Proposal for trunk road — Acquisition of woodland — Public open space — Secretary of State certifying that exchange land equally advantageous to public — Exchange land needing replanting of woodland — Challenge to certificate — Whether court having jurisdiction where certificate challenged on procedural grounds — Whether challenge successful on substantive grounds — Court having jurisdiction — Application dismissed on substantive grounds
As a result of a proposal to construct part of the East London River Crossing through Eltham Park, Oxleas Wood and Falconswood Field, it was necessary to acquire part of Oxleas Wood. The wood was owned and managed by Greenwich LBC as a public open space. It was described as ancient woodland and was designated a Site of Special Scientific Interest.
Greenwich LBC and a number of local people challenged the decision of the Secretary of State for the Environment, who certified that he was satisfied that other open space land which was not less in area and was equally advantageous to the public would be given in exchange. In the proceedings, the applicants sought to quash the certificate issued under section 19 of the Acquisition of Land Act 1981. A public inquiry was held in 1985/1986 and the inspector recommended that the certificate be issued although he accepted that in an area of 89% of the Exchange Land (E1), which was mainly open fields, the general public would not be allowed into the land where woods would planted. The Secretary of State accepted the recommendation and stated that access would be restricted to a network of paths and rides by fencing for up to 10 years.
Jurisdiction issue
The Secretaries of State for the Environment and Transport contended that the court had no jurisdiction to entertain the applications. They submitted that a certificate could only be challenged if a statutory requirement had not been complied with: see section 23(2). The certificate was in effect only a procedural ruling — not in itself authorising compulsory purchase, but merely determining the procedure by which authorisation might be given. Provided the relevant procedural requirements were followed or, if they had not, that there had been no substantial prejudice, the certificate was unchallengeable. The applicants contended that it was a requirement of the Act that the Secretary of State should be satisfied that there was equal advantage. If he reached his conclusion on a basis of a wrong construction, the requirements of the Act were not complied with.
Substantive issues
The applicants questioned whether it was open to the Secretary of State to conclude that at the date when the exchange land was to be given in exchange for Oxleas Wood, it would be equally advantageous to the public. If he was able to conclude that, the question then was whether his conclusion was reasonable.
Held The application was refused.
1. On the issue of jurisdiction, the applicants’ arguments were persuasive. While it was perfectly true that the granting of a certificate did not mean that a compulsory purchase order would necessarily be confirmed, it was the only means by which it could be made without special parliamentary procedure being invoked. The decision of the minister on the question of issuing a certificate was, accordingly, crucial and could not properly be belittled by being described as only procedural. Had Parliament wished to confine challenges to certificates to purely procedural matters, it would have been a simple matter so to provide.
2. With regard to the substantive issues and, in particular, the phrase “equally advantageous”, it was not to be strictly construed in the manner for which the applicants contended. Parliament must have intended to permit a degree of flexibility leaving it to the Secretary of State to judge whether advantage of one sort could be offset against advantages of a different sort.
3. The appropriate time for the comparison was the time when the exchange would take place. The frame within which equal advantage was to be assessed was that dictated by the nature of the public enjoyment of the order land. But within that frame there need not be precise correspondence between each parcel.
4. While there had been no express recognition of the fact that a comparison had to be made at the date of exchange, the language used by the inspector and the Secretary of State was perfectly consistent with that construction.
5. The Secretary of State had legitimately reached the view, on the assessment and interpretation of evidence, that access to Oxleas Wood had also been restricted in practice to a network of paths and rides because the undergrowth was so dense. Questions of evaluation and weight were for the decision-maker and the court was not to substitute its own views.
6. Having carefully considered the report and the decision letter in the round and refraining from adopting a “tooth comb approach”, the court could not find that, in making the crucial judgement, a vital consideration had been left out or the evidence had been significantly misconstrued.
Jeremy Morgan (instructed by the solicitor to Greenwich London Borough Council) appeared for the applicant council; Nigel Pleming QC (instructed by Bindman & Partners) appeared for the applicants, Yates and others; Stephen Richards and John Howell (instructed by the Treasury Solicitor) appeared for the Secretaries of State for the Environment and Transport.
