R Barnsley Metropolitan Borough Council (Claimant) Secretary of State for Communities and Local Government (Defendant) Alan Hardwick and Another (Interested Parties) Eileen Rooney
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett |
| Judgment Date | 24 May 2012 |
| Neutral Citation | [2012] EWHC 1366 (Admin) |
| Date | 24 May 2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/9331/2011 |
[2012] EWHC 1366 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
LEEDS COMBINED COURT CENTRE
Leeds Combined Court Centre
1 Oxford Row, Leeds, LS1 3BG
Mr Justice Foskett
Case No: CO/9331/2011
Lisa Busch (instructed by Borough Secretary, Legal Services) for the Claimant
Stephen Whale (instructed by The Treasury Solicitor) for the Defendant
The Interested Parties were not present or represented
Hearing date: Tuesday 15 th May 2012
Introduction
This case raises a short and not entirely easy point concerning the powers of a local authority compulsorily to acquire land within its area.
The local authority in this case, purporting to invoke the powers conferred by section 121 of the Local Government Act 1972 ('the 1972 Act') and section 2 of the Local Government Act 2000 ('the 2000 Act'), made a compulsory purchase order ('the CPO') in respect of land within its area which was registered as a Village Green within the Commons Act 2006.
The Secretary of State took the view that these two statutory provisions, taken together, did not provide an enabling power for the compulsory acquisition of the land and, accordingly, declined to confirm the CPO which he regarded as invalid.
The local authority challenges that view and permission to seek judicial review of the Secretary of State's decision was granted on the papers by His Honour Judge Roger Kaye QC, in his role as a Deputy High Court Judge, on 24 November 2011.
The background in greater detail
This land the subject of the CPO is in Cudworth, Barnsley. It is described in sufficient detail for present purposes in the Statement of Reasons in support of the CPO to which I will refer between paragraphs 7 and 15 below. It is in effect largely a wedge of land between two properties set on the eastern boundary of a housing development in Barnsley which looks out to the east over what appears from the plans to be agricultural land. In the map attached to the CPO there is the wedge of land to which I have referred which bears a plot reference numbered 1 and there is a smaller, broadly rectangular area of land which adjoins it to the north at its eastern end which bears a plot reference numbered 2. As I understand it, Mr Alan Hardwick (the First Interested Party) owned the whole area at one stage (having acquired possessory title to it over the years), but then transferred the area numbered 2 to Mr and Mrs Rooney (the Second and Third Interested Parties), who are Irish Travellers, at some stage in the autumn of 2011. Mr and Mrs Rooney apparently moved onto the site in May 2009. There is a question about whether the transfer to them has been registered and still some questions about the precise ownership of the land. At all events, each made submissions of objection to the Secretary of State about the CPO, but none has played any part in the proceedings before me.
In his representations to the Secretary of State, Mr Hardwick, who retains the main wedge of the land, suggested that there was an ulterior motive on the part of the local authority in wanting to obtain ownership of the land because it, or part of it, would provide a convenient means of access to and egress from an Advanced Learning Centre then (in August 2010) in the process of construction. I am not in any position to evaluate that suggestion and it has formed no part of the argument before me.
It is not entirely clear when it was that Mr Hardwick was registered with possessory title to the land (although I was told that it was in the late 1980s), but the Statement of Reasons accompanying the CPO contained the following description of the background:
2.1 When Cadwell Close estate was developed in the 1980's it was a requirement of the planning permission that the land should be set out as an area of public open space (POS) and it was the intention that the land should be conveyed to the Council. However a formal transfer was never concluded and the developer ceased trading, leaving the Land in an unkempt condition.
2.2 The Council tidied up the Land grassed it and provided a litter bin and made it available for use by the public as was the original intention. The Council has since continued to maintain the Land as POS until it became aware that it is in fact owned by a third party who had fenced the Land thus preventing public access.
