Compulsory purchase order — Mobile homes stationed on green belt land in breach of planning control — Enforcement notices ineffective — Council’s intention that land be restored to rural use — Whether land ‘required’ for purpose it was necessary to achieve in the interests of the proper planning of the area — Whether relevant that purpose might be achieved by other means — Town and Country Planning Act 1971 section 112(1)
On October 8
1985 the second respondents, South Bucks District Council, made a compulsory
purchase order under section 112(1)(b) of the Town and Country Planning
Act 1971 (see post p 15B) (section 226(1)(b) of the Town and
Country Planning Act 1990) to acquire compulsorily an area of land in Swallow
Street, Iver. The order land, which was in the metropolitan green belt, was
divided into eight plots (1 to 6, 7A and 7B) upon which mobile homes occupied
by gypsies and their families were or had been stationed in breach of planning
control. The CPO followed the earlier service of enforcement notices, the
council contending that it was the only effective means of protecting the area
and ensuring that the land reverted to an appropriate green belt use.
A public
inquiry into the CPO and various enforcement notices was held in September
1987. All the plots then contained mobile homes or touring caravans which were
residentially occupied. In respect of plot 1, by the date of the inquiry the
council had twice used their powers under section 91 of the 1971 Act (section
178 of the 1990 Act) but on each occasion the unlawful use had been reinstated.
Also, on two occasions High Court injunctions had been obtained. In respect of
plots 7A and 7B a stop notice had been issued but not complied with. The
inspector concluded that whereas compulsory purchase might eventually be
necessary, the order was premature as the council had not shown that it was the
only practicable means of achieving their aim and accordingly he recommended
that the CPO be not confirmed. The first respondent, the Secretary of State for
the Environment, in his decision letter dated February 24 1989, concluded that
successful restoration of the land as a consequence of upholding the
enforcement notices was unlikely in respect of plots 1, 5, 6 and 7A, since the
evidence of the owners of those plots was to the effect that they would not, or
in one case could not afford to, restore the land, even if the notices were
upheld. Accordingly, he confirmed the CPO in respect of those plots. In respect
of plots 2, 3, 4 and 7B he deferred his consideration of the order until the period
for compliance with the relevant enforcement notices had elapsed.
The
appellants, Mr Sharkey and Mr Fitzgerald, were the owners of plots 1 and 5
respectively. They challenged the decision of the Secretary
not ‘required’ for the purpose stated, as this purpose could be achieved by
other means, notably the exercise of the council’s powers under section 91.
Roch J dismissed their application and they appealed.
1. The word
‘required’ in section 112(1) of the 1971 Act meant ‘necessary in the
circumstances of the case’. A local authority did not have to go so far as to
show that compulsory purchase was essential or indispensable to the carrying
out of the activity or the achieving of the purpose. On the other hand the word
‘desirable’ was not satisfactory as it could be mistaken for ‘convenient’,
which would not suffice: see pp 19E, 21A and 21F.
2. Having
regard to the history of the unsuccessful attempts by the council to get the
plots cleared using other methods and the evidence of the occupants’ intentions
with regard to reinstatement, the Secretary of State was entitled to conclude
that the council were not likely to achieve successful restoration of the land
including plots 1, 5, 6 and 7A without compulsory purchase, but that in respect
of the other plots it was still possible that they might: see pp 19H-20F.
Per Scott LJ: It may be that compulsory purchase under section 112 is a
power to be used as a ‘last resort’ as between the various statutory powers
available to the local authority under the Town and Country Planning Acts, but
it is not correct to say that the power can be only used after a civil
injunction had been shown to be ineffective: see p 21A-F
Decision of
Roch J (1990) 62 P&CR 126; [1990] 2 EGLR 191 affirmed.
to in the judgments
Company
Developments (Property) Ltd v Secretary of State
for the Environment [1978] JPL 107
R v Secretary of State for the Environment, ex parte Leicester
City Council [1987] JPL 787
Runnymede
Borough Council v Ball [1986] 1 WLR 353;
[1986] 1 All ER 629; (1985) 84 LGR 481; 53 P&CR 117; [1986] JPL 288, CA
Appeal against
decision of Roch J
This was an
appeal by Mr L Sharkey and Mr C Fitzgerald against the decision of Roch J on
May 11 1990 whereby he had dismissed their application that the South Bucks
District Council (Iver No 1) Compulsory Purchase Order 1985, made pursuant to
section 112(1)(b) of the Town and Country Planning Act 1971, be quashed.
