Compulsory purchase order – Local Government Act 1972 – Claimant local authority making CPO made in respect of village green – CPO purportedly made under power in section 121 of 1972 Act to acquire land for purpose authorised by any public general Act – Claimants relying on purpose of promoting social and environmental wellbeing of their area within section 2 of Local Government Act 2000 – Defendant refusing to confirm CPO – Whether permissible to acquire land compulsorily for “wellbeing” purposes – Claim dismissed
The claimant local authority made a compulsory purchase order (CPO), in purported exercise of their powers under the Local Government Act 1972, to acquire land in their area that was a registered village green under the Commons Act 2006. The land in question lay on the eastern edge of a housing development built in the 1980s. The planning permission for the development had contained a condition requiring the land to be retained as an area of public open space, with the intention that it would be conveyed to the claimants, but no formal transfer had been concluded and the developer had ceased trading. The first interested party had later been registered with a possessory title to the land. The land had been registered as a village green in early 2009 on the application of local residents. Subsequently, the second and third interested parties, who were Irish travellers, had moved onto it. After receiving complaints from local residents about misuse of the land, the claimants had obtained an injunction in respect of part of the land, prohibiting its use for residential purposes.
In their statement of reasons for the CPO, the claimants stated that they wished to have proper control of the land to ensure that it was maintained and available for public use as an amenity area. They relied on the power, in section 121 of the 1972 Act, to acquire land “for any purpose for which they are authorised by this or any other public general Act to acquire land”; their stated purpose was the promotion of the social and environmental wellbeing of their area, pursuant to section 2 of the Local Government Act 2000.
The defendant secretary of state refused to confirm the CPO, taking the view that it was not authorised by the relevant statutory provisions. He considered that the purpose on which the claimants relied was similar to that in section 120(1)(b) of the 1972 Act, namely acquisition for “the benefit, improvement or development of their area”, which, by section 121(2)(a), could be done only by agreement and not compulsorily.
The claimants sought judicial review of the defendant’s decision. They relied on the statutory guidance promulgated under section 3 of the 2000 Act, to the effect that a local authority’s power under section 2 to promote the economic, social and environmental wellbeing of its area could be regarded as a “power of first resort”, of which innovative and imaginative use was encouraged.
Held: The claim was dismissed.
Since the CPO was unambiguously expressed to be made under section 121 of the 1972 Act, it had to be treated as made under the powers conferred by that statutory provision and no other provision. Under that section, the claimants could be authorised to purchase land compulsorily for any purpose for which they were authorised by any public general Act to acquire land, save where they were precluded from doing so by section 121(2). In the instant case, the purported compulsory acquisition was precluded by section 121(2) for the following reasons:
Although the explanatory note and guidance on section 2 of the 2000 Act could be taken into account in determining the scope of the powers conferred by the Act, they did not absolve the court from construing the Act itself. Where the note and guidance were conspicuously silent about a particular exercise of a power, that might indicate that the power was not intended to be exercised in that way: Risk Management Partners Ltd v Brent London Borough Council [2009] EWCA Civ 490 applied.
If a local authority were empowered to acquire land compulsorily purely for the “economic, social or environmental wellbeing” of the local area, then some quite radical and startling acquisitions might be sought to be justified. That was unlikely to have been the parliamentary intention in passing the 2000 Act. It was more likely that the Act had been passed with a clear appreciation that sections 120 and 121 of the 1972 Act remained in force with full effect and that section 2 of the 2000 Act was not intended to alter the situation in which land could not be acquired compulsorily by a local authority simply for the “benefit, improvement or development” of the local area; that could be achieved only by agreement.
That conclusion was supported by the strict view that the court normally took on the use of compulsory purchase powers: R (on the application of Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20; [2011] 1 AC 437; [2010] 2 EGLR 103 considered. Depriving a landowner of land that belonged to him, no matter how popular it might be with other local people, was not something that the law permitted lightly.
It followed that the defendant had been correct to consider that the CPO made by the claimants could not be justified by a combined use of section 2 of the 2000 Act and section 121 of the 1972 Act. Section 121 could not apply because of the prohibition, in section 121(2)(a), on its use by local authorities for the purpose in section 120(1)(b), namely the benefit, improvement or development of their area.
Lisa Busch (instructed by the legal department of Barnsley Metropolitan Borough Council) appeared for the claimants; Stephen Whale (instructed by the Treasury Solicitor) appeared for the defendant; the interested parties did not appear and were not represented.
Sally Dobson, barrister
