Island Farm Development Ltd, R. (on the application of) v Bridgend County Borough Council [2006] EWHC 2189 (Admin)

Case No CO/2586/2005[2006] EWHC 2189 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 25th August 2006
Before
Mr Justice Collins
Between
R(Island Farm Development Ltd)ClaimantsBridgend County Borough CouncilDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Nigel Jones, Q.C. & Mr David Lawson (instructed by Eversheds ) for ClaimantsMr Andrew Arden, Q.C. & Mr Christopher Baker (instructed by The Legal Services Department of the Council) for Defendant
Judgment
[1]The claimants seek to set aside a resolution by the defendant Council to refuse to sell some land owned by it to the claimants. The resolution in question was made as long ago as 26 January 2005 and these proceedings were instituted on 22 April 2005. It is unfortunate that it has taken such a long time for them to be finally dealt with. Permission was refused on the papers by Sullivan J on 27 May 2005. On 28 September 2005 Mr Michael Supperstone Q.C., sitting as a deputy judge, granted permission on limited grounds.[2]Local authorities can acquire or dispose of land. The only constraint is that any disposal must not (without the consent of the Secretary of State) be for a consideration which is below the best obtainable: see Local Government Act 1972 s.123(2). Decisions in relation to disposal of land may well not engage public law if they are what might properly be regarded as ordinary commercial undertakings. The defendants have not asserted that the decision in issue in this case does not involve public law considerations and so this claim is properly brought in order to seek to overturn the decision.[3]For some years, there has been what is called a Science Park on the edge of the built up area in Bridgend. This has been most successful and has been considered to be a potential attraction for adjoining high technology developments. In 1992, the former Mid Glamorgan County Council purchased for £1.5 million, using funding provided by the Welsh Development Agency (WDA), 19.8 acres of land which had been used as a POW camp during the Second World War and on which was one of the huts used to house prisoners. This was a listed building because of its historical significance in that there had been one of the few successful escapes of German prisoners of war from it. In March 1996, a total of 13.71 acres of further land was purchased for £750,000, £250,000 of which was funded by the WDA. In April 1996, this land became vested in the defendants following local government reorganisation. Thus the defendants own some 33 acres (or about 13.5 hectares). The site is known as Island Farm.[4]This holding is included in an area which has since 1984 been allocated as a specialist site for high technology uses, designed to attract good quality employment and requiring stringent environmental standards. In the current Unitary Development Plan (UDP) that allocation has been maintained. The claimants have planning permission to develop approximately 25 acres, at present farm land adjoining the Science Park and the defendants’ land. There is in addition a small area of some 6.5 acres, known as the Merthyr Mawr land, which, though not directly involved in this claim, will be affected by any development which takes place. If the UDP allocation is followed, up to 1300 new jobs could be created, all of which would be of high quality.[5]Island Farm Development Ltd (IFDL) is a wholly owned subsidiary of Macob Projects Limited, itself part of the Macob Group, a major engineering, construction and development enterprise. It has been set up in order to carry out the development of the land which is owned by the second claimant, Berigull Ltd. Berigull has agreed to sell the relevant land to IFDL.[6]Macob has for some time been interested in the possibility of developing the site in question. Mr Philip Morgan, the managing director of Macob Projects Limited, a resident of South Wales who has always looked out for potential development sites, has been responsible for pursuing discussions with the defendants about development of the site. In early 1998 an approach was made on behalf of Macob with a view to an extension of the Science Park. In September 1999 it was apparent that the proposal was not achievable and the defendants were accordingly considering the most appropriate method of marketing the site. The WDA, which had an interest because it had funded the bulk of the purchase of the land by the Council, having learnt that the Macob proposals would not proceed, approached the Council to explore the possibility of a joint development scheme. Various studies were commissioned and carried out and a programme was prepared which envisaged work commencing in 2001 with a view to delivering a high quality business environment. Heads of Terms were prepared and there was to be a joint application for grants from Europe. However, on 13 December 2001, before any positive steps had been taken to implement the programme, the Council learnt by way of an article in the Glamorgan Gazette that the Welsh Rugby Union (WRU) had, in conjunction with Berigull Ltd, ‘given the green light’ for the construction of a ‘sporting school of excellence’ on the Island Farm site. In fact, the Council had since early 2001 been aware of the possibility that the WRU would want to place its ‘school of excellence’ in Bridgend and that the Island Farm site was the proposed venue. It seemed to the claimants that the proposal would appeal to the Council and so was likely to come to fruition and this led Macob to incorporate IFDL to pursue the development.[7]At that time, the Council was controlled by the Labour Party. Its leader was Councillor Jeff Jones. It seems he may have taken the initiative in approaching the WRU and suggesting that the land owned by the Council should form part of the proposed development. It is clear from his subsequent actions that he was very much in favour of what I shall call the WRU development. But it is equally clear that the proposal did not find favour with a substantial body of local opinion and it was not in accordance with the UDP. However, if he did take the initiative, he did so with no formal approval of the Council so that his actions were his own and not those of the Council. Once it was clear that the WRU were keen to have their facilities at Bridgend, the question whether the disposal of the Council’s land should be approved to enable such a development to take place was put to a Council meeting held on 30 January 2002. It was resolved, as the minutes record:- “that, in its role of landowner, negotiations with Berigull Limited and the Welsh Rugby Union be authorised in principle for the potential disposal of the Council’s land holding at Island Farm subject to the appropriate legal and property advice being obtained.” As is apparent from its wording, this resolution did no more than permit negotiations and did not indicate that the land would be disposed of or that the scheme was one of which the Council approved.[8]Before going further, I should deal briefly with the UDP. In June 2000 the Council approved a pre-deposit draft version of the plan as a basis for a major public consultation. Inter alia, it was proposed that there should be a number of what were called ‘green wedges’. They were described as:- “anti-coalescence planning policies … intended to complement the proposed strategic Green Belt around Cardiff, and to protect locally sensitive areas of countryside in the County Borough, and its neighbours, from inappropriate and visually intensive developments”. One such wedge (numbered EV11(15)) included all the land owned by Berigull. The consultation produced only two objections to EV11(15), one being on behalf of the family holding a controlling interest in Berigull. It was said that that land was ‘suitable to accommodate a major comprehensive development, comprising prestige sporting, leisure and recreational facilities, an hotel, employment uses (Class B1) and residential uses’. A meeting of the Council was held on 23 March 2001 to consider the draft UDP in the light of the responses to the consultation exercise. Shortly before the meeting, Councillor Jeff Jones said that he proposed to move that the Island Farm land be removed from the Green Wedge designation in EV11(15). This was obviously in the light of his discussions with the WRU and his concern that it should be possible for a School of Excellence to be established: indeed, he made it clear that he believed that the door should not be closed for such a development. His motion was carried, and the land was designated as ‘white land’, that is to say, land which was not allocated for development but not specially protected. The balance of the Island Farm site, including all land owned by the Council and the Merthyr Mawr land and some 17 acres of land owned by Berigull (which has been called the Berigull red land) is designated for special employment. Policy E6(1) identifies the site as one which:
“must be developed to the highest design and environmental standards and [is] reserved specifically for high technology business and manufacturing, research and development and prestige office development, and for no other purpose.”
