Kathro & Ors, R (on the application of) v Rhondda Cynon Taff County Borough Council [2001] EWHC Admin 527

Friday July 6th, 2001

Queen on the application of Alan Kathro; Michael Evans; Vivienne Evans; Patrick Grant and and Llantwit Fardre Community Council v. Rhondda Cynon Taff County Borough Council [2001] EWHC Admin 527 (6th July, 2001)

Case No: CO/624/01

Neutral Citation Number: [2001] EWHC Admin 527

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Friday 6th July 2001

 

B e f o r e :

THE HONOURABLE MR JUSTICE RICHARDS

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The Queen

(on the application of (1) Alan Kathro, (2) Michael Evans, (3) Vivienne Evans, (4) Patrick Grant and (5) Llantwit Fardre Community Council)

 

Claimants

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Rhondda Cynon Taff County Borough Council Defendant

 

 

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(Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

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Mr Peter Harrison (instructed by Lansdowne, Solicitors, for the Claimants)

Mr Christopher Cochrane QC and Mr Geoffrey Stephenson (instructed by Director of Legal & Administrative Services, Rhondda Cynon Taff County BC, for the Defendant)

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Judgment

As Approved by the Court

Crown Copyright ©

 

MR JUSTICE RICHARDS:

1. The first four claimants (Alan Kathro, Michael Evans, Vivienne Evans and Patrick Grant) are residents of Church Village in South Wales. The fifth claimant (Llantwit Fardre Community Council) is the community council for the area which includes Church Village. The defendant (Rhondda Cynon Taff County Borough Council) is the unitary local government authority for the area and has relevant functions as local education authority and local planning authority.

2. The defendant is promoting a major development project on its own land in the centre of Church Village. The project, known as the Garth Olwg development, is described as a “lifelong learning project” and will cover 11.5 hectares and provide for the education of over 1,615 pupils. The main elements of the project are two Welsh medium community schools, community lifelong learning facilities, a day nursery, a culture and arts centre, youth facilities, all-weather sports facilities, new outdoor sports pitches and associated ground works, a customer contact centre, new allotments and associated highway works. The development is to be funded by a Private Finance Initiative (PFI) scheme which requires the approval of the National Assembly for Wales. The defendant considers that the project will have significant educational, social and economic benefits for the area and has the potential to be a “flagship” project for Wales.

3. The claimants are deeply concerned about the impact that the development will have upon the village; and the individual complainants are concerned in particular about its effects upon the peaceful enjoyment of their own homes and upon the value of their properties, especially because of increased traffic and associated parking. They form part of a considerable local opposition to the project, though they accept that there are also those who support the scheme and argue strongly for the benefits it would bring.

4. The present proceedings are concerned not with the factual merits of the proposal, which are not a matter for decision by the court, but with a number of specific legal issues raised by the claimants. The claimants seek judicial review of the defendant’s proposed determination of the planning application and of its decision to use a negotiated tendering procedure for the PFI scheme under EC rules on public procurement. In outline they submit that: (1) for the defendant, as local planning authority, to determine the planning application in respect of its own development on its own land will be in breach of the rights of the individual claimants to a determination by an independent and impartial tribunal under article 6 of the European Convention on Human Rights: (2) the defendant is acting unlawfully in proposing to determine the planning application without requiring an environmental impact assessment; (3) the defendant has unlawfully fettered its discretion and predetermined the outcome of the planning application, and has failed to consult with an open mind; and (4) the decision to seek tenders for the project by way of the competitive negotiated procedure rather than the open or restricted procedure was legally flawed. Certain other matters originally canvassed are no longer pursued. Permission to apply for judicial review has been granted in respect of grounds (1) to (3). The application for permission in respect of ground (4) was adjourned to be dealt with at the substantive hearing. I have heard full argument on all issues still pursued.

Background

5. An application for outline planning permission for the development was made on 12 December 2000 by the defendant’s Group Director for Education and Children’s Services. By regulation 3 of the Town and Country Planning General Regulations 1992, an application for planning permission for development of any land of an interested planning authority shall be determined by the authority concerned unless the application is called in under section 77 of the Town and Country Planning Act 1990. The call-in power falls to be exercised in this case by the National Assembly, to which the relevant powers of the Secretary of State were transferred under the Government of Wales Act 1998. On 27 February 2001 the National Assembly notified the defendant that “the application does not involve planning issues which would warrant taking responsibility for determining it from your Council”. Accordingly the application would not be called in and the defendant could determine it for itself. The defendant had already arranged a meeting for 22 February 2001 for the purpose of determining the application. Following the grant of permission to apply to this court, the meeting was postponed pending the outcome of the claim for judicial review.

6. If a decision on the planning application is taken by the defendant, the position until recently was that it would be taken by the Planning Committee and that any member of the council could sit on the Planning Committee for that purpose. By a council resolution adopted on 23 May 2001, however, there has been a significant change in the position. Members of the Policy Committee are no longer eligible for appointment to the Planning Committee, which has been renamed as the Development Control Committee. The change means that members of the council who were involved in decisions of the Policy Committee to promote the project will not be involved in the decision of the Development Control Committee whether to grant or refuse planning permission for the project.

Ground (1): article 6 ECHR

7. At the forefront of the claimants’ case is the contention that the defendant council cannot lawfully decide the planning application itself, since to do so would be a breach of the claimants’ rights under article 6 ECHR. The case as advanced by Mr Harrison may be summarised as follows. The individual claimants are freehold owners and occupiers of their homes in Church Village. They enjoy rights to respect for their private and family life and their homes under article 8 and the right to peaceful enjoyment of their possessions under article 1 of the First Protocol. Where a person will be directly affected by a development, the determination of a planning application for that development is a determination of matters sufficiently close to the relevant rights as to be directly decisive of those rights and is therefore a determination of civil rights within the meaning of article 6: see Ortenberg v. Austria (1994) 19 EHHR 524 and Balmer-Schafroth v. Switzerland (1997) 25 EHHR 598. In this case all four individual applicants live sufficiently close to the proposed development to be directly affected by it. They will be detrimentally affected in their enjoyment of their homes and the monetary value of those homes will drop. There is a sufficient connection with the planning decision to bring the matter within the scope of article 6.

8. Article 6 provides that “in the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law”. If the article applies, then it is submitted that it would be a breach of the article for the defendant to make a decision on a planning application in respect of a development which it is promoting and where it is the landowner. Any such decision would not be made by an “independent and impartial tribunal” as required by article 6. Although the argument was originally advanced in the context of procedures under which members of the Policy Committee could sit on the Planning Committee, it is submitted that the recent procedural change is not sufficient to avoid a breach of article 6.

