The Margery Kempe Trust, R (on the application of) v Norfolk County Council

HHJ WALDEN-SMITH:

1. The claimant has brought this application for judicial review of the decision of Norfolk County Council (“the Council”) to dispose the Carnegie Library Building in King’s Lynn (“the Carnegie Library Building”) to the Interested Party, The Garage Trust (“TGT”).

2. The decision challenged by the claimant, the Margery Kempe Trust (“hereinafter referred to as “the Trust”), is that of the Council selling the Carnegie Library Building to TGT for £95,000. Insofar as the Council considered that some of the arguments being raised by the Trust was with respect to a decision made in 2022 to reallocate the library from the Carnegie Library Building to a community facility known as the Multi-User Community Hub (“MUCH”) or was with respect to the resolution made on 2 September 2024 that the Carnegie Library Building was surplus to Council requirements, it was made clear by Ms Antonia Hayes that the challenge was only with respect to the 2025 decision.

3. By order of Mould J on 5 August 2025 the application for permission was listed for an oral hearing in order to give the Trust, an unincorporated association, the opportunity to explore fully their submissions for obtaining permission to bring judicial review proceedings.

4. The Council had made it clear by the summer of 2023 that work was being undertaken to provide a process whereby local groups could apply to take on the Carnegie Library Building and that an information pack would be provided. During November 2023, public feedback was gathered by the Council and a number of interested parties had been requesting information in early 2024. On 24 July 2024 (after a pause for the general election on 4 July 2024) the Council advertised the process and invited organisations to express an interest.

5. On 2 September 2024, the Council made the decision: “To formally declare King’s Lynn Central Library (2045/049) surplus to Council requirements and instruct the Director of Property to dispose of the property through a closed market exercise to charity and community groups in the first instance. If any agreement cannot be agreed within 12 months of the date of this meeting the Director of Property is to dispose of the property on the open market. In the event of a disposal receipt exceeding delegated limits the Director of Property in consultation with the Director of Strategic Finance and Cabinet Member for Corporate Services and Innovation is authorised to accept the most advantageous offer”

6. TGT and the Trust were the two shortlisted applicants and they were interviewed by a panel of stakeholders on 15 January 2025. TGT were preferred and a recommendation was passed to the cabinet member with responsibility for the decision and she made the decision to sell to TGT. Notice of the decision to sell to TGT was made on 27 January 2025.

7. It is clear that there were, and are, some local concerns with respect to the disposal of the Carnegie Library Building to TGT which have been evidenced by the collection of a petition with a large number of names. These concerns provide context to this application for permission to bring a judicial review challenge, but do not assist in the determination of whether the challenges raised are arguable.

8. Any challenge to the 2022 decision or the 2024 resolution would have been out of time. The challenge to the decision made on 27 January 2025 was a day out of time. The Council did not object to an extension of time being granted and the Trust set out that the delay had been partially caused by an alleged delay in response to a freedom of information request and partly because of technical issues with respect to e-filing and scheduled maintenance being undertaken. Given the tight time limits for public law challenges, any delay has to be considered significant. Good reason for the short delay had been advanced by the Trust and, considering the matter as a whole, it is appropriate to extend time by the short period necessary to allow for the application for permission to bring judicial review proceedings with respect to the 27 January 2025.

9. A further application was also made by the Trust for permission to rely upon additional witness evidence with respect to the allegations that TGT had a “19-month head start” in the bidding process and that the Council had been involved in TGT’s successful application for grant funding from the Architectural Heritage Fund. The Council did not object to reliance being placed upon this additional evidence and it was clearly relevant evidence for the purpose of the Trust being able to put forward its arguments in full. Permission is therefore granted for those two additional statements.

10. The application for permission was ordered to be listed for an oral hearing by Mould J in order to give Ms Hayes on behalf of the Trust an opportunity to put forward the contentions on the behalf of the Trust fully. It was important that she could, and for those contentions to be responded to by the Council, as it was not appropriate to merely belittle the grounds on the basis that the Trust was merely a disgruntled unsuccessful bidder. There is much more to the challenge than that.

11. I am grateful to both Ms Hayes, a litigant in person, for the careful and thorough work she has undertaken in order to present the case on behalf of the Trust, and to Mr Fowles, Counsel acting on behalf of the council. The Challenge

12. The Trust contends that the decision to select TGT, a regional performing arts organisation, as the successful bidder for the Carnegie Library Building, 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 Duty (“PSED”) and the duty to obtain best consideration for the disposal of land.”

13. There are a number of points that are raised in the grounds of claim, and responded to in the acknowledgment of service, which are worth highlighting. The Interview Panel

14. The interview panel was convened on 15 January 2025 when both TGT and the Trust were interviewed as the shortlisted candidates. TGT was announced to be the successful candidate on 27 January 2025 by Councillor Jane James, cabinet member for corporate services and innovation.

