Compulsory purchase order — Validity — Human rights — Article 8 of Convention — Inspector concluding that breach of Article 8 a possibility where occupiers having no alternative relocation property — Secretary of State accepting recommendations and obtaining undertaking from local authority to address potential breach — Whether Secretary of State making breach of Article 8 a relevant issue — Whether Secretary of State should have decided whether Article 8 would be breached
The claimants resided on separate plots of a gypsy caravan site that, despite enforcement action, had been unlawfully used since 1989. In 1999, the second defendant council made a compulsory purchase order (CPO), under section 226(1)(b) of the Town and Country Planning Act 1990, to acquire the site and restore it to its lawful use for agriculture. The claimants objected to the CPO and an inquiry was held. The inspector concluded that the CPO was in the interests of the proper planning of the area, and was appropriately framed in terms of section 226(1)(b) of the 1990 Act. He considered the claimants’ objection based upon Article 8 of the European Convention on Human Rights, and concluded that the CPO could be a violation of the claimants’ rights, but that this objection could be overcome by the council’s resolution to delay action for six months, especially if the council adopted a positive and constructive approach to the claimants’ relocation.
The Secretary of State accepted the inspector’s recommendations. He asked for, and was given, an undertaking by the council to delay action for six months and to adopt a constructive approach to relocation. The claimants applied, under section 23 of the Acquisition of Land Act 1981, to quash the CPO on the ground that the Secretary of State had made the issue of possible infringement of the claimants’ human rights a relevant issue to the confirmation of the CPO, and he should have decided whether the action in question would, or might, lead to a breach of convention rights.
Held: The application was dismissed. It was manifest from his decision that the Secretary of State had come to a clear conclusion, and had agreed with his inspector that confirmation of the CPO would not violate the claimants’ Article 8 rights. Requiring the council’s undertaking was simply seeking to ensure that there would not be an infringement in the future when the council came to execute the confirmed CPO.
The following cases are referred to in this report.
Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320; [1965] 3 All ER 371; (1965) 63 LGR 400; 195 EG 205, CA
Britton v Secretary of State for the Environment [1997] JPL 617
This was an application by the claimants, Jackie Lock, Marlene Simpson and Edward Small, under section 23 of the Acquisition of Land Act 1981, to which the Secretary of State was the first defendant and Sedgemoor District Council were the second defendants.
David Watkinson (instructed by Community Law Partnership, of Birmingham) appeared for the first and third claimants; John Litton (instructed by the Treasury Solicitor) appeared for the first defendant; Robert McCracken (instructed by the solicitor to Sedgemoor District Council) represented the second defendants; the second claimant did not appear and was not represented.
Giving judgment, HARRISON J said:
[1] This is an application, under section 23 of the Acquisition of Land Act 1981, to quash the Sedgemoor District Council (Mendip Road, Rooksbridge) Compulsory Purchase Order 1999 (the CPO), made under section 226(1)(b) of the Town and Country Planning Act 1990, relating to land at the Paddocks Caravan Site, Mendip Road, Rooksbridge, Somerset, a site that has been used unlawfully as a gypsy caravan site since 1989, despite enforcement action that has been taken by Sedgemoor District Council (the council) over the intervening years.
[2] The first claimant, Jackie Lock, and the third claimant, Edward Orchard, otherwise known as Edward Small, were represented in these proceedings by Mr David Watkinson. The second claimant, Marlene Simpson, was not represented and did not take part in the proceedings. All the claimants are, and were at the relevant time, resident on separate plots of the gypsy caravan site. The council were, by consent, recently added as second defendants. They were represented by Mr Robert McCracken. The first defendant, the Secretary of State for the Environment, Transport and the Regions, was represented by Mr John Litton.
[3] The sole issue in this case is whether the Secretary of State erred in law in confirming the CPO by acting in breach of the claimants’ rights under Article 8 of the European Convention on Human Rights (ECHR). Article 8 provides as follows:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others.
[4] The council made the CPO under section 226(1)(b) of the 1990 Act, on the basis that the land was required for a purpose that it was necessary to achieve in the interests of the proper planning of the |page:6| area, namely to restore the land to its lawful use for agriculture. The claimants objected to the making of the CPO.
