Town and Country Planning Act 1971, section 112(1) — Acquisition of Land Act 1981, sections 23 and 24 — Plots of land occupied by travellers or gypsies — Local planning authority’s efforts to remove development considered to be inappropriate and unacceptable in the metropolitan green belt area — Lack of success with enforcement notices — Compulsory purchase order made — Whether order premature — Public inquiry held covering appeals against enforcement notices and challenge to compulsory purchase order — Order confirmed in part by Secretary of State — Applications by owners of certain plots to quash order fail
applications, by two plot owners, were in form applications for judicial review
— They sought under section 23 of the Acquisition of Land Act to quash the
compulsory purchase order affecting their plots — The order was made by the
Secretary of State after a history of enforcement notices and injunctions which
had failed to achieve the aim of removing inappropriate development and
restoring the land in question to a suitable rural use — There were eight plots
involved and the Secretary of State decided to confirm the compulsory purchase
order in respect of four of these plots, deferring a decision in regard to the
other four until the period for compliance with the enforcement notices had
elapsed — In making this decision the Secretary of State had differed from his
inspector, who had concluded that compulsory purchase was at that stage at
least premature
applicants attacked the validity of the compulsory purchase order under section
23 of the Acquisition of Land Act 1981 on the ground that section 112(1)(b) of
the Town and Country Planning Act 1971 did not provide the necessary
authorisation — Section 112(1)(b) authorised the acquisition of land ‘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’ — The applicants argued that
the acquisition was not ‘required’ in the sense contemplated by the statute and
submitted that the use of compulsory purchase powers should be a last resort
referring to the cases of Company Developments (Property) Ltd v Secretary of
State for the Environment and R v Secretary of State for the Environment, ex parte Leicester City
Council Roch J adopted a construction of ‘required’ in section 112(1)(b) of the
1971 Act somewhere between ‘desirable’ and ‘indispensable’ — It means that
compulsory acquisition is ‘called for’ — It is ‘a thing needed for the
accomplishment of one of the activities or purposes set out in the section’ —
It does not have to be a ‘last resort’ — In the present case the Secretary of
State was entitled to conclude that, on the balance of probabilities, the
successful restoration of the land was unlikely in the case of the plots in
question unless the order was confirmed — Roch J disclosed that if the
executive decision had been his he would have
premature — However, such judgments were for the local authority and the
Secretary of State, not for the court, whose function was different —
Applications dismissed.
The following
cases are referred to in this report.
Associated
Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223; [1947] 2 All ER 680, (1947) 45 LGR 635, CA
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
These were
applications by L Sharkey and C Fitzgerald for judicial review, with a view to
quashing the decision of the Secretary of State for the Environment to confirm
the South Bucks District Council (Iver No 1) Compulsory Purchase Order 1985 in
respect of plots 1, 5, 6 and 7A at Swallow Street, Iver, Buckinghamshire.
Harry Sales
(instructed by Lance Kent & Co, of Chesham, Bucks) appeared on behalf of
the applicants; Michael Kent (instructed by the Treasury Solicitor) represented
the Secretary of State; Geoffrey Stephenson (instructed by the solicitor to
South Bucks District Council) represented the council.
Giving
judgment, ROCH J said: Originally there were two applications for
judicial review in this matter. The first application, in which the applicants
were a Mr Carey, a Mr Stubbings and a Mr Fitzgerald, has been withdrawn with no
order as to costs on terms of an undertaking given by counsel for the local
planning authority, Mr Stephenson, to counsel for the applicants, Mr Sales.
The second
application relates to the decision of the Secretary of State for the
Environment in a letter dated February 24 1989 to confirm the South Bucks
District Council (Iver No 1) Compulsory Purchase Order 1985 in respect of plots
1, 5, 6 and 7A at Swallow Street, Iver, Buckinghamshire.
Swallow Street
runs approximately on a north-south line. It enters the village of Love Green
from the north. Immediately to the north of Love Green, Swallow Street was
bounded on both sides by agricultural land and the evidence indicates that in
and before 1981 the land to the west of that part of Swallow Street was used
for grazing.
In 1981 or
1982 the land to the west of Swallow Street and immediately adjoining it was
sold. In time it was divided into seven plots. Those seven plots are shown on
plan 5, exhibited at a public inquiry, which Mr Stephenson placed before me
with the consent of the other counsel in this case. The plots are numbered 1 to
7 when proceeding in a northerly direction. At some stage plot 7 was divided
into two parts and those parts were referred to as plots 7A and 7B. Some of the
plots had names: for example, plot 1 was known as the ‘Cherry Orchard Site’;
plot 2 as ‘Springfield Rose Site’; plot 3 as ‘Little Apple’ and also as ‘Site
1’; plot 4 as ‘Mill Place’ and also as ‘Site 2’; plot 5 as ‘The Silver Birch’
and also as ‘Site 3’; plot 6 as ‘Swallows Nest’ and also ‘Site 4’. Plot 7A is
also referred to as ‘Site 5A’ and plot 7B as ‘Site 5B’.
