Margate Town Centre Regeneration Company Ltd and Others v Secretary of State for Communities and Local Government and Another and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Sir David Keene,Lord Justice Goldring |
| Judgment Date | 08 October 2013 |
| Neutral Citation | [2013] EWCA Civ 1178 |
| Docket Number | Case No: C1/2013/1376/QBACF |
| Court | Court of Appeal (Civil Division) |
| Date | 08 October 2013 |
[2013] EWCA Civ 1178
Lord Justice Goldring
Lord Justice Elias
And
Sir David Keene
Case No: C1/2013/1376/QBACF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
HIS HONOUR JUDGE SYCAMORE
CLAIM NO 11203/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Richard Glover QC (instructed by Fladgate LLP) for the Appellants
Mr David Forsdick (instructed by Treasury Solicitors,) for the First Respondents and Mr Martin Edwards (instructed by Trowers & Hamlins LLP) for the Second Respondent
Hearing date: 25 September 2013
Approved Judgment
This is an appeal against the judgment of HHJ Sycamore sitting as a judge of the High Court. The judge dismissed the Claimants' application pursuant to section 23 of the Acquisition of Land Act 1981 ("the 1981 Act") to quash the Compulsory Purchase Order ("CPO") for the acquisition of certain land, known as Dreamland, in Margate. The Secretary of State had followed the recommendations of an inspector following a 14 day inquiry.
Since the application for permission to appeal was made, the Second Defendant, Thanet District Council ("the Council") has made two General Vesting Declarations. The latter was made on 2 August 2013. Their effect is that the land which is the subject of this appeal is now vested in the Second Defendant. However, it is accepted that these declarations could and should be unravelled if this appeal succeeds and they do not affect the standing of the appellants to pursue the appeal.
The Dreamland site was developed as an amusement park in 1919 and in its heyday was an important attraction in Margate, then a popular and successful seaside town. The site included a scenic railway, the oldest timber rollercoaster in the United Kingdom, and an art deco cinema. These are both Grade 2* buildings. Sadly, like many other seaside towns, Margate has lost much of its former glory and is now one of the most deprived areas in South East England. The park declined in popularity and was closed in 2002. For a few years thereafter travelling fairground operators leased the site but even their activities ceased by 2006.
In 2005 the whole site was purchased by Margate Town Centre Regeneration Company Limited ("MTCRC"), the first appellant in this appeal. That company has since sold parts of the site to subsidiary companies; the cinema was transferred to Margate Cinema Limited and the scenic railway to Margate Ride Limited. Following the High Court hearing, but before any appeal was lodged, Margate Cinema Ltd sold its interest to Dreamland Leisure Cinema Limited and they have been substituted as appellants in this appeal. The other appellants have charges over one or more of the freehold estates.
It is universally recognised that Margate is in urgent need of regeneration. A regeneration of the amusement park on the Dreamland site is one of two key features in that regeneration project, the other being the (now completed) Turner Art Gallery. The proposed regeneration of Dreamland is reflected in policy T8 of the 2006 Thanet Local Plan.
The site and Policy T8.
Policy T8, insofar as is material, is as follows:
"1. Proposals that seek to extend, upgrade or improve the attractiveness of Dreamland as an amusement park will be permitted. Development that would lead to a reduction in the attractiveness, leisure or tourist potential will be resisted.
Exceptionally, development of a limited part of the site may be accepted as a part of a comprehensive scheme for the upgrading and improvement of the amusement park. The scheme will be required to demonstrate that the future viability of the amusement park can be assured and the Council will negotiate a legal agreement to ensure that the proposed development and the agreed investment in the amusement park are carried out in parallel.
2. In the event that evidence, in the form of an independent professional assessment, is submitted (and accepted by the Council) as demonstrating that it is not economically viable to operate an amusement park on the whole or majority of the site in the foreseeable future, then proposals for redevelopment may be accepted subject to:
i Proposals demonstrating that such redevelopment would sustainably contribute to the economic wellbeing and rejuvenation of Margate, and being supported by a business plan demonstrating that such proposals are economically viable;
ii The predominant use of the site being for leisure purposes. (An element of mixed residential would be appropriate but only of such a scale needed to support delivery of the comprehensive vision for the site);"
This policy therefore envisages the regeneration of the whole site but allows for the possibility of redevelopment on part of the site, including mixed residential development, provided that it is consistent with, and does not undermine, the attractiveness and leisure and tourist potential of the amusement park.
Historically the site itself has comprised three different areas. First, there is the listed Dreamland cinema and associated buildings which fronts Marine Terrace. Second, behind that is the area with the remains of the scenic railway (which was subject to an arson attack in 2008) and other dilapidated but listed structures known as menagerie cages. These two parts of the site were identified in the inquiry as plots 1 to 4. Third, to the east of that area lie two open areas which are tarmac surfaced. One is used as a car park and the other is vacant. These two areas were identified as areas or plots 5 and 6.
Various proposals for developing the site had been under consideration by the Council before it finally settled on a proposed scheme which, for its implementation, required the making of the CPO.
Initially, the Council was in active discussions with the MTCRC about developing the site. Those discussions were premised on the assumption that there would be some residential development in the areas 5 and 6 in accordance with part 2 of policy T8 which would help fund the park. It was envisaged that some £4 million would be provided by MTCRC and that other funds would be secured from other grants, namely £4 million from the Government's Sea Change Programme ("SCP"), a scheme which funds the regeneration of seaside resorts; and £4.4 million from the Heritage Lottery Fund ("HLF"). Whilst those negotiations were still in place, a firm called Locum Business Consulting were asked to provide a business plan to be used as a basis for making grant applications. That plan concluded that the proposed scheme was viable. However, subsequent negotiations between the Council and MTCRC broke down, principally over the nature, size and character of the proposed residential development in areas 5 and 6.
The Council resolved to adopt a different funding package, which would not rely upon the £4 million from MTCRC. This was developed in partnership with Dreamland Trust, a not for profit company which was evolved out of a lobby group which sought to regenerate the park. The Council authorised officers compulsorily to purchase the site if negotiations ultimately failed, as indeed they did.
The new scheme differed in certain respects from the original proposals and also it was less expensive (costing some £10.4 million, as opposed to £12.4 million). It was envisaged that the Council would borrow monies in place of the funding from MTCRC which would not, on the basis of this new proposed scheme, be forthcoming. This new scheme was then reviewed by Brittan McGrath, also expert consultants in the field, and they produced a second business plan. This focused on the part of the site for which HAP funding was sought. This included the restoration of the scenic railway, stabilising the cinema complex, providing the menagerie cages and restoring the classic amusement rides in a landscaped setting thereby providing the centre piece, the Heritage Amusement Park ("HAP"). This first phase only directly involved areas 1 to 4.
A third business plan was prepared by Mr Michael Collins. This related to an alternative proposal for the HAP from the appellants. It envisaged the regeneration being achieved together with some residential development in areas 5 and 6 rather in the way that the original scheme, rejected by the Council, had done. He concluded that a viable amusement park could be developed but it would need to be subsidised for ten years and that subsidy would come from the proposed residential development in areas 5 and 6. That proposal was one which was subsequently actively considered by the Inspector. Had it been acceptable, it would have secured the regeneration without the need for a CPO at all. However, the inspector did not accept it and indeed was highly critical of it.
The CPO was made on 27 May 2011 in relation to the whole site and this was submitted to the Secretary of State for approval. The appellants lodged objections and an inquiry was set up. The Inspector heard evidence over some 14 days in 2012. He recommended that the CPO be confirmed without modification, and the Secretary of State followed the recommendation. He was satisfied that...
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