Secretary of State confirming compulsory purchase order made by council – Applicant seeking to challenge confirmation of order – Application issued before notice of confirmation of order published – Whether court having jurisdiction – Section 23(4)(b) of Acquisition of Land Act 1981
Liverpool City Council sought to redevelop an area in the city centre. To that end, they made a compulsory purchase order (CPO) in respect of, inter alia, a public house owned by Enterprise Inns (the applicant). An application for confirmation of the CPO was made and a number of objections were raised. Following an inquiry, the inspector recommended that the CPO be confirmed, and the Secretary of State accepted that recommendation. The applicant sought to challenge the confirmation of the CPO under section 23 of the Acquisition of Land Act 1981. Its application was issued on 30 July 1999, three days before the notice of confirmation was published.
The council raised a preliminary point on jurisdiction that centred upon the construction of section 23(4) of the Act. That section provided that an application to the High Court “shall be made within six weeks – (b)… from the date on which notice of the confirmation or making of the order is first published”. Both the council and the Secretaty of State submitted that the section created a six-week “window”, outside of which the court had no jurisdiction to entertain an application, and contended that the present application fell outside the window, as it was made prior to the commencement of the six-week period.
The applicant submitted, inter alia, that section 23(4)(b) provided only an “end date” and that any application made before the end of the six-week period satisfied the purpose of the section, namely to promote certainty and finality. Alternatively, it submitted that the “start date” was the date of confirmation, not the date of publication.
Held: The court did not have jurisdiction.
Parliament had deliberately prescribed a window, rather than simply an “end date”, in section 23(4)(b). It was not sufficient to show that the application was made before the end date; it had also to come within the six-week window, otherwise it would be possible to issue an application at any time after confirmation and before publication. Parliament had chosen publication as the trigger because the court should “only become involved when all the administrative steps have been completed”: see R v Cornwall County Council, ex parte Huntingdon [1994] 1 All ER 694. The applicant had failed to fulfill the condition precedent to jurisdiction by commencing proceedings too soon. As a result, the order was unchallengeable.
Anthony Crean (instructed by Eversheds, of Birmingham) appeared for the applicant; John Litton (instructed by the Treasury Solicitor) appeared for the first respondent; Vincent Fraser (instructed by the solicitor to Liverpool City Council) appeared for the second respondents.
Sarah Addenbrooke, barrister