This allocation was in due course upheld by the inspector who conducted the public inquiry into the UDP. There were two objectors to the policy, one being Mr Joseph who, unsurprisingly, because of his interest in the Berigull land, proposed that there should be a ‘mixed use development based on a national academy of sporting excellence, on a site which would include the E6(1) land and land to the south’. The other objector was the Campaign for the Protection of Rural Wales which wanted no industrial development. The inspector’s view was that the Island Farm site next to the Science Park was ‘sufficiently well related to the strategic road network and the main settlement of Bridgend, to offer an attractive site for high technology or research based business”.[9]The first application for planning permission was lodged on 7 January 2002. There had been no prior discussions with officers. The application was for the WRU School of Excellence, an athletics track of international standard, an extension to the Science Park providing some 37000 square metres of economic development, 210 ‘executive’ houses and a four star luxury hotel. This was contrary to the existing and emerging plans. Furthermore, it was pointed out that it stood a greater chance of success if the buildings were not to be allocated to the white land. A fresh application was made in August 2002. Apart from the reallocation, this reduced the proposed economic development to 14000 square metres. This reduction was apparently driven by highway considerations. There were concerns about the financial arrangements because it seemed to the Council officers that it was envisaged that there should be a financial contribution from the Council to the school of excellence. However, in due course the officer’s report was not adverse. But on 18 December 2002 the Development Control Committee resolved to refuse permission because the application did not accord with the Council’s policies as expressed in the approved plan.[10]Following this set back, the claimants were, they say, encouraged to submit a further application. There was no encouragement by any officers, but it may well be that Councillor Jeff Jones gave some indication that a further application would stand a good chance of success. In any event, Councillor Jeff Jones was instrumental in persuading the Council to change the system so that in future planning applications would be decided by the full Council instead of by the Development Control Committee. A further application was made. It did not differ in any material respect from that which had been rejected by the Committee. It was again approved by the planning officer, although it was contrary to the UDP. Because of this, the decision by the full Council to grant permission had to be referred to the Welsh Assembly. The Chief Minister decided that it was not necessary for it to be called in and so on 5 June 2003 the application was approved subject to conditions and completion of a s.106 agreement.[11]There then followed discussions about the sale of the Council’s land without which the development for which planning permission had been granted could not go ahead. Those discussions did not result in any agreement. It is unnecessary to identify why they did not achieve what the claimants wanted. Finally, the issue was put to a meeting of the Council’s Cabinet on 28 April 2004. One of the problems had related to the athletics track and funding for the costs of its maintenance. The Council was unwilling to take on the responsibility and so the amount to be paid for the land was to be adjusted if the track was not in the end to be provided. But if it was not, it might be that a fresh planning application would be needed since its absence would represent a material change. A report was prepared for the meeting which made no particular recommendations. The Cabinet approved the Heads of Terms which were annexed to the reports. But it is important to note that this approval did not commit the Council or the claimants to any binding agreement. It merely cleared the way for an agreement based on the Heads of Terms to be made. Furthermore, it was not a final decision. It was able to be and was ‘called in’ by a request of members of the Corporate Services Overview and Scrutiny Committee who were concerned at what they regarded as deficiencies in the Heads of Terms. That committee decided on 17 May 2004 to refer the Cabinet decision to the full Council on the grounds that financial aspects of the proposal should be reconsidered. On 21 May 2004 at an extraordinary meeting the full Council considered the matter and decided that the decision reached by the Cabinet should be upheld.[12]Local elections were due to be held on 10 June 2004. The development at Island Farm was an issue in the election. There had been and was considerable opposition to it and the Liberal Democrats in particular had made it an important issue in their campaign. This was no doubt partly an illustration of the alleged failure by the current administration to listen to popular concerns and of the manner in which it was said that the leader of the Labour group, Councillor Jeff Jones, in effect ran the Council. While it would need a fairly substantial swing to change the political control of the Council, it was obviously desirable that the claimants should if possible get an enforceable agreement before the election. However, before this could be achieved, on 28 May 2004 a letter was received by the Council from a Mr Walters in which he stated that he was aware of the Council’s approval of a sale to the claimants for £2.5 million (in fact, it was £2.75 million which would be reduced to £2.25 million if the athletics track was not to be constructed) and that he was prepared to offer £5 million. The claimants assert that this was not a genuine offer (it later transpired that Mr Walters was only prepared to proceed on the basis that he got planning permission for housing development, which was somewhat curious since he had been a signatory to a petition which had been submitted to the National Assembly opposing residential development on the site), but was a spoiling tactic and that those campaigning against the development were behind it. They may well have been correct, but at the time the Council officers would have been wrong not at least to investigate the matter to see whether there was indeed a prospect of obtaining a better consideration for the sale. Mr Walter’s offer was not in fact the only matter which prevented there being a binding agreement before 10 June 2004. There were a number of conveyancing issues and the need to satisfy the external auditors that there was nothing which could justify any objection to the sale. In the result, no binding agreement was made. Thus the claimants could not rely on any legal right to require the Council to sell the land to them. If they could, they would have had a private law cause of action to enforce that right.[13]The election resulted in a change of control. The Labour Party, which had held about two thirds of the Council seats, became a minority. However, there was a need for some sort of coalition since no single party or group had a majority. On 14 June 2004 the Chief Executive received a letter signed by the leaders of the Liberal Democrats, Conservatives and Independent groups informing him that they intended to form an administration since together they held the majority vote. The letter continued:- “One of the reasons for the great change in political balance on the Council is the public rejection of the Island Farm proposal and for that reason we are requesting that any progress on the sale of the Council’s land is frozen pending a review of the situation”. Since there were in any event outstanding matters to which I have already referred, the officers very properly did not progress the sale. A new administration was formed as indicated in the letter and the first meeting of the new Council was held on 30 June 2004. Councillor Green, the leader of the Liberal Democrat group, became leader of the Council. The new Cabinet consisted of five members. There were three Liberal Democrats (Councillors Burns, Foley and Hacking), one conservative (Councillor Anderson) and one independent (Councillor Hughes).