9. It is further submitted that, if the defendant grants planning permission for its own development on its own land, the breach of article 6 cannot be cured by recourse to any other legal procedure. There is no right of appeal against the grant of planning permission. The possibility of an application for judicial review cannot overcome the breach. The decision of the House of Lords in R (Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions [2001] 2 All ER 929, which held that the power of the Secretary of State to determine planning applications on a call-in or similar procedures is compatible with article 6, is distinguished. Indeed, the reasoning in the decision is deployed in support of the claimants’ case. In particular, in the Alconbury decision weight was placed on the role of the inspector in holding an inquiry and making findings of fact as part of the Secretary of State’s decision-making process, whereas the decision-making process of a local planning authority does not involve an inspector or any like procedure for evaluating evidence and making findings of fact; and judicial review does not involve a sufficient examination of the facts to overcome that defect.

10. On the basis of those and other considerations Mr Harrison submits that it would involve an inevitable breach of article 6 for the defendant to proceed to a decision on the planning application in this case, and that it is therefore appropriate to bring proceedings now rather than to wait until a decision is actually made before mounting a challenge. If the claimants’ case on this issue is well founded, the only options lawfully open to the defendant are to withdraw the planning application (for reconsideration of the need for and location of the development) or to get the National Assembly to change its mind as to a call-in. If neither of those events occurred, the defendant would be under a duty to determine the application under regulation 3 of the 1992 Regulations; but since it would be open to the Secretary of State to amend the regulations so as to remove that duty, it might be necessary to consider the grant of relief against the Secretary of State for that purpose.

11. For the defendant, Mr Cochrane QC concedes that the individual claimants enjoy relevant rights under article 8 and under article 1 of the First Protocol. He goes on to submit, however, that the grant of planning permission would not infringe those rights. Interference with rights under article 8(1) is permissible under article 8(2) where it “is in accordance with the law and is necessary in a democratic society in the interests of … the economic well-being of the country ….” It is submitted that the proposed use of the land is in educational terms and therefore economic terms of very considerable importance to Wales and that an infringement of rights under article 8(1) is therefore justified. As to article 1 of the First Protocol, similar considerations apply and it is also submitted that the article is concerned mainly with the arbitrary seizure of property and that it does not establish a right to peaceful enjoyment of property and possessions in a peaceful environment; in other words it has little, if anything, to do with planning decisions.

12. I cannot see how those submissions can assist the defendant. The lawful grant of planning permission through a proper process will no doubt be compatible with the claimants’ rights under the Convention. But the issue in this case is whether the process is a proper one and is capable of leading to a lawful decision. Thus the claimants do not rely directly on an interference with their rights under article 8 and the First Protocol but on their rights under article 6 to a determination of the planning application by an independent and impartial tribunal. The relevant question is whether there is a breach of article 6. Mr Cochrane’s submission in relation to article 8 and the First Protocol cannot assist in meeting the claimants’ contention that there is a breach of article 6.

13. As to article 6, Mr Cochrane concedes that a decision on the planning application will be a determination of the claimants’ civil rights within the meaning of article 6. In the light of that concession and the conclusions I have reached on other issues, I shall not give any further consideration to the point, although it may not be wholly free from difficulty.

14. Mr Cochrane goes on to submit that the decision of the House of Lords in Alconbury is decisive in the defendant’s favour on article 6. There are some differences in the decision-making process of the local planning authority as compared with that of the Secretary of State on a call-in or equivalent procedure, but the similarities are greater and are sufficient to bring the case within the scope of the reasoning in Alconbury. As in Alconbury, the availability of judicial review ensures that overall there is no violation of article 6.

15. I therefore turn to consider the decision in Alconbury. In that case it was common ground that the Secretary of State was neither independent nor impartial within the meaning of article 6. The primary reason was that he both made and applied planning policies. Additional factors relied on by the claimants were that in one of the cases another government department had a financial interest in the application site and there was also a connection through communications and site visits between the decision-maker and other government departments and policies. The House of Lords held that the whole process had to be considered and that article 6 was satisfied in principle by the availability of judicial review. In so holding, their Lordships applied the principle in Albert and Le Compte v. Belgium (1983) 5 EHRR 533 that compliance with article 6 is achieved where the original decision-maker complies with its requirements or is “subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of article 6(1)”. As Lord Hoffmann observed (para 87): “… subsequent European authority shows that ‘full jurisdiction’ does not mean full decision-making power. It means full jurisdiction to deal with the case as the nature of the decision demands.” Their Lordships, although expressing themselves in different ways, were unanimous that judicial review was capable in principle of providing sufficient judicial control of a planning decision by the Secretary of State to ensure a determination by an independent and impartial tribunal.

16. In the present case the fact that the defendant council will be deciding on its own application for planning permission in respect of a development it is promoting on its own land is plainly sufficient to establish a lack of independence and impartiality for the purposes of article 6 (and it has not been necessary to consider whether any other features of the process, e.g. the application of local planning policies, would also give rise to a lack of independence and impartiality). Here, too, the question is whether compliance in principle with article 6 is achieved by the availability of judicial review.

17. The question whether there is sufficient judicial control depends on all the circumstances. Thus the decision in Alconbury cannot be applied across automatically to the context of a planning decision by a local planning authority, since there are significant differences in the circumstances. Nevertheless much of the reasoning in Alconbury applies with equal force to the decision-making function of a local planning authority.

18. First, in Alconbury their Lordships attached no particular significance to the fact that another government department had a financial interest in the outcome, since the decision could be challenged by way of judicial review if that interest was wrongly taken into account (see per Lord Slynn at para 55, Lord Nolan at para 64, Lord Hoffmann at para 130 and Lord Hutton at para 197). Similarly in the present case, although the fact that the defendant has a financial interest in the outcome of its decision means that it is not itself an independent and impartial tribunal, it does not give rise to any automatic breach of article 6 since the court’s supervisory jurisdiction is capable of curing the problem. If the defendant wrongly takes that financial interest into account, rather than reaching the decision on legitimate planning grounds, then the decision can be challenged on ordinary judicial review grounds. The third ground of challenge in the present proceedings, on the related point of alleged predetermination, illustrates the scope of judicial review as a means of controlling the lawfulness of the decision-making process.

19. Secondly, all their Lordships emphasised in one way or another that planning decisions, which involve issues of public interest (social, economic and environmental), have been entrusted by Parliament to democratically elected bodies or persons accountable to them and that it is for those bodies or persons, not the courts, to take such decisions. Article 6 does not require the courts to review a decision on its planning merits, i.e. to substitute its own decision on matters of policy or “expediency” (see e.g. per Lord Slynn at paras 48-49, Lord Nolan at para 61, Lord Hoffmann at paras 88, 110 and 129, Lord Clyde at paras 159-160, and Lord Hutton at para 189). Those considerations apply as much to a decision by a local planning authority as to a decision by the Secretary of State.

