Planning permission — Construction of bypass — Land compulsorily purchased — Secretary of state making operative confirmed compulsory purchase order — Whether necessary to enquire whether planning permission for bypass extant — Whether planning permission extant when order operative — Appeal dismissed
In October 2004, the first respondent made operative a compulsory purchase order (CPO) made by the second respondent council in respect of the construction of a bypass, for which planning permission had been granted in 1997. The CPO was made in order to facilitate the acquisition of land required for the bypass together with an area of land to replace a public open space that was to be lost to the new road.
The appellant opposed the bypass, primarily on grounds of loss of public open space, and had given evidence before a joint parliamentary committee. The committee amended the order before it was made operative. The appellant subsequently challenged the first respondent’s decision under section 23 of the Acquisition of Land Act 1981. He contended, inter alia, that the first respondent: (i) should not have rendered the order operative without first satisfying himself that planning permission for the bypass had been, or could be, implemented; and (ii) alternatively, if and to the extent that he had concluded that the permission for the bypass remained extant, he had erred in law.
The judge concluded that the first respondent had not been obliged to enquire into the current status of the bypass permission since there was no suggestion that it had lapsed. Such enquiries were not a legal prerequisite to making an order operative: see [2005] EWHC 890 (Admin); [2005] PLSCS 90.
The appellant appealed, contending that: (i) the first respondent should have satisfied himself that the 1997 permission was extant; and (ii) in October 2004, the permission had not in fact been extant.
Held: The appeal was dismissed.
The first respondent had not erred in law in making the CPO operative. The status of the 1997 planning permission was irrelevant to his decision in October 2004. The only question for him had been whether, should the bypass be built, effective legal obligations would be in place to ensure that the relevant open land would be available. It was not part of the first respondent’s function to police the overall progress of the bypass scheme.
The second respondents could implement the order only for a proper purpose and to the extent that it was lawful to do so. The court was the sole judge of the legality of any such action. The first respondent’s function did not call on him to act as an advance guard against the chance of unlawful action by the second respondents. Moreover, it was not a condition of any lawful decision to make the order operative that the planning permission should be extant.
Paul Brown (instructed by Richard Buxton, of Cambridge) appeared for the appellant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the first respondent; Ian Dove QC and Satnam Singh (instructed by Sharpe Pritchard, as agent for Stoke-on-Trent City Council) appeared for the second respondents.
Eileen O’Grady, barrister