Unless it
becomes necessary to refer to a parcel of land by other than its plot number, I
shall refer to each parcel of land by its plot number.
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 those 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 I 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, and 7A and 7B which
were described in the schedule simply as plot 7: ‘For the purpose which it is
necessary to achieve in the interests of the proper planning in the area in
which the land is.’
Appeals were
brought against the enforcement notices by the owners of four of the plots,
namely plots 2, 5, 6 and 7, and the second respondents applied for confirmation
of the compulsory purchase order. Those two matters were taken together at a
public inquiry held by Mr Brock between September 15 and 17 1987. The
inspector’s recommendations with regard to the enforcement notices are no
longer material. With respect to the compulsory purchase order, the inspector
said: ‘I recommend that the South Bucks District Council (Iver No 1) Compulsory
Purchase Order 1985 be not confirmed.’ The
inspector’s findings on which that recommendation was based were these: that
there was a compelling need to keep the order land free from inappropriate
development; that the land development which had taken place on the order land
was inappropriate and unacceptable; that the location of the order land was
such that it should not be left in a derelict or neglected state but should be
put to a suitable use; that that aim was one which it was necessary to achieve
in the interests of the proper planning of the area.
However, the
inspector did not consider that the second respondents had shown satisfactorily
that the only practicable means of achieving the necessary purpose was by
compulsory purchase, save with the possible exception of plot 1; that with
regard to plots 3 to 6 there was no evidence of prosecutions or attempted
prosecutions for non-compliance with the enforcement notices; that with regard
to plots 7A and 7B action in respect of a breach of a stop notice was
apparently still being pursued and the period of compliance with the enforcement
notice had not expired; that there was insufficient evidence to substantiate
the second respondents’ claim that the general level of fines imposed for
non-compliance with enforcement notices was so low as to vitiate the value of
prosecution; that as to the enforcement notices which had been appealed, it
might be that the appellants would now decide to comply with the requirements
of those notices within the time allowed (the inspector having increased the
time allowed with regard to those notices); that the second respondents had
given evidence that they would seek to use their powers under section 91 of the
Act if those notices were not obeyed; that it had not been shown by the history
of plot 1 that further action by the second respondents under section 91 of the
Act would fail to have the desired effect in the future; that even if the past
history of plot 1 was a good reason for a compulsory purchase order in respect
of that plot, the purpose of which it is necessary to achieve would be unlikely
to be realised by the acquisition of an individual plot in isolation. The
council had at the inquiry put forward a scheme for restoration and landscaping
of the seven plots and the inspector found that that scheme could not be
implemented by the compulsory purchase of plot 1 only.
The inspector
concluded that whereas it might eventually be shown that, in order to achieve
the necessary purpose on planning grounds, no practicable alternative existed
to the compulsory purchase of the land, the making of the order at that stage
was, at the least, premature.
The Secretary
of State’s decision on the compulsory purchase order was to confirm the order
in relation to plots 1, 5, 6 and 7A and to defer his decision on the order in
respect of plots 2, 3, 4 and 7B until the period for compliance with the
relevant enforcement notices relating to those plots had elapsed. Accordingly,
the Secretary of State exercised his power under section 132(2) of the Town and
Country Planning Act 1971 to confirm the compulsory purchase order in so far as
it related to plots 1, 5, 6 and 7A, subject to certain modifications, and to
postpone his consideration of the order in relation to plots 2, 3, 4 and 7B
until September 28 1989.
I was told
during the hearing that no further consideration had been given to the order in
so far as it relates to plots 2, 3, 4 and 7B. The reasoning of the Secretary of
State was this: that he agreed with the inspector that the development which
had taken place on the order land was inappropriate and unacceptable; that the
implementation of the second respondents’ proposed landscaping scheme was
consistent with green belt policy, but was not the only purpose to which the
land could appropriately be put; that the land should not be left in a derelict
or neglected state. The Secretary of State went on to say that he did not
accept in its entirety the inspector’s conclusion that the second respondents
had not demonstrated satisfactorily that the only practicable means of
achieving the aim of putting the order land to a suitable rural use was by
compulsory acquisition. The Secretary of State had concluded that successful
restoration of the land as a consequence of upholding the enforcement notices
was unlikely as respects 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,
the Secretary of State had decided to confirm the order in relation to those
plots. On the other hand, because the evidence given by the owners of plots 3
and 4 suggested that the land would be restored if the enforcement notices were
upheld, the Secretary of State concluded that it would be appropriate to defer
his decision in relation to those plots until the period for compliance with
the relevant enforcement notices had elapsed.