[5] The Secretary of the State appointed an inspector to consider their objections, and the objections of others, at a public local inquiry that took place in October 1999. The inspector’s report was dated 7 December 1999. The Secretary of State made an interim decision on 29 February 2000, and then a final decision on 14 March 2000. It is necessary to refer in a little detail to the inspector’s report, and to the Secretary of State’s interim and final decisions, in order to understand the submissions that were made.
[6] In paras 93 to 95 of his report, the inspector gave his reasons for concluding that the CPO was in the interests of the proper planning of the area and was appropriately framed in the terms of section 226(1)(b). In paras 110 to 115 of his report, the inspector dealt with the claimants’ objections under Article 8 of the ECHR. In para 110, he stated:
Objections under Article 8 — that their rights to respect for private life, family life and the home would be interfered with — were made on behalf of Mrs Simpson, Mrs Watts, Mrs Lock and Mr Small. The Council accepts there would be interference. That the use of the site is unauthorised does not undermine the fact that these are the objectors’ homes. My reasoning above leads to the conclusion that the Order has been made in accordance with the law and in pursuit of a legitimate aim. However, the factor that may distinguish this case from others, particularly Buckley v UK, is that there is no alternative site to which the residents could resort. I therefore consider the key question to be whether the effect of the Order (depriving the objectors of their homes) would be proportionate to the objective (returning the land to its authorised agricultural use).
[7] In para 111, the inspector considered the personal circumstances of the claimants. In para 112, he referred to the possibility of licensing a smaller site, and to the problem of noise pollution arising from the fact that the site adjoined the M5 motorway. In para 113, the inspector stated:
Greater weight should go to the Council’s argument that the interference would be necessary in the interests of preventing crime and disorder, because the use of the site is in breach of the law. It has to be remembered that the Order land comprises a total of nineteen plots. Thirteen of the seventeen caravan plots were unoccupied at the time of the inquiry (including those belonging to Mr Small, Ms Stabb and Mr Kington and Ms Clifford). The owners of thirteen of the nineteen plots are unknown. It is difficult to see how the unauthorised use can be brought to an end if not by compulsory purchase. In my opinion, it would be inappropriate if no part of the Order were to be confirmed because of the interference under Article 8 with the occupiers of four of the nineteen plots. At the same time, to confirm the Order with the exceptions of Plots 5, 7, 8 and 13 would almost certainly fail to achieve the intended, and in my view legitimate, objective. The rest of the land, even though it would be brought into single ownership, would remain physically fragmented and very difficult to use effectively for agricultural purposes.
[8] In para 115, the inspector concluded on this aspect as follows:
On balance, and despite the wider benefits of the Order, I believe it could be a violation of their rights under Article 8 if Mrs Simpson, Mrs Watts, Mrs Lock and Mr Small and their respective families were to be evicted from The Paddocks without any other site to go to. However, the Council’s resolution to delay action for up to six months after confirmation of the Order could be sufficient to overcome that objection, especially if it were to adopt a positive and constructive approach to relocation (which could perhaps mean continued occupation of part of the site, as considered above).
[9] Finally, the inspector expressed his overall conclusions in paras 120 and 121, as follows:
120. My reasoning leads to these conclusions. I consider that the Order is in the interests of the proper planning of the area and is appropriately framed in the terms of S226(1)(b) of the 1990 Act. None of the objections, individually or cumulatively, compels me to recommend that the Order should be modified or not confirmed. In so far as individual objections have merits, I do not consider they override the benefit for the whole of the land that would flow from confirmation of the Order.
121. The objections by Mrs Simpson, Mrs Watts, Mrs Lock and Mr Small, all of whom are Gypsies, raise human rights issues. If the Order were confirmed and action were taken while there was no other site on which the objectors could reside, then I believe that could amount to a violation under Article 8 of the European Convention on Human Rights. That does not affect my recommendation to confirm the Order — but it does put the onus on the Council to act responsibly in its implementation. The Council’s resolution to delay action for up to six months might well prove inadequate on its own. A certain reluctance to take positive action, by both the Council and Mrs Lock, may be inferred from the evidence. In my opinion, a much more constructive approach will be needed in seeking a new site, be that elsewhere or on part of the Order land.
