O'Neill, R (On the Application Of) v London Borough of Lambeth

A judicial review claim must be brought promptly. Delay may justify refusing permission where it causes material prejudice, even if the underlying grounds are arguable.

Agreeing in principle to vary an existing lease is not ordinarily a disposal of land. A local authority may rely on independent statutory powers where another relied-on power is unavailable. Asset-of-community-value provisions do not require competition between community interest groups where the regulations permit disposal to such a group. An income-sharing arrangement incidental to a recreational project does not necessarily make the authority’s purpose commercial.

The claimant, a local resident and objector, sought permission to challenge Lambeth London Borough Council’s decision of 24 March 2016 to agree in principle to vary its 99-year lease with Coin Street Community Builders Ltd. The variation would permit sub-letting to the Garden Bridge Trust and construction of a landing station for the Garden Bridge project.

A call-in application was rejected on 21 April 2016. The claimant issued the judicial review claim on 24 June 2016. The renewed permission application was listed as a rolled-up hearing. The issues concerned delay, statutory advertising requirements, the council’s powers, asset-of-community-value provisions, commercial purpose and adequacy of reasons.

1. Permission refused. The claim was not brought promptly. The operative decision was made on 24 March 2016; the later call-in procedure merely reviewed that decision and could not reverse it. The explanations for delay were insufficient. Under section 31(6) of the Senior Courts Act 1981, permission was refused having regard to delay and its practical consequences.
2. The proposed lease variation was not a disposal of land for section 123(2A) of the Local Government Act 1972. Disposal ordinarily involved granting an interest or estate in land, whether by creating a new interest or transferring an existing one. Varying the terms of an existing lease did not itself dispose of the relevant interest. R v Thurrock Borough Council ex parte Blue Circle Industries Plc [1995] Env. LR 307 supported that conclusion.
3. Even assuming that reliance on Article 7 of the Ministry for Housing and Local Government Provisional Order (Greater London Parks and Open Spaces) Act 1967 was erroneous, the decision was independently supported by section 1 of the Localism Act 2011 and section 111 of the Local Government Act 1972.
4. The council had not unlawfully fettered its discretion under the asset-of-community-value regime. Regulation 13 of the Assets of Community Value Regulations 2012 permitted a relevant disposal to a community interest group during the specified period. It did not require competition between community interest groups.
5. The lease variation was not undertaken for a commercial purpose within section 4 of the Localism Act 2011. The project was recreational. Any income-sharing mechanism was incidental, and the council would not itself operate the commercial activities or seek to make a profit.
6. The reasons were sufficient. The officers’ reports, recorded decisions and published material adequately explained the action, its legal basis and the reasons for it. The costs order made by Ouseley J was confirmed.

Ouseley J refused permission on the papers on 1 August 2016. Cranston J directed on 1 September 2016 that the renewed application be heard as a rolled-up hearing. The High Court (Administrative Court) then refused permission after considering the substantive grounds.