Compulsory purchase order (CPO) — Land for 2012 Olympic games — CPO land including gypsy sites occupied by claimants — Inspector recommending that confirmation of CPO be postponed until alternative gypsy sites secured — Defendant deciding to confirm CPO immediately in light of urgency of project — Whether unjustified interference with claimants’ Article 8 rights — Claim dismissed
The claimants were gypsies who lived with their children on authorised gypsy sites. In 2005, the London Development Agency (LDA) made a compulsory purchase order (CPO) in respect of a large area of land that encompassed the gypsy sites as part of plans to provide facilities for the 2012 Olympic games and the associated regeneration of the area. The claimants and others objected to the CPO. Following a public inquiry, the defendant’s inspector recommended that the CPO should not be confirmed until the defendant was satisfied that suitable relocation sites would be available to meet the reasonable needs of the gypsies and travellers who would be displaced. At the time of the inquiry, no such sites had been secured. The defendant declined to follow that recommendation and decided to confirm the CPO. In his decision, he expressed the view that the scale and extent of the physical infrastructure required for the games necessitated control of the major part of the CPO lands by mid-2007, and that, given the urgency, timing and importance of the development, the case for confirming the CPO immediately was compelling. Following the defendant’s decision, the local planning authority gave planning permission for new gypsy sites.
The claimants brought proceedings, under section 23 of the Acquisition of Land Act 1981, to quash the defendant’s decision to confirm the CPO. It was agreed that the lawfulness of the decision fell to be considered against the circumstances that existed at the time it was made. The claimants contended that the decision was an unlawful interference with their right to respect for their private and family life under Article 8 of the European Convention on Human Rights. They submitted that: (i) such interference would not be proportionate unless the measure in question was the least intrusive measure available to the decision maker; and (ii) the defendant had failed to appreciate that their Article 8 right extended to a right for respect for their traditional way of life.
Held: The claim was dismissed.
(1) A decision to confirm a CPO could be proportionate even though it did not amount to the least intrusive interference with a landowner’s Article 8 rights: Pascoe v First Secretary of State [2006] EWHC 2356 (Admin); 2006] 4 All ER 1240 applied. The context was all-important. In circumstances where all parties accepted that there was an overwhelming case for a CPO, and the issue of proportionality arose only in relation to the timing of that CPO and whether its confirmation should await the provision of alternative sites, the defendant had not been obliged to demonstrate that the measure that he proposed to take was the least intrusive available. Moreover, on the facts of the case, the decision to confirm the CPO was the least intrusive measure available. Realistically, it was the only available means of ensuring that a substantial proportion of the CPO lands was under the control of the LDA by mid-2007. Should that not be achieved, the development would be put at risk. In those circumstances, the defendant had established that his decision to confirm the CPO was proportionate and the interference with the claimants’ Article 8 rights was justified: R (on the application of Begum) v Denbigh High School Governors [2006] UKHL 15; [2007] 1 AC 100 applied.
(2) Although the defendant had not expressly referred in his decision letter to the claimants’ right to respect for their traditional way of life, it could not be concluded that he had not appreciated or had regard to the extent of their Article 8 rights in circumstances where the defendant had clearly been aware of, and had specifically referred to, recent planning policy guidance relating to gypsies that set out the objective of recognising, protecting and facilitating their traditional travelling way of life.
Marc Willers (instructed by The Community Law Partnership, of Birmingham) appeared for the claimants; Richard Drabble QC and James Maurici (instructed by the Treasury Solicitor) appeared for the defendant; Guy Roots QC and Richard Glover (instructed by Eversheds LLP) appeared for the interested party, the London Development Agency.
Sally Dobson, barrister
