Section 226(1) of the Town and Country Planning Act 1990 empowers a local authority to acquire land compulsorily if it thinks either that the acquisition will facilitate the carrying out of development or redevelopment on that land or the land is required for a purpose that it is necessary to achieve in the interest of the proper planning of an area in which the land is situated. However, section 226(1A) limits that power by preventing the authority from exercising it unless, shortly put, it considers that the relevant proposal will promote the economic, social or environmental well-being of its area. In R (on the application of Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council [2009] EWCA Civ 835; [2009] 44 EG 210, this latter provision came under the scrutiny of the court.
Sainsbury’s and Tesco owned separate parcels of adjoining land that together made up a potential development site. They could not decide which of them should carry out the development. Each submitted a planning application for a mixed-use scheme and each received outline planning permission. The council indicated that in principle it would, if necessary, use its compulsory purchase powers under section 226(1) to facilitate one of the schemes. It considered that each scheme would improve the social, economic and environmental well-being of its area, as required by section 226(1A).
No agreement was reached and the council resolved to approve the making of a compulsory purchase order (CPO) to facilitate Tesco’s scheme. It took the view that that scheme had the advantage of enabling the development of a second site owned by Tesco, which Tesco considered to be financially unviable to develop on its own. Sainsbury’s made an unsuccessful claim for judicial review of the council’s decision and appealed to the Court of Appeal. Its main argument was that the council should not have taken into account the benefit of developing the second site when deciding in whose favour to exercise the compulsory purchase power.
The Court of Appeal dismissed the appeal, holding that the benefits of developing the second site fell for consideration under section 226(1A) when deciding whether to make a CPO. Although it was a requirement of section 226(1) in this case that the council should be satisfied that that the CPO would facilitate the development of the CPO site, section 226(1A) required it to look beyond the benefits that would accrue to the CPO site. It was bound to consider whether it would promote the economic, social or environmental well-being of a wider area.
Here, the council had been satisfied that facilitating Tesco’s scheme by making the CPO would act as a catalyst for the development of the second site in a way that would contribute to the economic, social and environmental well-being of its area. The financial implications of developing the CPO site could be a material consideration in this respect.
John Martin is a freelance writer
