Town and country planning – Compulsory purchase order – Reasons – Local council making CPO to facilitate mixed-use development on site of Shepherd’s Bush market – Planning inspector recommending non-confirmation of CPO on grounds that insufficient safeguards provided for existing traders – Respondent disagreeing and confirming CPO – Whether respondent giving adequate reasons for decision – Appeal allowed
The appellant acted on behalf of an organisation that represented stallholders at Shepherd’s Bush market. The market comprised 137 stalls, some located in railway arches, run by small independent traders and providing a mix of products in food, fashion and household goods. The local council’s planning policies recognised the importance of the market to the local community and promoted the regeneration and upgrading of the site in a way that would encourage independent traders and accommodate existing traders.
In 2012, the council granted outline permission for a mixed-use development on the site, including a residential element, alongside the refurbishment and enhancement of the market. The permission contained various planning conditions intended to protect existing traders. The developer also entered into an agreement under section 106 of the Town and Country Planning Act 1990, requiring it to adopt a lettings policy, the objects of which were to include the retention of existing traders, affordable rents for small local businesses and maintaining the unique character of the market. In 2013, the council made a compulsory purchase order (CPO), under section 226(1)(a) of the 1990 Act, in order to facilitate the development.
Following a public inquiry, the respondent’s planning inspector recommended that the CPO should not be confirmed since a compelling case in the public interest had not been made out for it. She considered that, in light of uncertainty over matters including the nature of the proposed replacement units in the new development, necessary upgrades to the arches, which were vital to the distinctiveness of the market, and measures to secure the affordability of replacement shop units, the developer’s proposals lacked sufficient mechanisms to ensure that the number, mix and diversity of traders was retained. She concluded that the development would not bring the social, economic and environmental wellbeing that was sought.
The respondent disagreed with his inspector and decided to confirm the CPO. In his decision letter, he indicated that the proposals did contain sufficient safeguards to ensure that “existing market traders and shopkeepers or new operators with similarly qualitative and diverse offerings” would be protected.
The appellant brought proceedings under section 23(2) of the Acquisition of Land Act 1981 to quash the CPO on the ground that the respondent had not given proper reasons for confirming it, contrary to the requirement in r 19 of the Compulsory Purchase (Inquiries Procedure) Rules 2007. The claim was dismissed in the court: see [2015] EWHC 2512 (Admin). The appellant appealed.
Held: The appeal was allowed.
In the instant case, the respondent was the primary decision-maker and was not reviewing or conducting an appeal against the inspector’s decision. Where he followed the inspector’s recommendation, it would be easy to infer that he had also adopted the inspector’s reasoning. However, fuller reasons might be required where the respondent was disagreeing with the inspector’s considered and reasoned recommendation. The respondent was not under a duty to give “reasons for reasons” but, where he was disagreeing with the inspector’s recommendation, he was required to explain why he rejected the inspector’s view: R (on the application of Ling) (Bridlington) Ltd v East Riding of Yorkshire Council [2006] EWHC 1604 (Admin), R (on the application of Siraj) v Kirklees Metropolitan Council [2010] EWCA Civ 1286 and R (on the application of Cumbria County Council) v Secretary of State for Transport [1983] RTR 129 applied.
Although the respondent’s decision letter had to be taken to be addressed to a well-informed readership, it did not, when read in a straightforward manner, give adequate reasons for his decision to confirm the CPO. The council’s aim was the protection and continued operation of existing traders, to which end they considered it crucial that the developer should provide sufficient commitments to ensure the retention of existing traders. The respondent had expressed the view that there were sufficient safeguards in place to protect existing market traders and shopkeepers “or new operators with similarly qualitative and diverse offerings”. It was not clear whether he was saying that the safeguards would enable existing traders to return in sufficient number to preserve the unique character of the market, with the consequence that the inspector’s concerns were unfounded, or that the position of existing traders did not matter because new operators with similarly qualitative and diverse offerings would be protected. The inspector’s key concern about affordability was not mentioned at all, even though it was a hotly disputed issue. Nor did the respondent mention the arches, which the inspector had regarded as important to the market. While the respondent had clearly disagreed with the inspector’s view that the guarantees and safeguards were inadequate, he had not explained why he came to that conclusion. Requiring a fuller explanation of his reasoning would not amount to requiring reasons for reasons; nor did it require a paragraph-by-paragraph rebuttal of the inspector’s views. What it did require was for the respondent to explain why he disagreed with the inspector, beyond merely stating his conclusion that he did.
One of the purposes of requiring a decision-maker to give reasons for his decision was to enable those who were affected by the decision to decide whether it might be susceptible to legal challenge: Save Britain’s Heritage v No 1 Poultry Ltd [1991] 1 WLR 153 and South Bucks District Council v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953; [2004] 4 PLR 50 applied. While the respondent might have had good reasons for concluding that the guarantees and safeguards were adequate, his decision did not disclose what those reasons were. In the circumstances, the traders had been substantially prejudiced by a failure to comply with a relevant requirement.
David Wolfe QC (instructed by Leigh Day) appeared for the appellant; Charles Banner (instructed by the Government Legal Department) appeared for the respondent; Rupert Warren QC (instructed by Gowling WLG (UK) LLP) appeared for the interested party.
Sally Dobson, barrister
