James Joseph Horada (on Behalf of the Shepherd's Bush Market Tenants' Association) & Others v Secretary of State for Communities and Local Government and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Longmore,Lord Thomas of Cwmgiedd |
| Judgment Date | 18 March 2016 |
| Neutral Citation | [2016] EWCA Civ 169 |
| Docket Number | Case No: C1/2015/2785 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 March 2016 |
[2016] EWCA Civ 169
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD, Planning Court
Mr Justice Dove
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice of England and Wales
Lord Justice Longmore
and
Lord Justice Lewison
Case No: C1/2015/2785
David Wolfe QC (instructed by Leigh Day) for the Appellants
Mr Charles Banner (instructed by the Government Legal Department) for the 1 st Defendant; Rupert WarrenQC (instructed by Gowling Wlg (UK) Llp) for the interested party
Hearing date: 3 March 2016
Everyone agrees that Shepherd's Bush Market is in need of regeneration. It has been going since 1914 and is in need of serious upgrading. The market is part of the social fabric of the area, and provides a retail offer that differs from and is complementary to that offered by Westfield and other retail property in and around Shepherd's Bush. The character of the market is one of small independent traders providing a diverse mix of products in food, fashion and household, mainly to the local population. It provides a social function to the local community. It is ethnically diverse in its nature and offers the opportunity for independent businesses to trade in an affordable environment not found elsewhere in the area. Within the market there are 137 separate retail pitches, some housed in railway arches, some in shops and others in stalls occupying the central spine and eastern side of the market.
The importance of the market is recognised in the planning policies adopted by Hammersmith and Fulham LBC ("the Council"). Policy WCOA 3 states:
"Shepherds Bush Market and adjacent land
Regeneration of the market and other adjacent land to create a vibrant mixed use town centre development of small shops, market stalls, leisure uses, residential and possibly offices; in accordance with the Shepherds Bush Market Supplementary Planning Document. Development should encourage small independent retailers and accommodate existing market traders."
The planning framework accompanying this policy, which the Council adopted on 23 October 2013, recognised that any redevelopment scheme should repair and improve the market's physical fabric, expand the diversity of retail and:
"… crucially maintains existing traders and provides them with the security to ensure that the market can continue to operate without interruption and serve existing customers and communities."
In order to promote this planning policy on 30 March 2012 the Council granted outline planning permission for the phased redevelopment of the market as part of a mixed-use scheme. The overall development was described as:
"… phased redevelopment of Shepherd's Bush Market and adjoining land comprising the demolition of existing buildings, the refurbishment and enhancement of the market, and the construction of new buildings ranging from 2–9 storeys in height (plus basement) to provide up to 212 residential units (up to 27,977sqm); and up to 14,052sq.m of non-residential floorspace comprising up to 6,000sqm of market/retail floorspace (Class A1), up to 4,000sqm floorspace of Food and Drink Uses (Classes A3/A5), and up to 4,052sq.m of associated servicing facilities and ancillary uses; including provision of landscaping and amenity/public space; access and parking (up to 85 vehicular spaces), up to 457 cycle parking spaces and associated works."
The granted permission was subject to a number of conditions, of which the most important for present purposes were conditions 6 and 7. They said:
"6) Except in relation to the Drainage Works, no development shall commence until details of the Market Traders stalls and canopy design has been submitted to and approved in writing by the Local Planning Authority. The approved stalls and canopies shall be implemented before the stalls are occupied and shall be retained thereafter for the lifetime of the development.
7) No demolition or construction works shall commence until details of a market management plan have been submitted to and approved in writing by the Local Planning Authority. The market management plan will include, but is not limited to: timeline of the Drainage Works, operating hours, security, service charge, rent collection, tenant support, marketing and promotions. The contents of the market management plan are to be agreed with the Local Planning Authority prior to the lodgement of the application to discharge this condition. The development shall be carried [sic] and operated out in accordance with the approved details."