The order related to plots 1 to 6, 7A and 7B Swallow Street, Iver. The
appellants were the occupiers of mobile homes stationed on plots 1 and 5
respectively. The order was made by the council, the second respondents, on
October 8 1985 and confirmed by the first respondent, the Secretary of State
for the Environment, in respect of plots 1, 5, 6 and 7A on February 28 1989.
(instructed by Lance Kent & Co, of Chesham) appeared for the appellants, Mr
L Sharkey and Mr C Fitzgerald.
Griffiths (instructed by the Treasury Solicitor) appeared for the first
respondent, the Secretary of State for the Environment.
Rundell (instructed by the solicitor to South Bucks District Council) appeared
for the second respondents.
following judgments were delivered.
PARKER LJ: I will ask McCowan LJ to give the first judgment.
McCOWAN LJ: This is an appeal from a decision of Roch J given on May 11 1990
dismissing an application by the appellants that the South Bucks District
Council (Iver No 1) Compulsory Purchase Order 1985 be quashed. The first
respondent is the Secretary of State for the Environment and the second
respondents are South Bucks District Council.
The order in
question, as made by South Bucks District Council on October 8 1985, related to
plots 1 to 6, 7A and 7B Swallow Street, Iver. The order as confirmed by the
Secretary of State related only to plots 1, 5, 6 and 7A. Postponement of
consideration of the order in so far as it related to plots 2, 3, 4 and 7B was
directed by the Secretary of State.
Between
September 15 and 17 1987 an inspector held a public inquiry into the compulsory
purchase order and also into various enforcement notices with which neither the
hearing before Roch J nor the appeal have been concerned. The reason for that,
as we understand it, is that before the case started in front of Roch J it was
agreed between the parties that the appellants would not pursue their appeals
against the enforcement notices on the basis that the council for their part
would not take action in respect of them before some date in 1991. Those
enforcement notices are therefore effective.
The inspector
described the site covered by the order thus:
The order
land is on the west side of Swallow Street and in a generally open area between
the north-western and south-western extremities of the built-up areas of Iver
and Iver Heath respectively (Plans A and Q). It is approximately 0.28 ha (0.69
acres) in area and divided into 7 plots, numbered 1 to 7 consecutively from
south to north (Plan A). At the time of the inquiry Plot 7 had been sub-divided
into 2, the southern part referred to as Plot 7A and the northern as Plot 7B
(Plan Q).
The inspector
went on to make findings of fact about, among other things, the state of
occupation of the various plots. He said:
5. Plot 1,
Cherry Orchard, contains a mobile home and hardstanding and garden areas, and
is residentially occupied by Mr Sharkey and family.
6. Plot 2,
Springfield Rose, contains a mobile home and hardstanding area, and is
residentially occupied by Mr and Mrs Carey.
7. Plot 3,
Little Apple, contains a mobile home, touring caravan and hardstanding area,
and is residentially occupied by Mr M Smith and family.
8. Plot 4,
Mill Place, contains a mobile home, touring caravan and hardstanding area, and
is residentially occupied by Mr J Smith and family.
9. Plot 5,
Silver Birch, contains a mobile home and hardstanding area, and is
residentially occupied by Mr Fitzgerald and family.
10. Plot 6,
Swallows Nest, contains a mobile home and patio, garden
family.
11. Plot 7A,
Summerset Place, contains a touring caravan and hardstanding area, and is
residentially occupied by Mr Brown and family.
12. Plot 7B,
Meadowside, contains a touring caravan and hardstand and garden areas, and is
residentially occupied by Mr Price and family.
Plots 1 and 5,
it is to be noticed, are occupied by the two appellants.
Roch J
summarised the situation in this way at [1990] 2 EGLR 191 at p 192E:
Those plots
were occupied by travellers or gypsies. Often the occupant was the person who
had purchased the plot. Entrances were made on to Swallow Street in most cases,
although in some cases it was said that existing entrances were used.
