Cummings v Cardiff County Council

Cardiff County Council is the licensing authority for the hackney carriage trade in Cardiff. The claimant, Mr Cummings, is the proprietor or part proprietor of a number of companies operating taxis in Cardiff. In total he controls 58 vehicle licences or 12.08% of the fleet of 480. The Council has, for many years, restricted the number of licences it issued. From time to time it decided to issue fresh licences. On 14^th January 2003 it decided to issue six further licences but to allocate them by means of a lottery. When the claimant challenged that decision the Council rescinded it and decided, in October 2003, to remove the restriction on the numbers of licences it issued.

Although the later decision will result in the claimant receiving all the licences he wishes, it has the effect of destroying the secondary market in transfer of licences which, understandably, have a high value during a system of restriction.

There are before the court two applications for Judicial Review in respect of two decisions of the Cardiff County Council Licensing and Public Protection Committee (“the Committee”). The first decision challenged, dated 14^th January 2003, was to conduct a lottery for the purposes of issuing six Hackney Carriage Vehicle Licences. The second decision challenged, dated 7^th October 2003, was to rescind the earlier decision and to remove the restriction on the number of such licences issued subject to certain conditions relating to the vehicles. This was called “delimitation”.

Since it was reversed the claimant’s grounds of challenge to the earlier decision might appear academic. But the claimant persists in his challenge to the January decision because, he contends, the defect in that decision taints the decision to delimit the issue of licences taken in October. It is, accordingly, necessary to examine the earlier decision and the basis upon which it is challenged before turning to the second, October decision.

The power to licence hackney carriages to ply for hire is contained within Section 37 of the Town and Police Clauses Act 1847 as amended by the Transport Act 1985. Section 37 of the 1847 Act, as amended, provides:-

“The Commissioners may from time to time licence to ply for hire …. hackney coaches or carriages of any kind or description adapted for the carriage of persons.”

By Section 40:-

“Before any such licence is granted a requisition for the same, in such form as the Commissioners from time to time provide for that purpose, shall be made and signed by the proprietor or one of the proprietors of the hackney carriage in respect of which such licences is applied for …” (there then follow detailed rules in relation to the form of the requisition).

Nothing turns on these provisions in these applications save that it should be observed that it is the vehicles which are licensed and that firms or individuals seeking a licence are required to sign an application called “a requisition”. Pursuant to Section 47 of the Local Government (Miscellaneous Provisions) Act 1976 District Councils are empowered to attach conditions to the grant of a licence. Although objection was made to the particular conditions applied, this challenge is not being pursued and it is, therefore, unnecessary to set out the relevant statutory provisions.

It is, however, relevant to record that there is a statutory restriction upon the power of the local authority to limit the number of licences it issues. The power only exists where authorities are satisfied that is there is no significant demand for the services of hackney carriages which is unmet. Even if there is no unmet demand the authority is under no obligation to restrict the issue of licences. Further, there is no statutory restriction on the removal of any limit on the number of licences issued. The statutory source of those propositions is contained in Section 16(b) of The Transport Act 1985:-

“… the grant of a licence may be refused, for the purpose of limiting the number of hackney carriages in respect of which licences are granted, if, but only if, the person authorised to grant licences is satisfied that there is no significant demand for the services of hackney carriages (within the area to which the licence would apply) which is unmet.”

Those statutory principles were summarised in R (on the application of Maud) v Castlepoint Borough Council [2002] EWHC 273 (Admin):-

“6.

The legal position has thus become as follows;

(a)

Before a local authority can refuse an application for a vehicle licence in order to limit the number of licenced taxis, they must be satisfied that there is no significant demand for the services of taxis, within the area to which the licence would apply, which is unmet;

(b)

If the local authority are thus satisfied, a discretion, as opposed to an obligation, arises to refuse the grant of a licence; but

(c)

If the local authority are not so satisfied, they cannot refuse to grant a licence for the purpose of limiting the number of licensed taxis and are thus obliged to grant it.”

The report of the meeting records on 14^th January 2003 that it was agreed to issue six hackney carriage vehicle licences and that applicants for those six licences should be restricted to the current holders of driver’s licences or proprietor licences. Each eligible individual or company would be limited to one licence. The selection of the applicants would be made by chance, through a lottery. The resolution further imposed a number of conditions in relation to the licences granted to the six who were successful in the lottery.

