances after a decision for disposal in relation to negotiation of agreed terms: see, for example, r 18. The ministry has referred, through Mrs Robins, to a practice in some cases of consultation, but there appears to be no consistency and no such practice can therefore be relied upon. But that is not an end of the matter. There may nevertheless be a requirement to consult where the circumstances call for a fair procedure. In R v Devon County Council, ex parte Baker [1995] 1 All ER 73 Simon Brown LJ identified the different ways the phrase “legitimate expectation” is used. At category 3 he said, at p89B: Frequently, however, the concept of legitimate expectation is used to refer to the fair procedure itself. In other words it is contended that the claimant has a legitimate expectation that the public body will act fairly towards him. As was pointed out by Dawson J in A-G for New South Wales v Quinn (1990) 93 ALR 1 at 39, this use of the term is superfluous and unhelpful: It confuses the interest that is the basis of the requirement of procedural fairness with the requirement itself. “No doubt people expect fairness in their dealings with those who make decisions affecting their interests, but it is to my mind quite artificial to say that this is the reason why, if the expectation is legitimate in the sense of well founded, the law imposes a duty to observe procedural fairness. Such a duty arises, if at all, because the circumstances call for a fair procedure and it adds nothing to say that they also are such as to lead to a legitimate expectation that a fair procedure will be adopted.” I accept that, in the circumstances of this case, it would have been unfair to present the former owners with a fait accompli. By circumstances of the case, I refer to the fact that disposal of the airfield had been mooted since 1996. That disposal was of great concern to former landowners such as the farmers close to site D. It was of both sufficient individual and public concern within that lengthy time-frame to require advance notice. I reject the contention that that required a formal process of inviting representations in advance. Provided that there was no secrecy, and those concerned, to the knowledge of the ministry, were aware of, and had the opportunity to become aware of, the proposed disposal, that, in my judgment, was sufficient. It is difficult, in those circumstances, for the applicants to argue that they were deprived of the fair procedure that the circumstances demanded. It appears to me that prior notice, and the opportunity to make representation, was exactly what happened in this case. I was furnished with a chronological bundle of correspondence. I shall not refer to it all, but it is worth noting that, on 20 August 1996, one of the former owners’ representatives wrote to the ministry asserting that it was important that it should be established that this was land to which the Crichel Down Rules applied, and: that the character and use of the airfield land has not materially changed since it was acquired by the Air Ministry. Thus, certainly in relation to some of the former owners, the issues were well known in 1996. The ministry responded on 22 August 1996, referring to the fact that there might be a case for the application of the Crichel Down Rules, and referred to a number of exceptions, stating that it was not yet known whether those exceptions applied. But the letter referred particularly to the problems of a fragmented sale realising less than could reasonably be obtained for the site as a whole. Mr Simon Logie, on behalf of some of the former owners, asserted again that the Crichel Down Rules (by which he meant the general rule) should apply on 28 August 1996. The ministry wrote on 22 July 1998 asserting that it was continuing to review whether the Crichel Down Rules would apply, but that they were progressing towards the disposal of the site while endeavouring to trace all former owners. There was a lengthy letter from the Kemble Group on 24 December 1998, referring specifically to the Crichel Down Rules. Mr Hill referred to them on behalf of a number of owners in a letter dated 5 January 1999. The ministry responded on 13 January 1999 offering to show the exact boundaries of the former ownerships. There was a letter from one of the representatives, dated 16 January 1999, thanking Mrs Robins, on behalf of the ministry, for her helpful letter, and asking whether the review as to whether the Crichel Down Rules applied had reached any conclusion. There was an important meeting between Mrs Robins and Mr Hill on 25 January 1995. At that meeting, there was a discussion as to the operation of the Crichel Down Rules and as to the development framework that had identified site D (called site F) as suitable for agricultural use. Mrs Robins said at that meeting that it was unlikely that the Crichel Down Rules would apply because the land had materially changed. It would be unkind, and, in any event, irrelevant, to point out that it is recorded that Mr Hill agreed with this; anyway he did not later on, even if he did at the time. It is more significant to point out that there was a debate, therefore, between a representative of some of the former owners and the ministry on that occasion. Following that meeting, Mrs Robins wrote to solicitors on behalf of one of the former owners on 28 January 1999 expressing doubt as to whether the land would be offered back to individual former owners: in other words, indicating that certainly she was not of the view that the general rule applied. There is a particularly important letter on 18 February 1999 (that is, some seven months before the decision), in which the ministry stated: MOD’s initial view (subject to obtaining further advice on valuation and other matters and to receiving further representations on behalf of former owners) is that there is likely to have been a material change in character of the whole of the Site and that, therefore, the Crichel Down Rules do not apply to the disposal16 (see Rule 9 of the Rules). Even if there has not been a material change of the whole of the Site, then it is quite likely that there has been a material change of at least part. Furthermore, MOD considers that disposal of the individual parcels of land which make up the Site would achieve a substantially lower price than the best price which could be achieved if the Site were sold as one parcel (see Rule 14(7)). MOD is not required by Rule 14(7) to give “special consideration” to a consortium if there has been a material change of part of the Site. This letter is of significance because it is clearly giving the opportunity for representations to be made in relation to that clearly expressed initial view. In other words, the very thing that fairness demanded took place in this case. That letter was also sent to other representatives of other former owners, that is Moore Allen & Innocent (Mr Hill) on the same date, 18 February 1999. A response came from some representatives not accepting that initial view, and asserting that the existing buildings occupy less than 4% of the gross area of the site, and, thus, there was no material change: see the letter dated 23 March 1999. All of this came well before the decision in September 1999. There was further discussion after the decision was reached. I accept that the opportunity that was, in fact, given for further representations after the decision on 21 September cannot properly be regarded as part of the process of consultation. Consultation requires a joint process of negotiation and debate in which all parties strive to reach the goal of right judgment. But it is worth noting that the ministry did appear to have an open mind and did appear, at least, to be open to persuasion even after they had reached a decision, as later correspondence shows. I conclude that the ministry did what fairness required in the circumstances of the case. I am not intending to lay down any rule as to precisely what fairness demands in the context of the Crichel Down Rules, but I would be surprised if the ministry, unless the time constraints were particularly limited, would be acting fairly if it did not give sufficient notice of its proposal to enable former owners, if they wished, to make representations. Of course, once those representations are made, then the ministry is bound to listen. For all these reasons, this application fails. Application dismissed.