Judge retires to consider whether West unitary acted unlawfully
Court papers lodged with the high court unveil the bidding war that raged last year before West unitary decided to sell land to Northampton’s football club owners
By Sarah Ward
For the last two days developer Cilldara Ltd has been trying to persuade the judge who ruled on the infamous ‘Wagatha Christie’ trial to find that West Northamptonshire Council’s decision to sell land at Sixfields to Northampton’s football club last March was unlawful.
The developer had put in a rival higher bid for the land but was beaten to the deal by County Developments (Northampton) Ltd, even though its offer was almost £1m less.
After losing out Cilldara requested a judicial review to look into how the council made the decision and yesterday Mrs Justice Steyn retired with her ‘reserved judgement’ expected soon. If she decides the council’s cabinet made the decision contrary to law, then the decision will be overturned. If not the sale to CDNL will proceed as planned.
NN Journal has obtained from the Birmingham court the papers filed by each side. Here’s a summary of the bids made for the fought over bit of land and the legal arguments for both sides.
Altogether seven bids were made by both sides across a number of months from November 2021 to March 2021.
The papers outline the almost farcical nature of the bidding process and reveal how Cilldara put in its first offer after the council had made a public statement about intending to do a deal with the football club.
The land, which is around 20 acres, has a complex series of leases across it, with the football club leasing large parts of the site on very long tenures - some areas until 2164.
In November 2021, following a report from Lambert Smith Hampton which said the land was worth £890,000, the council said it was preparing to do a deal with the sports club’s owners. On hearing this Cilldara contacted the council and said it was also interested in the land and in early December it trumped the bid by offering £1.8m for the site (without the running track land, or land which housed the recycling centre).
In the court papers Cilldara says the authority would have known of its interest in the land as it had been in talks dating back to 2019 and had even had interest in buying the club.
“Ultimately those discussions did not bear fruit. However, it would have been clear to the defendant from then that there was at least one potential buyer of the land, who would be willing to pay a substantial sum to acquire it.”
Following Cilldara’s offer the football club changed its original offer (to include a condition to build the East stand within five years). The council then told both parties that best and final offers were needed by January 17.
On that date Cilldara upped its price to £2,050,000, meaning that its bid was more than double the amount being offered by the football club.
Three weeks later on February 11 the council published a report comparing both offers and told Cilldara it was likely to accept the CDNL offer. It told the developer that its bid did not provide ‘best consideration’ as it raised complexities regarding the break clause on the lease held by the sports club.
Three days later the developer made a revised offer and said it would change contracts within 28 days and deal with the lease issue and all the risks associated with any legal action.
A meeting due to be held to make a decision on February 28 was deferred and CDNL then increased its offer to match its rival.
In the papers Cilldara alleges:
“It appears that there was contact between CDNL and the defendant [the council] during the week commencing February 23 which led to the third CDNL offer.”
On March 3 a council report ahead of a meeting on March 8 said the lower CDNL offer would be accepted which prompted Cilldara to go in with a final offer of £3m. The council decided not to take this offer and instead went with the lesser offer from the football club.
Cilldara’s legal case
The Warwickshire-based development firm’s argument is the authority, which is led by Conservative Cllr Jonathan Nunn, breached section 123 of the Local Government Finance Act 1972 which says a local authority has an obligation not to dispose of land for less than ‘best consideration’.
Cilldara also says the reason it is challenging the decision taken by Nunn’s cabinet on March 8 was because it was taken in an ‘improper and unfair fashion’ and alleges the decision was predetermined with the authority always intending to sell to the football club owners.
“It was prima facie irrational for the defendant to have accepted a substantially less valuable offer, delivering nearly £1m less to local taxpayers and substantially undervaluing the running track land, absent a very cogent and plausible justification.
“Further or alternatively, there was no rational justification for accepting an offer that valued land at £98,000 per acre . . rather than one which valued it at £176,000 per acre.”
The council’s defence
The authority says it extended its decision making process several times to involve Cilldara and gave the developers final offer ‘more than reasonable consideration in the limited time available’.
“Any procedurally unusual features in the defendant’s decision were entirely a product of the claimants own conduct and the defendant’s reasonable attempts to respond to these.”
It denies any predetermination and said:
“the defendant reasonably considered (and considers) that the claimants late offer was not the best consideration available. It raised a number of complexities and possible risks for the defendant. It was also made very late in the process and the defendant was concerned about its reliability; the defendant consider it reasonable to reject in favour of the alternative offer on the basis that “A bird in the hand is worth two in the bush” Buttle v Saunders .
Other things we learned from the court papers
The lack of minutes taken at the behind closed doors meetings of the council’s ruling ten councillors became evident.
Cilldara accused the authority’s decision-making process of being ‘shrouded in secrecy’.
“There are some very surprising omissions in terms in particular of the documentary record that has been kept of material discussions. Not least the claimant increased the amount it was willing to pay by nearly 50 per cent when the 4 March Cilldara offer was made yet there is simply no record at all, far less any sufficient record, of how that offer was analysed and taken into account, whether prior to the defendant’s cabinet meeting on March 8 or at that meeting itself. The defendant is simply required to believe the defendant’s assertions in the response that was considered both prior to and at the meeting of 8 March 22.
“That is, to say the least, surprising both given the importance and value of the interest that the defendant was seeking to dispose of, as well as the previous very controversial background to that disposal.”
Also lodged as part of the judicial review was a letter from football club co-owner David Bower to the council’s chief executive Anna Earnshaw. It was sent on January 9, after rival bidder had gone in with an offer double what his firm had made:
“ . . I feel compelled to email so that you, and the relevant officers and members of WNC understand that NTFC has had enough. Both Kelvin and I indeed everyone at the football club has acted with efficiency, integrity and probity and would you even attempt today the same in respect to the council’s involvement?
“This matter in one form or another has been going on for four years. In March 2020 the club reached a provisional agreement with Northampton Borough Council and established an outline timeline. Whilst not directly your concern, certain members and officers of Northampton BC then sought to undermine the agreed arrangements and throughout the rest of 2020 continually and deliberately misled the football club.
“We had high hopes that from April 2021 with your involvement things would change but despite assurances and kind words Northampton Town Football Club finds itself back where it started.
“Northampton Town Football Club understands and supports the need for WNC to fully comply with all of our statutory obligations. The club would not have it any other way, but it seems that you are now hiding behind and reinterpreting those obligations in an effort to undermine the club. Is it acceptable for the council to tell the club what you need to do to allow our deal and then move the goalposts?”
The judge will deliver her ruling and if she decides against the authority she may also decide to make it pay for the costs of the legal action.
As NN Journal reported last week, there has been significant concern amongst all political parties about the legal action and there may be calls for resignations or investigations if it goes against the council.
You can support NN Journal by contributing to our reporting. We are fully independent and without advertising constraints.