R Archway Sheet Metal Works Josif Family Trustees v Secretary of State for Communities & Local Government (First Defendant) London Borough Haringey (Second Defendant) Tottenham Hotspur Ltd (Third Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 20 February 2015 |
| Neutral Citation | [2015] EWHC 794 (Admin) |
| Docket Number | CO/4167/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 February 2015 |
[2015] EWHC 794 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Dove
CO/4167/2014
Mr Christopher Lockhart-Mummery QC (instructed by Paul Winter & Co) appeared on behalf of the Applicants
Mr Stephen Whale (instructed by Treasury Solicitor) appeared on behalf of the First Defendant
Mr Timothy Corner QC (instructed by London Borough Haringey) appeared on behalf of the Second Defendant
Mr Christopher Katkowski QC (instructed by Herbert Smith Freehills) appeared on behalf of the Third Defendant
Introduction
The Northumberland Development Project is a major mixed use regeneration project in Tottenham. It was planned for delivery in three phases and for the purposes of these proceedings was originally granted planning permission on 20 September 2011. Phase 1 of the proposed project was the Northern Development, comprising a superstore, commercial space and parking. By the time of the main events in this case this element of the regeneration project was well under way and the land which was required for its completion was under the control of the relevant developers. Phase 2 of the project was a new 56,250-seater stadium and car parking. Detailed consent was granted for this element of the project. Phase 3, the Southern Development, which included housing and a college and/or health centre and/or health club, was granted planning permission in outline. Phases 2 and 3 of the project underlie the Compulsory Purchase Order ("CPO") which is under challenge in these proceedings.
The applicants own two plots of land contained within the CPO land. Plot 1 is used by them for storage and includes a residential flat. Plot 2 is used for the manufacture of kitchen equipment and metal fabrication.
The structure of this judgment is that, first, I shall deal with the relevant facts which are pertinent to the case. I shall then deal briefly with the grounds which are advanced by Mr Christopher Lockhart-Mummery QC, who appears on behalf of the applicants. I shall then turn to the law and finally to my conclusions in relation to the grounds which are raised.
The Facts
On 16 November 2010, prior to the grant of planning permission, the second defendant's cabinet received a report in relation to "in principle" support for a CPO in relation to the Project. At that time the third defendant was seeking to assemble the site for Phases 2 and 3. It was assembling the land because the stadium proposed was for its own purposes. The idea of the second defendant in seeking "in principle" support for a CPO was to underwrite these land assembly endeavours with the prospect of potential compulsory acquisition if agreement was not reached with the relevant landowners. It should be noted that at this time the third defendant was pursuing the possibility of relocating their football club to the Olympic Stadium.
The resolution which the second defendant adopted at the meeting so far as relevant was set out as follows:
"Resolved:
1 That approval be granted in principle to the use of Compulsory Purchase powers and in principle to acquire or appropriate the Site shown edged red on the draft plan in Appendix 2 …..
…..
5 That the above Resolutions be conditional upon:
• THFC using all their reasonable endeavours to assemble the development Site by agreement/private treaty by 31 March 2011; and.
• In the event that THFC are unable to assemble the Site by agreement/private treaty, by 31 March 2011 a further report be presented seeking authority to make a full and unconditional CPO for the Site and to acquire or appropriate the site for planning purposes so as to trigger the provisions of Section 237.
6 That a request to authorise a full unconditional CPO or use its appropriation powers under Section 237 for the Site be not considered unless the following pre-conditions are met by THFC:
a) THFC unequivocally states that it is staying in Tottenham and not pursuing any interest in moving to a stadium or site elsewhere;
b) The Council being satisfied that there is a legally binding delivery mechanism (a Section 106 Agreement) with THFC which ensures that there is a comprehensive redevelopment of the whole Site and that the new football stadium will be built on the Site and completed within a reasonable time period of any other development on the site such as the supermarket being occupied or opened for business.
c) The Council being satisfied that THFC has a viable business plan and funding strategy, together with a full and sufficient indemnity agreement and appropriate financial bond covering the costs of making and confirming any such CPO/Section 237 appropriation."
