Margate Town Centre Regeneration Company Ltd and Others v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Sycamore |
| Judgment Date | 02 May 2013 |
| Neutral Citation | [2013] EWHC 973 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 May 2013 |
| Docket Number | Case No: CO/11203/2012 |
[2013] EWHC 973 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge Street West
Manchester M60 9DJ
His Honour Judge Sycamore
(Sitting as a Judge of the High Court)
Case No: CO/11203/2012
Richard Glover QC (instructed by Fladgate LLP) for the Claimants
David Forsdick (instructed by the Treasury Solicitor) for the 1 st Defendant
Martin Edwards (instructed by Trowers and Hamlins LLP) for the 2 nd Defendant
Hearing dates: 20 & 21 March 2013
Approved Judgment
INTRODUCTION
The town of Margate in East Kent was for many years a very successful seaside resort and was especially popular with holiday makers from London and the surrounding areas but like many British seaside towns has seen a decline in its fortunes in recent years. It is now said to be one of the most deprived areas in the South East of England. That Margate requires regeneration was common ground between the parties in this case and is recognised in the local plan for the area, policy T8 of the 2006 Thanet Local Plan ("the Plan"). It was also common ground that a restored amusement park on the Dreamland site ("the Site") is an important part of that regeneration. The regeneration of the town has also included the Turner Contemporary Gallery which opened in 2011.
Dreamland is the Site of the former amusement park in Margate and includes the Dreamland Cinema and a listed scenic railway, the oldest timber rollercoaster in the United Kingdom. The Site was developed in 1919 as an amusement park based upon the Luna and Dreamland Parks at Coney Island, New York. The fortunes of Dreamland fell into decline in the late 1990's and it closed altogether at the end of 200Between 2003 and 2006 various travelling fairground operators leased the Site and some supplemented the existing dwindling number of rides with their own rides. The whole site was purchased by Margate Town Centre Regeneration Company Limited ("MTCRC") in 2005. In 2006, by which time all of the other rides had been sold off, the Scenic Railway operated for the last time.
The second defendant, Thanet District Council, made a compulsory purchase order ("the Order") for the acquisition of the land at Dreamland initially on the 27 May 2011. By this time the Cinema building on the Site had been transferred, in 2010, by MTCRC to a new company Margate Cinema Limited and the Scenic Railway to Margate Ride Limited. Both companies are subsidiaries of MTCRC with the same registered office and directors in common. The Order was submitted to the first defendant, the Secretary of State, for confirmation. The Order was for the whole site, all of which is subject to the Plan. In the light of objections raised by the claimants the first defendant arranged for an inquiry to be held. This took place in 2012 on the 10 to 13, 17 to 20 January, 15 to 17 February, 6 to 9 March and 26 March. The Inspector reported to the first defendant on the 23 July 2012. The first defendant accepted the Inspector's recommendation by a decision letter ("DL") of 16 August 2012 by which he confirmed the Order. The second defendant published notice of confirmation of the Order on 12 September 2012.
These proceedings are by way of an application under Section 23 of the Acquisition of Land Act 1981 ("the Act") which, so far as material, provides:
(1) If any person aggrieved by a compulsory purchase order desires to question the validity thereof, or of any provision contained therein, on the ground that the authorisation of a compulsory purchase thereby granted is not empowered to be granted under this Act or any such enactment as is mentioned in Section 1of this Act, he may make an application to the High Court.
(2) If any person aggrieved by –
a) a compulsory purchase order, or
b) a certificate under part III of, or Schedule 3 to this Act.
desires to question the validity thereof on the ground that any relevant requirement has not been complied with in relation to the order or certificate he may make an application to the High Court.
(3) In subsection (2) above "relevant requirement" means –
a) any requirement of this Act, or of any regulation under section 7(2) above, or
b) any requirement of the [Tribunals and Inquiries Act 1992] or of any Rules made, or having effect as if made, under that Act.
(4) An application to the High Court under this section shall be made within six weeks ….
It is common ground that the claimants are "persons aggrieved" by the Order and that the various complaints upon which this claim is founded are ones which can properly form the basis of a Section 23 application.
Section 24 of the Act provides:
(1) On an application under section 23 above the court may by interim order suspend the operation of the compulsory purchase order or any provision contained therein, or of the certificate, either generally or in so far as it affects any property of the applicant, until the final determination of the proceedings.
(2) If on the application the court is satisfied that –
(a) The authorisation granted by the compulsory purchase order is not empowered to be granted under this Act or any such enactment as is mentioned in Section 1(1) of this Act, or
(b) The interests of the applicant have been substantially prejudiced by any relevant requirement (as defined in section 23(3) above) not having been complied with,
the court may quash the compulsory purchase order or any provision contained therein, or the certificate, either generally or in so far as it affects any property of the applicant.
These proceedings were issued on 19 October 2012 and originally contained thirteen separate grounds. As Counsel for the claimants made clear in his skeleton argument the claimants did not pursue grounds 1, 2, 4 and 5. Ground 1 was concerned with an alleged non-compliance by the second defendant with the pre-condition in Section 226(1A) of the Town and Country Planning Act 1990 and grounds 2, 4 and 5 were concerned with the financial viability of the scheme.
On the 20 December 2012 Collins J, directed an expedited hearing and also granted the claimants' application for an interim order under Section 24(1) of the Act ordering that the Order be suspended pending the final determination of the claimants' claim at first instance.
THE LEGAL FRAMEWORK
The correct approach to considering a challenge to the confirmation of a compulsory purchase order was set out by Lord Denning M.R. in Ashbridge Investments Limited v Minister of Housing & Local Government [1965 ] 31 W.L.R.
"Seeing that that decision is entrusted to the Minister, we have to consider the power of the court to interfere with his decision. It is given in Schedule 4, paragraph 2. The Court can only interfere on the ground that the Minister has gone outside the powers of the Act or that any requirement of the Act has not been complied with. Under this section it seems to me that the Court can interfere with the Minister's decision if he has acted on no evidence; or if he has come to a conclusion to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa; or has otherwise gone wrong in law. It is identical with the position when the Court has power to interfere with the decision of a lower tribunal which has erred in point of law."
That a challenge under Section 23 of the Act is not an opportunity for a review of the merits of an Inspector's decision is well established. In R (Newsmith Stainless Limited) v the Secretary of State for the Environment Transport & the Regions [2001] EWHC Admin 74, a case involving a decision by an Inspector, Sullivan J, as he then was, said:
"6. An application under Section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse, is in principle, within the scope of a challenge under Section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a re-run of the arguments on the planning merits.
7. In any case, where an expert Tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the Site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.
8. Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will...
To continue reading
Request your trial