The basis of the decisions reached on 14^th January 2003 was the report of the Chief Regulatory Services Officer dated 23^rd December 2002. The report was based, in part, on a survey of demand commissioned from Halcrow Group Ltd (“the Halcrow Report”). This report is of particular relevance to the challenge to the later October decision. But it is of note, at this stage, that a draft report had been made available for comments by those operating taxis in November 2002 and that consideration of that report was deferred on 10^th December 2002 to allow “the trade” a further opportunity to submit a consensus opinion on the proposals. The Committee received a summary of the trade consultation response dated 17^th December 2002. The decision of 14th January 2003 was, accordingly, made in response to proper consultation. That consultation showed that “the trade” was against a lottery.

The possibility of a lottery was one of three methods of selection of applicants for licences summarised by Halcrow in its report. Halcrow’s report advised (at 17.3.1.):-

“If the Council pursues the option of issuing six additional licences there are three options the Council could pursue;

•

Issue licences according to the Council’s waiting list, for example, i.e. the driver has been on the waiting list for the longest is issued a licence first, for example, Selby District Council; or

•

If no waiting list is available all potential drivers could be interviewed and graded according to a set of pre-determined criteria, both Manchester and Leeds City Councils use such a system; or

•

Use a lottery system, for example, Southampton City Council.”

The decision to select applicants by lottery is challenged on three bases:-

The most significant of these challenges relates to the rejection of the use of a waiting list as a basis for determining priority. This challenge is of particular importance because, it is said, it led subsequently to the decision to de-restrict the issue of licences.

The challenge focuses on the wording of the report laid before the Committee on 14^th January 2003. Paragraph 4.3. of the report records the three mechanisms available to the Council identified by Halcrow. The report continues at 4.4:-

“While the authority does keep a record of applicants and companies who have expressed an interest in obtaining hackney carriage licences, this has been largely a mechanism for assessing the level of demand and it is restarted following each release of licences. As many people would have expressed an interest previously prior to the creation of the new records and who would still wish to apply for the issue of the new licence, it is not equitable to use the existing recording mechanism in the way suggested by the consultants. It is therefore proposed that the use of a recording system to register expressions of interest for further licence releases is no longer necessary and be discontinued. Two other options to consider would therefore be to use the lottery system or establish appropriate criteria against which to consider the merits of each individual applicant.”

The report continued by noting the simplicity of a lottery system as opposed to the problems in identifying appropriate criteria to select applicants by merit (see paragraphs 4.5 and 4.6 of the report). Thus the rejection of a waiting list was crucial to the decision to use a lottery.

The report is criticised because it is said that it misled the Committee into thinking that there was no available waiting list to select applicants for consideration in the order in which they had made their application. This, so it is contended, was untrue. Such a list did exist and it would have been easy to use that list as a basis for selecting applicants for consideration according to the date of their application.

The claimant stresses that he is not suggesting that the Committee was bound to grant licences in the order of the date of the applications but, at least, it is said, consideration should have been given in that order. Further, the history of the issue of the licences showed that on occasions when then there were more applications than the number of licences the Council proposed to issue, applicants had been selected in the order in which they had applied for licences.

This challenge led to an analysis of the previous history of the issue of licences. On 5^th December 1990 the Committee resolved to issue twenty-five taxi licences to meet the needs of the disabled. It was resolved to issue licences in “strict order of application dates”. There is a specific reference to “the waiting list” from which those who had previously sold the licences would be deleted. Offers for licences which were not accepted within a time limit of three months would be withdrawn and an offer made to an applicant “at the top of the list”. By 11^th December 1991 it appears that not all the offers of licences had been accepted. The Committee proposed to offer licences to those who had previously sold them in the date order of application. The Committee, on 11^th November 1992, resolved that future applications should be refused and applicants’ names be placed on the waiting list. The following year, on 15^th September 1993, it was resolved to invite those on the waiting list to make application for one remaining licence. Other licences would be issued according to the extent to which individuals or companies had been “proactive” in requesting the provision of licences for vehicles adapted or manufactured for the disabled. By July 1994 ten licences were available although the method of allocation is not apparent from the resolution dated 13^th July 1994.

There are no written records until 1998 although in the Statement of Facts the claimant records that he was awarded some licences between 1994 and 1997 and assumes, by reason of the date, any unsuccessful application would have led to him being at the top of the waiting list (see e.g. paragraph 13 of the Statement of Facts).