In February 2012 the second defendant received reports from independent consultants indicating that the development of the existing planning permission would not be viable. As a result, it was proposed that a separate and new Section 106 package should be considered which was less financially onerous. In particular the delivery of affordable homes, it was concluded, would have a serious impact upon the project's viability.
On 20 March 2012 the second defendant returned to the issue of the need to promote a CPO for the project. By then, planning permission had been granted and 90 per cent of the land required was under the control of the third defendant. At that time the third defendant had failed to secure its interest in the Olympic Stadium. The report identified the objectives and analysed the issues in the following way:
"1.3 The objectives for supporting the NDP project through the use of CPO powers are:
• To provide a focal point for the regeneration of Tottenham.
• To provide a catalyst for the long-term physical regeneration of Tottenham.
• To show tangible actions by the Council and THFC working in partnership, post the riots, to provide an opportunity to support the social, physical and economic well being of the area.
• To bring the vacant, under utilized land and buildings into use and development.
• To enable THFC to stay and invest within the Borough.
• To enable a comprehensive development and regeneration of the whole of the Northumberland Development Project Site to be achieved.
• To enable London as a whole to benefit from the regeneration.
• To maximize the benefits to the community and businesses within London as a whole and within the local area.
• To allow THFC to assemble the site to build the scheme.
…..
3 Recommendations
Cabinet is recommended to:
3.1 Agree that, as set out in the report at paragraph 5.8, the pre-conditions for compulsory
purchase set by Cabinet on 16 November 2010 have now been met by THFC.
3.2 Resolve to make a Compulsory Purchase Order to acquire all land and rights within the Site shown edged red on the plan in Appendix 1 for planning purposes pursuant to Section 226 of the Town and Country Planning Act 1990 (as amended), to enable
Tottenham Hotspur Football Club (THFC) to build its new football stadium in Tottenham along with associated development supporting regeneration.
…..
Other options considered.
4.1 Option A – Not to support the NDP Project with the use of Compulsory Purchase Powers.
4.2 The implications of this option are that THFC may not be able to acquire the land needed and therefore they will not be able to secure funding and build the new stadium and associated development and the objectives identified in paragraph 1.3 will not be achieved.
4.3 Option B – Deferring the decision to use Compulsory Purchase powers to allow further
time for a negotiated settlement with the parties.
4.4 In consultation with the Council, THFC has been actively negotiating with landowners for many years, and since the Council's 16th November 2010 'in principle' resolution these efforts have intensified in order to see if an agreement can be reached to acquire by private treaty. In the majority of cases, this has been successful, with the Club
owning over 90% of the site. One remaining landowner has been unable to agree terms with THFC. THFC have shown satisfactory evidence to Council Officers that a CPO is now needed as a matter of last resort and deferring any decision will adversely impact on the ability to secure funding and delivery of the scheme."
It is important to note that this report was accompanied by a draft, prepared by officers, of the Statement of Reasons which would accompany the CPO which set out at great length the basis upon which the compulsory purchase powers were proposed to be exercised.
The report returned to the question of the pre-conditions which had been set at the earlier meeting I have alluded to above. In the officers' report they concluded that those conditions had been discharged as follows:
"5.8 Officers consider that these pre-conditions have now been satisfied for the following reasons:
a) THFC has stated unequivocally that it is staying in Tottenham and intends to operate from the new stadium and is not pursuing any interest in moving to a stadium or site elsewhere and will not do so prior to their occupation and use of the new stadium; see statement from the club attached as Appendix 2.
b) There is a legally binding delivery mechanism via the S106 Agreement with THFC agreed by Planning Sub Committee on 13th February 2012 which ensures so far as possible that there is a comprehensive redevelopment of the...
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