He reached the
same decision in respect of plots 2 and 7B where the owners expressed either no
view or were undecided about restoration.
The applicants
say that they are aggrieved by the compulsory purchase order and make
application to this court, questioning the validity of the order, under section
23(1) of the Acquisition of Land Act 1981. The ground on which the validity of
the compulsory purchase order is questioned is that the authorisation of a
compulsory purchase order is not empowered to be granted under section 112(1)
of the Town and Country Planning Act 1971. The powers of this court on such an
application are set out in section 24 of the 1981 Act. Section 24(2) provides
that if, on the application, this court is satisfied that the authorisation
granted by the compulsory purchase order is not empowered to be granted under
the 1981 Act or any such enactment as is mentioned in section 1(1) of the 1981
Act, the court may quash the compulsory purchase order either generally or in
so far as it affects any property of the applicant.
Two
submissions are made on behalf of the applicants to make good their claim that
the decision of the Secretary of State to affirm the compulsory purchase order
should be quashed. The first is that the land and the compulsory purchase order
were not required by the local planning authority for the purpose which it was
necessary to achieve in the interests of the proper planning of the area in which
Swallow Street is situated. The second that the purpose which it was necessary
to achieve contemplated by the local planning authority was not merely the
removal of those matters in respect of which the enforcement notices were
served but also the return of the land, that is to say the whole of the strip
comprising the eight plots, to a use appropriate to the metropolitan green belt
and the area, so that the land should not be left in a derelict or neglected
state. The purpose contemplated by the local planning authority could be
achieved only by confirmation of the compulsory purchase order in respect of
all eight plots, because the purpose went beyond the simple removal of
caravans, hardstanding, walls, septic tanks and so forth. That this was so is clearly
demonstrated by the local planning authority’s restoration and landscaping
scheme prepared, authorised and budgeted for prior to the holding of the public
inquiry. Against that purpose, submits Mr Sales, it was illogical and absurd
for the Secretary of State to confirm the compulsory purchase order in respect
of only four of the eight plots and in respect of four plots which were not
contiguous.
The
respondents answered those submissions in these ways. First, ‘required’ does
not mean that the land and the compulsory purchase order are essential, nor
need the use of compulsory purchase powers be a last resort. ‘Required’ means
no more than that the compulsory acquisition of the land is needed for the
necessary planning purpose. It is for the Secretary of State, having identified
the necessary planning purpose, to make a judgment whether the land and the
compulsory purchase order are required to achieve that purpose. It is not for
this court to make that judgment. In the present case there was clear evidence
in respect of plot 1 that the local planning authority’s other powers had not
been and would not be effective to achieve the necessary planning purpose.
There was evidence in respect of plots 5, 6 and 7A on which the Secretary of
State was entitled to conclude that the compulsory purchase of those plots by
the local planning authority was required in order that the necessary planning
purpose be achieved.
Section 132(2)
of the Town and Country Planning Act 1971 enables the Secretary of State, where
a compulsory purchase order authorising the acquisition of land under section
112 of the Act is submitted to him, to confirm the order so far as it relates
to part of the land comprised in the order, if he is satisfied that the order
ought to be confirmed so far as it relates to such part of the land and give
directions postponing consideration of the order so far as it relates to any
other land specified in the directions until such time as the Secretary of
State specifies. It is submitted on behalf of the respondents that the
Secretary of State in the present case has done no more than to exercise that
power given to him by section 132(2) of the 1971 Act. Consequently, unless it
can be shown that the decision to confirm part of the order in so far as it
relates to plots 1, 5, 6 and 7A but to postpone consideration of the order so
far as it relates to plots 2, 3, 4 and 7B was unreasonable in the Wednesbury*
sense, these applications must fail. It is pointed out, on behalf of the
respondents, that this is not a case where the Secretary of State has confirmed
the compulsory purchase order in part and refused to authorise the acquisition
of the other parts of the land set out in the schedule to the order. In respect
of those latter parts he has merely postponed consideration to see whether the
owners of those plots will comply with the enforcement notices. Consequently
there is nothing illogical, perverse or absurd about the decision reached by
the Secretary of State and it was a decision which is consistent with the findings
of fact made by his inspector. The mere fact that the Secretary of State has
reached a conclusion different from that reached by his inspector, and that the
court may consider that the inspector’s conclusion is to be preferred to that
of the Secretary of State, is not sufficient to enable these applications to
succeed.