Of greater significance are the events in 1998. On 2^nd June 1998 the Committee resolved to grant ten new licences for vehicles adapted for disabled persons. It is not clear on what basis the ten applicants were chosen. On 30^th June 1998 the Committee granted seventeen further licences, eight of which were granted to firms owned by the claimant. Applications for four further licences from firms owned by the claimant were deferred. On 3^rd September 1998 the Committee resolved not to issue further licences, to review the position and to consider at a later meeting the extent to which licences on offer had been accepted.

On 3^rd November 1998 the Committee learnt that some of those selected had been unable to raise the necessary finance and recorded that there were other applicants “on a waiting list”. It was resolved to offer the remaining eight licences which had not yet been taken up:-

“In order of date of receipt of the application to those who had applied since 29^th April 1998.”

Such licences would only be offered to persons or to companies who had not already been allocated a licence under the current issue.

This resolution is of importance, says the claimant, because it led to the allocation of further licences to firms he owned because those applications were at the head of a waiting list starting on 30^th April 1998 and finishing on 13^th January 2003. This document (at pages 623 to 626) demonstrates not only that there was a waiting list which showed the order in which applications had been received but that the waiting list had been retained until the day before the resolution on 14^th January 2003 and that on the last occasion before 14^th January 2003 when licences were issued, they were, indeed, issued in the order in which applications were made. In the light of that history it can be established:-

In those circumstances, it is contended, it was wrong to suggest that the waiting list was “largely a mechanism for assessing the level of demand”. Although it did, obviously, indicate how many were interested in obtaining a licence, it had also formed the basis for the grant of such licence.

It does seem to me that the report at paragraph 4.4 is an inadequate description of the previous history of the issue of licences. The only basis, so far as I can see, for rejection of the waiting list system proposed in the report appears to be because those who had expressed a wish to apply for the issue of a new licence may have done so before 30^th April 1998. Mr Bromley-Martin QC, on behalf of the claimant, suggests that is fallacious because prior to 1998 there had been a surplus of licences over applicants and thus anybody who wanted a licence, and was able to afford a vehicle complying with the Committee’s requirements, would have been able to obtain such a licence. I am not sure it is fair to assume that all those who wanted licences prior to April 1998 would have obtained them. The consultation process revealed that at least one person had been waiting “for the last 18 years” (see letter to the Committee at page 385). But even if such applicants did exist it is difficult to see that, read as a whole, paragraph 4.4. fairly describes the history of the system. In rejecting the use of a waiting list as a means of ascertaining the dates when applications were made it is a surprising omission that no reference is made to the existing list which, by 14^th January 2003, was nearly five years old. Secondly, the fact that the dates of some earlier applications may have been unknown provided no inhibition to a method of selection according to date back in 1998. This fact was not reported to the Committee. Thirdly, it was not accurate to say that the record had been largely a mechanism for assessing the level of demand. It had not. On the majority of occasions when the applicants exceeded the number of licences the waiting list had been used as a method of determining the date of applications and the priority in which those applications would be considered.

My attention was drawn to a number of documents in which the principal officer in the licensing section, Mr Shone, sought to justify the passage impugned in the report at paragraph 4.4 (see in particular paragraph 53 of his second witness statement dated 4^th February 2004 which predates his first). Further reference was made to his tortuous evidence during the course of an appeal mounted by the claimant to the Crown Court which was never concluded. In my mind none of this material is of assistance. Confusing though it is, it postdates the decision and report under attack. It cannot cast light on the information available to the Committee at the time it made its decision to reject a method of allocation based upon a waiting list.

Of possibly greater assistance on this issue is the statement from the chairman of the Committee, Brian Pinnell. He has been chairman since 1999 and was deputy chairman for about two years before. His statement is focussed upon the challenge to the second decision. He says that the list

“did not necessarily reflect the merits or circumstances of individual applicants. There were 159 names on the list. It would have been very difficult to devise a set of criteria on which to assess individual merits, as well as administratively cumbersome and expensive to carry out that assessment.”

Mr Pinnell, thus, does not deal with the meaning or effect of paragraph 4.4 of the Report before the Committee but, merely, seeks to explain why a merit system was rejected by the Committee.

Accordingly, I conclude that the report laid before the Committee did not accurately record the use to which the waiting list had been put in the past by the Committee. Paragraph 4.4 did not provide a fair or safe foundation on the basis of which the waiting list could be rejected.