20. It is in relation to fact-finding that the differences between the decision-making process of a local planning authority and that of the Secretary of State are potentially important. The power of the court to review a decision for factual error was emphasised in Alconbury, in support of the conclusion that the scope of judicial review is wide enough to provide sufficient judicial control for the purposes of article 6: see e.g. per Lord Slynn at para 53 (“jurisdiction to quash for a misunderstanding or ignorance of an established and relevant fact”) and Lord Nolan at para 62 (“the right and duty of the appellate court to reverse a finding of fact which had no justifiable basis”, on Edwards v. Bairstow [1956] AC 14 grounds). It remains the case, however, that the jurisdiction to review facts is a limited one; and in reaching the conclusion that this limited jurisdiction is sufficient, their Lordships placed considerable emphasis on the role of the inspector in the decision-making process of the Secretary of State – a role which has no equivalent in the decision-making process of a local planning authority.

21. Thus, after stating that whether there is sufficient control by the court depends on all the circumstances, Lord Slynn went on immediately to describe the role of the inspector (para 46):

“On the basis of these decisions it is in my view relevant as a starting point to have regard to such procedural safeguards as do exist in the decision making process of the Secretary of State …. The fact that an inquiry by an inspector is ordered is important. This gives the applicant and objectors the chance to put forward their views, to call and cross examine witnesses. The inspector as an experienced professional makes a report, in which he finds the facts and in which he makes his recommendations ….”

22. Lord Hoffmann examined this point in detail as part of his exposition (at paras 101 et seq.) of the reasoning in Bryan v. United Kingdom (1995) 21 EHRR 342. That case concerned an appeal to the High Court on a point of law against the decision of the Secretary of State’s inspector on an appeal against an enforcement notice. The issue pursued before the High Court was an alleged failure to take a relevant factor into account. A second issue had not been pursued because the question was one of fact and degree and was considered to raise no arguable question of law. It was upon that second issue that Lord Hoffmann focused. He referred to Mr Bratza’s opinion at the Commission stage of the procedure, in which reliance had been placed on the inspector’s function and procedures in support of the conclusion that he was “sufficiently independent” for the purposes of finding and evaluating the facts. Lord Hoffmann stated (para 110):

“Mr Bratza’s particular insight, if I may respectfully say so, was to see that a tribunal may be more or less independent, depending upon the question it is being called upon to decide. On matters of policy, the inspector was no more independent than the Secretary of State himself …. On the other hand, in deciding the questions of primary fact or fact and degree which arose in enforcement notice appeals, the inspector was no mere bureaucrat. He was an expert tribunal acting in a quasi-judicial manner and therefore sufficiently independent to make it unnecessary that the High Court should have a broad jurisdiction to review his decisions on questions of fact.”

23. Lord Hoffmann went on to point out that the court in Bryan had referred to the “uncontested safeguards attending the procedure before the inspector” and had said that it was enough to satisfy article 6 that the High Court “had the power to satisfy itself that the inspector’s findings of fact or the inferences based on them were neither perverse nor irrational”. He criticised the Divisional Court in Alconbury for treating the “safeguards” referred to in Bryan as being relevant whatever the issues. In his opinion they were irrelevant to matters of policy or expediency. He went on (para 117):

“It is only when one comes to findings of fact, or the evaluation of facts, such as arise on the question of whether there has been a breach of planning control, that the safeguards are essential for the acceptance of a limited review of fact by the appellate tribunal.”

24. He came back to this in his fuller critique of the judgment of the Divisional Court. Referring to the second strand in the reasoning of the court, he stated (para 128):

“The second strand concerns the facts. These are found by the inspector and must be accepted by the Secretary of State, unless he has first notified the parties and given them an opportunity to make representations in accordance with rule 17(5) of the Town and Country Planning (Inquiries Procedures) (England) Rules 2000. This is the point upon which, in my opinion, the Bryan case 21 EHRR 342 is authority for saying that the independent position of the inspector, together with the control of the fairness of the fact-finding by the court in judicial review, is sufficient to satisfy the requirements of article 6.”

25. Although Bryan was an enforcement notice case and Lord Hoffmann’s speech laid particular emphasis on fact-finding in enforcement proceedings, that passage shows that he also considered the role of the inspector to be important in relation to the fact-finding aspects of the decision making process of the Secretary of State on a call-in or similar procedure.

26. Lord Clyde, in reaching his conclusion that there was no necessary breach of article 6, likewise placed substantial weight on the role of the inspector and on the court’s reliance on it in Bryan (see paras 157-168).

27. The point does not seem to have played the same part in the reasoning of Lord Nolan, who did not refer to it in terms, or of Lord Hutton, who regarded it as less important than the broad point that a review on the merits is not required in relation to an administrative decision taken in the public interest (see in particular paras 187 and 189).

28. Looking at the overall tenor of the speeches in Alconbury and at the underlying decisions of the Strasbourg court, however, I accept that the finding that the Secretary of State’s decision-making process was compatible in principle with article 6 was based to a significant extent on the fact-finding role of the inspector and its attendant procedural safeguards. By contrast, there is no equivalent in the decision-making process of a local planning authority. That process includes a right to make representations and to submit evidence, and persons may be heard orally at a meeting of the relevant committee. But there is nothing like a public inquiry, no opportunity for cross-examination and no formal procedure for evaluating the evidence and making findings of fact. The report of the planning officer to the committee generally contains an exposition of relevant facts, including any areas of factual dispute, but does not serve the same function as an inspector’s report. In general there will be no express findings of fact by the committee itself. All of this considerably reduces the scope for effective scrutiny of the planning decision on an application for judicial review. It makes it more difficult, if not impossible, to determine whether the decision has been based on a misunderstanding or ignorance of an established and relevant fact, or has been based on a view of the facts that was not reasonably open on the evidence.

29. For those reasons there is in my view a real possibility that, in certain circumstances involving disputed issues of fact, a decision of a local planning authority which is not itself an independent and impartial tribunal might not be subject to sufficient control by the court to ensure compliance with article 6 overall.

30. As in Alconbury, however, the issue in the present case is not whether a particular decision might be in breach of article 6, but whether the procedures are such as to lead inevitably to a breach of article 6. If at the end of the day there were no factual issue, or any factual issue were one in relation to which, in the particular circumstances, the court was able sufficiently to adjudicate, then there would be no relevant gap in the court’s supervisory jurisdiction and no breach of article 6. As the court said in paragraphs 45 and 47 of its judgment in Bryan, in assessing the sufficiency of judicial review -

“… it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal.

….

In the present case there was no dispute as to the primary facts. Nor was any challenge made at the hearing in the High Court to the factual inferences drawn by the inspector, following the abandonment by the applicant of his objection to the inspector’s reasoning under ground (b). The High Court had jurisdiction to entertain the remaining grounds of the applicant’s appeal, and his submissions were adequately dealt with point by point ….”

