No need for decision-maker to specify every last detail of evidence considered

In Global Gaming Ventures (Southampton) Limited v (1) Southampton City Council (2) Aspers Universal Limited (Interested Party) [2017] EWHC 165 (Admin), the Administrative Court (Baker J) held that the public authority's advisory panel and licensing committee (the “Panel”) did not have to specify every last detail of the evidence it considered when granting a licence to the interested party and could depart from its stated methodology on evaluating bids where a broader evaluation was considered more appropriate.

Key points

• When running a competition, a public body does not need to specify every last detail of evidence it considered when reaching its decision.
• Clearly stating the nature and content of evidence considered is sufficient providing the public body has approached its tasks conscientiously and has not erred in law.
• Despite the public body initially stating that it would evaluate applications using a particular methodology, it was entitled to conclude after the applications had been made that a broader evaluation would be more appropriate.

Background

Under the Gambling Act 2005 (the ”Act”), licensing committees of relevant local authorities are required to operate a two-stage competition for those seeking to operate a large casino. Parliament was concerned to ensure that large casinos benefit the local community. It therefore set out criteria to be taken into account by licensing committees when assessing competing applications in schedule 9 to the Act, as well as a supplemental Code of Practice. These criteria include the likely effects of an application on employment, regeneration and the range and nature of non-gambling facilities to be offered as part of the development.

The defendant launched a large casino competition in 2015 and set out its approach for evaluating applications in an Evaluation Criteria & Scoring Matrix (the “Scoring Matrix”), amongst other documents. The documents clearly stated that the Panel would evaluate the applications on a qualitative basis and a quantitative basis based on their scores under each factor in the Scoring Matrix. The Scoring Matrix awarded points to an application based on the Gross Added Value ("GVA") for each application. The defendant also stated that applications siting the casino in Southampton’s proposed Royal Pier development would be favoured as a casino at the site would provide an anchor for the large scale regeneration of the area.

In its final report dated 17 March 2016, the defendant notified applicants that it had decided not to calculate the monetary GVA (as originally intended) due to the inconsistent calculation methods used by each applicant. Instead it had decided to take a broad view of the tangible and intangible benefits of each scheme.

The interested party’s application (sited in the Royal Pier development) was the eventual winner while the claimant’s casino was to be sited in another development and received a lower score. The claimant was notified of its application’s rejection on 24 March 2016 but did not serve an application for permission to judicially review the decision until 21 June 2016, near the end of the three-month period in the court rules for doing so. Baker J found the claimant’s explanation for the delay to be unsatisfactory but considered the merits of the case nonetheless.

The claimant sought permission to judicially review the decision on two grounds:

1. that the Panel had failed to take into account relevant considerations when determining that siting a large casino at the Royal Pier site was necessary to the realisation of the wider Royal Pier development and it had not adequately specified its reasons for reaching this conclusion (“Ground 1”); and
2. that the Panel had failed to apply the appropriate criteria when making the Decision as it was restricted by its own rules to a monetary assessment of the GVA for each factor in the Scoring Matrix (“Ground 2”).

Decision

The Administrative Court dismissed the application on both grounds.

Ground 1

Baker J found that the Panel had carefully considered the causative link between the interested party’s casino and its impact on any wider development on the Royal Pier site. The evidence available to the Panel at the time supported its conclusions.

The claimant contended that the Panel did not adequately specify its reasons for concluding that the Royal Pier scheme was more than likely to be delivered (and awarding the interested party a higher score as a result).

However, Baker J stressed that it “was not beholden upon [the Panel] to specify every last detail of the evidence which they had considered”.Providing a clear indication of the nature and content of the evidence was sufficient. The Panel had acted conscientiously when approaching its tasks and had provided full reasons for its conclusions; it had made no errors in law in reaching those conclusions and as a result its findings could not be challenged.

Ground 2

In relation to Ground 2, Baker J held that the Panel did not make any material error and did not fail to comply with its own rules by failing to calculate the monetary GVA for each application.

In the context of the broad evaluation exercise it was required to carry out, the Panel was entitled to conclude that it did not have to calculate the GVA of each application. Baker J found the claimant’s criticisms of the defendant’s approach to evaluation to be unarguable given the wide range of matters the Panel had to consider when evaluating the regenerative impact of each application. The nature of some considerations meant that they were not all susceptible to mathematical evaluation.

Baker J also highlighted that, in any event, the Panel applied the same criteria to each of the applications and the claimant “was always going to be facing an uphill task” to persuade the defendant to grant a licence for its proposed site over the favoured Royal Pier site.

Comment

This case illustrates the difficulty of challenging a public body's decision in a competition context where there is a clear and detailed framework in place allowing the public body to make a broad evaluation of each application. In explaining its decision, the public body must clearly state the nature and content of the evidence it has considered, but it does not need to specify every single detail of the evidence. In addition the public body may be entitled to change its initial approach to scoring and methodology and conclude that a broader assessment would be preferable.

Andrew Lidbetter Partner +44 20 7466 2066 Email	Nusrat Zar Partner +44 20 7466 2465 Email	Jasveer Randhawa Of Counsel +44 20 7466 2998 Email