Planning permission granted subject to condition – Condition requiring access to site across land owned by council – Council resolving to sell land – Council subsequently resolving not to sell land – Application for judicial review – Whether council’s conduct creating legitimate expectation – Whether council’s decision susceptible to judicial review – Application dismissed
The applicant was the owner of 4.5 acres of land off Clune Street, Clowne, Derbyshire, that adjoined a recreation ground and football pitch owned by the respondent council. In September 1989 an application was made by a property developer, with the full support of the applicant, for outline planning permission to develop the applicant’s land for housing. Outline planning permission was granted in March 1990 with a condition requiring access to be taken from Clune Street. The effect of the condition was that access to the housing site would have to run across part of the council’s land (the access land) at the recreation ground.
An application was duly made to the council for them to exercise their powers under section 123 of the Local Government Act 1972 to sell the access land. In June 1990 the council resolved that the access land was to be sold to the property developer subject to terms and conditions. In the event, the 1990 planning permission was not proceeded with.
In July 1996 a second application was made for outline planning permission for housing on the applicant’s land. In April 1997 planning permission was granted with the same condition as before as to access. The applicant then entered into renewed discussions with the council in relation to the purchase of the access land. In January 2000 the council resolved not to sell the access land.
The applicant sought judicial review of the council’s decision, contending that their resolution of June 1989, and their subsequent conduct, had created a legitimate expectation that they would sell the access land. The council submitted that their decision in relation to the sale of the access land could not be the subject of an application for judicial review because it was a matter of private law, and, accordingly, could not be the subject of a public law remedy.
Held: The application was dismissed.
1. The mere fact that a disposal of land under section 123 of the Act was an exercise by the council of a statutory power was not enough to render their decision not to sell the access land a public law matter. The availability of judicial review depended not upon the source but upon the subject-matter of the power being exercised. A decision by a local authority to sell land was normally a private law matter unless a public law element was introduced, such as where a local authority had a policy relating to the retention or disposal of land. If a decision to sell land was not a public law matter, it could not become a public law matter if the local authority decided not to sell: R v Barnet London Borough Council, ex parte Pardes House School [1939] COD 512 considered; R v Leeds City Council, ex parte Cobleigh [1997] COD 69 and R v Camden London Borough Council, ex parte Hughes [1994] COD 253 followed. In making the decision not to sell the land, the council had not been performing a public function, but had simply been acting as a landowner.
2. The private law nature of the council’s decision was emphasised by references, in the correspondence between the parties, to the sale of the land being “subject to contract”, thereby preventing a contract from coming into existence during the negotiations. It would be manifestly unfair if one party were not bound by a contract, while another party was, because of the public law principle of legitimate expectation.
David Manley (instructed by Taylors, of Blackburn) appeared for the applicant; Mary Cook (instructed by the solicitor to Bolsover District Council) appeared for the respondents.
Thomas Elliott, barrister