Hardstanding was put down for caravans and for vehicles, walls were built and
gardens cultivated. In addition, some septic tanks were constructed.
It seems that
the travellers who bought and occupied these plots were travellers who wished
to settle, to send their children to school and to avoid having to move their
children from one school to another. In short, that the occupants were
responsible and orderly people.
However,
Swallow Street is within the metropolitan green belt and there was and is a
presumption against such development which is to be displaced only in certain
exceptional cases. The second respondents, as the local planning authority,
were against this unpermitted development and took steps to terminate this
unauthorised use of the land.
Enforcement
notices were prepared and served under section 87 of the Town and Country
Planning Act 1971. In respect of some of the plots there was more than one
enforcement notice.
The history
in relation to plot 1 was this: in 1984 four enforcement notices were served.
In August 1985 the second respondents used their powers under section 91 of the
Town and Country Planning Act 1971 to enter plot 1 and execute the work set out
in the four enforcement notices. Consequently, by October 8 1985 plot 1 was
unoccupied and the hardstanding, fences and vehicular access which had existed
on plot 1 had been removed.
In May 1986 a
High Court injunction was obtained to prevent plot 1 being used by a traveller.
In August of 1986 a second such injunction was obtained by the second
respondents. In February 1987 further action under section 91 of the Act was
taken. In April 1987 a writ was served on the then occupant of plot 1.
Nevertheless, by September 1987, at the time that a public inquiry was held by
a planning inspector, Mr Brock, plot 1 was being used by a traveller who had a
caravan on the plot sited on hardstanding.
The
inspector’s report indicates that four enforcement notices were served in
respect of plot 2, the first on May 15 1985 and the remaining three on
September 3 1985. Three enforcement notices were served in respect of plot 6,
two on September 5 1985 and the third on September 20 1985. Five enforcement
notices were served in respect of plot 4, four on September 5 1985 and the
fifth on March 7 1986. One enforcement notice was served in respect of plot 7
on August 8 1987.
On October 8
1985 the second respondents promulgated a compulsory purchase order under
section 112(1)(b) of the Town and Country Planning Act 1971 seeking
authorisation to purchase compulsorily the land described in the schedule,
which was all eight plots, that is to say, plots 1 to 6, 7A
which it is necessary to achieve in the interests of the proper planning in the
area in which the land is’.
It is
convenient at this point to read section 112 of the Town and Country Planning
Act 1971 (section 226 of the Town and Country Planning Act 1990). In so far as
it is material it provides as follows:
(1) A local authority to whom this section
applies shall, on being authorised to do so by the Secretary of State, have
power to acquire compulsorily –
(a) any land which is in their area and which
is suitable for and is required in order to secure the carrying out of one or
more of the following activities, namely, development, re-development and
improvement;
(b) any land which is in their area and which is
required for a purpose which it is necessary to achieve in the interests of the
proper planning of an area in which the land is situated.
As the judge
said, the council relied in this case on subsection 1(b). The council’s
case under that subsection before the inspector was summarised by him as
follows:
167. The need
for a compulsory purchase order is due to deliberate flouting of planning
control by the occupiers of the land or their predecessors. Normal legal
procedures have been shown to be cumbersome, expensive and ineffective.
Enforcement procedure has been satisfactory up to a point, but thereafter has
been ineffective; prosecutions depend on identification, which is difficult
when occupiers come and go, the level of fines imposed is low and injunctions
obtained apply only to the persons named. On the Cherry Orchard site
– I
interpolate that that is a reference to plot 1 –
section 91
action has been found ineffective; twice the land has been cleared, and twice
reinstated. A stop notice on plot 7 has been ineffective. No grounds exist for
expecting that the land would revert to an appropriate green belt use even if
section 91 powers were again to be used. All except one of the present
occupiers have said that they would not reinstate their land to the condition
in which it formerly was. Public money would be wasted by the use of section 91
powers, and the aim of protecting the green belt would be rendered futile.
