Carlos Burgos v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 10 October 2019 |
| Neutral Citation | [2019] EWHC 2792 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 October 2019 |
| Docket Number | No. CO/1428/2019 |
[2019] EWHC 2792 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Jay
No. CO/1428/2019
and
Mr M Willers QC, Mr T Baldwin and Ms C Zapata Besso (instructed by Hodge Jones and Allen) appeared on behalf of the Claimants.
Mr R Honey (instructed by the Government Legal Department) appeared on behalf of the Defendant.
Mr T Corner QC and Mr A Byass (instructed by the London Borough of Haringey) appeared on behalf of the Interested Party.
This is an application brought as of right under section 23 of the Acquisition of Land Act 1981 for an order that the decision taken on 23 January 2019 to confirm the London Borough of Haringey (Wards Corner Regeneration Project) Compulsory Purchase Order (“the Wards Corner CPO”) be quashed.
The Wards Corner CPO authorised the compulsory purchase of lands comprising the street block enclosed by Tottenham High Road, Seven Sisters Road, West Green Road and Suffield Road and includes various residential accommodation and the buildings which formerly housed the Wards departmental store and currently house the Seven Sisters Market (“the market”).
The market was established in the 1980s and now possesses a predominantly Latin American character emulating, on my understanding, a traditional market located near Medellín in Colombia. The first claimant is a pensioner and spokesperson for the market traders. The second claimant is a market trader and a director of Seven Sisters Market Traders Association Limited. Both gave evidence to the Wards Corner CPO public local inquiry. I will proceed on the basis that the claimants represent the interests of the market traders as a whole.
The Wards Corner CPO was made by the London Borough of Haringey (“the interested party”) on 14 September 2016. It is accompanied by a section 106 agreement dated 11 July 2012 and a deed of variation dated 25 July 2017. A public local inquiry took place with oral hearings encompassing a ten-day period in July 2017 before the planning inspector, Mr John Felgate. He received copious written and oral evidence, as well as detailed submissions on that evidence, matters of planning judgment and the law. Mr Felgate's report upheld the Wards Corner CPO with minor, immaterial modifications in January 2018. References to paragraph numbers in the inspector's report will be referred to hereinafter using the prefix “IR”.
By letter dated 23 January 2019, the defendant decided to confirm the Wards Corner CPO with the modifications suggested by the inspector. References to paragraph numbers in the defendant's decision letter will be referred to hereinafter using the prefix “DL”. In formal terms, it is this decision letter which is the focus of the present application under section 23 of the 1981 Act, being in the nature of a statutory judicial review. The Wards Corner CPO was formally made by the interested party on 27 February 2019.
The claim form advances six grounds of challenge, but at the start of his oral argument Mr Mark Willers QC – correctly, in my judgment – boiled his clients' case down to the first. My preliminary view had been (confirmed by Mr Willers's considered view) that grounds 2 to 6 could not succeed on a freestanding basis, although they were relevant to the court's approach to this application insofar as issues of discretion and materiality arose. I should add that the claimants take issue with many aspects of the inspector's report, and, consequently, the defendant's decision, but no doubt recognise on advice that the ambit of section 23 is restricted.
Before identifying the claimants' primary ground of challenge, I need to sketch out some essential factual background insofar as it is genuinely material to that ground. The defendant has for approximately 15 years now been intent to redevelop the market, and a number of local policies have been directed to that end. DL10 identified the key policy consideration germane to the Wards Corner CPO as policy SS5 of the Tottenham Area Action Plan adopted in 2017. This policy envisages the re-provision of the existing market on site, a temporary market during construction and a range of small and affordable market units suitable for independent traders.
The first planning permission granted in favour of Grainger (Seven Sisters) Limited (“Grainger”) was quashed by the Court of Appeal in 2010, and on 11 July 2012 the interested party and Grainger entered into a section 106 agreement, the provisions of which were correctly summarised by the inspector at IR39. Insofar as is germane for present purposes, Grainger was required to use reasonable endeavours to enter into a lease with a market operator for the provision of the new market. Existing traders are entitled to be offered a lease or licence in the new market and a temporary market is to be established, with existing traders to be offered a stall in it with a three-month rent-free period. Once the refurbishment is complete, the temporary market will come to an end and the traders will move back.
As I have said, a deed of variation was executed on 25 July 2017. Its provisions were summarised more or less correctly, save in one important respect, at IR40. In relation to the temporary market – which, I should add, will be located on land opposite the existing site – there will be a licence-free period of three months and then fees which would range from £35 to £80 per square foot depending on location within the market and other prescribed factors. The same licence fee would apply to the new market, subject to an initial 30 per cent discount for the first 18 months. According to IR40, at the end of this 18-month period the licence fee will revert to the full fee until the end of month 30 and (this is the seventh bullet point) “thereafter the licence fees are increased by no more than 2% per annum.”
Looking at this in slightly more detail, and moving away from the terms of IR40, the current market fees, which have remained stable since 2015, range on average from between £60 and £64 per square foot. These figures are not accepted by the claimants, but I derive them from the expert report of Mr Gary Saunders, whose evidence was, I infer, accepted by the inspector on this issue. It is contemplated that the renovation works, and therefore the temporary market, will last for approximately 30 months. 15 months into this period (including the licence-free period of three months), the stipulated licence fee will suffer an increase of 2 per cent and the same will apply a year later. As for the new market, the 30 per cent discount applies for 18 months and a 2 per cent uplift applies 12 months thereafter.
There is an element of confusion as to how the 2 per cent uplift is supposed to operate in connection with the new market, inasmuch as 18 months plus 12 months equals the 30-month period I have previously mentioned. But this matters not for present purposes, save to provide a possible explanation for the seventh bullet point in IR40.
The true position pace that bullet point is that the beneficial regime, as I choose to describe it, will last for approximately five years, being composed of one period of approximately 30 months and another of exactly 30 months, and that the 2 per cent uplift will apply only during the currency of that period. At the end of this regime, the annual uplifts will not be at 2 per cent but the following provision in schedule 2 to the deed of variation will be applicable:
“(d) An obligation to set licence fees in the new market area at a level that is consistent with the Council's policy objective to attract and promote local independent traders.”
This means that the market operator will, subject to the foregoing constraint, apply market rents. These will be determined no doubt with reference to two factors: namely, comparable licence fees in the London area generally (Mr Saunders has given evidence about these); and, secondly, what the market will bear in the Tottenham area, given the need to conserve this particular market as a going concern and the interested party's policy objective to attract and promote local independent traders.
In the light of the above, it is plain that the seventh bullet point in IR40 contains a solecism. This provides the springboard, but only the springboard, for the claimants' first ground. There were a number of issues which the inspector was required to determine, and for present purposes I may summarise these very briefly as follows. First, whether the Wards Corner CPO meshed with the interested party's general regeneration strategy. The inspector found that it did (see IR295). Secondly, whether the Wards Corner CPO contributed to economic, social and environmental well-being. This...
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