[14]On 22 June 2004 the claimants’ solicitors wrote stating that they accepted that ‘an incoming administration may well wish to review some of the decisions of the previous administration’, but making the point that the negotiations with the Council had been on the basis that there were no impediments and the price for the land was a fair one. They said:- “Whilst a short delay in carrying out the review is acceptable, any longer delay will incur my clients in even more fees.” They pointed out that a review which resulted in a decision not to proceed would mean that the claimants would be out of pocket to the extent of more that £500,000 and so, if it was decided not to proceed, the claimants would take proceedings to recover the costs incurred. It is apparent that the claimants recognised that it was possible that the review would mean that the sale did not proceed: that is hardly surprising in the light of the opposition to the development which was very much an election issue and the knowledge that their opponents were now in charge of the Council. And in due course it was known that the members of the cabinet which finally decided not to proceed with the sale had been active and vociferous opponents of the development. Indeed, the Liberal Democrats manifesto had stated:- “ … Island Farm was planned in part to accommodate a valuable extension to a business park and in part to return quality agricultural land. This carried major benefits such as providing employment and encouraging graduate retention the area. We would not allow these community assets to be reduced by uncertain and speculative ventures of the kind recently proposed in plans for a WRU training centre.” Councillor Burns had before being elected been an active member and secretary of the Island Farm Action Group (IFAG), which had been formed in 1998 to oppose the proposed development at Island Farm.[15]On 14 July 2004 the Cabinet determined that progress on the sale should be held up pending a review. It took an unfortunately long time to consider all the necessary matters and to produce reports which identified all possible options and it was not until 26 January 2005 that the decision was finally made. In the meantime, advice from counsel was sought. The officers were obviously aware that a substantial claim was threatened if the sale was halted and so it was necessary to consider the matter carefully. They were also aware that the new regime wished if possible not to sell the land for the purpose of the development. They believed when instructing counsel that there were five possible options. The first two involved proceeding on the basis of the negotiations already carried out or doing so having sought to renegotiate the price. Options three and four were to discontinue the negotiations with the claimants and to seek to market the land for the purpose of employment uses in accordance with the UDP or to advertise the land for disposal with no preconditions. Both these latter options were properly rejected by counsel as being contrary to s.123 of the 1972 Act. Option five suggested the carrying out of infrastructure works before embarking on any of the other options. Since the claimants had as part of the development agreed to carry out the necessary infrastructure works, this option was not really feasible.[16]It is to be noted that the result, having regard to counsel’s advice in relation to the third and fourth options, would have been an inevitable acceptance that, despite the views that it was inappropriate, nothing could be done to halt the development. However, counsel noted that there was a sixth option, namely not to dispose of the land and not to pursue any active marketing of it. It would be retained (or, as the jargon has it, land banked) to meet possible future need for development for high technology purposes. He advised that it was vitally important that the financial implications should be presented to the members of the Cabinet in a clear way so that they could determine whether such a course of action was reasonable. If it was apparent that there was, for example, no realistic prospect of financing being available for such development in the future or the Council would suffer an unacceptable financial loss if the sale did not go ahead, it would not be reasonable to halt it. In paragraph 52 of his draft advice, counsel said this:- “In my view … the principal ground of any challenge would relate to rationality and Bridgend’s fiduciary duty. In short, the argument would be: how could Bridgend properly turn down ‘a bird in the hand’, worth in principle £2.75 m, in favour of retention for a possible future use which at current values would command a very much lower monetary consideration? As I have advised above, on the present material, this point seems too me to turn on the observations of Mr Pearce, and the factual justification for retaining the land at the present time. This material needs to be expanded in order to provide more detailed support for option 6 and a persuasive case for not proceeding with the disposal to IFAL.” Mr Pearce is and was the head of the Council’s Economic Development Unit whose function is to promote the economic well being of the area. It is important to bear in mind that a Council is not merely concerned with the value of its land and is not required to sell merely because a good offer is made. S.123 of the 1972 Act prohibits a sale at other than the best possible consideration; it does not require a sale if an offer is made. The Council has to consider the effect on the future economic well being of its area and the need to retain land to be available for particular future uses which enhance that well being is a highly relevant consideration. Thus the availability of land for high technology development is a most important factor and, as Mr Pearce said in his contribution to the report which was before the Cabinet in January 2005, although there were other potential high technology sites in the County Borough, there was in his view not an adequate supply in the long term perspective, taking this to be up to 2016.[17]The documents before the Committee for the meeting of 26 January 2005 were substantial. They comprised a joint report by the Chief Executive, his Deputy and the Director of Corporate Services and Monitoring Officer. Important contributions to the report came from among others Mr Pearce. There were in addition two files, one containing material which the claimants had requested be put before the Committee and the other background information in relation to valuation, including reports from the firm of valuers engaged by the Council, and in relation to the planning considerations. There were also copies of correspondence with the claimants. Councillor Green had, as a member of the Council, been involved in the consideration of the third planning application. She was an experienced council member, having been elected in March 1998. Councillor Anderson had served as a councillor with Bridgend or its predecessors since 1987 and had been a member of the Development Control Committee of the Council since 1994. He had sat on the committee which rejected the second planning application and had himself been in the majority. Councillor Burns had, as secretary of IFAG, been concerned with the proposed development. He had inspected all the material documents in relation to it before his election in June 2004.Indeed, he had been criticised because he had wrongly taken photographs of documents to which he had been given access on the basis that he could see them but not take copies. The claimants have sought to rely on that against him, but, as it seems to me, it is entirely irrelevant and I do not accept that it shows that what he says in his statement should not be accepted. While he should not have done what he did, the documents he copied were not in fact secret or sensitive. Councillor Foley had been a councillor since 1991, originally as a labour member until his resignation from the labour party in 2003. He had voted against planning permission. Councillor Hughes had been a councillor since 1996. He had voted for the grant of planning permission when the third application came before the full council in 2003. He was persuaded that the correct option to support was what had become by the time the meeting was held Option 5, that is to say, the option identified by counsel to retain the land. It is apparent that all the members of the Cabinet who were present at the meeting of 26 January 2005 were well aware of the history of the site and the report must be judged in the knowledge that it was addressed to an informed audience.