However, I reject the second and third grounds of challenge to the Committee’s decision to select applicants by lottery. There is no basis for saying that it was irrational to use a lottery merely because earlier applications had been deferred. It is plain from an analysis of the history that on each occasion a decision was reached to issue fresh licences, a fresh decision was made as to the method of allocation. Mr Cummings does not suggest that he had any legitimate expectation that the same system would be adopted on each occasion a decision was made to issue fresh licences. On the contrary, the history shows that there was no basis for such an expectation. Nor was it, in my view, irrational to reject a method of allocation, which included consideration of the merits of any particular application. The Committee was entitled to take the view that any system which laid down a criterion of merit was difficult, cumbersome and expensive, for reasons identified by the Chairman, Mr Pinnell.

There remains the issue as to the effect of the misleading report. It seems to me wrong to reach any conclusion as to the effect of that report on the decision of 14^th January 2003 when that decision has itself been rescinded. The importance of the decision to use a lottery is only of any relevance if it has an impact on the decision to delimit the issue of licences. The effect of the misleading report is only of relevance if it has an impact upon the decision under challenge in the second Judicial Review proceedings, the decision dated 7^th October 2003. I should, therefore, before considering the impact of the misleading report, turn to the events leading to the decision of 7^th October 2003 and to that decision itself.

Once the Committee had passed a resolution to hold a lottery, on 30^th January 2003 the claimant wrote asserting that the lottery was unlawful and requesting the Committee to revoke the decision. The claimant agreed to withhold Judicial Review proceedings until a meeting on 11^th February 2003 since the lottery was not due to take place until 8^th April 2003. The Committee did not consider the claimant’s assertions on 11^th February 2003 because it took the view that no basis had been given for them. Further correspondence ensued and Judicial Review proceedings were issued on 4^th April 2003. An interim injunction was obtained, by consent, to restrain the Committee from holding the lottery.

On 8^th April 2003, the Committee resolved to defer the lottery in the light of the intended application for Judicial Review and to pursue the option of removing numerical limits on the issue of licences. It resolved to consult the trade and obtain a report for future consideration. On the same day, an acknowledgment of service sought an adjournment on the basis that a decision of the Committee:-

“is likely to render the proceedings academic” (see paragraph 1.1 of the grounds for contesting the claim).

The decision of 8th April 2003 was based on a report dated 27^th March in which it was recorded that 512 licence holders had indicated a wish to be issued with licences. It stated at paragraph 4.4:-

“In view of the demand for licences and the notification of a proposed Judicial Review, members may wish to consider if the imposition of numerical limits is still appropriate. Deregulation would provide Dolmans clients (the claimant’s solicitors) with the opportunity to obtain a licence from the authority without the need for a lottery system as any person could make an application. As all persons would be free to obtain a licence, this would remove the basis for the Judicial Review.”

The decision on 7^th October 2003 to rescind the January decision to issue six licences by way of lottery and to remove the limitation on the number of licences was preceded by a period of consultation with the trade and a report dated 12^th August 2003.

A letter was sent to all holders of vehicle and drivers licences in April 2003 inviting views by 30^th May 2003. The many responses were reported in Section 2 of the report to the Committee and in appendices. Sixty-six were in favour of delimitation and one hundred and sixty seven against. Paragraph 2.8 of the report summarised the arguments against delimitation, in paragraph 2.9 the arguments in favour. Paragraph 5 of the report recorded a summary of what was described as “expert advice on delimitation”. It referred to the view of an expert, Mr Jim Button of the Public Health Legal Information Unit, recommending delimitation.

Appended to the report were two copies of a letter written by the claimant dated 18^th July 2003, outside the period for making representations. This argued against delimitation and in favour of deferring any decision. It also pointed out that by reason of limiting the number of licences they had acquired a substantial transfer value. In his evidence Mr Cummings stated that they were, at the time of his statement, worth £20,000. A further copy of his letter contained written arguments to the contrary drafted by officials.

The Minutes of the Committee dated 7^th October 2003 show that the Committee considered examples of licensing systems in other parts of the United Kingdom and that it was advised that the, majority do not place any restriction on numbers. The Minutes continue:

“Having considered all the evidence, the Committee then discussed the implications of such a proposal in Cardiff. The Committee found that:

•

From the Halcrow survey and report, and their own experience of Cardiff on a Friday and Saturday night, that there was an unmet demand for hackney carriage services in the city;

•

The market for hackney carriage services will find its own sustainable level and number of vehicles;

•

The local authority could maintain quality control over the services through introducing conditions as part of the vehicle licensing process;

•

Recognise that the initial outlay of a new car could be prohibitive for some potential owners, and therefore a three year vehicle age limit would be introduced as part of the conditions of licence.”

There was also a reference to difficulties concerning the provision of taxi ranks and the claimant’s appeal to the Crown Court.