15. The interview panel comprised six members: the Director of Communities Information and Learning of the Defendant; the Director of Corporate Property of the Defendant; and the Finance Business Partner of the Defendant; together with the Regeneration Programmes Manager of the King’s Lynn and West Norfolk Borough Council and two Councillors. One of those Councillor’s Simon Ring, was a member of the King’s Lynn Town Deal which is involved in the oversight of regeneration projects, including MUCH. The CEO of TGT, Adam Taylor, has been a member of the King’s Lynn Town Deal since 14 November 2023. Apparent Bias

16. The test for apparent bias is an objective test for the court to determine. It is a real, rather than a fanciful possibility and the central test was set out by the House of Lords in Porter v Magill [2001] UKHL 67 , where Lord Steyne (referring to Lord Phillips MR in In Re Medicaments [2001] 1 WLR 700 ) set out the objective test as follows: “The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”

17. The “the fair-minded and informed observer” : “… always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious … but she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be unbiased. She knows that judges, like everybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially. [and will] take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines… She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.” Helow v Secretary of State for the Home Department [2008] UKHL 62 .

18. The “fair-minded and informed observer” is also able to take account of information not in the public domain such as minutes or accounts of what actually happened during deliberations: see Flaherty v National Greyhound Racing Club [2005] EWCA Civ 1117 . The Valuation

19. The Land Registry title register records the value of the Carnegie Library Building as being £450,000. The value of the Carnegie Library Building was recorded as £599,000 on 1 April 2019 as the depreciated replacement cost. In November 2022, an independent RICS valuation provided that the commercial value was £400,000 to £425,000 and between £100,000 and £125,000 for community use. A further valuation report, compliant with RICS standards, was commissioned by the Council in January 2024 which provided a lower valuation of £220,000 to £240,000 if sold for commercial use or £90,000 to £100,000 if sole for community use. The valuation given by the Council for the disposal of the freehold of the Carnegie Library building at £95,000 was therefore the mid-point of that up to date valuation.

20. The Trust contends that the Defendant has fallen foul of section 123(2) of the Local Government Act 1972 (“ LGA 1972 ”) which provides that councils are not to dispose of land for a consideration less than the best that can reasonably be obtained, unless with consent of the Secretary of State. Consideration is a reference to monetary consideration and not to social benefits (see R (on the application of Farraday Development Ltd) v West Berkshire Council [2016] EWHC 2166 (Admin) ).

21. The consent of the Secretary of State pursuant to the provisions of section 128 of the LGA 1972 can include a general consent, as is provided by Circular 06/03: Local Government Act 1972 general disposal consent (England) 2003 paragraph 2: “The specified circumstances are: a) the local authority considers that the purpose for which the land is to be disposed is likely to contribute to the achievement of any one or more of the following objects in respect of the whole or any part of its area, or of all or any persons resident or present in its area; i) the promotion or improvement of economic well-being; ii) the promotion or improvement of social well-being; iii) the promotion or improvement of environmental well-being; and b) the difference between the unrestricted value of the land to be disposed of and the consideration for the disposal does not exceed £2,000,000 (two million pounds).”

22. The local authority is the Council in this matter. Legitimate Expectation

23. Legitimate expectation in this matter flows from the requirement that a decision by a public authority must be made in a way that is fair and a citizen should not be denied a benefit that they have a legitimate expectation of receiving without first being offered the chance to put their case in a hearing (substantive expectation); and that where a citizen has a legitimate expectation that they will receive a hearing, that opportunity for a hearing cannot subsequently be withdrawn (procedural): CCSU v Minister for the Civil Service [1985] AC 374 .

24. A legitimate expectation is created by a public body making a statement which is clear, unambiguous and devoid of relevant qualification and, while it is not a necessary prerequisite for a claimant to have relied upon the representation to their detriment, it is a relevant factor: R (o.a.o. Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] 1 AC 453 . Public Sector Equality Duty

25. The Trust had raised the PSED as set out in section 149 of the Equality Act 2010 , having regard in the exercise of its functions to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited by the Equality Act, and advance equality of opportunity; also to remove or minimise disadvantages suffered by persons who share a relevant protected characteristic and take steps to meet the needs of persons show share a relevant protected characteristic that are different from the needs of persons who do not share it. This ground was not advanced further in oral submissions. Grounds of Challenge

26. The Trust raised eight grounds of challenge in its application for permission: (1) Procedural unfairness and unlawful predetermination; (2) Lack of Transparency and Concealment; (3) Illegality/Procedural Ultra Vires; (4) Breach of legitimate expectation; (5) Flawed assessment and due diligence; (6) Failure to discharge the PSED; (7) Failure to conduct adequate consultation; (8) Breach of fiduciary duty

27. At the oral hearing, submissions were made by Ms Hayes on behalf of the Trust with the grounds grouped together. Grounds 3 and 8

28. The first challenge was on the basis that the decision to transfer the Carnegie Library Building to TGT was ultra vires and/or there had been a breach of the Council’s fiduciary duties. The concern of the Trust is that the value of the Carnegie Library Building had been provided as being £599,000 in April 2019 as its depreciated replacement cost. That sum is going to be higher than the value of the property on the market, but the Trust also point to the value of the property as recorded at the Land Registry being £450,000. The basis of that figure is not clear and the valuations that the Council were permitted to rely upon were the RICS compliant valuations undertaken respectively in November 2022 showing a commercial value of £400,000 to £425,000 and between £100,000 and £125,000 for community use, and January 2024 which provided a lower valuation of £220,000 to £240,000 if sold for commercial use, or £90,000 to £100,000 if sole for community use.