[18]The decision was to approve Option 5. The Council could not and did not purport to revoke or vary the planning permission, although it was noted that, if the athletics track was to have been omitted, a further application might have been needed. A grant of planning permission cannot and does not guarantee that the development which is proposed will be carried out. Equally, there is no obligation on a Council to take steps to facilitate the implementation of a permission unless, of course, it has entered into an enforceable agreement that it will. While it was obvious that the refusal to sell the land would frustrate the permission, it is important to remember that the decision concerned the use by the Council of one of its own assets. Rights of third parties would have to be taken into account, but the effect on third parties would at best be of little weight unless, of course, their rights were affected. The decision was not akin to a regulatory decision nor was it a planning decision. Obviously, the consequences of allowing the development and of retaining the land had to be considered and put in the balance, but, absent irrationality or any other breach of the law, the Council was entitled to decide that the benefit for the community was greater if the land was not sold.[19]The first ground of challenge is that the decision was vitiated by predetermination and bias and was not made on the merits. No application was made to cross-examine any of the members of the committee. Since each had asserted that he or she had indeed considered the arguments and had not entered the meeting with a closed mind, actual bias could not be established. Mr Nigel Jones, Q.C., recognised this and relied on the principle of apparent bias, although he submitted that he was able to show both bias and predetermination. Bias was based on the known views of the members having regard to the Liberal Democrat attitude to the development and, in the case of Councillor Burns whose participation was in particular attacked, his membership of IFAG. Predetermination was said to be apparent because it was clear that the members were concerned to see whether there was any way to prevent the development and so could not properly have weighed the merits and the objections.[20]The development had been controversial for some time and it was clearly an election issue. Whether or not it did influence the election so that it can be said that there was a majority against it will never be known for sure, but there can be no doubt that the fact that the majority of the cabinet disapproved of the development was well known to all interested in the matter, including the claimants.[21]Although the attack was levelled at the committee members in general, particularly as the Liberal Democrats had congratulated themselves that they had stopped the development, the main target was Councillor Burns. He had resigned from the Action Group once he became a member of the Council, but that, it was said, was not enough to remove the concern that he must have approached his task with a closed mind.[22]Councillor Burns prepared a ‘speaking note’ for the meeting. In it he set out the pros and cons of the options. It is detailed and comprehensive. I do not believe that it supports an assertion that he had closed his mind to any arguments that a sale was the appropriate option. The minutes of the meeting record that there was what is described as a question and answer session on the various options and that individual views were presented and assessed. The resolution eventually reached recorded that:- “The Cabinet has considered whether the long-term possibilities of delivering special employment in the area which includes the authority’s land outweigh the immediate apparent advantage of proceeding with the development scheme proposed by IFDL.” The minutes and the record of the conclusions, unless they are a sham, show that the matter was considered without any preconceptions and that the members of the committee did not simply assume that the sale should not be approved.[23]I have been referred to a number of authorities on the issue of bias and predetermination. In principle, councillors must in making decisions consider all relevant matters and approach their task with no preconceptions. But they are entitled to have regard to and apply policies in which they believe, particularly if those policies have been part of their manifestos. The present regime believed that the development of the Island Farm site in accordance with the planning permission was wrong and they had made it clear that that was their approach. In those circumstances, they were entitled to consider whether the development could lawfully be prevented. The fact that a particular policy is included in a manifesto does not mean that it must be implemented. So much was decided by the House of Lords in Bromley LBC v GLC [1983]AC 768. But that case goes no further than deciding that policies which are contrary to law cannot be implemented. That means that they must not contravene any statutory or common law obligation or fail the Wednesbury test. Furthermore, it is important that a judge should not allow his views of the merits of the policy to colour his decision: that would be an unwarranted interference in the democratic process. It follows that in the context of a case such as this I do not believe that bias can exist because of a desire to ensure if possible that the development did not take place. If that approach had been taken, it would have been lawful.[24]Attempts have in the past been made to impugn decisions of local authorities on the basis that they were driven by a policy imposed by the political party who was in control, and did not consider the merits dispassionately. Most such attempts have failed. An early example is to be found in R v Amber Valley DC ex p Dickson [1985] 1 W.L.R. 2998, a decision of Woolf, J. The case concerned a planning application which the local group of the political party in control had, before it was considered by the relevant committee, resolved to support. Nonetheless, members of the group could not be disqualified from considering the application. Woolf J observed (at p.307):- “It would be a surprising result if it did [disqualify] since in the case of a development of this sort, I would have thought that it was almost inevitable, now that party politics play so large a part in local government, that the majority group on a council would decide on the party line in support of the proposal. If this was to be regarded as disqualifying the district council from dealing with the planning application, then if that disqualification is to be avoided, the members of the planning committee at any rate will have to adopt standards of conduct which I suspect will be almost impossible to achieve in practice.” He drew attention to the fact that there was an affidavit from the leader of the majority group in which he stated that all material considerations would be taken into account when the planning committee came to deal with the application. This approach is supported by the decision of the Court of Appeal in R v Waltham Forest LBC ex p Baxter [1988] 1 Q.B. 419. That case concerned the decision to set a rate. Prior to the decision, the majority group held a private meeting at which a decision was reached following a vote on the appropriate increase. It was then the duty of the members to vote in accordance with that decision and a number of members who had at the private meeting voted against the increase supported it. It would seem clear that the system did put pressure on members to vote in accordance with party policy notwithstanding that they may not have agreed with it and it may be thought that there was in that respect an element of predetermination. But the Court refused to interfere. Sir John Donaldson MR said this (at p.424H):- “Mr Wadsworth submitted that in the light of the requirement for rates to be fixed by the Council, the private determination of a group policy in this context did undermine statutory safeguards. I do not agree. So long as councillors are free to remain members despite the withdrawal of the whip and so long as they remember that whatever degree of importance they may attach to group unity and uniformity with group policy, the ultimate decision is for them and them alone as individuals, I cannot see that there is any undermining of statutory safeguards.” The court went on to consider the evidence relating to four individual councillors and accepted that they had acted properly and, in particular, that there was nothing necessarily objectionable in deciding to follow the party line.[25]While I believe that the members of the committee were entitled to approach their task on the basis that the development of which they disapproved was wrong in principle and so they were entitled to act to stop it proceeding if they lawfully could, I shall assume that I am wrong and that Mr Nigel Jones is correct in submitting that they should have considered all options with an open mind. My attention has been drawn to cases where decisions have been struck down because of apparent or actual predetermination and it is right to say that Baxter’s case shows that a decision maker cannot rely on party policy as a justification without more.