High Court judge rejects argument by council that unincorporated association did not have capacity to challenge site allocations plan

An unincorporated association does have capacity to bring both a judicial review and a statutory challenge, a High Court judge has ruled.

The case of Aireborough Neighbourhood Development Forum v Leeds City Council (Rev 1) [2020] EWHC 45 concerned an application under s.113 of the Planning and Compulsory Purchase Act 2004 by Aireborough Neighbourhood Development Forum challenging the decision of Leeds City Council, dated 10 July 2019, to adopt the Leeds Site Allocations Plan (the SAP).

The preliminary issue before Mrs Justice Lieven was whether the Forum had the capacity to bring the claim. The council and the Second and Third Interested Parties, a housebuilder and a property development company, argued that as an unincorporated association the Forum did not have legal capacity to bring the claim.

The Forum was formally constituted in March 2014, and its aims and objectives include the good planning of the Aireborough neighbourhood. It has a written constitution, a bank account, a steering group and an identifiable membership.

The Forum was designated as a Neighbourhood Forum by the city council under s.61F of Town and Country Planning Act 1990 (the TCPA) on 15 July 2014. Under the statute the designation lasts for five years and it therefore expired on 15 July 2019. The Forum had applied to the council for re-designation on 13 July 2019 and that application remains outstanding.

Mrs Justice Lieven said there was “a good deal of debate between those representing the Forum and those representing the council as to why the application to redesignate had not yet been determined”, but she could not see that had any impact on the decision she had to make.

The judge said one of the objectives of the Forum was to prepare, in partnership with the council, an effective neighbourhood plan, as a statement of the needs and visions of the Aireborough Neighbourhood Plan area.

The Forum made representations throughout the SAP process on what the nature of future development within its area should be, including what sites should be allocated and for what form and scale of development.

The SAP is a Development Plan Document (DPD) which has been prepared by the council and which sets out its proposed allocations for planning purposes of land throughout the Leeds area.

The judge noted that the SAP has “a very important future role in the planning process in Aireborough, because it is part of the development plan for the purposes of s.38(6) of the PCPA, and as such its allocations or non-allocations will be a highly material matter in future planning decisions”.

The claim brought by the Forum was a challenge to the SAP brought under s. 113 of the Planning and Compulsory Purchase Act 2004 which states, as relevant;

“(2) A relevant document must not be questioned in any legal proceedings except in so far as is provided by the following provisions of this section.

(3) A person aggrieved by a relevant document may make an application to the High Court”.

Mrs Justice Lieven said it was relevant to note at the outset that the challenge was a statutory challenge, not a judicial review, and there was a statutory time limit of 6 weeks, s.113(3B). “The 6 week time limit is a strict one, and is not amenable to the more flexible approach to the time limits in judicial review.”

The defendant council and the Second and Third IPs argued that the Forum did not have legal capacity to bring this claim.

Counsel for Leeds’ principal argument was that the Forum was an unincorporated association and as such it was not a “person” aggrieved. The judge said he placed strong reliance, particularly in his skeleton argument, on the fact that the claimant was no longer a designated neighbourhood forum under the statute. His secondary argument was that on the specific facts of the case, even if in principle an unincorporated association could be a person aggrieved, the Forum was not such a person.

The council and the IPs’ case turned on an analysis of the caselaw on this issue and it was therefore necessary to set that caselaw out in some detail, the judge said. It was agreed by all parties that there were cases at High Court level which had reached different conclusions on the question of whether an unincorporated association can bring a judicial review.

Counsel for the Second IP (Avant Homes), adopted counsel for Leeds’ argument but also focused on an argument that there was a distinction between whether an unincorporated association could bring a judicial review and whether it could bring a statutory challenge. Counsel for the Third IP (Gallagher Estates) supported these arguments.

Mrs Justice Lieven said the three cases which dealt with the specific point of whether an unincorporated association can bring a judicial review were, in order of time, R v Darlington BC ex p Association of Darlington Town Taxi Owners [1994] COD 424 (Auld J); R v Leeds City Council ex p Alwoodley Golf Course [1995] NPC 149 (Harrison J); and R v Traffic Commissioners of the North Western Traffic Area ex p Brake [1996] COD 248 (Turner J). 

The parties’ principal submissions divided along the lines of the council and the Second and Third IPs arguing that the reasoning of Auld J in Darlington should be preferred, and counsel for the Forum arguing that that of Turner J in Brake was more detailed.

Counsel for the Forum submitted that there was an important distinction between private and public law claims, as explained by Turner J. She said that in judicial review the issue was really one of locus or standing to challenge the decision of the public authority, rather than whether the claimant had legal capacity. That is why the judges, including some of the most senior of their day, invariably focused on standing not capacity.

