The decision of the Supreme Court in R (on the application of Sainsbury’s Supermarkets Ltd v Wolverhampton City Council [2010] UKSC 20; [2010] PLSCS 133, reached on a 4:3 majority, is an important one in the context of planning compulsory purchase powers.
The power of a local planning authority, under section 226(1) of the Town and Country Planning Act 1990, to acquire land compulsorily is subject to the limitation contained in section 226(1A), namely that the authority must not exercise that power unless, shortly put, it considers that the relevant proposal will contribute to the promotion of the economic, social or environmental well-being of its area.
In the instant case, Sainsbury’s and Tesco owned separate parcels of adjoining land that together made up a potential development site. Each submitted a successful planning application for a mixed-use scheme. 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 then resolved to approve the making of a compulsory purchase order (CPO) to facilitate Tesco’s scheme, taking the view that it presented the advantage of enabling the development of a second Tesco site that was otherwise unviable. The main issue for the Supreme Court was whether the council, in considering the limitation in section 226(1A), should have taken into account the benefit of developing the second Tesco site.
Overturning the Court of Appeal, the Supreme Court made an order declaring that the opportunity of developing the second Tesco site was not a lawful consideration when deciding whether to make the CPO. Lord Collins, who gave the leading judgment, said: “There must be a real, rather than a fanciful or remote, connection between the offsite benefits and the development for which the compulsory acquisition is made.” He stated that section 226(1A) did not permit the council to take into account a commitment by Tesco of a site part of which was to be the subject of a CPO to secure the redevelopment of another (unconnected) site, and so achieve further well-being benefits for the area.
The Supreme Court accepted that principles derived from planning law, in respect of material considerations, should apply to compulsory acquisition for development purposes. However, because of the serious invasion of proprietary rights involved in compulsory acquisition, a strict approach to the application of those principles was required.
John Martin is a freelance writer