[26]In Bovis Homes Ltd v New Forest Plc [2002] EWHC 483 (Admin) the allegation of bias was based on the participation by a councillor in the meeting which adopted the council’s local plan who was a member of a committee and had been involved in a meeting of that committee which had supported the proposed adoption. This meant, it was submitted, that there had been predetermination. Ouseley J said this at paragraphs 111 to 113 of his judgment:- “111. In my judgment a Council acts unlawfully where its decision-making body has predetermined the outcome of the consideration which it is obliged to give to a matter, whether by the delegation of its decision to another body, or by the adoption of an inflexible policy, or as in effect is alleged here, by the closing of its mind to the consideration and weighing of the relevant factors because of a decision already reached or because of a determination to reach a particular decision. It is seen in a corporate determination to adhere to a particular view, regardless of the relevant factors or how they could be weighed. It is to be distinguished from a legitimate predisposition towards a particular point of view. I derive those principles from the Kirkstall Valley Campaign Ltd case to which I have already referred, particularly at page 321G.112. There is obviously an overlap between this requirement and the commonplace requirement to have rational regard to relevant considerations. But in my judgment, the requirement to avoid predetermination goes further. The further vice of predetermination is that the very process of democratic decision making, weighing and balancing relevant factors and taking account of any other viewpoints, which may justify a different balance, is evaded. Even if all the considerations have passed through the predetermined mind, the weighing and balancing of them will not have been undertaken in the manner required. Additionally, where a view has been predetermined, the reasons given may support that view without actually being the true reasons. The decision-making process will not then have proceeded from reasoning to decision, but in the reverse order. In those circumstances, the reasons given would not be true reasons but a sham.113. In my judgment the sequence of steps and the accumulation of events here shows predetermination and a closed mind, rather than just a strong disposition to include the land within the NFHA.” It is apparent from his reasoning that he accepted that there had been actual predetermination. He noted that the Councillor had not been willing to submit to cross-examination and so he said (Paragraph 123) that he did not give weight to the assertions of open-mindedness.[27]R(Partingdale Residents Association) v Barnet LBC [2005] EWHC 947 (Admin) is another example of a Councillor having closed his mind to any arguments and having predetermined the relevant decision. Mr Rabinder Singh, Q.C., sitting as a deputy judge, cited observations of McCarthy P in the New Zealand case Lower Hutt City Council v Bank [1974] 1 NZLR 545 @ 550. I need only cite two sentences:- “ … something less than the scrupulous state of impartiality and its appearance required of a Court of Justice is required of Councils in those circumstances. We think that the state of impartiality which is required is the capacity in a Council to preserve a freedom, notwithstanding earlier investigations and decisions, to approach this duty of inquiring into and disposing of the objections without a closed mind, so that if considerations advanced by objectors bring them to a different frame of mind they can, and will go back on their proposals …” There was evidence before the court in that case which showed that the Councillor had decided to reach a particular decision come what may and so it too was a case of an actual, closed mind.[28]Finally, there was Georgiou v Enfield LBC [2004] EWHC 779 (Admin), a decision of Richards J. The decision under attack was to grant listed building consent and planning permission. Members who decided the applications had also been members of the Council’s Conservation Advisory Group which had held a meeting before the Planning Committee’s meeting in which the forthcoming applications had been considered and voted on. This was said to give rise to an appearance of bias, based on the principle summarised by Lord Hope in Porter v Magill [2002] 2 A.C. 257 at p.494:- “The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased.” It was accepted by counsel for the local authority that that was the governing principle. He also drew a distinction between bias, predisposition and predetermination, relying on observations of Ouseley J in R(Cummins) v Camden LBC [2001] EWHC 1116 (Admin). The relevant observations are set out in Paragraph 256 of his judgment:- “There is an important distinction between bias from a personal interest and a predisposition, short of predetermination, arising say from prior consideration of the issues or some aspect of a project. The decision-making structure, the nature of the functions and the democratic political accountability of Councillors permit, indeed must recognise, the legitimate potential for predisposition towards a particular decision. The source of the potential bias has to be a personal interest for it to be potentially objectionable in law.”[29]Richards J, however, applied the Porter v Magill test more widely. He set out his reasons in Paragraphs 31 to 36 as follows:- “31. I therefore take the view that in considering the question of apparent bias in accordance with the test in Porter v Magill, it is necessary to look beyond pecuniary or personal interests and to consider in addition whether, from the point of view of the fair-minded and informed observer, there was a real possibility that the planning committee or some of its members were biased in the sense of approaching the decision with a closed mind and without impartial consideration of all relevant planning issues. That is a question to be approached with appropriate caution, since it is important not to apply the test in a way that will render local authority decision-making impossible or unduly difficult. I do not consider, however, that the circumstances of local authority decision-making are such as to exclude the broader application of the test altogether.32. On that basis I do have concerns about what happened in this case and the objective impression that it conveyed. Although the CAG’s remit was to consider only the conservation implications, its conclusion was expressed in simple terms of support for the applications, without any qualification. Both the note of the CAG meeting on 27 May and the report to the planning committee on 17 June state that CAG “continued to support” the applications. Moreover, although there is nothing to show that a vote was taken within the CAG, there is equally nothing to show that any of the members present dissented from that conclusion: the support appeared to come from all those present, including the three members who were also members of the planning committee. When it came to the meeting of the planning committee, nothing was said about the limited function of the CAG or about the need for those with dual membership to put on one side the support expressed in the CAG and to examine all the relevant planning issues before reaching the planning decisions.33. In those circumstances, I take the view, though not without a degree of hesitation, that a fair-minded and informed observer would conclude that there was a real possibility of bias, in the sense of the decisions being approached with closed minds and without impartial consideration of all the planning issues, as a result of the support expressed by the CAG being carried over into support for the application in the context of the planning committee’s decisions.34. The fact that one of those with dual membership had received no training in planning matters reinforces that concern. So does the fact that all three of those with dual membership who had attended the CAG meeting on 27 May voted in favour of the applications.35. On the other hand, in my view nothing turns on the fact that one of them was the chairman of the planning committee. The problem, as I see it, relates to the possibility that the three members to whom I have referred approached the matter with closed minds, rather than the possibility that they influenced other members or that the special status attached to the CAG meant that its support for the applications affected other members.36. Having regard to the objective nature of the question of apparent bias, I do not think that any significant weight is to be attached to the members’ own witness statements in which they state they did approach the planning decision with open minds: cf per Lord Hope in Porter v Magill at page 496 Paragraph 104.”