[10] In para 3 of his interim decision letter of 29 February 2000, the Secretary of State referred to the inspector’s recommendation, and stated that, for the reasons he gave below, he was minded to accept the recommendation, subject to a written undertaking from the council that they would delay action for a period of up to six months after the order was confirmed in order to allow the claimants to find a new site.
[11] In para 8 of the interim decision letter, the Secretary of State accepted that the order land was required for the purpose named in the order. In paras 9 to 11, he dealt with the Human Rights Act 1998, although it was not actually in force at the time. In para 9, he stated that he considered that the issues were properly considered by the inspector and given their due weight.
[12] Paragraphs 10 and 11 are particularly important. They read as follows:
10. The Secretary of State has carefully considered whether the purposes for which the compulsory purchase order is required sufficiently justify interfering with the human rights of the objectors and he is satisfied that they do so. In this case he considers that there is a sufficiently compelling case in the public interest to justify authorising the Council to exercise the compulsory powers cited in the Order for the described purpose. However, in reaching this view he is nevertheless aware of, and sympathetic to, the problems which could arise, and the possible infringement of human rights under Article 8, were no other suitable site found for Mrs Simpson, Mr and Mrs Watts, Mrs Lock and Mr Small, once the Order is confirmed and action taken by the Council.
11. Consequently, in noting the advice of the Inspector in paragraph 121 of his report in relation to the possible infringement of human rights, the Secretary of State considers it necessary to invite the Council to submit in writing to him an undertaking that they will delay action for a period of up to six months, after the confirmation of the order by the Secretary of State, in order to allow Mrs Simpson, Mr and Mrs Watts, Mrs Lock and Mr Small, who reside on the order land, to find an alternative site(s). In so doing, the Council should undertake to adopt a constructive approach in seeking a new site(s) for these same objectors.
[13] Paragraph 12 then stated the Secretary of State’s interim decision as follows:
For the reasons given above, the Secretary of State is minded to accept the Inspector’s conclusions, as set out at paragraphs 120 and 121 of his report, and confirm the Order, subject to the amendments set out at sub-paragraphs (i) to (v) and the receipt of a written undertaking from the Council that they will delay action for a period of up to six months after the confirmation, and that they will adopt a constructive approach in seeking a new site(s) for Mrs Simpson, Mr and Mrs Watts, Mrs Lock and Mr Small within that time. Accordingly, the Council is invited to submit a written undertaking to the Secretary of State within 14 days of the date of this letter.
[14] The council submitted the required undertaking on 7 March 2000, and on 14 March 2000 the Secretary of State issued his final decision, agreeing with his inspector’s conclusions, accepting his recommendation and confirming the order.
[15] Before I turn to the submissions relating to the Secretary of State’s decision, I should first refer to the statutory power under which this application is made. The Acquisition of Land Act 1981 is applied to compulsory acquisition of land under section 226 of the 1990 Act by virtue of section 226(7) of the 1990 Act. Section 23(1) of the 1981 Act provides as follows:
If any person aggrieved by a compulsory purchase order desires to question the validity thereof, or of any provision contained therein, on the ground that the authorisation of a compulsory purchase thereby granted is not empowered to be granted under this Act or any such enactment as is mentioned in section 1(1) of this Act, he may make an application to the High Court.
|page:7|
[16] Section 24(2)(a) of the 1981 Act provides:
If on the application the court is satisfied that —
(a) the authorisation granted by the compulsory purchase order is not empowered to be granted under this Act or any such enactment as is mentioned in section 1(1) of this Act, or
(b)…
the court may quash the compulsory purchase order or any provision contained therein, or the certificate, either generally or in so far as it affects any property of the applicant.
[17] Finally, so far as the statutory provisions are concerned, I should mention that the Secretary of State has power under section 245 of the 1990 Act to confirm a CPO under section 226, in so far as it relates to part of the land in the order, and to give directions postponing consideration of it, in so far as it relates to the other part of the land in the order.
[18] All parties are agreed that the court’s powers on this application, under section 23 of the 1981 Act, are similar to the normal principles applicable on judicial review: see, for example, Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320 per Lord Denning MR at p1326F, which was a case dealing with a very similar statutory provision under Schedule 4.2 to the Housing Act 1957.
