CPO under Transport Act to incorporate applicants’ bus station within major transport interchange – Whether ultra vires for depriving applicants of their ‘undertaking’ without agreement – Whether order calculated to inhibit competition – Whether Secretary of State for Transport properly satisfied as to financial ability of acquiring authority to implement purpose – Appeal dismissed
The applicants owned and operated a bus station standing on a 5,500m2 site in Barnsley. In 1992 the second respondent South Yorkshire Transport Executive (SYPTE), purporting to act under section 10 of the Transport Act 1968, made a CPO with a view to incorporating the site into a projected transport interchange which would extend to the railway station and be useable by the applicants and other public transport operators under unified control by the SYPTE. By a decision letter dated November 4 1994 the order was confirmed by the Secretary of State who accepted his inspector’s conclusion, reached after a public inquiry, that the public interest would be better served by the SYPTE proposals than by the alternative scheme urged by the applicants which would leave the site in their ownership and control.
Having unsuccessfully challenged the decision before Popplewell J, the applicants contended: (i) that the SYPTE had no power to make the CPO under the 1968 Act because the object of the order was not just land (which could be compulsorily acquired under section 10 (3)) but was part of the applicants’ undertaking which by section 10(1) could not be acquired without agreement ; (ii) that in making the CPO the SYPTE had breached its duty under section 9A(6) of that Act not to inhibit competition between public transport operators; and (iii) that the Secretary of State had misdirected himself when dealing with a material consideration, namely the ability of the SYPTE to finance the implementation of its scheme.
Held The appeal was dismissed.
1. The acquisition of land did not amount to an acquisition of an undertaking simply because it adversely affected the landowner’s business. It would have been otherwise if the SYPTE had sought to take the land as means of acquiring the undertaking but no such improper purpose had been alleged.
2. The new interchange would not put the applicants at a disadvantage vis a vis other operators, nor would the applicants (no longer operating a station in Barnsley) be competing in any sense with the SYPTE. The Secretary of State had correctly seen the the interchange as providing a ‘level playing field’.
3. While it was up to the acquiring authority to establish the lawfulness of the order (see Prest v Secretary of State for Wales (1982) 81 LGR 193) it was misleading to speak of onus of proof where a multitude of factors had to be taken into account (see R v Secretary of State for Transport, ex parte de Rothschild [1989] 1 All ER 933 at p938). Since the Secretary of State was entitled to assume that a public authority would not advance proposals without adequate resources, it was sufficient for his decision to record his satisfaction with the financial information submitted by the SYPTE at his invitation.
David Mole QC and Murziline Parchment (instructed by Oxley & Coward, of Rotherham) appeared for the applicants; David Elvin (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondent, SYPTE, did not appear and was not represented.