31. An important point about the present case is that, although much has been made in the claimants’ submissions about the problems of fact-finding on traffic and the associated issue of parking, it is not clear that there will be any factual issue at all on those matters when the decision is ultimately made. The report to the committee for the meeting that was due to be held on 22 February 2001 stated that no substantial evidence had been provided by the objectors to support their concern about the conclusion of the traffic impact assessment that no significant traffic flow problems associated with the proposed development were likely to occur. In a letter dated 20 February 2001, apparently post-dating the preparation of the report, the claimant Community Council did provide a critique, based on a consultant’s report, of the traffic impact assessment, concluding that the effects on the existing highway network and surrounding community had not been adequately assessed and that further analysis was required. I cannot say whether there will be further analysis or whether at the end of the day there will be any significant factual dispute about it. Nor can I say how any dispute will be resolved or what issues might be canvassed before the court on an application for judicial review of the ultimate decision.

32. In those circumstances it is quite impossible to conclude that the absence of a fact-finding procedure equivalent to that of the Secretary of State’s decision-making process will result in an inevitable breach of article 6 in that the decision of the defendant council will not be subject to sufficient judicial control. The claimants’ pre-emptive strike on the ground that the procedure is inherently in breach of article 6 or will inevitably give rise to such a breach cannot succeed. Whether judicial review is adequate for the purposes can only be assessed in the light of an actual decision and by reference to the particular grounds, if any, upon which it is sought to challenge that decision.

33. It is only in relation to fact-finding that the position of the local planning authority differs materially from that under consideration in Alconbury. In other respects it seems to me that the reasoning of the House of Lords applies and that the present challenge under article 6 must fail on the same basis as the Alconbury challenge failed.

34. Those conclusions make it unnecessary for me to consider the potentially difficult issues that would have arisen in relation to the question of relief if I had found that the defendant could not proceed to a decision on the planning application without a breach of article 6.

Ground (2): environmental impact statement

35. The claimants’ second ground relates to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. It is submitted that the proposed development is an “EIA development” within regulation 2, as “(b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location”. It is a Schedule 2 development because it is an “urban development project” the area of which exceeds 0.5 hectare (see Schedule 2, item 10). It is likely to have significant effects on the environment by reason of the variety of proposed uses, the size of the development (11.5 hectares, some 20 times above the threshold for a Schedule 2 urban development project) and its location within an undeveloped valley affecting a controlled water course. If it is an EIA development, then the application for planning permission is an EIA application within regulation 2 and, by regulation 3(2), the defendant cannot grant planning permission pursuant to the application unless it has first obtained an environmental statement and taken the information into consideration. The defendant, however, has decided that an environmental statement is not required. The claimants submit that that is a decision to which no reasonable planning authority could come and it vitiates the defendant’s consideration of the planning application.

36. The defendant has in fact issued a screening opinion under regulation 4 to the effect that the proposed development is not an EIA development. The reasons for the negative opinion, as stated by the relevant officer, are these:

“In considering these issues I have noted that whilst the development would have visual impacts of a local nature these would not extend beyond the immediate locality of the application site. Also, given the information submitted, the local visual impact would not be `significant’ in EIA terms. In relation to traffic impact, the submitted Traffic Impact Assessment identifies at paragraph 6.1 that `no significant traffic-flow problems associated with the proposed school development are anticipated in the future even without the construction of the Church Village Bypass.’ Analysis of the proposal has not identified any significant bio-diversity issues or ecological effects, nor any significant pollution or drainage impacts. The site does not lie within, or within influencing distance of, a particularly sensitive or vulnerable location. In all the circumstances it is clear that the development, although proposed on a site having a total area of 11.5 hectares, does not constitute an EIA application by virtue of factors of its nature, size or location, and a Screening Opinion has therefore been issued to this effect.”

37. Fuller information, referring to the various specific matters relied on by the claimants, is given in a witness statement of John Cunnane, a chief planning assistant and the case officer who has dealt with the processing of the outline planning application. He challenges the contention that there will be a “new bus and coach park”: what is proposed is a dedicated school parking and manoeuvring area to allow the dropping-off and picking-up of students at specific times of the school day; buses will deliver pupils and leave the site, returning to collect children in the afternoon. As to the new school buildings, Mr Cunnane states that the proposal involves construction based largely on the footprint and curtilage of existing and demolished buildings on the site. Only the proposed new primary school would extend the footprint of new buildings on the main site. A new youth centre would be constructed on vacant land to the east of the main site. The large majority of floor space would be provided on brown field parts of the site. Further, the new sports pitches are proposed to be constructed largely in an orientation that follows the existing contours of the land, to minimise the extent of earthworks and with a minimum alteration to ground contours. The alignment of the existing watercourse (the Nant Ty-Crwyn stream) through the site is not affected and the only proposed works on the watercourse involve opening out a presently culverted section 55 metres long in the centre of the site and limited accommodation works at the southern end. The development has been carefully conceived to cause minimum visual impact on the open character of the land within which it would sit. The impact of the scheme on the nature and character of the area is limited by the fact that there is little built development beyond the brown field parts of the site and none west of Nant Ty-Crwyn. The design of the 2 and 3 storey elements is proposed to be carried out in such a way that the impact from the massing, bulk and height of new buildings would be within acceptable limits. The new secondary school would not have significantly greater impact upon the amenities of the nearest residents than the existing buildings on the footprint of which it is to be built. The proposal has no major significance for bio-diversity issues. Although additional sports facilities are proposed, the application includes no new floodlights in the area of the site closest to existing houses. The absence of significant traffic flow problems is supported by the traffic impact assessment and by the views of the Divisional Director of Transportation. The Public Health and Protection Unit have raised no objection, subject to restrictions on hours of operation and related matters. It is intended to provide conditions within the planning consent to ensure the protection of individuals and the environment, highways, drainage and amenity, in respect of pollution and other relevant concerns, and to secure enhancement, where feasible, of nature conservation and bio-diversity interests and of the visual environment.

38. The claimants have countered with the evidence of Brian Thomas, a town planning consultant, who takes issue with Mr Cunnane. He considers that the proposal is an urban development project of considerable magnitude and states that in his experience if the planning application had been submitted by anyone other than the defendant, the planning department would have insisted that the applicant submit an environmental impact assessment.

39. In my judgment it is clear on the evidence before the court that the defendant has given careful consideration to the question of an environmental impact assessment, and the conclusion that this is not an EIA development was a conclusion reasonably open to it. Neither the size of the development, upon which Mr Harrison placed particular weight, nor the other factors relied on by the claimants compel a different conclusion. I have found Mr Cunnane’s detailed exposition of the relevant considerations far more convincing than Mr Thomas’s bare assertion that a private developer would have been required to submit an environmental impact assessment for a development of this kind. I therefore reject the second ground of challenge.

40. In the circumstances it is unnecessary for me to consider an additional point which has troubled me, namely whether it is appropriate for the court even to entertain an application based on alleged breach of the 1999 Regulations at the present stage of the procedure, i.e. after the issue of the screening opinion (which has not been the direct subject of challenge) and before the decision on the planning application itself. This would not generally be an appropriate time to apply for judicial review, though in the particular circumstances of the case, given the article 6 challenge to the procedure as a whole, it might be thought right also to entertain the EIA issue as an exception to the normal rule. An additional concern, with which again it is unnecessary to deal, is that the claimants would appear not to have pursued an alternative remedy which is open to them at the present stage of the procedure, namely to seek a screening direction from the National Assembly to the effect that the development is an EIA development. A positive screening direction would override a negative screening opinion by the defendant.