The background to the challenges advanced, so the claimant emphasises, was the decision not to remove restriction on the number of licences made as recently as 14^th January 2003. That decision was made on the basis of the Halcrow Report, which specifically advised against delimitation at paragraph 16.3.8, drawing on examples in other authorities. The challenges to the rationality of the decision on 7^th October 2003 must be viewed in the light of that sudden and, so it is said, irrational change of heart. It is not contended that it was not open to the Committee to change its mind but, if it was to do so, it had to have a rational basis for doing so based on a fair process for reaching that conclusion. The primary submission advanced is that the decision to remove the restriction was tainted by the earlier rejection of the Committee of the method of allocation based upon the waiting list. The Committee ought, in October, to have considered whether the advantages of removal of restriction on numbers were outweighed by the advantages of a method of allocation of a limited number of licences based upon the waiting list. There was no reference whatever to consideration of the waiting list at the time of the decision on 7^th October 2003. That was, so it was contended, because the Committee had been misled earlier in January as to the availability of a waiting list as a basis for allocation. In short, the Committee failed to consider the rival merits of a method of allocation based upon the waiting list as opposed to de-restricting the number of licences issued altogether. Secondly it was said that the decision was tainted by the desire to avoid Judicial Review and, indeed, the decision had been made without any fair consideration of the rival arguments as demonstrated by the surprising percipience, in the grounds for seeking an adjournment of the first Judicial Review proceedings, namely, that those proceedings were likely to be academic because of a decision to de-restrict the numbers of licences issued. Thirdly, it was contended that the claimant’s objections were not dealt with fairly because his letter contained detailed annotations arguing against the reasons he advanced opposing de-restriction. Finally, it was contended that the report upon which the decision was based was misleading in that, whilst it referred to an expert in favour of de-restriction, it made no reference to the Halcrow Report advising against it. This omission was particularly significant, so it is said, because three out of the seven Councillors had not been present at the Committee meeting on 14^th January 2003.

The first question I have to decide is the extent to which the errors contained in the report can be said to have tainted the decision to de-restrict the numbers of licences issued. Mr Bromley-Martin QC stressed, in his reply, that the only reason why the Committee came to consider the de-restriction was that they believed they had run out of options in relation to the choice of a method of allocation under a limited scheme. He referred to the opinion Mr Pinnell expressed in his statement that systems for the allocation of licences were contentious (see paragraph 14). Thus, the claimant argues that the misleading report which led to the decision to reject a waiting list as a basis of allocation led to the Committee’s failure in October 2003, when comparing the advantages of the issue of a limited number of licences against de-restriction, to put in the balance a system of allocation based on the waiting list. In rejecting the issue of a limited number of licences the Committee, misled by the report, must have taken the view that the system of allocation based upon the waiting list was not available.

I do not think that by the time the Committee came to decide whether to de-restrict the number of licences it issued, it took the view that possible methods of allocation under the limited system was a relevant consideration. The arguments in favour of delimitation at paragraph 2.9 did not include the difficulties of devising a fair system of allocation. The arguments opposing delimitation at paragraph 2.8 did not advance the merits of a particular method of allocation. The claimant’s own letter dated 18^th July 2003 did not rely upon any supposed advantage in a method of allocation based upon a waiting list.

It was a matter for the Committee to decide what arguments were relevant to the issue of whether there should be de-restriction or not. It was not and it cannot be suggested that any of the considerations they did take into account were irrelevant. The Committee was entitled to take the view that the issue before it, in October, was whether the advantages of de-restriction outweighed the disadvantages. It was under no obligation to take into account the issue of a fair method of allocation, should it continue to issue a limited number of licences. In the light of the essential question, whether to de-restrict or not to de-restrict, the issue as to a fair method of allocation, should the Committee continue to issue a limited number of licences, simply did not arise.

I accept that had it not been for the earlier decision in January and the challenge mounted by the claimant it is unlikely that the Committee would have ever turned to consider the question of de-restriction. But the fact that the earlier decision and the challenge triggered consideration of the issue does not mean to say that any defect in the process, by which the first decision was reached, tainted the second decision. The trigger for the decision to de-restrict played no part in the actual consideration as to whether to de-restrict. It could hardly be said that the decision was taken in order to deprive the claimant of licences to which he would otherwise have be entitled. After all, his challenge in January was made for the purpose of securing an entitlement to consideration of the grant of licences ahead of others. A decision in October resulted in him having any licences he wanted. The damage to him, which was advanced in his letter and, accordingly, considered by the Committee was in the damage to the market in transfer of licences. The Committee was entitled to reject the claimant’s arguments in relation to damage to the market in transfer of licences and it was not argued before me to the contrary.