2.3 The owner of the Land then entered into discussions with the Council for the sale of the Land to the Council for a nominal value in return for the Council granting him access over the Land, which was needed for the owner to have access to his adjoining land which he intended to develop. That adjoining land is designated for housing in the development plan but it cannot be satisfactorily accessed from its existing access off Intake Lane.
2.4 The offer of the sale of the Land to the Council was subject to planning permission being obtained for the proposed development of four dwellings on other land in his ownership, situate to the south of Intake Lane and to the north east of the Land. The permission also provided for the extension and re-shaping of the POS. However that was subsequently refused because the applicant could not at that time prove title to the land which he intended to offer up to extend the existing area of POS and so in the absence of satisfactory replacement provision the means of access over the POS represented a reduction in the size of the POS available. Furthermore the reduced useable area and use by vehicles was considered would undermine the enjoyment for open space users contrary to the provisions of the Unitary Development Plan (policies GS34 and GS35).
2.5 Local residents were concerned to preserve the continued public access to and use of the Land for local amenity and recreation purposes and made an application for the Land to be registered as a village green. Successful registration would preclude the use of the land for access purposes or for any other development.
2.6 The application was successful and the Land was registered as a village green by resolution of the Council's Planning Regulatory Board on 13 th January 2009 following a public inquiry presided over by an independent inspector.
It is right to record that Mr Hardwick challenged a number of the propositions contained in those paragraphs in his letter to the Secretary of State (dated 27 August 2010) and took the local authority to task for not revealing that it had sought (he suggested) to become registered with possessory title to the land a few years previously.
At all events, there does seem to be something of a "history" to the land itself although not one that concerns this application directly.
As I have indicated, the land became registered as a Village Green. This occurred on 13 January 2009 following a Public Inquiry. Since then local residents apparently complained about unlawful incursions on and misuse of the land by various members of what I assume to be Mr and Mrs Rooney's family. Indeed in January and February 2010 the Claimant sought and obtained an injunction under section 187B of the Town and Country Planning Act 1990 against the First Interested Party and the Second and Third Interested Parties in respect of adjoining land and part of the CPO land prohibiting use of that land for residential purposes. This overall background led to the decision of the Claimant to make the CPO.
Its Statement of Reasons described the land in this way:
"3.1 The Land comprises an area of approximately 2320 square metres of grass land, located to the east of Cadwell Close at Cudworth, having frontage onto the east side of Cadwell Close to the north of the junction of Cadwell Close with Mallory Way and being situate between the residential properties numbers 2 Cadwell Close and 5 Mallory Way and bounded on the north in part by no. 2 Cadwell Close and in part by grazing lands, on the east by agricultural lands and on the south by no. 5 Mallory Way. It also includes part of the eastern half width of Cadwell Close. The north eastern part of the Land (shown in the CPO as Plot reference 2) is currently in use as an unauthorised caravan park and for grazing.
3.2 Prior to the registration as a Village Green the Land was used for informal recreational purposes. It consisted mainly of a grassed surface which was cut regularly by the Council. It had a litter bin which was serviced by the Council, no. 2 sets of five-a-side type goal posts and palisade fencing. These facilities were removed at the request of the current owner shortly after he proved title to the land."
Mr Hardwick again disputed some aspects of paragraph 3.2 in his letter to the Secretary of State, but those matters are not relevant for present purposes.
The Statement of Reasons set out the justification for making the CPO in accordance with paragraphs 35 and 36 of Part 1 of the Memorandum to and Appendix R of Circular 06/2004. The paragraphs to which it is necessary to refer are, firstly, as follows:
1.3 The Order had been made by the Council to authorise the compulsory purchase of the Land for the purposes of the performance of its functions in promoting the social and environmental well being of its area pursuant to section 2 of the [2000 Act] through the benefits to the local community and the amenity of the area in the vicinity of the land. (Emphasis added.)
1.4 The compulsory purchase of the Land...
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