168. The only
effective means of protection is by compulsory purchase. As a housing action area
is purchased for the benefit of the community as a whole, so would the purchase
of this green belt land be of benefit to the community. In the light of that
consideration the order should be confirmed. Even if it is thought that it
should not be confirmed in respect of plots 2 to 6 on the grounds that all
other avenues have not yet been fully explored, it should be confirmed in
respect of plots 1, 7A and 7B.
The
inspector’s conclusion on this issue was as follows:
189. . . . I
find the development which has taken place on the land to be inappropriate and
unacceptable. In my opinion the location is such that the land should not be
left in a derelict or neglected state, but should be
to achieve in the interests of the proper planning of the area.
190. However,
I do not consider that, with the possible exception of plot 1, the Council have
satisfactorily shown that the only practicable means of achieving the aim is by
compulsory purchase. With regard to plots 3 to 6, there is no evidence of
prosecutions or attempted prosecutions for non-compliance with those
enforcement notices which are not the subject of appeal and should by now have
been complied with. Regarding plots 7A and 7B, action in respect of a breach of
the stop notice is apparently still being pursued, and I note that the period
for compliance with the enforcement notice issued on 11 September 1987 is not
due to end until 16 November 1987. I find insufficient evidence to substantiate
a claim that the general level of fines imposed for non-compliance with
enforcement notices is so low as to vitiate the value of prosecution.
191. As to
the notices currently under appeal, it might be that the appellants would now
decide to accept what I believe to be the inevitability of the situation, and
would choose to comply with the requirements within the time allowed. The
evidence is that, in the event of non-compliance with the notices if upheld,
and of the order not being confirmed, the Council would seek to use its powers
under section 91 of the 1971 Act. This course of action would no doubt be open
to the Council to pursue if it wished, and it does not seem to me necessarily
to follow that, because plot 1 has been reoccupied after such action in the
past, further action would fail to have the desired effect in the future.
192. Even if
past experience provided a good reason for the compulsory purchase of plot 1,
the purpose which it is necessary to achieve would be unlikely to be realised
by the acquisition of an individual plot in isolation. The Council’s
restoration and landscaping scheme could not be implemented by the use only of
plot 1. With regard to that scheme, it seems to me that an appropriate rural
use would equally lie in the return of the land to grazing land, whether as a
parcel on its own or in conjunction with adjoining land. It could be that the
present owners of the land, notwithstanding the evidence given at the inquiry,
would be finally convinced that they should dispose of their land, and would
offer it for sale to an owner of adjoining or adjacent land for use by him for
an appropriate purpose.
I interrupt
the reading at this point to make the comment that nothing has happened since
to justify the inspector’s optimism. He continued at para 193:
193. I
conclude that, whereas it may eventually be found that, in order to achieve the
necessary purpose on planning grounds, no practicable alternative exists to
compulsory purchase of the land, the making of the order at this stage is, at
the least, premature.
He went on to
recommend that the compulsory purchase order be not confirmed.
In turn the
Secretary of State had this to say on the issue in his decision letter dated
February 24 1989:
. . . The
Secretary of State agrees that the interests of the proper planning of an area
within the Metropolitan Green Belt are served by the removal of development
which is detrimental to the visual amenities of that area.
5. In
considering the Inspector’s conclusions in the light of the council’s
statement of reasons, the Secretary of State agrees that the development which
has taken place on the order land is inappropriate and unacceptable in this
generally open area which is within the Metropolitan Green Belt and the Colne
Valley Park. He shares the Inspector’s opinion that the implementation of the
council’s proposed landscaping scheme (which was prepared only after the order
had been submitted for confirmation) whilst consistent with Green Belt policy,
is not the only purpose to which the land could appropriately be put. He agrees
that the land should not be left in a derelict or neglected state.
6. On the
basis of the evidence presented at the inquiry, the Secretary of State does not
accept in its entirety the Inspector’s conclusion that the council have not
satisfactorily shown that the only practicable means of achieving the aim of
putting the order land to a suitable rural use is by compulsory acquisition.