[30]I confess to some doubt as to this approach, and in particular to what he says in Paragraph 36. Councillors will inevitably be bound to have views on and may well have expressed them about issues of public interest locally. Such may, as here, have been raised as election issues. It would be quite impossible for decisions to be made by the elected members whom the law requires to make them if their observations could disqualify them because it might appear that they had formed a view in advance. The decision of the Court of Appeal in Baxter’s case, of the New Zealand Court of Appeal in the Lower Hutt case and of Woolf J in the Amber Valley case do not support this approach. Nor is it consistent with those authorities that no weight should be attached to their own witness statements. Porter v Magill was a very different situation and involved what amounted to a quasi-judicial decision by the Auditor. In such a case, it is easy to see why the appearance of bias tests should apply to its full extent.[31]The reality is that Councillors must be trusted to abide by the rules which the law lays down, namely that, whatever their views, they must approach their decision-making with an open mind in the sense that they must have regard to all material considerations and be prepared to change their views if persuaded that they should. It is to be noted that the Court of Appeal sees nothing objectionable in a judge who has refused permission to appeal on the papers sitting on an oral hearing to reconsider his decision. That is because it is recognised that a judge is always prepared to be persuaded to change his mind. So it is with Councillors and, unless there is positive evidence to show that there was indeed a closed mind, I do not think that prior observations or apparent favouring of a particular decision will suffice to persuade a court to quash the decision. This approach is consistent with observations of Lightman J, with which I entirely concur, in R(Loudon) v Bury School Organisation Committee [2002] EWHC 2749 (Admin) in paragraph 23, where he said:- “The distinction between (disqualifying) pecuniary interests and (non-disqualifying) potential pre-judgment arising from prior publicly stated views in the case of administrative bodies … is well-established: see e.g. R v SSE ex p Kirkstall Valley Campaign [1996] 3 All ER 305. This accords with well established law in the local authority field where it has long been held that political application and party loyalty and a party whip do not disqualify: see Baxter’s case and R v Bradfield MCC ex p Wilson [1989] 3 All E.R. 140.”[32]It may be that, assuming the Porter v Magill test is applicable, the fair-minded and informed observer must be taken to appreciate that predisposition is not predetermination and that Councillors can be assumed to be aware of their obligations. In this case, the evidence before me demonstrates that each member was prepared to and did consider the relevant arguments and each was prepared to change his or her mind if the material persuaded him or her to do so. I am not therefore prepared to accept that there was apparent bias or predetermination which vitiated the decision.[33]I should perhaps add that some reliance was sought to be placed on the Code of Conduct which applies in England but not in Wales. I accept that continuing membership of a lobby group is inappropriate and that it was correct for Councillor Burns to have resigned from IFAC. But his prior activities did not disqualify him provided that he was prepared to listen to the arguments on the other side and to take all relevant materials into account. The evidence shows that he was so prepared.[34]It is also material to note that if submissions made by Mr Nigel Jones were correct, the carrying on of local government would be very difficult. Section 13(2) of the Local Government Act 2000 provides that many functions of a local authority are to be the responsibility of an executive of the authority under executive arrangements. Disposal of land is one of the functions which the Cabinet must decide on. If apparent predetermination based on party policy or prior observations is to disqualify, it is difficult to see what could be done since, in the case of this issue, all who are now in control might be regarded as having shown themselves hostile to the development and so the democratic process would be undermined.[35]Mr Arden, Q.C., has submitted that the claimants have in any event waived any objection to the constitution of the committee. They did not raise any objections to the participation of any of the members in advance. They were kept fully informed and were invited to and did make such representations as they considered appropriate. I do not think a lack of specific objection can be translated into a waiver of any objection. Waiver must be clear and unequivocal based on full knowledge of all material facts. In the light of my conclusion that the allegation of bias is not made out it is unnecessary to deal with waiver in any greater detail. Suffice it to say that if I had decided that the bias claim was established I would not have found in the Council’s favour on the basis of waiver.[36]The second and third grounds can be dealt with together, since they overlap. It is said that the decision was based on a series of fundamental errors of fact or analysis and was such that no reasonable body could have adopted. The report to the committee was, it is said, flawed in that it did not refer to matters clearly relevant and which ought to have been drawn to the committee’s attention and, in addition, it contained some serious and material factual errors. For this reason, and more generally because it was based on unrealistic hope, the decision reached was perverse.[37]The main focus of attack in support of those grounds is on the contribution of Mr Pearce to the report. For the purpose of the planning application, Mr Pearce had provided a memorandum on 28 October 2002 in which, after noting that he had previously misunderstood the precise size of the UDP allocation to special employment, he said:- “The UDP in fact allows 23.4 ha. [64 acres] for employment use at Island Farm … It is not the 13.4 figure I referred to in my memorandum of 30th September 2002. The 13.4 ha. is for what may be described as Phase 1 of Phase 2 of the Science Park and represents the land owned by the Council. For this site proposals were being developed by the Council and WDA prior to the current WRU interest being formalised … The 13.4 ha. site was indicated as capable of providing several prestigious plots with a net area of 6.35 ha. The remainder of the site was given over to landscaping. I still take the view that this is a minimum requirement for the new proposals. You have referred to the employment component of the current applications being 6.15 ha .net. This needs to be increased to at least the 6.35 ha. net figure but preferably even more, and with generous landscaping as indicated on previous proposals. In this respect it would be helpful to know the gross area given over for employment use in the current application. I accept that the replacement in full of the 23.4 ha. UDP allocations is not feasible in the context of the current application. While I have reservations in the reduction of the employment component I believe that these are offset by the other economic benefits of the proposals which I have referred to in earlier correspondence …”[38]This memorandum makes the point that high density development would not be appropriate for the special employment envisaged. It also recognises the obvious point that on any land there will be a limit to the area which can be developed when regard has to be had to landscaping, topology and other relevant factors. In the case of the Council’s land, there was the listed hut from the prisoner of war camp which would have to be retained. Thus the net figure was important since that would be the area on which development to an appropriate density could take place.[39]In a second memorandum of 19 November 2002, Mr Pearce said:- “I suggested in my previous memorandum … that 6.35 ha. net should be taken as a minimum requirement. If one assumes a site density of 10,000 – 15,000 sq. ft. per acre (recommended by King Sturge [the Council’s valuers] …) which equates to approximately 2300 – 34500 sq. m/hectare, this would suggest approximately 14,000 – 21,900 sq.m. of floor area.”