R Archway Sheet Metal Works Ltd v Secretary of State for Communities and Local Government and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Gilbart |
| Judgment Date | 11 December 2014 |
| Neutral Citation | [2014] EWHC 4450 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 December 2014 |
| Docket Number | CO/4167/2014 |
[2014] EWHC 4450 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Gilbart
CO/4167/2014
Mr C Lockhart-Mummery QC appeared on behalf of the Claimant
The First Defentant did not appear and was not represented
Mr T Corner QC appeared on behalf of the Second Defendant
Mr C Katkowski QC appeared on behalf of the Third Defendant
This is an application under CPR rule 31.12 for specific disclosure. The application of 24 November sought an order that the second and third defendants, that is London Borough of Haringey and Tottenham Hotspur Limited, by their proper officers, consultants and agents do within five working days of the date of the order carry out a reasonable search to locate all of the documents referred to in the schedule of the order and before 4pm on the fifth day make and serve on the claimant a list and disclosure statement stating whether any of the documents are now in their control and so on. It also dealt with inspection.
This matter arises in a challenge under section 23 of the Acquisition of Land Act 1981 to the confirmation by the first defendant Secretary of State of the Compulsory Purchase Order which authorises the acquisition of land compulsorily known as the Northumberland Development Project within Tottenham in North London. The Compulsory Purchase Order of which confirmation was sought and indeed obtained reads as follows:
"the London Borough of Haringey makes the following order, subject to the provisions of this order requiring authorities under section 226(1)A of the Town and Country Planning Act 1990, hereby authorise to purchase compulsorily the land described in paragraph two for the purpose of the facilitation of carrying out the development, redevelopment or improvement of the land comprising the demolition of the existing buildings and comprehensive redevelopment to provide a new stadium and ancillary uses such as club museum, shop and offices for the Tottenham Hotspur Foundation, residential, college and/or health centre and or health club uses and public realm improvements which will contribute to the achievement of the promotion or improvement of the economic, social or environmental well being of the north Tottenham area."
Section 226 of the Town and Country Planning Act 1990 as amended provides at sub-section 1 that:
"A local authority to whom this section applies shall, having been authorised to do so by the Secretary of State, have power to acquire compulsorily any land in an area (a) if the authority think that the acquisition will facilitate the carrying out of development, redevelopment or improvement in relation to the land."
I need not read (b), because this is promoted under (a). Sub-section 1(a):
"But a local authority must not exercise the power under paragraph (a) of sub-section (1) unless they think that the development, redevelopment or improvement is likely to contribute to the achievement of the any one ore more of the following objects:
(a) the promotion or improvement of the economic well being of the area.
(b) the promotion or improvement of the social well being of the area.
(c) the promotion or improvement of the environmental well being of the area."
One should also have in mind the policy of the Secretary of State, the longstanding policy, relating to compulsory purchase. It is in the memorandum to circular 6 of 2004 published by the Office which was then known as the Office of the Deputy Prime Minister, but is still extant. In the section of the circular dealing with the justification for making a compulsory purchase order, paragraph 17 appears:
"A compulsory purchase order should only be made where there is a compelling case in the public interest. An acquiring authority should be sure that the purposes for which it is making a Compulsory Purchase Order sufficiently justify in interfering with the human rights of those with an interest in the lands affected. Regard should be had in particular to the provisions of Article 1 of the First Protocol to the European Convention on Human Rights and, in the case of a dwelling, Article 8 of a Convention."
I should also add that paragraph 18 gives further advice and sets out in part that:
"This is not intended to imply that the confirming minister will require any particular degree of justification for any specific order."
Now, the content of paragraph 17 of the memorandum reflects longstanding authority starting with Prest v the Secretary of State for Wales [1982] 81 LGR 193; Rothschild v the Secretary of State for Transport [1989] 57 P&CR 330 and the very learned discussion on the subject by Laws J as he then was in Chesterfield Properties v the Secretary of State [1997] 76 P&CR 117. I should add of course that it is picked up in the authority of Sainsbury's Supermarkets in the Supreme Court — see [2010] UKSC 20 [2011] 1 AC 437
As appears from the description of the order, a major part of the scheme consists of the provision of a new football stadium for Tottenham Hotspur Football Club. Other parts of the scheme include new housing. An inquiry was held in March and April last year. It is important to note that the London Borough of Haringey, the promoting authority and Tottenham Hotspur football club presented a joint case at the inquiry and indeed counsel for the Borough at the inquiry consisted of both Mr Corner QC and Mr Katkowski QC, Mr Katkowski QC also representing the football club. The claimants were the principal objectors to the scheme at the inquiry.
I refer now to the Inspector's report by Mr David Nicholson IHBC and the case put forward by the claimants on that occasion is summarised by him thus at paragraph 7.22:
"the Compulsory Purchase Order should not be confirmed because (1) there are fatal legal defects and unlawful state aid arise. (2) the scheme does not conform with the adopted plan and framework. (3) Its contribution to regeneration and well being would be modest. (4) the assessment of alternative has been inadequate and (5) there has been no discussion other than on the basis of EUV [which stands for Existing Use Value, as specified in the glossary]."
The Inspector set out his conclusions on the planning framework on economic well being, social well being and environmental well being and I hope I summarise it fairly by saying that the Inspector reached the conclusion that the effect of the overall scheme was very positive, subject to one matter which I will come to, and that the stadium part of the project would fund and deliver other parts of the scheme. That is particularly referred to at his paragraph 8.29 and then in the subsequent parts of that section of his report dealing with funding. He did refer to a section 106 agreement. Originally there had been a proposal that there be affordable housing. Part of the scheme ways designed and part of the mechanics of the scheme was designed to go to fund affordable housing. However, there had been a change of mind as far as that is concerned; the club had decided that it could not afford that part of the overall package.
The Inspector was concerned about the replacement section 106 agreement and I should read his overall conclusions and recommendations starting at 8.57:
"the CPO circular requires a compelling case in the public interest. The public benefit must on merit outweigh the private loss such as to justify the interference with human rights. Factors should include the planning framework, the well being of the area, financing, and whether alternatives exist. There should be negotiation where ever practicable." With the exception of affordable housing provision in the revised southern development the scheme would accord with the development plan. There is a compelling case with regard to the well being of the area but for each strand of the test most of the public benefits would depend on an injection of public funds. Specifically, the economic benefits would rely upon the council or the Greater London Authority for new infrastructure. The social benefits would be heavily diluted by the lack of any affordable housing and the bill for the environmental benefits of the heritage fund and extended CPZ [Controlled Parking Zone] would switch to the taxpayer. Viability in the sense of deliverability is no longer an issue. There was little serious effort an negotiation by either party once established positions had been set. But given the expert advice on both sides this cannot amount to a criticism of either.
For the above reasons, as matters stood at the end of the inquiry what could amount to a compelling case in the public interest would fail to meet this hurdle on account of the need for public funds. Consequently the benefits would not outweigh the interference with the specific human rights under the ECHR, in which case the order should not be confirmed.
On the other hand, now that deliverability is not at issue if the council were able to reach a further section 106 agreement to revert to the original planning obligation then the balance would shift in favour of confirming the order."
On that basis he recommended that the order should not be confirmed but if the Secretary of State was minded to confirm it he recommended that the Secretary of State should canvass the council, advising he is minded to confirm the modified order, subject to the council and the club to enter into a revised section 106 agreement to...
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