29. The Council was entitled to rely upon the general consent provided by the Secretary of State Circular 06/03: Local Government Act 1972 general disposal consent (England) 2003 paragraph 2. Both the 2022 and 2024 valuations clearly establish that the difference in the unrestricted value of the land and the consideration for the disposal did not exceed £2 million. The only other requirement is that the local authority considered the purpose for which the land is disposed is likely to promote or improve social well-being.

30. In disposing of an asset at less than best consideration, the Council’s constitution provides that the disposal must be authorised by the Cabinet and on 2 September 2024, the Cabinet resolved to authorise the Director of Property to dispose of the of the Carnegie Library Building through “a closed market exercise to charity and community groups in the first instance” and that “If an agreement cannot be agreed within 12 months of the date of this meeting the Director of Property is to dispose of the property on the open market.” This was an explicit authorisation for the disposal of the Carnegie Library Building and the decision to dispose for the sum of £95,000 was neither ultra vires nor in breach of fiduciary duty.

31. The Council had consent to sell for less for full consideration by virtue of the general disposal consent. The Council was obliged by its constitution to have a cabinet resolution, and it did. Grounds 3 and 8 do not give rise to an arguable challenge. Grounds 1, 2 and 4

32. 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.

33. 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.

34. 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.

35. 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.

36. 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’.

37. The concerns raised by the Trust are that: (i) The public competition opened in July 2024 and closed in October 2024. TGT had submitted a formal pre-application proposal including architectural plans on 2 December 2022 – some 19 months before the competition opened. Those plans were consulted upon and comments made by both highways and historic environment which leads the Trust to submit that TGT had been given a very valuable, but undisclosed, head start in the competition; (ii) The interview panel for determining who should be the successful bidder was allegedly compromised by previous involvement with TGT and the pre-application plans or through other connections with TGT, which connections were not revealed. It is submitted by the Trust that this means it is arguable that there was an apparent bias in favour of TGT ( Porter v Magill [2001] UKHL 67 ). (iii) That TGT had a financial advantage, which was undisclosed in the competition, by reason of a £10.000 Project Viability Grant (“the Grant”) from the Architectural Heritage Fund (“AHF”), which grant was allegedly obtained with the support of the Defendant. (iv) That the Council had “sought to control the flow of information” for the alleged purpose of concealing procedural flaws.

38. 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.

39. 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.

40. 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.

41. 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.

42. 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.

43. 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. Ground 5

44. The Trust contend that the Council’s decision to select TGT based upon their experience, governance, control, property and financial management arrangements was flawed and as a consequence of inadequate due diligence. The alleged connection between the CEO of TGT and Councillor Ring is repeated as a potential conflict of interest and as undermining the impartiality process.

45. The Trust also rely upon concerns in the community, evidenced by the petition and other local reaction, as a reason as to why the decision of the Council is flawed and that there has been a failure of due diligence on part of the Council who, it is said by the Trust, have failed to promote adequately it own stated strategic objectives and principles.

46. The Trust contend that the Council ought to have asked itself questions as to whether TGT needed the larger premises that the Carnegie Library Building would provide when, it is asserted by the Trust, the current premises occupied by TGT are only open once a week and are closed in the school holidays; and should have asked further questions about TGT’s financial management in light of the other funding from the Architectural Heritage Fund for the potential development of The Old Post Office.

47. The Council’s response to this ground is that it adds nothing to the other grounds raised, but repeats the points made. The funding grants from the Architectural Heritage Fund for the scoping projects for The Old Post Office and the Carnegie Library Building are perfectly appropriate and there is nothing further that the Council needed to ask. It was not irrational for the Council not to make any further enquiry. With respect to the “outgrowing” of the existing premises, this was not a matter which impacted upon the decision making process and, in any event, the Council had no reason not to accept what was being said and there was no need to undertake further enquiries.

48. Ground 5 is not arguable. Grounds 6 and 7

49. The Trust did not expand upon either ground 6, the PSED, or ground 7, failure to adequately consult in oral submissions. Neither grounds are arguable. There is nothing to suggest that the Council failed in its PSED and the highest it is put by the Trust 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. If there was any basis for a challenge, that is a challenge to the earlier decision in 2022 to move the library to MUCH and the decision in September 2024 to declare the Carnegie Library Building to be surplus to requirements. Similarly, ground 7 is with respect to the earlier decisions to move the library and dispose of the Carnegie Library Building. Conclusion

50. For the reasons set out above, 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.

51. In these circumstances, I do not consider the application for a costs capping order. The Trust is to pay the costs of the Council limited to the costs of Counsel for this application.