Selman Ansari on how councils can legally change their minds. Selman Ansari is pupil barrister at 2 Mitre Court Buildings.

The Court of Appeal has recently considered the hows and whys of a council applying to have one of its own decisions overturned.

In R v Bassetlaw District Council ex parte Oxby, the leader of Bassetlaw District Council, Graham Oxby, sought to have a decision of his council quashed. The decisions concerned two planning permissions, the granting of which had become tainted by allegations of bias and possibly fraud.

The scenario is not entirely new. Mr Justice Nolan allowed much the same situation in R v Port Talbot Borough Council ex parte Jones, holding that the applicant-councillor had sufficient locus standi to bring judicial review proceedings as a council taxpayer and elector of the council under s31 of the Supreme Court Act 1981, which requires that applicants should have 'sufficient interest' in the subject matter of the application.

What set Oxby's application apart was that he was the leader of the council and was directed by the council to initiate proceedings. It was held that there is nothing inherently improper in bringing judicial review proceedings in this manner but the substance and not the form of application will be considered by the court in the exercise of its discretion. So when the affected landowners (whose conduct was not alleged to be suspect and who appeared as interested parties) argued that judicial review should not be granted due to the existence of an alternative remedy, the Court of Appeal did not look kindly on Oxby arguing that as an individual he could not obtain the alternative remedy posited. This was taking the 'councillor as rate payer' fiction a little too far, in this case.

It was also argued for the interested parties that a writ action was the more appropriate forum for the airing of fraud allegations, because they do not rely on affidavit evidence. The Court of Appeal accepted that it was not principally fraud that was being alleged or pleaded but bias. The interested parties had not adduced any evidence attacking the substance if the allegations of bias and the test in R v Gough ('real danger of bias') had been satisfied.

Bassetlaw has provided useful guidance on how decision makers can overturn their previous decisions when they are in doubt as to their legality.

v In David Rose's Litigator's View last week we omitted to mention that the defendants have been given leave to defend the decision.