[19] Mr Watkinson submitted that the Secretary of State had fallen into error by going further than his inspector in concluding that it was necessary, as a part of his decision, to require a written undertaking from the council in relation to the “possible infringement” of the claimants’ human rights under Article 8. Mr Watkinson’s point was that, although he did not need to do so, the Secretary of State had nevertheless made the issue of possible infringement of the claimants’ human rights a relevant issue to the confirmation of the CPO.
[20] Mr Watkinson relied upon the case of Britton v Secretary of State for the Environment [1997] JPL 617 in support of the proposition that, in deciding the relevance of a human rights issue, the decision maker must determine whether the action in question does, or may, lead to a breach of the claimant’s Convention rights. Mr Watkinson submitted that, in the present case, having decided that the issue of possible infringement of the claimants’ human rights was a relevant issue, the Secretary of State should have decided whether, on the facts, execution of the compulsory purchase powers by the council would constitute an infringement of the claimants’ Article 8 rights. He could have decided that it would have done, or that it would not have done, or he could have decided that he could not say so until a later date, when the position was clearer, in which case he could have adjourned or postponed confirmation of the CPO in accordance with his powers under section 245(2)(a) of the 1990 Act. For those reasons, Mr Watkinson submitted that the Secretary of State had failed to determine an issue that he had identified as being relevant to his decision, and that the order should therefore be quashed in its application to the plots owned by the claimants.
[21] I am afraid that I am unable to accept those submissions. The Secretary of State had come to a clear conclusion, agreeing with his inspector that confirmation of the CPO would not violate the claimants’ Article 8 rights. That is manifest from the first two sentences of para 10 of the Secretary of State’s interim decision. It was not strictly necessary for him to go on and consider whether the execution of the CPO powers by the council at some time in the future might constitute an infringement of the claimants’ Article 8 rights. It would be strange if a decision, perfectly validly taken, to confirm the CPO, having concluded that to do so would not violate the claimants’ Article 8 rights, should nevertheless be quashed on account of an alleged failure to decide something else that was, in any event, not necessary to decide for the purposes of confirming the order.
[22] In my view, by requiring the council’s written undertaking, the Secretary of State was simply doing the best he could in the circumstances to ensure that there would not be an infringement of the claimants’ Article 8 rights in the future if and when the council came to execute the confirmed compulsory purchase powers. I do not see how the Secretary of State could possibly decide, when confirming the CPO, whether there would be an infringement of the claimants’ rights if and when the council subsequently decided, at some uncertain time in the future, to execute the CPO powers. It would involve impossible and undesirable speculation as to a number of factors, including the availability of alternative sites at the time and the attempts made by the council to find alternative sites.
[23] Mr Watkinson accepted that it would involve an element of speculation, but he maintained that that was the task that the Secretary of State had set himself by deciding to consider possible infringement of the claimants’ Article 8 rights upon execution of the CPO by the council. I do not agree. Nor do I accept that Britton, relied upon by Mr Watkinson, is relevant to the circumstances of this case. The issue there was whether the Secretary of State should consider whether the Convention was breached when upholding an enforcement notice. That is wholly different from speculation about possible infringement of Article 8 rights by the council, at some uncertain time in the future, when deciding whether to confirm a compulsory purchase order.
[24] In my view, the Secretary of State, having decided to involve himself in this aspect of the matter, did no more than he could reasonably have been expected to do. He provided such a safeguard as he considered appropriate in the circumstances by securing the written undertaking from the council. He could have postponed consideration of confirmation of the CPO under section 245(2) of the 1990 Act until the issue of alternative sites was clearer, but it was a discretionary decision, and the Secretary of State was perfectly entitled to consider that the council’s undertaking to delay execution of the CPO for up to six months, and to adopt a constructive approach in seeking a new site for the claimants, was a reasonable way of dealing with the matter. I do not consider that there was any error of law by the Secretary of State in the way in which he considered the claimants’ Article 8 rights when deciding to confirm the CPO.
[25] This application must therefore be dismissed.
Claim dismissed.