Ground (3): predetermination and failure to consult with an open mind

41. The claimants accept that a local authority may lawfully have a preference for a particular scheme or that a political party may lawfully have formed an initial view on the merits of a planning application. Mr Harrison submits, however, that on the evidence in this case the defendant has gone beyond a mere predisposition in favour of the proposed development and has “acted in such a way that it is clear that, when the committee [come] to consider [the] application for planning permission, it could not exercise proper discretion” (see R v. Sevenoaks District Council, ex parte Terry [1985] 3 All ER 226, 233c). It is clear he submits, that the defendant regards the grant of outline planning permission as a formality. Every public pronouncement indicates predetermination. It is all one way: the juggernaut is rolling, driven by non-planning decisions, such that a lawful planning decision is no longer possible.

42. In order to evaluate that submission, it is necessary first to examine the relevant history in greater detail. Although consideration of the project goes back some years, the first key date for present purposes is 2 May 2000, when the defendant’s Policy Committee formally resolved:

“(1) to confirm that replacement schools be constructed … as originally indicated in the outline business case approved by Committee on the 31st March 1999 ….

(2) to confirm that the replacement schools be built at the Garth Olwg site, which had previously been selected by Members within the [outline business case] approved by the Committee on the 31st March 1999, subject to planning approval.

(3) to re-submit the outline business case and revised timetable to the National Assembly, seeking final approval to progress the project ….”

43. Mr Harrison submits that the tenor of the report to the committee was to minimise the significance of the planning stage, although the report (like the resolution) referred in terms to the need for planning approval. Thus the report stated that Garth Olwg “represents the only viable site for this project”; the revised PFI timetable did not include reference to the planning stage; and the summary stated that “It is now essential that there is no delay in the Authority’s decisions to confirm the selection of a preferred site, and to confirm the respective capacities of the schools within the PFI Project”.

44. On 23 October 2000 the Policy Committee approved the submission of an outline business case to the National Assembly. This time the timetable mentioned the submission of an application for planning permission but, it is submitted, simply assumed that permission would be granted. The public consultation exercise undertaken in September 2000 (see further below) was said clearly to indicate public support for “the preferred option on the Garth Olwg site”. Reference to selection of Garth Olwg as the “preferred site” was also contained in the PFI outline business case.

45. At an extraordinary meeting on 24 November 2000, the defendant resolved to confirm support for the adoption of a competitive negotiated procedure under the services regime as the preferred option for PFI procurement and to approve the publication of the relevant notice. The decision to proceed by way of the competitive negotiated procedure is the subject of challenge under ground (4). For present purposes Mr Harrison relies on the fact that the timetable included in the report to the defendant made no reference to the need to apply for and obtain planning permission and focused only on the PFI aspect of the matter.

46. The application for outline planning permission was submitted on 12 December 2000. The covering letter stated:

“Please note that the proposed development is to be delivered through the Private Finance Initiative (PFI). This means that the private sector will be invited to tender for a contract to design, build and operate the scheme. Outline planning permission for the scheme is a pre-requisite for this process. The chosen private sector developer will be responsible for submitting a detailed planning application in due course. However, in order to assist the public and the Planning Committee to understand the scheme, the following illustrative drawings are being prepared ….

….

… The Authority will agree a short list of private sector bidders by end of March 2001. The Authority will release the `Invitation To Negotiate’ (ITN) document to these shortlisted bidders in early April 2001. This document must include a copy of the outline planning permission, to inform bidders of both the fact of permission and of the nature of the conditions to which their detailed application must comply. Therefore, if outline permission is to be granted, it is quite essential to have the notice by early March 2001. The National Assembly’s timetable for release of funds for PFI projects is fixed: any delay jeopardises the project. I would be most grateful if you would please bear this in mind.”

47. In January 2001 the defendant issued invitations to tender. The covering letter from the PFI Project Manager stated:

“Thorough evaluation … will result in selected bidders being invited for interview over the period 14th-16th March 2001. We hope to notify short-listed bidders by 23rd March, along with the release of the Invitation to Negotiate document. Selection of preferred bidder is anticipated by December 2001. The `Done Deal’ is predicted for mid 2002, subject to acceptance by the NAfW of the Final Business Case. Phase One construction to start September 2002, with Phase Two commencing September 2003. The PFI scheme should be fully operational by September 2004. A full service management contract will be negotiated for a 25-30 year period.”

48. Mr Harrison lays stress on the way in which the project was regarded as a “Done Deal” subject only to PFI funding by the National Assembly. There was, he submits, an assumption that planning permission would be granted. Moreover the people involved in running the PFI side were going to be involved in the planning decision, until the change to the procedures made by the council’s resolution of 23 May 2001.

49. Once the claimants were granted permission to bring the present proceedings, the defendant gave an undertaking not to determine the planning application pending the substantive hearing of the case. Nevertheless the defendant continued with the PFI programme and took an executive decision on or about 16 March 2001 to select a short-list of tenderers for the PFI project.

50. Mr Harrison also refers to various public statements by the defendant or emanating from it. A press released dated 20 February 2001 stated that the scheme “will be a flagship project for the whole of Wales”. A newsletter issued to residents by the defendant on or about 22 March 2001 contained an article referring to the project in terms that suggested that it would go ahead. A similar point was made about the terms of an article in the Contract Journal dated 28 March 2001.

51. The claimants submit that the effect of the evidence as a whole is to demonstrate that the defendant has acted in such a way that the outline planning application cannot be considered properly: to refuse it now would make worthless all of the expenditure incurred on obtaining PFI approval and on the tender process. Although members of the council sitting as the Development Control Committee will be instructed by their officers not to close their minds, they cannot realistically be expected to be able to follow that advice. The reality is that the matter has been predetermined and the defendant is intent on pressing ahead with the development.

52. For the defendant, Mr Cochrane contends that that line of argument is misconceived. Before any major proposal for development is submitted for planning approval, it is necessary for the developer to complete a considerable amount of work relating both to financial viability and planning viability. This applies whether the developer is a private developer or a public body. The timescale of the development, whether funding will be available and the general merits of the development (in this case, the question of public educational benefit in particular) are all matters to be carefully considered before any planning application is submitted. There is no point in any developer applying for permission until it has decided that it is willing and able to proceed if planning permission is granted. In addition, though the degree of preparation is a matter for the developer, an assessment will always be made of potential planning problems such as environmental or highway concerns, so that obvious problems are dealt with in advance of the submission of an application for permission. Thus the fact that the Policy Committee has decided in favour of the development and has put in place the procedures for obtaining PFI funding cannot assist the claimants. Unless the defendant had got that far, there would have been no point in making the application for planning permission at all. The fact that the normal preparatory work has been done does not mean that the planning aspect of the matter cannot be considered by the Development Control Committee with an open mind.

