Whitstable Society v Canterbury City Council

A local authority’s statutory duty to advertise a proposed disposal of open space depends on whether the land consists of or forms part of an open space when disposal is undertaken. Land acquired with a future intention that it should be developed as open space does not necessarily satisfy that description if the development never occurs and the land is instead commercially occupied.

In assessing best consideration under section 123(2) of the Local Government Act 1972, the authority must make further enquiries where a material change affects valuation. A decision based on an outdated and materially incorrect assumption about affordable housing requirements breached that duty. Relief may nevertheless be refused where delay, third-party prejudice and detriment to good administration make quashing inappropriate.

The claimant challenged the defendant local authority’s decision to authorise the sale of the Oval Chalet site in Whitstable and the conditional contract subsequently entered into with a developer.

Five grounds were advanced: failure to comply with the statutory procedure for disposal of open space; breach of the executive’s authorisation; inadequate notice of the executive meeting; disposal for less than the best consideration reasonably obtainable; and breach of the public sector equality duty.

The court considered the site’s historical acquisition and use, the valuation advice obtained by the authority, changes to planning policy concerning affordable housing, and the claimant’s delay in bringing proceedings.

1. Ground 1. The Oval Chalet site had been acquired with a view to its future development as open space, but it had never been developed or laid out as such. Its subsequent use as a tea room, snack bar and boat-storage site did not make it an open space. Occasional tolerated public access was merely trespass and did not alter the legal character of the land. The advertising and objection procedure in section 123(2A) of the Local Government Act 1972 was therefore not engaged.
2. Grounds 2 and 3. The contract remained within the executive’s authorisation. The omission of an access strip from the plan was a minor drafting error, and the report had identified alternative mechanisms for securing open space through planning. The meeting notice sufficiently disclosed that disposal terms for the publicly owned site would be considered.
3. Ground 4. The section 123(2) duty concerns the outcome of obtaining the best consideration reasonably obtainable. The court applied the principles distilled in Faraday Development Ltd v West Berkshire [2016] EWHC 2166. The authority was not required invariably to market the land or obtain an independent valuation, but it had to address material valuation considerations rationally. The valuation was eight months old, the local plan timetable had materially slipped, and a Written Ministerial Statement made the assumed inevitability of affordable housing requirements doubtful. No reasonable authority would have proceeded on that assumption without further enquiry. The disposal therefore breached section 123(2).
4. Ground 5. The authority had due regard to the public sector equality duty under section 149 of the Equality Act 2010. The disposal itself had limited immediate equality implications. Detailed redevelopment proposals would separately be subject to the duty in the planning process.
5. Relief. Despite the error under Ground 4, relief was refused under section 31(6)(b) of the Senior Courts Act 1981. The claimant had sufficient knowledge to bring proceedings by July 2015, yet delayed until February 2016. The developer had incurred substantial expenditure and reliance losses, and quashing would harm finality and good administration. The private contract could not in any event be quashed merely because the public decision was unlawful. Grounds 1, 2, 3 and 5 were dismissed; Ground 4 succeeded, but no relief was granted.