Whitstable Society v Canterbury City Council

The claimant sought judicial review of the defendant council's decision to sell the Oval Chalet site. The court considered five grounds: (1) that the land was "open space" requiring the procedures in section 123(2A) of the Local Government Act 1972; (2) that the contract exceeded the Executive's authority; (3) defective public advertisement of the Executive's business under section 100B of the 1972 Act; (4) that the council failed to obtain best consideration under section 123(2) LGA 1972; and (5) breach of the Public Sector Equality Duty under section 149 Equality Act 2010.

The judge held that the Oval Chalet did not "consist of or form part of an open space" for the purposes of section 123(2A) because it had not been developed or laid out as open space and had been let for exclusive commercial use (Ground 1 dismissed). The contract was within the scope of the Executive resolution and drafting errors in a plan and the absence of an express contractual obligation to provide open space did not render the contract ultra vires (Ground 2 dismissed). The public notice of the Executive meeting was adequate (Ground 3 dismissed). On valuation and best consideration (Ground 4) the court accepted that the council erred: the decision relied on an outdated valuation assumption that affordable housing obligations were inevitable, and no reasonable authority would have accepted that assumption without further enquiry; accordingly there was a breach of section 123(2). The Public Sector Equality Duty had been considered appropriately in the context of the disposal decision and subsequent planning process (Ground 5 dismissed).

Despite finding a public law error under section 123(2), the court refused relief because of undue delay, significant prejudice and substantial hardship to the third-party developer and detriment to good administration; the claim was therefore dismissed overall.

The Whitstable Society challenged Canterbury City Council's authorisation (Executive 11 December 2014) and subsequent conditional contract (21 January 2015) to sell the Oval Chalet site. The claimant sought declaratory and quashing relief and relied on five public law grounds concerning open space procedures, ultra vires authority, publicity of Executive business, best consideration under section 123 LGA 1972 and the Public Sector Equality Duty.

Background and parties: The Oval Chalet had been acquired by Whitstable Urban District Council in 1945 following contemporaneous undertakings that it would be "developed and kept as an open space". Over decades the land was used commercially (tea rooms/snack bars) and from 1961 was licensed to the Whitstable Yacht Club for exclusive dinghy storage; that occupation continued until 2013. From 2013 the council engaged with an "interested party" proposing a comprehensive redevelopment (the "Piazza" concept later amended). The council appointed Urban Delivery (UD) to advise on valuation and section 123 compliance; a UD report (valuation date 1 April 2014) produced a range of residual values conditional on affordable housing requirements. The council accepted a conditional sale at £165,000; the contract did not itself bind provision of open space.

Procedural posture: Permission to apply for judicial review was initially refused on the papers but granted on oral renewal (Supperstone J) because disclosure of key documents (a 1990 memorandum and land terrier entry) warranted extension of time. This is a first-instance substantive hearing before Dove J.

Issues the court framed:

• Whether the site was "open space" and the section 123(2A) consultation duty applied.
• Whether the sale contract exceeded the Executive's authorisation.
• Whether public notice of the Executive business complied with section 100B(4).
• Whether the council obtained the best consideration reasonably obtainable under section 123(2) of the Local Government Act 1972.
• Whether the council complied with the Public Sector Equality Duty (section 149 Equality Act 2010).

Reasoning and conclusions: The judge analysed statutory definitions (including the Town and Country Planning Act 1990 definition of "open space" adopted via section 270 LGA 1972) and long factual history. The court concluded the site had not been developed or laid out as public open space and that exclusive occupation by the Yacht Club meant casual public presence was trespass; therefore section 123(2A) did not apply. Minor errors in the Executive report (a plan omitting an access strip) and the absence of an express contractual obligation to provide open space did not make the contract ultra vires the Executive's resolution. On best consideration the court applied established public law principles (citing Faraday and Lidl among others): UD's valuation was reasonable in principle but relied on assumptions; the council failed to confront a material changed circumstance (slippage of the Local Plan and the Written Ministerial Statement affecting affordable housing policy) and did not make further enquiries despite the substantial effect on value — this was a breach of section 123(2). On equality the court was satisfied the council had had due regard and that the principal equality issues would be considered through the planning process. Finally, although unlawful on Ground 4, relief was refused because of undue delay, resulting prejudice to the developer and detriment to good administration; the claim was dismissed.

This is a first-instance determination. The court dismissed the claim overall. Grounds 1, 2, 3 and 5 were rejected for the reasons given in the judgment: the Oval Chalet did not consist or form part of "open space" for the purposes of section 123(2A) LGA 1972; the contract fell within the Executive's authority; public notice was adequate; and the Public Sector Equality Duty had been addressed appropriately. Ground 4 (failure to secure best consideration under section 123(2) LGA 1972) was found to be made out because the council failed to confront a material change of circumstances concerning affordable housing requirements and relied on an outdated valuation assumption. Nonetheless the court exercised its discretion to refuse relief because of undue delay, substantial prejudice to the third-party developer and detriment to good administration; accordingly the claim is dismissed.

Permission to apply for judicial review was refused on the papers on 21 April 2016 (Hickinbottom J). An oral renewal was heard and permission granted by Supperstone J on 8 June 2016, who extended time in light of disclosure of material documents.