Town and country planning – Development – Compulsory purchase order – Claimant applying to quash decision of defendant secretary of state to confirm compulsory purchase order (CPO) in respect of its land – Whether defendant erring in law – Application dismissed
The interested party local planning authority made a compulsory purchase order (CPO) in respect of none plots of land at Kimmerfields, in Swindon town centre, for the purpose of a regeneration scheme adopted as part of an action plan adopted by the interested party in 2009 and in their 2015 local plan. The CPO was confirmed by the defendant secretary of state. The CPO included a strip of land owned by the claimant company which applied for an order quashing the decision to agree to the CPO on the grounds that it was unlawful.
In reliance on section 23(1) of the Acquisition of Land Act 1981, the claimant complained that the authorisation granted was not empowered under the relevant legislation; and a relevant requirement had not been complied with under section 23(2). It contended that the defendant had erred in law by: (i) failing to take into account and address the principal controversial issue as to the ability of the link to be provided in this broad location consistent with the development plan framework and outline planning permission without the need to take the plot which included its land; (ii) failing to consider alternative means to achieve the desired objective; and (iii) failed to give any adequate reasons for his conclusions.
Held: The application was dismissed.
(1) A compelling case that a compulsory purchase was necessary in the public interest had to be made out to take away the right of a property owner to enjoy its property without consent. The defendant might only endorse the destruction of the owner’s property right if it was clear that the defendant had allowed those rights to be violated by a decision based upon the right legal principles, adequate evidence and proper consideration of the factors which swayed his mind into confirmation of the order sought: see Prest v Secretary of State for Wales [1983] 1 EGLR 17, De Rothschild (Evelyn) v Secretary of State for Transport [1989] 1 EGLR 19 and Chesterfield Properties plc v Secretary of State for the Environment [1997] 76 P&CR 131; [1997] PLSCS 225.
(2) The power of compulsory purchase might be exercised by a local authority if they thought that the acquisition would facilitate the carrying out of development, redevelopment or improvement on or in relation to the land under section 226(1)(a) of the Town and Country Planning Act 1990. However, the authority could not exercise the power unless they thought that the development etc was likely to contribute to achieving one or more of three defined objectives: promoting or improving the economic, social or environmental well-being of the authority’s area: see section 226(1A) of the 1990 Act.
(3) The defendant’s primary task was to consider the issued raised by objections to the CPO but fairness required him to consider at least any obvious alternatives as relevant considerations. Adequate and intelligible reasons had to be given: see South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953; [2004] 4 PLR 50, per Lord Brown, at paragraph 36. While there was only one standard of adequacy, the degree of particularity required to meet it would vary according to the nature of the issues falling for decision. Fuller reasons might be needed where the inspector’s recommendation was rejected than where it was rejected: Hall v First Secretary of State [2007] EWCA Civ 612 considered. Horada v Secretary of State for Communities and Local Government [2016] EWCA Civ 169; [2016] PLSCS 93 referred to.
(4) On the evidence in the present case, the defendant had evaluated the principal contested issues, including the viability of the proposed alternative advanced by the objector. The inspector’s finding that the interference with the claimant’s property rights was proportionate was supported by the observation that the claimant had chosen not to express interest when approached about involving itself in the proposed scheme. It followed that he was unpersuaded by the claimant’s protestations of its willingness to engage in reasonable negotiations to avoid the need for the CPO. The defendant’s reasoning was sufficient comfortably to pass the test set by Lord Brown in South Bucks District Council v Porter (No 2). The compelling public interest requirement in the case of a CPO did not generate any different or higher duty to give reasons than in other cases. There was no want of adequate reasons. The claimant knew what it had lost the arguments and why the CPO had been confirmed.
David Forsdick QC (instructed by Gateley plc) appeared for the claimant; Martin Carter (instructed by the Government Legal Department) appeared for the defendant; Anthony Crean QC and Killian Garvey (instructed by Swindon Borough Council) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read a transcript of Mapeley Beta Acquisition Co Ltd v Secretary of State for Communities and Local Government and another