For those reasons I reject the submission that any defects in the process by which the January decision was reached affected the second decision so as to make it unlawful. The Committee properly considered the merits of de-restriction, taking into account the consultation with the trade and the arguments against it.

Nor do I accept the contention that the Committee failed properly to weigh the rival arguments. This submission was based upon reference to the “likely” result of any consideration as to de-restriction. All the evidence relating to the consultation after April 2003, the report and Mr Pinnell’s own evidence between paragraphs 46 – 48 go to show that there was proper and conscientious consideration before a decision was reached.

Nor is there any merit in the contention that the Committee did not fairly consider Mr Cumming’s objections expressed in his letter dated 18^th July 2003. I reject the submission that comments, in italics, drafted by officials demonstrate that his objections were not given fair consideration. Officials were perfectly entitled to comment on Mr Cumming’s letter and I was referred to no principle or authority as to why officials were not entitled to refer the Committee to their own views as to claimant’s objections. The nature of the claimant’s objections, which came after the time for making representations had expired, was clear. Two copies of the claimant’s letter were annexed, one with comments and one without.

Finally it was argued that the report was unfair because it made no reference to that Halcrow Report opposing de-restriction. Whilst the report referred to an expert in favour or de-restriction it made no reference to the fact that another expert had argued against de-restriction. The omission of any reference to an expert report opposing de-restriction also led to the omission to refer to Halcrow’s examples of difficulties in de-restriction experienced by other authorities.

The report before the Committee did refer to the Halcrow Report but it did not refer to the opposition of those experts to de-restriction nor to the experiences of the other authorities to which Halcrow referred. It must also be acknowledged that three out of the seven members of the Committee had not been present when the Halcrow Report was relied upon in deciding to continue with the limited issue of licences in January. However, as Mr Bromley-Martin QC fairly accepted, all the arguments against de-restriction, advanced by Halcrow, were in substance expressed in the report. Whilst reliance was not placed upon the experiences of other authorities the substance of those difficulties was expressed. In those circumstances the failure to refer specifically to those particular authorities, where difficulties had been experienced, or to the content of the Halcrow Report in its opposition to de-restriction did not in my view render the report misleading or thereby taint the decision. It must also be recalled that the decision to adopt de-restriction was made unanimously and the majority of those present had been present at the time of the earlier decision in January.

There is more substance in the suggestion that the report contained an imbalance in referring to an expert in favour of de-restriction whilst not, at least, reminding the Committee that an expert had recently advised against it. Even though the substance of Halcrow’s arguments had been expressed, Mr Bromley-Martin QC stresses that the objections did not have the imprimatur of support by an expert. In my view the report should have reminded the Committee that there had been expert advice which disagreed with the views of Mr Jim Button, the expert in favour. But the difficulty with this submission is that I have no evidence as to whether the Committee was or was not unaware of the fact that Halcrow, in its expert view, opposed de-restriction. The point was not raised in the application. Nor is it contained in the skeleton argument. The nearest one gets to it is a reference in a written document at paragraph 33 (page 293 of the first bundle of documents) which was part of an application to adduce further evidence at a time when it was hoped to obtain statements from other councillors present at the meeting. This discussion apparently took place on the 19^th January 2004. But if this was to be a point of substance, to be argued at the full hearing, it should have formed the subject matter of a ground in the application or at least in an application to amend those grounds. The consequences of the failure specifically to raise this point in the grounds is that there has been no opportunity for the Council to adduce evidence as to whether members of the Committee were or were not ignorant of Halcrow’s views. The majority of the Committee cannot have been. After all, the Halcrow Report is specifically referred to in the report and minutes. I am not, therefore, prepared to assume ignorance on the part of the Committee or that it led to any substantial unfairness affecting the decision. Bearing in mind the substance of Halcrow’s objections was contained in the report I doubt whether, even if the Committee was unaware of Halcrow’s views, it would have led to any ground for impugning the decision. Since the contention was not raised in any ground, or in any amended ground, it is not in my view, open to the claimant to rely upon it now.

For those reasons I reject the challenge to the second decision which, in my view, was a lawful decision reached on a fair consideration of the relevant factors.

I should mention that a number of other grounds were advanced either in the original application or in the skeleton argument. They were not pursued before me. Since I have taken the view that the second decision cannot be impugned and the first decision has been rescinded, both applications fail.