Council defeats judicial review challenge by unsuccessful bidder over sale of library building

HHJ Karen Walden-Smith, sitting as a judge of the High Court, ordered objector the Margery Kempe Trust to pay Norfolk County Council costs for counsel in the case.

The dispute concerned Norfolk’s decision to dispose of the town’s Carnegie Library as surplus to requirements.

It held a bidding process limited to local groups and selected interested party the Garage Trust, a regional performing arts organisation, in preference to the Margery Kempe Trust (MKT), a charity named after a 15th century mystic and author resident in the town.

Norfolk accepted a bid of £95,000 from the Garage Trust and MKT challenged the decision but did so one day out of time.

HHJ Walden-Smith noted Norfolk did not object to an extension of time being granted and MKT said the delay had been partially caused by an alleged late response to a freedom of information request

MKT said the decision to sell to the Garage Trust was “procedurally unfair, lacked transparency, was potentially predetermined, and involved decisions made without correct legal authority and/or in breach of statutory duties, including the Public Sector [Equality] Duty and the duty to obtain best consideration for the disposal of land”.

HHJ Walden-Smith said MKT’s case included allegations of apparent bias, and that the council sold the building at less than the best possible price.

The eight grounds advanced by MKT were:

• procedural unfairness and unlawful predetermination;
• lack of transparency and concealment;
• illegality/procedural ultra vires;
• breach of legitimate expectation;
• flawed assessment and due diligence;
• failure to discharge the public sector equality duty;
• failure to conduct adequate consultation;
• breach of fiduciary duty.

HHJ Walden-Smith grouped these and said the third and last grounds were made on the basis that the decision to sell to the Garage Trust was ultra vires as the value of the Carnegie Library Building was put at £599,000 in April 2019 as its depreciated replacement cost.

The judge said the council had consent to sell for less for full consideration by virtue of the general disposal consent and these grounds were therefore unarguable.

She also grouped the first, second and fourth grounds but dismissed all three as unarguable and said: “In my judgment there is nothing to support the argument that the process itself was unfair or that any unfair advantage was given to [the Garage Trust].

“The process was an open and fair one, any steps [the Garage Trust] took in obtaining a grant to fund their exploration of whether the development was a viable one for [it], and any steps taken by undertaking making pre-application enquiries, were all entirely proper and do not undermine the legitimacy of the process.”

On the fifth ground, concerned with alleged inadequate due diligence, MKT said Norfolk ought to have asked itself whether the Garage Trust needed the larger premises at the library when its current premises were only open once a week, and should have questioned its financial management.

HHJ Walden-Smith said this was unarguable and the council had no reason to enquire into the Garage Trust’s use of its existing premises.

She also rejected the sixth and seventh grounds and said: “There is nothing to suggest that the council failed in its PSED and the highest it is put by the [MKT] in its written grounds is that the decision to move the library and dispose of the asset ‘may’ have had a disproportionate impact on specific groups with protected characteristics.”

The judge concluded: “The grounds for seeking permission to judicially review the decision of the council to dispose the Carnegie Library Building to the interested party are not arguable and the application is dismissed.”

Mark Smulian