*Editor’s
note: Associated Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223.
Mr Sales’
reply on behalf of the applicants is that the power given by section 112 of the
Town and Country Planning Act 1971 is one which should be used as a last
resort; that this was accepted by the Secretary of State in para 6 of his
decision letter where he says that he does not accept in its entirety the
inspector’s conclusion that the council have not satisfactorily shown that the
only practical means of achieving the aim of putting the order land to a
suitable rural use is by compulsory acquisition. The principle was also accepted
by Mr Bradford, the planning officer of the second respondents, at the public
inquiry when he gave evidence to this effect:
If an owner
consistently refuses to observe his obligations under the planning legislation,
and normal legal measures designed to make him do so prove ineffective, the
final essential step is the making of a compulsory purchase order.
In the next
paragraph of the inspector’s report, para 154, Mr Bradford is recorded as
saying:
Were the
order
— that is to
say the compulsory purchase order —
not to be
confirmed but the enforcement notice is upheld, the council would seek to use
its powers under section 91 of the 1971 Act in the event of non-compliance with
the requirement of the notice.
Consequently,
says Mr Sales, the local planning authority were conceding that they were not
using their power under section 112 as a
would use their powers under section 91, from which it must follow that the
local planning authority were not of the view that the use of such powers would
be a complete waste of time.
Mr Sales
further submits that the sentence in para 6 of the Secretary of State’s letter
is unsatisfactory in that it is not clear to what extent the Secretary of State
did or did not accept the inspector’s conclusion that the council had not shown
that the only practical means of achieving the aim of putting the land to
suitable rural use was by compulsory acquisition. Because successful
restoration of the land as a consequence of upholding the enforcement notices
was unlikely in respect of plots 1, 5, 6 and 7A, it did not mean that the local
planning authority could resort straight away to their compulsory acquisition
powers under section 112. They should first await the outcome of the
enforcement notice, then use their powers under section 91 or their power to
obtain an injunction in the High Court or both before resorting to section 112.
The power to deprive a person of his or her land should be used only where both
the land and its compulsory acquisition were necessary, otherwise the use of
this confiscatory power would become arbitrary.
Mr Stephenson
on behalf of the second respondents submitted that the expense and difficulty
of the compulsory purchase procedures were an adequate safeguard against the
arbitrary use of the power given to local planning authorities by section 112,
when taken together with the need to obtain the Secretary of State’s
authorisation, and consequently the terms of the section should not be
construed in the narrow way suggested on behalf of the applicants.
Section 112(1)
of the Town and Country Planning Act 1971, in so far as it is material,
provides:
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, redevelopment 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.
In the present
case the respondents rely upon subsection (1)(b).
I was referred
to two authorities. The first was the case of Company Developments
(Property) Ltd v Secretary of State for the Environment and Salisbury
District Council [1978] JPL 107, a decision of Sir Douglas Frank QC,
sitting as a deputy judge of the Queen’s Bench Division. That was a case where
the compulsory purchase order had been made under section 112(1)(a).
During the course of his judgment, Sir Douglas Frank accepted the submission
that the word ‘required’ in a compulsory purchase situation does not mean
‘essential’. It meant that the acquiring authority and the Secretary of State
considered that it was desirable to acquire the land to secure the development
of the area as a whole. The second decision was that of McCullough J in R
v Secretary of State for the Environment, ex parte Leicester City Council
[1987] JPL 787, where McCullough J held that the Secretary of State had been
right to refuse to authorise a compulsory purchase order made by the Leicester
City Council under section 112(1)(a) of the 1971 Act on the ground that the
local authority had not shown that they required the land and the compulsory
purchase order in order to secure the carrying out of the development
contemplated. McCullough J referred to the dictum of Sir Douglas Frank in the
earlier case but said that that observation was not in point in the case that
he, McCullough J, had to decide.
Nevertheless,
it emerges from the earlier passages in the judgment of McCullough J that he
considered that the word ‘required’ meant more than simply the acquisition of
the land being in the view of the local planning authority and the Secretary of
State desirable and that what had to be demonstrated was a need on the part of
the local authority both for the land and for the power to acquire it
compulsorily.
Although both
those cases involve consideration of section 112(1)(a), in my judgment
the word ‘required’ must have the same meaning in section 112(1)(a) and
in section 112(1)(b). 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 that 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 and which was inappropriate and
unacceptable and to ensure that the land should 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.
The
applications were dismissed with costs; one set of costs only awarded, in
favour of the Secretary of State.