The Secretary of State has had particular regard to the evidence presented by
the council as to the result of enforcement action in respect of various sites
in the district, including sites which are also the subject of this order. He
has concluded, on the balance of probabilities, that successful restoration of
the land as a consequence of the upholding of the enforcement notices is
unlikely as respects plots 1, 5, 6 and 7A since the evidence of the owners of
those plots is to the effect that they would not, or in one case could not
afford to restore the land, even if the notices were upheld. Accordingly he has
decided to confirm the order in relation to those plots.
7. The
evidence given by the owners of plots 3 and 4 suggests that the land would be
restored if the enforcement notices were upheld. In relation to plots 2 and 7B
the owners either expressed no view or were undecided about restoration. The
Secretary of State considers that it would be appropriate in relation to these
plots to defer his decision on the order until the period for compliance with
the relevant enforcement notices has elapsed. He will then form a view as to
the necessity for confirmation of the order in respect of those plots.
I need not
read para 8, which deals with certain modifications. In para 9 he went on to
say:
9.
Accordingly, in exercise of the power conferred on him by section 132(2) of the
Town and Country Planning Act 1971, he hereby confirms the South Bucks District
Council (Iver No. 1) Compulsory Purchase Order 1985 insofar as it relates to
plots 1, 5, 6 and 7A subject to the modifications shown thereon in red ink. He
hereby directs that consideration of the order insofar as it relates to plots
2, 3, 4 and 7B be postponed until 28 September 1989.
In challenging
this decision in the courts the appellants put forward two grounds in their
notice of motion. First, it is said that ‘the First Respondent treated the
likelihood of the Applicants carrying out works of restoration in accordance
with Enforcement Notices as the determining factor and in so doing ignored the
powers of the Second Respondent to carry out works of restoration under Section
91 of the Town and Country Planning Act 1971’. Second, that ‘the First
Respondent considered it unnecessary to confirm the Compulsory Purchase Order
in respect of plots owned by other than the Applicants and thereby and by his
express conclusions concluded that the avowed purpose of the Order in the form
of the Second Respondent’s proposed
Order’.
The provisions
of section 91(1) of the Town and Country Planning Act 1971 (section 178(1) of
the 1990 Act) there referred to read as follows:
If, within
the period specified in an enforcement notice for compliance therewith, or
within such extended period as the local planning authority may allow, any
steps which by virtue of section 87(7)(a) of this Act are required by
the notice to be taken (other than the discontinuance of a use of land) have
not been taken, the local planning authority may enter the land and take those
steps, and may recover from the person who is then the owner of the land any
expenses reasonably incurred by them in doing so.
It is to be
observed, however, that, in practical terms, to do this it would be necessary
first to get occupiers off the site.
The appellants
submitted before Roch J that compulsory purchase of the land was not required
for the purpose in question, because that purpose could be achieved by other
means, notably under section 91. Roch J was referred to two authorities on the
word ‘required’ in this context, as have we. Both cases involve consideration
of section 112(1)(a) but, as the judge said, and it has not been
disputed, the word ‘required’ must have the same meaning in (b) as in (a).
In Company
Developments (Property) Ltd v Secretary of State for the Environment
[1978] JPL 107 Sir Douglas Frank QC held that the word ‘required’ in this
context does not mean ‘essential’, but only that the acquiring authority and
the Secretary of State consider it desirable to acquire the land to secure the
carrying out of the activity in question.
In R v Secretary
of State for the Environment, ex perte Leicester City Council [1987] JPL
787 McCullough J considered that the word ‘required’ meant more than mere
desirability. Roch J, in this case, dealt with that argument as follows [1990]
2 EGLR 191 at p 194F:
Because of the
nature of the power given to local authorities by section 112, namely to
deprive the owner of his land against that owner’s will, I prefer and adopt the
stricter meaning of the word ‘required’ suggested by the judgment of McCullough
J. In my judgment the word means that the compulsory acquisition of the land is
called for; it is a thing needed for the accomplishment of one of the
activities or purposes set out in the section. However, I accept the dictum of
Sir Douglas Frank QC to this extent, that neither the local authority nor the
Secretary of State have to go so far as to show the compulsory acquisition of
the land is indispensable to the carrying out of the activity or the achieving
of the necessary planning purpose. The local authority need not have tried to
use all their other powers before resorting to compulsory purchase, provided
there is evidence on which they and the Secretary of State can conclude that,
without the use of compulsory purchase powers, the necessary planning purpose
is unlikely to be achieved.