Counsel for the Forum also argued that in the cases where the court has found it necessary to substitute or add a claimant where the action was brought by an unincorporated association, this was always for practical reasons, such as security for costs or uncertainty over the membership of the association. She added that Darlington and Alwoodley were the only cases where it is had been held that an unincorporated association had no capacity to bring a judicial review, and these cases had in practice not been followed since the mid 1990s. Counsel for the Forum also relied, “albeit quite lightly”, on the Aarhus Convention and the need to ensure that there was proper protection of the right to public participation.

Mrs Justice Lieven said that in her view counsel for the Forum was correct and an unincorporated association does have capacity to bring both a judicial review and a statutory challenge.

The judge said: “I agree with Turner J that there is a critical distinction between private and public law litigation. In private law the individual has to be able to show that they have a legal right which has been infringed, therefore it is fundamental that they have legal capacity to sue.

“In contrast the critical question in judicial review or statutory challenge is whether the claimant is a person aggrieved or has standing to challenge, which is not a test of legal capacity but rather one of sufficient interest in the decision not to be a mere busybody. The claim is “invoking the powers of the court to exercise its supervisory jurisdiction of the court to quash curb or correct decision of bodies subject to public law. The personal rights of individual applicants, as in the present case, may never be in play”, see Brake. Therefore, the legal capacity of the claimant is not a critical component of the court having jurisdiction in a judicial review or statutory challenge.”

Mrs Justice Lieven said she also took into account the wider public policy issues which had over time led to a more flexible approach to the issue of standing. “Groups of residents or interested people, may choose to group together to make representations, or attend inquiries, on a matter of interest and importance to them. This is particularly the case in matters concerning planning or the local environment, where the nature of the impact may often fall most directly on a group of people living in a particular area.”

The judge said it would be “unfortunate if the law prevented them challenging the decision which they had participated in, in the same grouping as they had made the representations”.

She added that she accepted that the Aarhus Convention was not an overwhelming factor, because challenges could still be brought by individuals, but it and the general policy position would support a finding that a claim could be brought by an unincorporated association.

The judge said it might be argued that the simple answer to the issue in this case lay in the Schedule to the Interpretation Act 1978, wherein the definition of “person” “includes a body of persons corporate or unincorporate”.

She said this was subject to s.5 of that Act, which applied these definitions “unless the contrary intention appears”. “There is no reason in my view, why in the context of public law, and the Planning and Compulsory Purchase Act 2004 (PCPA) in particular, the contrary should appear. It is not necessary for the statutory scheme, and in terms of procedural protections such as security for costs or certainty of membership, these can be appropriately dealt with under the CPR.”

Mrs Justice Lieven said she was fortified in her view by the wide range of judges, “including some of the most eminent judges specialist in public law”, who have assumed that an unincorporated association can bring a claim.

She said: “I accept that if a point is not argued then another court should be slow to take a view on what the judge(s) must have assumed. However, jurisdiction is fundamental and any court would and should raise the issue if it doubts its jurisdiction. I do not accept that so many judges would have assumed jurisdiction if they had not been entirely confident that the unincorporated association had capacity to bring the claim.

“On this point it is relevant that the role of unincorporated associations in judicial review and issues around their ability to pay costs, changes of membership and their role at previous stages are common issues in judicial review, which lawyers and judges are well aware of. I am not prepared to assume that multiple judges have simply ‘missed the point’, and proceeded without jurisdiction by oversight.”

The judge also said she did not accept the alternative submission that even if an unincorporated association could be a claimant in a judicial review they could not be in a statutory challenge. This was because:

1. The Interpretation Act definition pointed firmly in the opposite direction, “and as I have already explained the contrary intention does not appear”.
2. The Court of Appeal in Williams did not suggest that there was any such difference, and assumed that the claim was valid when lodged.
3. None of the cases she had referred to suggested that the courts’ acceptance of the unincorporated association as a claimant rested on the fact that other parties could be substituted.
4. It would in her view be “most unfortunate” if there was a significantly different rule in judicial review to statutory challenge, “given that the two can sometimes arise in closely aligned circumstances”. If the statute forced that conclusion then that would be different, but here it plainly did not do so.

Mrs Justice Lieven also rejected the alternative submission from counsel to Leeds on the issue of the Forum no longer being statutorily designated, that its functions had fallen away and therefore as a matter of fact it was no longer a person aggrieved.

“He argues that if the body has to be designated under the Act then an undesignated forum is not a person aggrieved under the Act. I do not think that this argument is correct,” the judge said.

“The Forum is a local body with a constitution and purposes relating to the good planning of Aireborough, whether or not it is designated under the PCPA. It sought designation under the statute because that gives it a particular statutory function and certain procedural rights, but the fact that that role and function had ended at the date of the claim, does not mean that its more wide-ranging purposes do not continue to apply. If it had never been designated then there would be little doubt that it was a person aggrieved within the meaning of the PCPA, and in my view that continues to apply now.”

Mrs Justice Lieven therefore rejected the application that the Forum did not have capacity to bring the claim. She allowed an application to add two individual claimants, but said she did “not consider this to be necessary for the validity of the claim”.