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A1 Veg Ltd v Hounslow London Borough Council (Western International Market Tenants Association AFI, interested parties)

[2003] EWHC 3112 (Admin), [2004] LGR 536, [2003] All ER (D) 288 (Dec)

Court: Admin Ct

Judgment Date: 16/12/2003

Cases considered by this case
Annotations: All CasesCourt: ALL COURTS

ADMINISTRATIVE LAW - JUDICIAL REVIEW - PUBLIC AUTHORITY - PUBLIC AUTHORITY FREEHOLDER OF MARKET - PUBLIC AUTHORITY SETTING UP COMMITTEE IN ORDER TO ASSIST IN SELECTION OF TENANTS FOR NEW MARKETS - UNSUCCESSFUL APPLICANTS FOR TENANCIES BRINGING JUDICIAL REVIEW ON LAST DAY OF PERIOD PRESCRIBED - PROMPTNESS OF APPLICATION - AVAILABILITY OF REMEDY - UNFAIRNESS OF DECISION

The defendant council was the freehold owner of a market (the existing market). It decided to build a new market to replace the existing market. The new market was to be about two thirds of the size of the existing market which meant that many of the occupants of the existing market would be unable to obtain units at the new market. Many of the holders of units in the existing market were members of the Western International Market Tenants' Association Limited (the tenants' association). Members of that association were included in the committee set up in order to assist in selecting tenants for the new market. The claimants were unsuccessful applicants who, by letters dated 9 July 2003, were informed by the council that they were not included in the initial list of possible tenants for the new market.The claimants lodged their claims for judicial review on the last day of the prescribed three month period for bringing claims.The claimants contended, inter alia, that the council's decision-making process was conspicuously unfair as they were never consulted about the application of the selection criteria to them, nor were they given any opportunity to make representations about any concerns that the council might have had about it. The tenants' association argued that the decision under challenge was not amenable to judicial review as it was a commercial decision and that the application had not been made promptly.
Held - The applications would be allowed.
(1) The decisions under challenge had sufficient public element, flavour or character for them to be subject to judicial review.The council had specific statutory power in relation to the market. It was held on publicly owned land which belonged to the council. The power of the council to regulate the activities of the market and the conduct of the tenants at the market emanated not solely from the lease, which would be the position with a private landlord. Furthermore, the existence of byelaws, which controlled the activities of non-tenants by a power to fine showed that the council was performing public law functions in controlling activities in the market.
(2) The presumption that a claim brought within the prescribed three month period had been brought promptly had not been rebutted.No prejudice had been caused to either third parties or the council having regard to the fact that there would be a long wait before the units in the market could be used. It was not a case where the claimants had lulled the council into a false sense of believing that they were not aggrieved by the decision and then they later out of the blue issued their claims at the last minute. The claimants had been indignant about the decisions from the time when they heard of them.
(3) The council had not given the claimants the opportunity to comment on information used in their applications.It was of great importance to separate two distinct and discrete stages in the comparative evaluation process. Stage one was the determination of the factual basis on which the assessment of each applicant would be based, while stage two was the subsequent comparative assessment and comparative evaluation. The instant claims of unfairness concerned the first stage and, in particular, the factual inquiry into alleged weaknesses of certain applicants. In order to determine whether an applicant, in a comparative evaluation exercise, was entitled to be given an opportunity to comment on material on which the council intended to rely relating to him during the evaluation process at stage one, it was necessary to take into account all the relevant circumstances including the significance of the decision in the evaluation process to an applicant's ability to earn his living. However, the administrative inconvenience of giving information was also important. If very substantial administrative difficulties would be caused by giving an opportunity to an applicant to comment on statements made at stage one, that might suggest that such an opportunity to comment should not be granted and that factor might in some circumstances perhaps trump the other factors in favour of giving the applicant such an opportunity. All those factors and any other relevant factors had to be balanced against each other. In the instant case, the claimants should have been given the opportunity to comment on the information in the council's possession and there was no countervailing factor which trumped all the others. The council could have sent out a short letter to each applicant setting out any information received or possessed by the council about it and asking for comments or rebutting evidence within a short period. It followed that it was necessary to quash the decisions.