AC-2025-LON-001414 - [2025] EWHC 2840 (Admin)

This challenge is based upon there having been procedural unfairness and an unlawful predetermination, a lack of transparency and/or concealment, and a failure of fulfilling the legitimate expectation of a fair and open procedure. The three grounds specified overlap and it is sensible for them to be dealt with together.

The Trust’s challenge is fundamentally based upon there not being a “thorough and competitive application process” for purchasing the Carnegie Library Building and that the conduct of the Council was such that it undermined there being a fair competition as the Council had said there would be. It is submitted on behalf of the Trust that there was an undisclosed preferential track for TGT, likening it to the “VIP fast track lane” for the awarding of PPE contracts referred to in the recent decision Secretary of State for Health and Social Care v PPE Medpro Limited [2025] EWHC 2486 (Comm). I do not consider that is a good analogy, but in essence the Trust contends that the pattern of conduct of the Council was such that it undermined the fairness of the competition.

The Carnegie Library Building is a culturally significant, Grade II listed, building, built in 1994 and opened in 1905 as part of the Carnegie Libraries built by the philanthropist Andrew Carnegie to provide a free service for all.

By September 2022, the Defendant had already been approached by a number of “really interested community organisations” and that in order “to be fair to everyone and to allow some great ideas to be generated” it was announced that a formal application process would take place in due course. On 24 July 2024, a formal application process was commenced to identify a community-focused organisations to apply to buy or lease the Carnegie Library Building. The process closed on 20 October 2024. The two options were a freehold acquisition with a valuation of £95,000 or a fully repairing and insuring lease at £15,000 per year.

The Trust was formed specifically for the purpose of bidding for the Carnegie Library Building. That bid was unsuccessful, although said by the Council to be one of ‘exceptional potential’ and a bid with which the Council were ‘thoroughly impressed’.

The concerns raised by the Trust are that:

Despite the concerns of the Trust that the Council had provided “pre-application support” to TGT, this is not made out by the evidence. TGT did go through the process of a pre-application process for the conversion and extension of the Carnegie Library Building on 2 December 2022, that is long before the process opened in July 2024 for the bidding to purchase of the Carnegie Library Building. It is entirely usual for a potential developer of a site to make pre-application enquiries about a site in order to ascertain the potential for development and it appears, from the evidence adduced on behalf of the Trust, that this is not the only site that TGT have sought to consult pre-application. It appears that TGT have also considered the Old Post Office which was also not in their ownership. Developers will regularly seek information with respect to the possibilities of development, often without ownership of the site in question, in order that they can understand whether a site is worth investing in. There is nothing irregular with respect to TGT making such enquiries or the planning authority from responding to those enquiries. The emails that have been included in the core bundle for the period in early 2023 show that constructive comments were being made and generally, while it was acknowledged as a positive move that the Carnegie Library Building would be used for the community, there were negatives expressed about the nature of the design and how it would work practically. It appears to be a balanced approach. TGT were only doing that which was sensible, that is to engage in pre-application discussions in order to limit any concerns an application might cause. It was not something that only TGT could engage in and it does not undermine the integrity of the ultimate decision. The Trust could also have undertaken such a pre-application process but did not do so, potentially because there was no intention to extend the building.

The Trust also raise a concern that the CEO of the TGT is a member of the King’s Lynn Town Deal [Neighbourhood] Board as is one of the members of the interview panel, Councillor Simon Ring. The actual decision was made, in accordance with the Council’s resolution made on 2 September 2024, by the Council’s Director of Property who took advice from two panels. The first panel, known as the scoring panel, reviewed all the applications and recommended TGT and the Trust for further consideration. The stakeholder panel then put forward the recommendation for TGT after interview. Councillor Simon Ring is the Deputy Leader of the Borough Council of King’s Lynn and West Norfolk and one of 22 members of the King’s Lynn Town Deal Board, which includes a wide constituency of civic representatives.

It is alleged by the Trust that the fact that Councillor Ring and the CEO of TGT establishes a connection and ongoing professional relationship between a key member of the Council’s decision-making panel and a representative of the successful applicant. It is alleged that this give rise to the appearance of bias. However, as is made clear by Porter v Magill, the test for apparent bias is an objective one and of an informed and fair-minded observer who has all the information before her. The mere fact that those engaged in civic activities may be on the same boards does not give rise to any appearance of bias in accordance with the test in Porter v Magill. The Kings Lynn Town Deal Board gain no benefit from TGT rather than the Trust being successful in the process to bid for the Carnegie Library Building, and the earlier decisions to move the library to MUCH and to dispose of the Carnegie Library Building as being surplus to requirement is of no interest to the Board. Further, there is no evidence of any other political, business or personal interests shared between Councillor Ring and the CEO of TGT.

The other allegation is that the Council assisted with the TGT being able to secure an Architectural heritage Fund Project Viability Grant in the sum of £10,000 before the formal application window opened. There is no evidence that the Council assisted in the obtaining of these grant monies and, in the same way that TGT were ensuring that they were in the best possible position to bid for the Carnegie Library Building by undertaking pre-application consultations, they obtained a grant in order to be able to promote TGT’s interests. I do not find that there is anything in the contention that the Council sent an email to the Architectural Heritage Foundation enabling TGT to obtain that grant.

The allegation that there is a breach of the legitimate expectation of there being a fair and open process does not add anything to the arguments raised. In my judgment there is nothing to support the argument that the process itself was unfair or that any unfair advantage was given to TGT. The process was an open and fair one, any steps TGT took in obtaining a grant to fund their exploration of whether the development was a viable one for TGT, and any steps taken by undertaking making pre-application enquiries, were all entirely proper and do not undermine the legitimacy of the process.

There was no “VIP track” outside the formal process and there was not, as the Trust have contended for, a longstanding unfair relationship or general unfairness. I appreciate the point made by the Trust that it is an incorrect categorisation by the Council to say that this is merely a “house of cards”. What the Trust is seeking to show is that by putting all the pieces together then an inference can be drawn. That is a perfectly legitimate way to put their case, however, for the reasons I have set out, I do not consider that the Trust are able to establish the various points. In these circumstances, grounds 1, 2 and 4 are unarguable.