In addition the developer, Orion Shepherd's Bush Ltd ("Orion"), entered into a section 106 agreement with the Council. The most important part of that agreement for the purposes of this appeal was Schedule 15. Paragraph 2 required the owner (which for practical purposes can be taken to be Orion) to consult with traders to establish a Shepherds Bush Market Management Steering Group; and to "have regard" to the views of that group. Paragraph 4 imposed a rent freeze for the duration of the works. Paragraph 6 limited increases in service charge during that same period to 6 per cent per annum. Paragraph 7 required Orion, following consultation with the Shepherds Bush Market Management Steering Group, to adopt a lettings policy. The objects of the letting policy were to promote:
"7.1.1. the diverse nature and offerings within the market, including the uses and mix of business, to include specialisms in food, fabrics, furnishings, fashion and household goods within the market and that it remains a location for local and/or independent businesses and the goods on offer are appropriate to the market customer;
7.1.2. the regeneration of the market and improve its economic sustainability;
7.1.3. the nature and unique character of the market and that the market remains a location for local and or independent businesses by way of:
7.1.3.1. the retention of existing traders;
7.1.3.2. the setting [of] criteria for attracting and selecting new local independent traders; and
7.1.3.3. the setting of rent and service charges levels on lease renewals and new leases will be affordable for small local businesses (entry-level)…"
Paragraphs 7.3 and 7.4 provided:
"7.3. The Owner shall provide no less than twenty-five (25) stalls within Shepherds Bush Market to be let or licensed on terms and conditions conducive to attracting local small-to-medium-enterprises and entrepreneurs, including those from ethnic communities seeking low-cost entry to business start-ups, having regard to the Shepherds Bush Market Lettings Policy
7.4. The Shepherds Bush Market Lettings Policy shall provide for a proportion of available units to be let on shorter term/periodic tenancies or licenses and at rents or fees designed to provide an opportunity for local small-to-medium-enterprises and entrepreneurs including those from ethnic communities seeking low-cost entry to business start-up."
Paragraph 8 required the setting up of a business continuity fund to meet claims for losses suffered as a result of the works.
In 2013 the Council made the London Borough of Hammersmith and Fulham (Shepherds Bush Market Area) Compulsory Purchase Order 2013 ("the CPO"). The order was made under the power given by section 226 (1) (a) of the Town and Country Planning Act 1990 to facilitate the development or redevelopment of land. Section 226 (1A) provides:
"But a local authority must not exercise the power under paragraph (a) of subsection (1) unless they think that the development, re-development or improvement is likely to contribute to the achievement of any one or more of the following objects—
(a) the promotion or improvement of the economic well-being of their area;
(b) the promotion or improvement of the social well-being of their area;
(c) the promotion or improvement of the environmental well-being of their area."
The purpose of the CPO was described thus:
"The CPO is jointly promoted by the Council and the developer. The Council has made the Order to regenerate the area of Shepherds Bush Market and to secure its future in the long-term. The scheme is intended to facilitate regeneration of the market through a mixed-use development designed to "improve and expand the [Market's] trading space, increase the variety within the market area, and establish a long-term management plan to promote and sustain the market." The intention is to re-establish the market as a popular, sustainable and attractive London street market and a successful component of the Shepherds Bush Town Centre, which is coming under increasing competition from other developments within the Borough."
Following over 200 objections to the CPO a planning inspector (Ms Ava Wood) held a public inquiry over the course of 10 days in 2013. The purpose of the inquiry was for her to make recommendations to the Secretary of State whether to confirm the CPO or not. It is long-standing policy (in order to secure compliance with the law) that a compulsory purchase order should only be made where there is a compelling case in the public interest. The overall question for the inspector (and for the Secretary of State) was whether that compelling case had been made out.
In paragraph [12.2] of her report the inspector set out that test and said that she proposed to address it under a number of heads:
i) Does the purpose for which the land is to be acquired fit in with the adopted planning framework for the area? She...
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