Traders at Shepherd’s Bush Market who fear a planned redevelopment will cost them their livelihoods took their battle against a compulsory purchase order to the Court of Appeal today.
Their lawyer, David Wolfe QC, told the court that judge who ruled in the lower court case didn’t properly interpret a planning inspector’s report, and therefore produced a flawed judgment.
He is seeking to have the CPO quashed. The traders claim that the CPO should not have been granted in the absence of greater protections for the unique and diverse character of the market and their livelihoods.
The case is being heard by three senior judges, including Lord Thomas, the Lord Chief Justice.
In the decision under challenge, Mr Justice Dove said that there could be no doubt that the interests of safeguarding the market’s current qualities and character was a “key material consideration” that had been taken into account in the decision-making process.
He said: “There was no error of law in the decision which was reached by the defendant to confirm the CPO and this claim must fail.”
But in today’s hearing, Wolfe said that Dove J simply misunderstood the planning inspector’s report and, in some instances, demonstrated a “complete failure of reasoning”.
Dove, the inspector and the Secretary of State all agreed that it is necessary for store-holders rents to remain affordable to protect the diversity of the market, Wolf said. Even so the judge misinterpret the inspectors findings on affordability, he said.
The judge found that the inspector concluded that affordability agreement was “satisfactory overall”, when, in fact, she was only referring to the interim position, and not long-term affordability, he said.
Also, Wolfe said that the inspector concluded that arches in the market market needed to be repaired if regeneration was to take place, but there was no legal mechanism to bring that about. She concluded that the CPO should not be allowed. Even so, the Secretary of State approved the CPO.
The lower court judge found in his ruling that the Secretary of State wasn’t saying that repairs weren’t necessary but “was satisfied that there was not a need for certainty in the legal mechanisms”.
This reasoning actually “exposes the illegality of the Secretary of State’s decision,” he said. If everyone agrees the repairs are necessary, then a legal mechanism is needed, but if that legal mechanism provides no certainty, “it is no solution”.
During the hearing, Lord Chief Justice Lord Thomas questioned the effectiveness of the measures designed to make sure rents remained affordable.
“How do you stop a person with an economic interest like a developer from raising the rents, and driving out the people who sell fruit and veg? This seems to me to be what this whole dispute is about.”
In 2012, the London Borough of Hammersmith and Fulham granted planning permission to Orion Shepherd’s Bush Market to redevelop the site and adjoining land, including refurbishing the market and constructing new buildings of up to nine storeys to provide up to 212 residential units (up to 27,977 sq m) plus more than 14,000 sq m of non-residential floorspace. It then made the CPO confirmed by the secretary of state.
However, the Shepherd’s Bush Market Tenants Association, spearheaded by chair James Horada, say that the secretary of state’s decision – and thus the CPO – was based on errors of law.
In an interview with Estates Gazette earlier this week, Elizabeth Paraskeva, a senior associate in the real estate department at law firm Bircham Dyson Bell, said this case is “significant” because the High Court decision that is being appealed represents a departure from previous convention and is one which is beneficial to acquiring authorities.
She said: “The plans for the redevelopment of Shepherd’s Bush Market are controversial, with opinion divided. Although the planning inspector’s recommendation was for the order not to be confirmed, in part due to insufficient guarantees and financial safeguards for the long-standing market traders, the secretary of state disagreed and concluded that the order should be confirmed with modifications.
“The case is significant as it provides flexibility for acquiring authorities as it clarified that, although it is necessary to show a compelling case in the public interest in order to justify the making of a CPO, it does not have to prove every detail of the proposed scheme, nor does it need to show that protection for those affected is absolute.
Horada (on behalf of the Shepherd’s Bush Market Tenants’ Association) & Ors v The Secretary of State for Communities and Local Government & ors. Appeal of claimants from the order of Mr Justice Dove, dated 31st July 2015, filed 20th August 2015.
Court of Appeal (Thomas LCJ, Longmore LJ, Lewison LJ) March 3 2016