Belfields Ltd v Nextdom (Bootle) Ltd - and - David Powell Third and Secretary of State for Communities and Local Government and Sefton Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Sir Paul Kennedy |
| Judgment Date | 30 April 2008 |
| Neutral Citation | [2008] EWCA Civ 582 |
| Date | 30 April 2008 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: C1/2008/0041 |
[2008] EWCA Civ 582
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR GEORGE BARTLETT QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Paul Kennedy
Case Nos: C1/2008/0041
C1/2008/0100
Mr J Barrett (instructed by Messrs Belfields) appeared on behalf of the First Appellant.
Mr J Hunter (instructed by Messrs Planning and Law) appeared on behalf of the Second Appellant.
Mr P Whale (instructed by Messrs Eversheds) appeared on behalf of the Respondents.
These are two renewed applications for permission to appeal from a reserved decision of Mr George Bartlett QC sitting as a Deputy High Court Judge in the administrative court, who on 21 December 2007 dismissed the applications of Belfields Limited, Nextdom (Bootle) Limited and David Powell for an order to quash a compulsory purchase order made by Sefton Metropolitan Borough Council in relation to 10.2 hectares of land, mainly disused industrial land and terraced housing in Bootle.
The three applicants were owners of land affected by the compulsory purchase order. They objected to it and a public inquiry was held between July and November 2006. The Secretary of State then made her decision, substantially confirming the compulsory purchase order, and at that point the three applicants applied under section 23 of the Acquisition of Land Act 1981 to quash the compulsory purchase order as it affects their land. That section entitles the person aggrieved by a compulsory purchase order to apply to the High Court to question its validity. Before the Deputy Judge the applications failed; and now two of the three original applicants, namely Belfields and Nextdom, seek permission to appeal.
When he dealt with the matter on paper on 14 February 2008 Sir John Chadwick refused both applications for permission to appeal. He dealt with the matter on the basis that an application under section 23 of the 1981 Act is not for the purposes of CPR 52.13, a first appeal, so the present applicants do not have to satisfy the more stringent test set out in CPR 52.13 paragraph 2. But Sir John left it open to the Secretary of State to argue the contrary if so advised. The Secretary of State is, as I understand it, aware of today's proceedings and has chosen not to take part.
Sefton Metropolitan Borough Council has an interest in today's proceedings and has been represented here by Mr Whale. It has a particular interest, because if permission to appeal is granted there must almost inevitably be a stay of the working envisaged by the local authority to implement the compulsory purchase order, so May LJ recently granted Sefton permission to appear and to take part.
Because of the history of this matter which I have just outlined, and because so far as can be ascertained there has been no decision of this court to date as to whether an application under section 23 of the 1981 Act should be regarded for the purposes of CPR 52.13 as a first appeal, I propose to adopt the same approach as Sir John Chadwick and deal with these renewed applications as though I were dealing with first appeals. But of course there is still a significant hurdle for the applicants to cross. I can only grant permission if in my judgment the contemplated appeal has a real prospect of success or there is some other compelling reason why the appeal should be heard. Although there are two separate applicants, they both seek permission to appeal against the same decision of the Deputy Judge and there is a degree of overlap, as everyone realises, detectable in the grounds of appeal. Belfields have submitted three grounds of appeal: the first deals with what can be called the the Mell Inn point; the second with the proper approach to be taken in law to the confirmation of a compulsory purchase order; and the third attacks the adequacy of the reasons given.
Nextdom's second ground of appeal is in substance the same as the second of Belfields' grounds of appeal, but Nextdom's first and third grounds of appeal are somewhat different. The first challenges the approach adopted to Nextdom's ability to redevelop its own land without a compulsory purchase order, and the third relates to the overarching development agreement which is said to have been an unlawful fetter when deciding whether or not to make a compulsory purchase order.
Because of the overlap, I propose to look at the grounds of appeal by dealing first with the three Belfield grounds and then with the remaining Nextdom grounds, so I start with what can be described as the Mell Inn point.
The Mell Inn is to the west of Hawthorne Road as is the tannery site owned by Nextdom. To the east of Hawthorne Road is the Penpoll estate owned by Belfields. It was found that there is a continuing need for a facility such as that provided by the Mell Inn but it could be relocated on Belfields' land. Belfields complain that it was at least in part in order to provide a relocation site for the Mell Inn that their land was included in the compulsory purchase order — that was the case which was advanced by the local authority and by the Secretary of State in the court below — and that the judge was in error to decide that finding a relocation site for the Mell Inn played no significant part in the decision as to whether or not the Penpoll site should be acquired.
The Deputy Judge was well aware of the argument which is now...
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