Section 226 of the Town and Country Planning Act 1990 permits the compulsory acquisition of land by local authorities for the purpose of development, redevelopment or improvement. It is also permitted where the land is required for a purpose necessary to achieve the proper planning of the area. This power, which is frequently used for town-centre redevelopment, was the subject of a recent ruling.
The Alliance Spring Co Ltd and others v First Secretary of State [2005] EWHC 18 (Admin); [2005] PLSCS 3 concerned the redevelopment of Arsenal Football Club (AFC). The claimants, whose businesses would be affected by the compulsory purchase order (CPO), challenged its validity, contending that the real purpose of the scheme was to provide AFC with a new stadium, which did not satisfy the requirements of section 226. They also alleged that their rights under Article 1 of the First Protocol to the European Convention on Human Rights (the Convention) had not been taken into account.
On completion of the public inquiry, the inspector recommended that the CPO should not be confirmed because there was no compelling case in the public interest that it be made. The secretary of state disagreed. The court upheld that view, stating that where the scheme was led by, and dependent upon, a private developer, this did not of itself justify a rejection of the CPO. In addition, since the CPO had been made in accordance with the law, and in a proper fashion, Article 1 of the First Protocol had not been breached. The local authority had shown a compelling case for compulsory purchase and had taken into account the claimant’s Convention rights. They concluded that the exercise of compulsory purchase powers was proportionate to the claimant’s Convention rights and that they had done sufficient to justify the CPO.
It is accepted practice that the section 226 process can be used by local authorities even if they do not propose to carry out the development themselves; they may even exercise the powers with a view to selling on the land. However, they cannot use the powers solely to assist a private individual or company. Although a CPO might benefit another party, there must be a wider purpose; in this case, the redevelopment of nearby land to accommodate a waste-recycling centre and the redevelopment of the site of the existing stadium.
Third party challenges to the use of a local authority’s compulsory purchase powers will inevitably continue. To avoid such challenges, local authorities should ensure that, on all cases the requirements of section 226 are met. Equally, individuals or companies that, like AFC, will benefit from the use of those powers will need to make certain that when proposals are discussed with a local authority, they are satisfied that the local authority are meeting with their particular requirements, failing which the making of a CPO could be a time-consuming, costly and unsuccessful exercise.
Gill Castorina is an associate at Paul, Hastings, Janofsky & Walker (Europe) LLP
Section 226 of the Town and Country Planning Act 1990 permits the compulsory acquisition of land by local authorities for the purpose of development, redevelopment or improvement. It is also permitted where the land is required for a purpose necessary to achieve the proper planning of the area. This power, which is frequently used for town-centre redevelopment, was the subject of a recent ruling.
The Alliance Spring Co Ltd and others v First Secretary of State [2005] EWHC 18 (Admin); [2005] PLSCS 3 concerned the redevelopment of Arsenal Football Club (AFC). The claimants, whose businesses would be affected by the compulsory purchase order (CPO), challenged its validity, contending that the real purpose of the scheme was to provide AFC with a new stadium, which did not satisfy the requirements of section 226. They also alleged that their rights under Article 1 of the First Protocol to the European Convention on Human Rights (the Convention) had not been taken into account.
On completion of the public inquiry, the inspector recommended that the CPO should not be confirmed because there was no compelling case in the public interest that it be made. The secretary of state disagreed. The court upheld that view, stating that where the scheme was led by, and dependent upon, a private developer, this did not of itself justify a rejection of the CPO. In addition, since the CPO had been made in accordance with the law, and in a proper fashion, Article 1 of the First Protocol had not been breached. The local authority had shown a compelling case for compulsory purchase and had taken into account the claimant’s Convention rights. They concluded that the exercise of compulsory purchase powers was proportionate to the claimant’s Convention rights and that they had done sufficient to justify the CPO.
It is accepted practice that the section 226 process can be used by local authorities even if they do not propose to carry out the development themselves; they may even exercise the powers with a view to selling on the land. However, they cannot use the powers solely to assist a private individual or company. Although a CPO might benefit another party, there must be a wider purpose; in this case, the redevelopment of nearby land to accommodate a waste-recycling centre and the redevelopment of the site of the existing stadium.
Third party challenges to the use of a local authority’s compulsory purchase powers will inevitably continue. To avoid such challenges, local authorities should ensure that, on all cases the requirements of section 226 are met. Equally, individuals or companies that, like AFC, will benefit from the use of those powers will need to make certain that when proposals are discussed with a local authority, they are satisfied that the local authority are meeting with their particular requirements, failing which the making of a CPO could be a time-consuming, costly and unsuccessful exercise.
Gill Castorina is an associate at Paul, Hastings, Janofsky & Walker (Europe) LLP