In this case
the Secretary of State in para 5 of the letter of his decision correctly, in my
view, identified the purpose which it was necessary to achieve in the interests
of proper planning of the area in which the land was situated, namely to remove
the development which had taken place
not be left in a derelict or neglected state. The Secretary of State then went
on to consider whether acquisition of the land by compulsory powers was
required in the sense of being needed for the accomplishment of the purpose
because he has concluded, on the balance of probabilities, that successful
restoration of the land was unlikely in respect of plots 1, 5, 6 and 7A, unless
the order was confirmed in relation to those plots. In my judgment, there was
evidence on which the Secretary of State was entitled to reach that conclusion.
If the Secretary of State had asked himself the question, ‘Is the compulsory
acquisition of this land desirable for the accomplishment of the purpose?’ I would have held that he had applied the
wrong test.
Had the
Secretary of State gone on to refuse to confirm the compulsory purchase order
with regard to the other four plots, then in my opinion there may have been
some prospect of his decision being overturned on the grounds of irrationality.
However, that is not the decision reached by the Secretary of State and I
assume, in his favour, that he will confirm the compulsory purchase order in
respect of those plots if, despite the removal of caravans and so forth from
those plots, those plots are not restored to some use suitable for the area but
are left in a state where they become or are likely to become derelict and
neglected.
I may confess
in this case that had the decision been mine, I would have reached the same
conclusion as that reached by the inspector, namely that the making of the
compulsory purchase order at that stage was premature. However, it is a
well-established principle of administrative law that such judgments are for
the local authority and the Secretary of State and not for this court.
Consequently,
the conclusion that I have reached is that I must dismiss these applications
for judicial review.
I agree with
Roch J that the local authority do not have to go so far as to show that the
compulsory purchase is indispensable to the carrying out of the activity or the
achieving of the purpose; or, to use another similar expression, that it is
essential. On the other hand, I do not find the word ‘desirable’ satisfactory,
because it could be mistaken for ‘convenient’, which clearly, in my judgment,
is not sufficient. I believe the word ‘required’ here means ‘necessary in the
circumstances of the case’.
Before this
court the appellants put their case in this way. It is said by Mr Sales that
the seven grounds of appeal in the notice of appeal all relate to different
aspects of the same point, which is that the land, the subject of a compulsory
purchase, is not required by the second respondents. Compulsory purchase by,
for example, local authorities can be authorised when they require land for the
carrying out of their functions, such as byways, housing, parks etc. In all
cases it is the land itself which is required for the purpose for which there
is statutory authority to acquire compulsorily. In the case of section 112(1)(b)
of the 1971 Act, this, he points out, is an express requirement. But, he says,
in this case there is no requirement whatever of the second respondents for the
land itself. Their requirement is only the clearance of the land and that could
be achieved without compulsory purchase of the land itself by any of the
following methods or a combination of them: (1) prosecutions under section 179
of the 1990 Act for non-compliance with enforcement
the land for that purpose, pursuant to section 178 of the 1990 Act, coupled
with a right to recover from the owner expenses reasonably incurred in so
doing; (3) injunction proceedings pursuant to section 222 of the Local
Government Act 1972; (4) the provision of an acceptable alternative site for
the appellants.
I am bound to
say, however, that the planning history of the site, notably that of plot 1,
gives one little faith in the efficacy of these remedies in dealing with these
occupiers. It is indeed important, in my judgment, not to lose sight of two
sections of the evidence which was before the Secretary of State. The first of
these was the history of the unsuccessful attempt by the council using other
methods to get these plots cleared, which history was recounted by Roch J in a
passage which I have quoted from his judgment.