53. In support of those submissions Mr Cochrane refers to the evidence filed by the defendant in this case. Christopher Jones, Divisional Director, Legal & Democratic Services, stresses in his witness statement that the Policy Committee was progressing within its specific remit, namely the improvement of educational and lifelong facilities. The members knew perfectly well throughout the whole process that planning permission would be required and that they would have to apply for it. They also knew that all decisions of the Planning Committee were taken on planning grounds and that they had no influence on the planning decision. Similarly, the submission of a comprehensive PFI application is a complex exercise and the marshalling of the key elements and the decision as to how they should be dealt with and when they should be reported to members is a matter for the judgment and expertise of the PFI Project Leader and his team. The need for planning permission is well known and acknowledged, and it is appreciated that this particular building block must be in place before progress can be made with the project. Michael Fisher, the PFI Project Manager, similarly refers in his witness statement to the fact that the decision to proceed with the outline business case included a precondition that the project was subject to planning consent. He also gives details of the complex procedures for obtaining PFI funding and of the various stages of consideration given to the project by the council.

54. Graham Mellor, the defendant’s Divisional Director of Planning, states in his witness statement that in his experience members are scrupulously fair in determining planning applications and will judge them on their individual merits and on planning grounds. He gives examples of their open-mindedness (though it is right to say that the claimants’ evidence challenges the significance of the examples given). He also states that at a very early stage of the Garth Olwg project he instructed the officer seconded to the PFI team on planning related issues to “keep his distance” from the other planning officers who would be involved with the processing of the expected planning application. He gave similar instructions to those other planning officers and is satisfied that the officers concerned have abided by his instructions and have dealt with the application impartially and objectively. He describes the consultation process and gives it as his opinion that the issues have been properly evaluated in the report he prepared for the Planning Committee.

55. Pauline Jarman, leader of the defendant council as well as an Assembly Member of the National Assembly, refers to her experience of the operation of the Planning Committee. It is her experience that the Divisional Director of Planning, when preparing a report to a committee on planning matters, will only present recommendations based on his professional opinion; that decisions, which are sometimes taken contrary to the advice of the Divisional Director, are only taken only after careful consideration of reports presented, advice given at the meeting and representations made. In her view it is fanciful to suggest that the proposed development at Garth Olwg would be granted planning permission as a mere formality. Members have been advised on countless occasions that they must consider planning applications with an open mind and determine them on planning grounds. She cites a recent example of a case where the committee refused planning permission sought by the Community Housing Division on behalf of the defendant, even though the Divisional Director of Planning had recommended approval. She expresses the view that if and when the planning application for the development proposed in this case is considered by the committee, the decision will be made only after proper consideration of the facts and on planning grounds. Although the council has reasonably been seeking publicity for the scheme, it knows full well that planning permission will be required and will be properly considered.

56. Having set out the facts and submissions at some length, I can state my conclusions relatively briefly. In my judgment the case advanced by the claimants is impossible to sustain. They have to show that the members of the Development Control Committee will be incapable of considering the application on its planning merits, however much they may seek to comply with their legal duty to approach the decision with an open mind. The evidence falls far short of establishing that. The decisions taken to date by the defendant, largely through its Policy Committee, as to preferred site, PFI scheme and so forth do not preclude proper consideration of the planning aspects of the case. They indicate that the project is viewed as a valuable and important one, but that does not prevent proper consideration of the planning merits.

57. The fact that the PFI timetable has been progressed does not mean that planning permission has been predetermined. It is plainly important to maintain the overall timetable in the hope that planning permission will be granted. Even if there is an assumption or expectation rather than a hope, it does mean that those vested with the responsibility of making the planning decision are bound to approach the matter with closed minds. So too, although refusal of planning permission would frustrate the timetable and would no doubt mean that the defendant had incurred substantial wasteful expenditure, that does not make it impossible to give proper consideration to the planning merits.

58. In all of this I think that due weight must be given to the defendant’s evidence, the understanding that it reveals about the need to take the decision with an open mind and by reference only to relevant planning considerations, and what it says about the ability of those concerned to exercise such a discretion. Looking at the matter as a whole, I find it impossible to accept that the defendant has fettered its discretion or predetermined the matter, so as to be incapable of reaching a lawful decision on the planning application. It remains to be seen whether in practice the discretion is exercised lawfully. It suffices, for the disposal of the present challenge, that nothing that has happened to date makes it impossible for the discretion to be exercised lawfully.

59. A separate but related issue under this general heading concerns an alleged failure to consult with an open mind. Mr Harrison submits that under article 13 of the General Development Procedure Order 1995 the defendant was under a duty to consult with the Community Council. For a process of consultation to be effective, it must take place while the proposals are still at a formative stage and the defendant must consider the responses with a receptive mind and in a conscientious manner when reaching its decision (see the statement of principles in Cran v. Camden London Borough Council [1995] RTR 346, 374B). Although in August 2000 the defendant sought to consult and it also invited views to be expressed at the meeting of the Development Control Committee, consultation at such times was incapable of amounting to effective consultation since the proposals are not at a formative stage and the committee did not have a receptive mind. Specifically, the defendant has reached firm decisions on the need for the development in principle and on the location of the development. It has done so without prior consultation and in the circumstances it is too late for effective consultation. The development does not form part of the Education Strategic Plan 1999-2002 and was not included in the consultation process carried out in order to prepare that plan. The decision of the Policy Committee on 2 May 2000 that replacement schools be built at the Garth Olwg site was reached on the basis of confidential information as to site appraisal and without public consultation. Although the defendant purported to carry out a consultation exercise with local residents by way of questionnaires and an exhibition in August and September 2000, the consultation was misleading because it indicated that the choice of Garth Olwg in principle was still open to debate: the survey letter stated that the defendant was “seeking public opinion on the proposals for the Garth Olwg site” and asked whether those consulted agreed or disagreed with the proposal for replacement schools and other facilities on the site. When the Policy Committee came to take a decision based on the consultation, however, it was presented with only three options: do nothing or select one of two extensive packages of facilities to be developed on the Garth Olwg site. Thus there was no effective consultation on the key issues of whether educational needs could be met by improvements to existing sites or whether another site would be better. Nor can there be any effective consultation unless the defendant is prepared to reopen the whole issue of the need for and the best location of the facilities proposed.