[40]In the report by the planning officer, Mr Pearce’s view is stated thus:- “Head of Economic Development indicates that provided that there is at least 13.4 ha. gross for high quality employment site he has no objections. The WRU academy is likely to be beneficial to the local economy by raising the area’s profile and through increased visitor numbers. He considers it would be beneficial to formally link the housing and employment components in a way that avoids the housing element being implemented but not the employment part.” In his conclusions, the officer stated that he had had concerns about the loss of employment land, but had had ‘regard to the Head of Economic Development’s comments on this proposal in which he is prepared to accept the scale of development currently proposed.’ In paragraph A9ii) of his recommendations, he noted that the ‘proposal would create 6.7 ha. of readily available serviced employment land for up to 14000 square meters of high quality business and which needed associated jobs.’[41]The proposal was that there should be 6.9 ha. (very slightly more than the 6.7 ha. referred to in the officer’s report) on which there would be the special employment development. This was the so-called Berigull Red Land, adjacent to the Science Park. This was a gross area and was said to be able to produce some 14000 sq. m. of floor area. This would mean that the density was significantly higher than considered desirable when gross was reduced to net, but shows that there must have been a misunderstanding by the planning officer since the reduction is below the figure of 13.4 ha. gross which Mr Pearce regarded as the minimum. It seems that his figure of 6.35 ha., a net figure, was thought to have been met by the 6.7 (or 6.9) ha., which was gross and therefore under half that regarded by Mr Pearce as the minimum.[42]When it came to the report of January 2005, Mr Pearce’s observations were set out with particular reference to Option 5. Rather than attempt to summarise them, I think, since they are fundamental in respect of the attack on the decision, I should set them out in full. They read:- “Before the Macob/IFDL proposals emerged the Island Farm site was regarded by both the WDA and the authority as a good site for high technology employment uses. This was supported in a review of employment sites in the County Borough commissioned by the WDA and the authority in 2001 and undertaken by consultants Wyn Thomas Gordon Lewis. The relevant summary is quoted:
“The Island Farm is closer to the main urban area than some of the other major employment sites in Bridgend (e.g. Pencoed Technology Park). Whilst the location is not ideal for a single prestige industrial user, the site benefits from a semi-rural environment and its proximity to the Bridgend Science Park. With its A48 frontage, this site would have a higher profile than the Science Park. The profile would be much enhanced if the WDA’s proposal to build a Technium project there proceeds and, in the long term, if the aim of linking the site with the Bridgend Science Park is achieved. The site scores poorly on environmental indicators and there are nature conservation issues to resolve. Nevertheless, the site scores well on economic indicators and it would be very suitable for a campus-type office of business park development, although this market would need to be supply-led.”
The WDA spent a considerable amount of money (around £85,000) appointing consultants to undertake investigatory, feasibility and design studies. This was in addition to the land reclamation costs and related to that part of the site (circa 33 acres gross) in the authority’s ownership. The site is adjacent to the Bridgend Science Park and it was envisaged that it would form a second phase to the Science Park. The underlying thinking remains as relevant today as it did then. Although there are other potential technology sites in the County Borough, there is not an adequate supply in the long term perspective (taking this to be up to 2016). As mentioned earlier, in the short-term there is land at Junction 35 of the M4 – part of sites E6(2) and E6(3) in the UDP. In the short to medium term there is site E6(4) being acquired by the WDA. Site E6(5), also owned by the WDA may also fall into this category although it could be short-term depending on demand. This only leaves the Island Farm site for medium-to-long term supply of such sites. The UDP process would have taken into account the number and location of high technology sites required over the plan period and it has allocated the five sites referred to. Very few new employment sites are brought forward solely by the private sector in Wales. Typically the WDA leads or financially supports site development, sometimes with partners in the public and/or private sectors. Often other public funds are available to support initiatives, e.g. European Structural Funds. This is the case, for example, at the Brocastle site in the County Borough. A recently approved Property Strategy for Employment in Wales (2004-2008) – Welsh Assembly Government/WDA – has confirmed the need for public sector to address market failure and respond to market demand. The very production of such a document is a reflection of the role of the public sector in bringing forward employment sites. The possibility of the authority utilising money received from Island Farm in purchasing a high technology site elsewhere has been considered. This would be impractical for two reasons. Firstly, there are only the four such sites available in the County Borough as set out earlier. (The UDP allocations excluding Island Farm itself). Three of these are already in the public sector. Only one is in private ownership and this is currently being developed. In the circumstances there would be no alternatives to purchase for longer term needs. Also, the likely net capital receipt of £600,000 would allow only a limited purchase to replace the 47 acres being lost from the UDP allocation given that the asking price of high technology land at Junction 35 of the M4 (the Macob site) is in excess of £200,000/acre. In summary, the site remains a good one for high technology employment use. It would help in securing a good supply of such sites in the medium to long term. It would contribute to the potential creation of skilled jobs in the area. In this respect I would refer back to my comments on Option (1) (see pages 10 and 11 above) in which attention is drawn to comments made in the report of the Planning Officer to Planning Committee in June 2003. One would expect the bringing forward of a special employment site of this nature to be typically undertaken by public sector initiative or support. Finally, I would emphasise that it is also crucially important when Option (5) is being considered for my comments in paragraph 9.18 below on the views expressed by the WDA in recent correspondence and e-mails to be taken into account.” They are a full and detailed analysis of the situation.[43]It is apparent that Mr Pearce had not changed his views. He had not supported the planning application: he had said that he did not object to it provided there was at least 13.4 ha. gross for a high quality employment site. It was clear that he had had reservations about the loss of employment land. In addition, time had moved on and the site available for high employment had dwindled so that any loss was more undesirable.[44]The claimants argue that the committee should only have considered their land when considering employment. The UDP covered the Merthyr Mawr land and some owned by Berigull. In fact, the Council’s holding was some 13.1 ha. out of a total of some 26 ha. I do not accept this limitation. While the possibility of compulsory purchase was not specifically referred to, the members were, as has been shown, with the exception of Councillor Burns, experienced in dealing with planning matters at the Council. As it happens, Councillor Burns, although a new member of the Council, had knowledge of and had had involvement in planning. Reports have to be considered in the light of the knowledge of the recipients. The availability of all the special employment land is clearly relevant in considering whether the Council should retain its land and so in effect prevent the development, which would result in the loss of the whole of the land which would otherwise have been designated for special employment. Development to the full potential could produce some 1300 jobs of high quality: the proposals produced 300 together with some 100 in the hotel and 6 for the WRU. The loss of the development potential for the whole of the land designated in the UDP if the development were to go ahead, would result in a loss of a considerable number of potential jobs.