THE Dudley Muslim Association has been given a fresh chance to prevent the land it has long sought to build a mosque on from being seized back by Dudley Council.
Earlier this year, the association met with defeat at the High Court in London.
A judge dismissed its appeal against an earlier ruling, striking out its defence to an action in which Dudley Council sought to reclaim ownership of the Hall Street site.
But on Friday (May 23), one of the country's most senior judges gave the go-ahead for it to bring a second appeal.
Sir Stephen Sedley ruled that there is an "arguable" case that Dudley Council has committed an "abuse of power" in the way it has treated the association.
The case will now be heard by a panel of three judges at the Court of Appeal in London later this year.
In his ruling in February, High Court Deputy Judge David Halpern QC had said he was left with an "uncomfortable feeling" that the association may have been able to resist the council's claim, but found that it had failed to serve a "credible and properly particularised defence" in proceedings which began back in 2010.
However, Sir Stephen Sedley disagreed, finding that the association had successfully pleaded in its defence reliance on a so-called "legitimate expectation" that the council would extend a deadline for the mosque and community centre development, imposed when the council granted it a lease of the site in 2003.
Under the lease, the association agreed to obtain all necessary planning consents and complete building work within five years, or the lease would come to an end.
The association was also given an option to acquire the freehold, on the condition that the property be transferred back to the council if the works were not completed by the end of 2008.
The freehold was transferred to association in March 2005.
However, while the association applied promptly for planning consent, delays occurred which the council's former chief executive, Andrew Sparkes, conceded were "largely due to fault, though not deliberate wrong-doing" on the part of the council.
Sir Stephen Sedley said: "The association missed the deadline for completion of the mosque because the council, which had set the deadline, had in practice made it untenable by a succession of steps it took in relation to planning consent."
These steps he said were both "political" - including asking the association to abandon its planning application pending local elections in case "political capital was made" - and "substantive", including ultimately refusing permission against its own officer's advice and then seeking to challenge a Government inspector's decision to grant consent on the association's appeal.
Though the planning officer recommended approval of the scheme put forward, the council refused planning permission in March 2007.
A planning inspector allowed the association's appeal and granted permission in July 2008, and the council failed in a legal challenge to that decision in July 2009. However, by that time the deadline in the lease had passed and the council launched proceedings in November 2010 seeking to reclaim the property, which it regards as a high-profile site that it does not want to remain derelict.
In April 2012, a High Court master (junior judge) struck out the association's defence, finding it had no realistic prospect of success, and granted summary judgment to the council on its claim.
On appeal, the association had argued that it had a "legitimate expectation", based on a September 2006 letter from the council's chief executive that the council would set a later target date for the planning issues to be resolved.
The High Court judge ruled that it was too late to run this defence, but the matter will now go before the Court of Appeal to decide whether the association has a fit defence.
Sir Stephen Sedley said: "There seems to me to be a two pronged case available to the association on the pleadings and the uncontested evidence. First that there was a legitimate expectation that there would be an extension of a reasonable period of time to the initial deadline because of the events that had happened that had been the council's responsibility.
"Second that it was an abuse of power to frustrate the legitimate expectation that would have arisen in the mind of not only the association but any rational observer that time would be extended. All of that seems to me to be arguable."
If it succeeds on appeal, the matter will then go to trial, meaning any final resolution of the matter could be some way off.