Agnello & Ors, R (on the application of) v Borough Of Hounslow & Ors

A local authority’s decision about allocating units in a publicly owned market may be amenable to judicial review where the function has a sufficient public element, flavour or character. In a competitive selection process, procedural fairness requires a distinction between establishing the factual basis for assessment and carrying out the comparative evaluation. Applicants should generally have a reasonable opportunity to comment on material adverse information obtained at the factual stage where it may substantially affect the decision, particularly where livelihood is at stake or the information comes from persons with interests adverse to the applicant. Administrative convenience may outweigh that obligation only where disclosure would be impracticable as a matter of good administration. A decision may be quashed for apparent bias where competitors supply influential adverse information without the affected applicant being given an opportunity to respond.

The claimants occupied units at the Western International Market, owned and operated by the London Borough of Hounslow. The Council proposed a smaller replacement market and, with assistance from a tenants’ association relocation committee, selected applicants for the new units. The unsuccessful applicants challenged the decisions by judicial review.

The challenges alleged that the decisions were not amenable to review, were brought too late, involved unlawful delegation, apparent bias, procedural unfairness, irrationality and inadequate reasons. The central issues were whether the Council retained the decision-making function, whether the selection process was fair and unbiased, and whether the decisions should be quashed.

1. Amenability. The decisions were subject to judicial review. The Council exercised specific statutory powers concerning a market under Part IV of the Hounslow Corporation Act 1968, the market was on publicly owned land, and the Council possessed regulatory and byelaw-making powers. Those features supplied the necessary public element, flavour or character.
2. Delay. The claims were lodged on the last day of the three-month period, but the promptness requirement was not treated as decisive. There was no demonstrated prejudice to successful applicants, the Council or Kier, and the future market would not operate for several years. Permission was therefore granted.
3. Delegation. The Council retained the power to accept, veto or modify the recommendations. The Tenants’ Association and its relocation committee supplied information and made suggestions but did not become decision-makers. The unlawful delegation ground failed.
4. Apparent bias. Applying the fair-minded and informed observer test, the Council’s process created a real possibility of bias. Members of the relocation committee were competitors for trade and, in some cases, for new units. They supplied influential adverse information, while the affected applicants were not given an opportunity to answer it. The same conclusion applied to applicants who were not trade competitors but faced committee members with a personal and pecuniary interest in the allocation. The waiver argument failed because the applicants lacked full knowledge of the relevant facts and had not given clear and unequivocal consent.
5. Procedural fairness. Comparative evaluation has two stages: determining the factual basis of assessment and then comparing applicants. The practical difficulties identified in R (Asha Foundation) v The Millennium Commission concerned the second stage and did not remove the obligation at the first stage. Given the importance of the decisions to the applicants’ livelihoods, the adverse information, the possible conflicts of interest and the ample timetable, the Council should have invited comments before relying on that information. The decisions were quashed. The criteria themselves and the reasons challenge failed; the irrationality issue was not determined.

First-instance judicial review proceedings. The judgment records that Maurice Kay J ordered the two claims to be heard together as rolled-up permission and substantive hearings. Mr Justice Silber granted permission and quashed the challenged decisions.