LEP defeats legal action over £1.9m grant to council for road junction and roundabout

The Greater Lincolnshire Local Enterprise Partnership (LEP) has successfully defended a judicial review challenge brought by Scunthorpe United over the LEP's decision to grant £1.9m to North Lincolnshire Council for the construction of a road junction and roundabout to the west of Scunthorpe.

The case of Scunthorpe United Football Club Ltd, R (on the application of) v Greater Lincolnshire LEP Ltd & Ors [2018] EWHC 3351 (Admin) concerned the proposed construction of a northern junction of the M181.

The claimant football club challenged the lawfulness of the award and sought an order that the decision to make the grant be quashed, or at the very least be declared unlawful.

Scunthorpe United’s primary case was that the LEP did not give adequate consideration to the club's rival proposal to use the grant to develop a junction elsewhere, referred to as the southern junction, as part of its scheme to build a new football stadium at that location and that, in any event, the LEP did not adequately investigate the council's proposal; it argued that insufficient consideration was given to the outputs which each scheme could produce and in what time such outputs could be achieved.

As a quite separate ground, Scunthorpe United contended that the LEP's decision was procedurally unfair because it was not informed of the detail of North Lincolnshire’s proposal.

The defendant LEP's case was that this was a veiled attempt to make a merits challenge dressed up as a challenge on the ground of irrationality.

The LEP said it had been faced with rival bids which it investigated adequately by commissioning an independent expert report, considering its factual content and recommendations and reaching a conclusion which was far from irrational. It said the decision was clearly the reasonable course to take, in the circumstances.

The LEP also denied there was procedural unfairness as there was no obligation on an LEP to inform rival bidders of the details of other bids; in any event the football club knew the general nature of the North Lincolnshire Council bid, namely that the northern junction was to be built in association with the development of a business park.

Dismissing the challenge, His Honour Judge Kramer concluded: “The LEP's decision on 29th September 2017, taking into account the information before the LEP as to the rival bids, was one of which it cannot be said that no reasonable decision maker in its position could suppose that the inquires they had made were sufficient. There was no procedural unfairness in not giving the claimant details of the NLC bid.

“The challenge based on the alleged failure to give sufficient weight to the benefits of the southern over the northern junction is indeed a merits challenge for which judicial review is not available. As these conclusions dispose of the arguments ranged against the defendant, I am not satisfied that the decision was one which no reasonable authority, in this case a local enterprise partnership, could reach.”

The judge said that if he was wrong about that he found that it was highly likely that even if any of the complaints had been made out, the outcome for the applicant would not have been substantially different.