[45]The Council’s land did not adjoin the Science Park and it was undoubtedly logical that any special employment development should link up with it. That was another reason for not looking at the Council’s land in isolation, as the committee was of course well aware of the configuration of the land ownership.[46]I am unpersuaded that Mr Pearce can be properly criticised for a change of mind. His approach was, on a true analysis, consistent. But, even if he should have looked at the Council’s land in isolation, his opinion of the potential floor space is not flawed. The gross area of the Council’s land is some 13.4 ha. A figure of 1400 sq.m. per ha. gross produces some 19000 sq.m., which exceeds that which the Berigull Red Land can produce. And there is no reason why such an area of floor space should not be achieved. Thus, if it is appropriate to go into detail, it does not support the claimants’ case. It will be obvious from what I have said that I accept what Mr Pearce says in his statement in answer to the allegation made against him.[47]There was material which could have persuaded the committee to take a different view. King Sturge’s opinion was that there did exist sufficient sites to meet special employment demand and that some of those were preferable to Island Farm. That was undoubtedly a tenable view, but it was an opinion given as part of valuation advice in the light of prevailing market conditions. Mr Pearce, who had because of his position greater experience and information in relation to future needs and likely availability of sites, did not agree. The Committee was entitled to prefer his view.[48]Mr Jones submitted that the chance of future funding for development was at best speculative. The Committee’s attention was drawn to correspondence with the WDA. In particular, a letter of 28 October 2004 had said:- “It would be regrettable if such benefits were not pursued now at this site given the site has been largely reclaimed for around 10 years. Consequently, Option 5 does not seem attractive as it would introduce uncertainty with respect to timing and after value returns.” In an e-mail of 13 January 2005, the author said this:- “I can confirm our opinion that the Island Farm location provides a significant opportunity to create a high quality site which could be suitable to accommodate quality, high added-value companies. I am unable, however, to confirm or otherwise the likelihood of WDA funding for the future development of this site. As you will be aware, and following appraisal work undertaken in partnership with yourselves, we have prioritised site preparation and infrastructure works at Brocastle and Pencoed, and these are the two sites which feature in our approved 3 year Business Plan (subject to funding availability), together possibly with Waterton Park. Beyond this current 3 Year Plan, the WDA is making commitments based on a Property Strategy recently agreed with WAG. Whilst regional, local and national need the competing priorities impose an essential need to engage the private sector in delivery as far as possible. It follows therefore that, if the WDA support required is substantial, then the likelihood will be diminished.” It is clear that any development will require either public funding via the WDA (or now its successor) and / or European Funds or a private initiative. The necessary infra structure will have to be put in place and one of the advantages of the proposed development was that that would be done. In addition, there was a sum owing to the WDA of some £2m. which would have to be repaid when any development took place. All this had to be taken into account in deciding whether to sell the land.[49]Mr Pearce took all this into account and formed the view that the long term prospects for development were and remain credible and tenable. Mr Jones says they are no more than a Micawber approach. No funding was available and the WDA had made it clear that none was in prospect. In Paragraph 9.18 of the joint report, Mr Pearce has said this:- “The WDA response is a little disappointing given their previous commitment to the site. Island Farm can be argued to have merits within the context of the WAG / WDA’s Property Strategy for Wales but clearly further WDA involvement cannot be assumed. There are other possibilities for public sector support but they too cannot be predicted with certainty at this juncture in view of the time scale envisaged. In particular it is likely that the whole of the current West Wales and Valleys Objective 1 (of which Bridgend is a part) will continue to benefit from some (reduced) level of European Structural Fund support in the next round (2007-2013), at the conclusion of the current programme which runs until the end of December 2006. For the present Objective 1 programme approved strategic employment sites received an average of 37.25% grant towards eligible project costs. Approved schemes providing sites and premises for SMEs (small and medium sized enterprises) received an average of 39.33% towards eligible costs. It is reasonable to expect that there will be similar measures in the Structural Funds in the period 2007 – 2013 into which the Council could bid although the comments made by King Sturge on similar aspirations by other areas and the competition for funds is clearly relevant. On the above basis the Council could bid for Structural Funds to take forward infrastructure works to make the site a more marketable proposition during the 2007 – 2013 Structural Fund period. This assumes the Council could identify match funding to support a grant bid from its own resources. If, for example, the infrastructure, costs were £2m and a grant of 38% was obtained then £1.24m would remain to be found. This could be over a number of financial years. The would thus be creating a more marketable asset in the medium to long term and would be fulfilling its employment objectives. A further possibility is for the authority to fund the infrastructure works itself should external financial support not be available.” As it happens, his prognosis has turned out to be accurate since it has been confirmed that West Wales and the Valleys (which include Bridgend) will continue to receive European Structural Funds over the period 2007 – 2013 at roughly the same level as was given between 2000 and 2006. While the application of such funds to a future development cannot be guaranteed, it is clear that there is at least a reasonable possibility. Thus his view cannot be dismissed as mere speculation.[50]There was an issue which at one stage the claimants were intending to try to raise in relation to the need to preserve the possibility of mineral extraction from the site. However, that point has not in the end been pressed and I need not go into it.[51]Mr Arden submitted that it was not necessary to consider any detail. It sufficed that Mr Pearce had given his expert and informed opinion that to retain the land for future development in accordance with the UDP would be sensible. Provided that it cannot be demonstrated that Mr Pearce’s view was irrational, I agree with Mr Arden’s analysis. I am far from persuaded that his view was irrational and, if one does consider the detail, I am equally unpersuaded that the report contained any material omissions or errors of fact.[52]It is necessary to bear in mind the nature of the decision being made. In considering whether to sell the land, the committee was concerned only to consider what was in the interest of the Council. And in reaching its decision, immediate financial benefits were not the only consideration. The Cabinet had to take into account the desirability in the interests of the inhabitants of Bridgend of providing special employment and in maintaining what, after a public inquiry, the UDP had laid down. The existence of planning permission and the effect on the claimants, while no doubt worthy of consideration, could not be given any weight if the conclusion was properly reached that the interests of the Council meant that the land should be retained for future development. Indeed, since the incoming administration had formed the view that the development was inappropriate, the Cabinet was not only entitled but bound to look only to what it regarded as the best interests of the Council and inhabitants of Bridgend.[53]It was in my judgment entitled to decide as it did. Accordingly, this claim is dismissed.

Cited in 17 later judgments

and 8 more of the most senior