The second
section concerned the intentions of the occupants themselves. These the
inspector summarised on the evidence they gave as follows. He recounted that Mr
Sharkey, one of the appellants, who occupies plot 1, said in evidence that
‘they could not afford to restore it to green field land’. Mr Carey’s evidence
in respect of plot 2 was that he would not be prepared to move to any
council-owned site. Mr M Smith said in respect of plot 3 that he would be
prepared, with the council’s help, to reinstate it. Mr J Smith from plot 4 said
that he would reinstate it to green meadow. Mr Fitzgerald, the other of the
appellants, said of plot 5 that he could not reimburse the council for any
costs of reinstatement. Mr Stubbings from plot 6 said that he would not restore
it to its former condition. Mrs Brown from plot 7A said that they would not
clear it themselves. Mr Price from plot 7B, on the other hand, said that he did
not know if he would reinstate it.
In the light
of all that evidence the Secretary of State was, in my judgment, entitled to
arrive at the conclusion that the council were not likely to achieve successful
restoration of the land including plots 1, 5, 6 and 7A without compulsory
purchase but that in respect of the remaining plots it was still possible that
they might.
I agree with Roch
J that, had the Secretary of State refused to confirm a compulsory purchase
order with regard to those remaining four plots, some force might have been
given to an argument that he had acted irrationally, but, as it is, the plain
implication of his decision is that if these plots are not restored to a use
suitable for their area he will confirm the compulsory purchase order in
respect of them.
As I
indicated, a subsidiary argument was advanced by the appellants that by
deferring a decision in respect of those plots the Secretary of State has put
it out of the council’s power to carry out their landscaping scheme. I am
satisfied, however, that this scheme was only put forward at the inquiry as a
possible scheme should the order be confirmed in respect of all eight plots.
The scheme is not essential to the planning purpose, which is to restore the
land to rural use. That purpose can be achieved in respect of a single plot by
removal of a caravan, hardstanding etc and reversion to grass or shrubs and
trees.
For all these
reasons I agree with Roch J’s decision and would dismiss the appeal.
SCOTT LJ: I agree with the judgment McCowan LJ has given and would add only
one point.
Both before us
and before Roch J Mr Sales submitted that the power of compulsory purchase
given by section 112 of the 1971 Act was a power which should be used only as
‘a last resort’, as he put it. That may be so as between the various statutory
powers available to the local authority under the Town and Country Planning
Acts. If, however, the choice is between an exercise of the power of compulsory
purchase and the alternative route by means of which a local authority may seek
to enforce the planning law, namely High Court proceedings for a civil
injunction, then I do not agree.
There are statements
in a number of cases at levels all the way up to the House of Lords to the
effect that the use of civil proceedings for injunctions in order to enforce
the public law should be confined to exceptional cases: see eg, Runnymede
Borough Council v Ball [1986] 1 WLR 353 and the cases there cited. A
civil injunction involves the substitution of unlimited power of imprisonment,
available in contempt of court proceedings against persons who disobey the
injunction, for the limited penalties for disobedience of the law prescribed by
Parliament. I do not doubt that in many cases local authorities are entirely
justified in taking High Court proceedings for injunctions so as to obtain the
additional sanction of committal for contempt in order to enforce obedience to
the statutory offences in question. But to say that a compulsory purchase power
is to be used only as a matter of last resort after a civil injunction has been
shown to be ineffective is a proposition I find entirely unacceptable. Which of
the two, compulsory purchase or High Court proceedings, is to be preferred may
depend upon the facts of a particular case. Which ought to be the last resort
may be a matter of debate in a number of cases. But in the circumstances with
which the council were faced in the instant case, I do not regard an
application for a High Court injunction, with the possibility of contempt
proceedings following, as something which had to be tried before the compulsory
purchase procedure could be invoked. I agree that this appeal should be
dismissed.
PARKER LJ: I agree. Both the inspector and the Secretary of State came to the
clear conclusion that this land was necessary to be acquired in the interests
of proper planning and that, unless that purpose could be achieved by other
means, a compulsory purchase order was justified. The inspector had a somewhat
rosier view of the situation than the Secretary of State and apparently took
the view that the purpose might be achieved without a compulsory purchase
order. The Secretary of State considered that it could not be achieved in
respect of certain of the plots, but that it might conceivably be achieved in
respect of others and therefore deferred his decision with respect to those
others.
In my view,
the Secretary of State not only came to the right conclusion but no other
conclusion was really open to him. I would also dismiss this appeal.
Appeal
dismissed with costs. Application for leave to appeal to the House of Lords
refused.