60. There are a number of difficulties about those submissions. First, the scope of the alleged duty to consult fails to take proper account of the terms of article 13 of the General Development Procedure Order upon which it is said to be based. The community council was entitled to be notified of the planning application. Article 13(1) provides that where a community council is notified of an application it must, as soon as practicable, notify the local planning authority whether it proposes to make any representations about the manner in which the application should be determined, and it shall make any representations to that authority within 14 days of the notification to it of the application. Article 13(2) provides inter alia that in determining the planning application the local planning authority shall take into account any representations received from the community council. The timing and extent of any “consultation” are therefore laid down by the statutory provisions themselves. If the planning application is duly notified to the community council and any representations made by the community council are duly taken into account in determining the planning application, the local planning authority will have complied with its statutory duty in this respect. In this case notice of the planning application was given to the community council, representations have been received and nothing precludes their being taken into account in determining the planning application. Thus there has not been and there need not be any breach of the statutory duty.

61. In truth the complaint made with regard to consultation is directed not at the planning stage but at the decision of the Policy Committee to promote the development in the first place. It is submitted that the committee formed its views on need and location without adequate consultation and that the subsequent consultation was carried out at a time when the members of the committee no longer had open minds on the question. But the decision of the Policy Committee is not the subject of challenge in the present proceedings. The proceedings concern the lawfulness of the prospective decision on the planning application and of the process leading up to that decision. In so far as the planning decision and related process are concerned, the complaint is effectively dealt with by the conclusion I have already reached on the more general issue of predetermination. If, as I have held, the Development Control Committee has not predetermined the application and is capable of deciding it with an open mind, then equally there is no reason why the results of the consultation exercises, to the extent that they are relevant, should not be taken into account with an open mind. The responses to the consultation exercise in autumn 2000 are summarised in the report prepared by the Divisional Director of Planning for the Planning Committee meeting that was due to be held on 22 February 2001. They can be taken into account by the members of the Development Control Committee in reaching their eventual decision. In so far as it relates to the planning decision, there was no possible flaw in the consultation exercise. This ground of challenge therefore also fails.

62. My reasons for rejecting the claimants’ case on this ground make it unnecessary to consider a further submission by Mr Cochrane that the need for the development is not a material planning consideration in the circumstances of this case and that it is also irrelevant whether another location may be better or equally suitable.

Ground (4): tendering procedure

63. By this ground the claimants seek to challenge the decision of the defendant council on 24 November 2000 to confirm support for the adoption of the competitive negotiated procedure under the services regime as the preferred option for PFI procurement.

64. Under the EC procurement regime there are three different types of procedure available: open, restricted and negotiated. The negotiated procedure may only be used in defined circumstances, which differ according to whether the contract is to be classified as one for services or for works (I can ignore for present purposes the further category of supplies contracts and various sub-classifications). In the case of services contracts, the Public Services Contracts Regulations 1993 provide in regulation 10(2) for the use of the negotiated procedure -

“(b) exceptionally, where the nature of the service to be provided, or the risks attached thereto, are such as not to permit prior overall pricing;

(c) when the nature of the services to be provided … is such that specifications cannot be drawn up with sufficient precision to permit the award of the contract using the open or restricted procedure.”

In the case of works contracts, the Public Works Contracts Regulations 1991 provide in Regulation 10(2) for use of the negotiated procedure in circumstances corresponding to (b), but not (c), of the Services Regulations.

65. Guidance on the EC procurement rules is given in Treasury Taskforce Technical Note No.2, “How to follow EC Procurement Procedure and Advertise in the OJEC”. The Note explains the types of procurement to which the relevant EC directives apply, including works contracts (“contracts for the carrying out of civil engineering or building works or under which such facilities are provided by specific user requirements”) and service contracts (“contracts under which the purchaser engages a contractor to provide services”). In section 2.3 it gives advice on the categorisation of PFI proposals. It provides a flow chart listing the questions which will need to be addressed in order to categorise a contract correctly. It states that legal advice should be sought as necessary. In section 3 the Note states that the competitive negotiated procedure is normally the most appropriate for PFI, since PFI requires scope for tenderers to offer innovative ideas for technical solutions and allocation of risk and this is best accommodated by the use of the negotiated procedure, subject to certain qualifications. Reference is made to the provisions of the Works Regulations and Services Regulations which permit use of the negotiated procedure. Although it is stated that the final decision on the selection of procedure rests with the procuring body, in the light of legal advice, the general thrust of the guidance is that the negotiated procedure is likely to be appropriate for a PFI project.

66. In reaching its decision on 24 November 2000 the council had before it a report prepared by the PFI Project Manager which appended two papers, one an information sheet highlighting recent observations made by the European Commission on procurement legislation for UK PFI schemes and the other an aide memoire on the selection of PFI tender routes “to assist elected Members discuss and decide the preferred option”. The report itself contained only a limited amount of analysis, but emphasised the complexity of the Garth Olwg scheme and recommended that members confirm support for the adoption of a competitive negotiated procedure under the services regime as the preferred option.

67. The first appendix was a paper referring in some detail to a reasoned opinion issued by the European Commission to the effect that Westminster City Council had been in breach of the EC procurement rules by using the negotiated procedure for a school PFI project. It indicated that the Commission appeared to be of the opinion that a negotiated process was permitted only in cases of particular complexity; that the response of the UK Government was that the market is not yet sufficiently standardised to allow restricted tendering with no room for negotiations and the Treasury intended formally to rebut the European Commission’s view; that the only two PFI schemes in the United Kingdom to have attempted the adoption of the restricted procedure had both failed and had subsequently been resubmitted as negotiated procedures; and that the PFI industry felt that UK schemes which were based on the contractor’s interpretation of an output specification and the procurer’s due diligence process inevitably involved post-competition negotiations with the client. The paper continued:

“The advice from the legal advisers (Bevan Ashford) for the Rhondda Cynon Taff PFI scheme is that the PFI project is of sufficient complexity to justify the use of the negotiated procedure under the services regime, as full costings and specifications cannot be drawn up at the outset of the scheme. This accords with Treasury guidance (Technical note 2) for PFI procurement.

….

A comprehensive but simplified explanation of the legal definitions of the types of PFI procurement methods, prepared by Bevan Ashford (legal advisers to the project), is attached. It is intended as an aide memoire for those elected members and senior officers of this Authority involved in the decision-making process, to proceed with the next stage of the PFI procurement process, the OJEC notice.

However, awarding authorities do need to understand that this is currently a high profile issue and there is potential for the European Commission or others to challenge the choice of competitive negotiated procedure for PFI procurement.”

68. The second appendix was a paper on procurement issues prepared by Susan Smith, a solicitor with Bevan Ashford specialising in procurement law. That paper described the three different procedures available. In relation to the competitive negotiated procedure, it referred to the Treasury Taskforce guidance and indicated that the procedure clearly offers advantages over the others but that if it is chosen there should be a clear audit trail identifying the specific circumstances that apply to justify its use and why the open and restricted procedures are inappropriate. The paper then referred to the need to decide whether the services or the works regime applied and described two approaches, the relative value test and the primary purpose test, that may be adopted in reaching that decision. It stated that the relative value test tends to result in PFI contracts being regarded as services contracts and that under the primary purpose test the general view has also been to regard PFI contracts as services contracts. It stated: “for the purposes of this paper we have assumed that the services regime will apply.” The paper went on to deal with the circumstances in which use of the competitive negotiated procedure may be justified under the services regime. It advised that “for truly complex projects our view is that, on balance, the negotiated procedure is likely to be the preferred option, although there is a potential risk of challenge”. It recommended:

“- Awarding authorities must review their particular project to see, firstly, whether it is appropriate to run an open or restricted procedure and whether the services or works regime applies.

- If the awarding authority is not of the view that an open or restricted procedure is appropriate then it should carefully consider whether the specific grounds permitting use of the competitive negotiated procedure are met.

- Awarding authorities must fully document the reasons why a particular procedure has been chosen and provide a clear and reasoned audit trail.”

69. The minutes recording the defendant’s resolution to confirm support for the adoption of a competitive negotiated procedure under the services regime do not give any further reasons in support of the decision.

70. On the basis of that material Mr Harrison submits that the essential question whether the contract was to be classified as a works contract or a services contract was simply not addressed by the defendant. It was necessary to address that question because the services regime permits use of the competitive negotiated procedure in a broader range of circumstances than is permitted under the works regime. Yet the report to the council did not seek a decision on whether the works regime or the services regime applied; it simply sought confirmation of support for the adoption of a competitive negotiated procedure under the services regime. The first appendix dealt only with the use of the competitive negotiated procedure. The second appendix (the Bevan Ashford paper) was a general paper on procurement issues which gave no advice on whether the particular contract would be a works contract or a services contract but merely “assumed that the services regime will apply”. Thus members’ attention was not focused on the question that only they could decide in the exercise of their judgment and having regard to the specific features of the contract. The OJEC (Official Journal) notice described the contract in terms that show it to have mixed elements (secondary school; construction work for kindergarten buildings; construction work for buildings relating to leisure, sports, culture, lodging and restaurants; construction work for social facilities other than subsidised residential accommodation; multi-functional buildings; repair and maintenance services related to buildings; building and facilities management services; information technology services; computer and related services; computer equipment and supplies), so that it could not be classified one way or the other without careful thought. Thus there is no proper and sufficient material to demonstrate that the issue was before the minds of members. They proceeded on an assumption rather than by forming the judgment that they had to make. There was an error of law which vitiated the subsequent procedure.

71. Mr Cochrane’s response to those submissions is twofold. First he submits that the correct categorisation of the contract as a works contract or services contract is a matter of law and that the contract in this case is plainly a services contract. Its overall primary purpose is the provision of educational services. Secondly he submits that it makes no difference whether it is a services contract or a works contract since in either case the adoption of the negotiated procedure can be justified under the provision, contained both in the Services Regulations and in the Works Regulations, which permits such a procedure where the nature of the works or services, or the risks attached thereto, are such as not to permit prior overall pricing. That is plainly the case here; and it suffices that the circumstances permitting the use of the negotiated procedure do in fact apply. Accordingly it does not matter on what precise basis the council’s decision was taken.

72. It is further submitted that the claimants lack the locus to challenge the adoption of the negotiated procedure. The choice of procedure will not adversely affect them in any way and there is nothing to show that it will result in practice in the award of the contract to a different contractor or at a different price. If they consider the procedure to be inappropriate, they can make representations to the National Assembly which can refuse funding if it thinks fit. In any event the claimants should not be allowed to pursue this challenge as a last-ditch way of seeking to stop the project.

73. In my judgment there is some force in the submission that the decision-making process on this issue was unsatisfactory. I do not think that the question whether this was a works contract or a services contract was overlooked altogether. It seems to me that the report to the council was effectively inviting the council to treat this as a services contract and to confirm that, as such, it met the conditions for the competitive negotiated procedure. But I accept that the attention of members was not focused sufficiently on the first question and that there was inadequate information placed before them to enable them to reach a properly considered decision on the question.

74. In my view, however, that deficiency does not invalidate the decision. First I am inclined to think that the proper classification of the contract as a works contract or a services contract is a matter of law upon which the court is entitled to rule irrespective of the adequacy or otherwise of the defendant’s decision-making process. If that is right, then the matters that led the council’s solicitor to make the assumption that this was a services contract seem to me to lead equally to the conclusion that it is in fact a services contract. They are moreover reinforced by the further material contained in Susan Smith’s witness statements. The whole thrust of this project is towards the long-term provision of services and payments are made over the long term not just for the construction costs but for the related facilities management services and other support services which are incorporated into the project. The claimants have come nowhere near to persuading me that this was a misclassification. And on the basis that it was a services contract, the council was plainly entitled to conclude that the circumstances justified the use of the negotiated procedure.

75. Alternatively, if the matter is not one of law but depends on the exercise of judgment by the council, then I have no doubt on the evidence that if the council had considered the matter properly it would have concluded that this was a services contract. The whole tenor of the evidence points in that direction. In those circumstances any deficiency in the actual decision-making process made no difference to the outcome and the court would not be justified in intervening in the exercise of its discretion.

76. Further, even if the contract were properly to be classified as a works contract, I have no doubt that the defendant would have reached the same conclusion in favour of the negotiated procedure and that it would have been entitled to reach that conclusion. It is true that the circumstances justifying the use of the negotiated procedure are wider in the case of services than in the case of works. It is also true that the information placed before the council referred to the two bases upon which the negotiated procedure can be justified under the Services Regulations (thus the first appendix referred both to the inability to draw up “full costings” and to the inability to draw up “full specifications”), whereas the Works Regulations permit the negotiated procedure to be used only on the first basis. But looking at the evidence as a whole, including the Treasury guidance, the advice given at the time by Susan Smith and the more detailed exposition given in her witness statements (which include an account of the complex characteristics of the PFI scheme), and bearing in mind the impracticality of any procedure other than the negotiated procedure, I consider it wholly unrealistic to suggest that the defendant might have reached a different conclusion if it had treated this a works contract. I am also satisfied that it was properly open to the defendant to use the negotiated procedure, and Mr Harrison did not press any submission to the contrary.

77. In any event I have strong doubts about the claimants’ standing to raise this issue, though I need express those doubts only briefly. The correct procedure is a matter of obvious concern to tenderers or would-be tenderers, but those persons have their own remedies under the regulations themselves. The claimants have not been shown to be affected in any way by the choice of tendering procedure. They have seized on the point simply as a fall-back way of trying to stop the project. I see no wider public interest to be served by allowing a challenge, and in all the circumstances the claimants should not in my view be regarded as having a sufficient interest for the purposes of the PFI challenge.

78. For all those reasons I reject the claimants’ case on ground (4). I think that there is sufficient in their submissions, however, to merit my dealing with the matter by granting permission but refusing the substantive application, thereby putting this ground on the same basis as the rest of the application for judicial review.

Conclusion

79. I have held against the claimants on each of the four grounds advanced before me. Accordingly the claim for judicial review must be dismissed.

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