R Grafton Group (UK) Plc British Dredging Services Ltd v Secretary of State for Transport Port of London Authority (First Interested Party/Second Defendant) Aggregate Industries UK Ltd (Second Interested Party/Third Defendant) London Concrete Ltd (Third Interested Party/Fourth Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 27 April 2015 |
| Neutral Citation | [2015] EWHC 1889 (Admin) |
| Date | 27 April 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5076/2014 |
[2015] EWHC 1889 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Ouseley
CO/5076/2014
Mr Peter Village QC and Mr James Burton (instructed by Wragge & Co) appeared on behalf of the Claimants
Miss Carine Patry (instructed by Treasury Solicitor) appeared on behalf of the Defendant — on 27 April 2015
Mr Russell Harris QC (instructed by Bircham Dyson Bell) appeared on behalf of the First Interested Party/Second Defendant
I handed down judgment in this challenge under Section 23 of the Acquisition of Land Act [1981], concluding that there had been a want of evidence to support conclusions reached by the Inspector and the Secretary of State in confirming the compulsory purchase order and that there had been unfairness in the confirmation of the compulsory purchase order. This was because it was confirmed on a basis other than that put forward by the Port of London Authority at the Inquiry. The basis upon which it was confirmed — and precisely what that was is not as clear as it ought to have been — was not a basis upon which the claimants had a fair opportunity to comment.
The question then arises as to what relief the court is required to give. Section 24 is the statutory provision which says what that relief should be. By Section 24 (2) —
"(2) If ….. the court is satisfied that —
(a) ….. authorisation ….. is not empowered to be granted under this Act ….. or
(b) the interests of the applicant have been substantially prejudiced by ….. [non-compliance with any relevant requirement],
the court may quash the compulsory purchase order or any provision contained therein ….. either generally or in so far as it affects any property of the applicant."
This is not a case in which any quashing of whatever falls to be quashed, limited to the property of the applicant, is relevant. Nor is this a case in which the court is being asked to exercise a residual discretion not to exercise such powers of quashing as it has for some reasons peculiar to the decision.
The debate between the successful claimants and the Secretary of State, and the Port of London Authority, is what is meant by "quash the compulsory purchase order". Mr Village QC submits that that means that the whole of the compulsory purchase order as made and as confirmed falls to be quashed. There is only one compulsory purchase order, he submits, and that is what is quashed. The contention from the Secretary of State and the Port of London Authority is that quashing the compulsory purchase order means quashing the confirmed compulsory purchase order as opposed to the made compulsory purchase order and that the effect of that, unlike the effect for which Mr Village contends, is that the process does not have to go back to square 1 with the making of a new compulsory purchase order and the start of a new inquiry process as a result of the objections which can be anticipated.
Instead, it is submitted — although there is a debate about this — that the Secretary of State can consider, with the benefit of submissions from the parties, as to whether resolving the evidential and fairness issues requires there to be a further new inquiry and/or written submissions on the outstanding issues.
Mr Harris QC and Miss Patry point to the inconvenience and want of purpose if the statutory provisions are interpreted in the way for which Mr Village contends. This is, they submit, a case in which the made compulsory purchase order was accepted to be within the powers of the Port of London Authority Act. The issue arose entirely over the manner in which the confirmation process was dealt with.
Mr Village submits that the balance of authority and received wisdom favours his interpretation. He points, first, to the well-known decision in Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255 in which there had been unfairness in the confirmation decision-making process. He submits that what their Lordships did — accepting that — was to quash the whole order. What one sees at the end of Lord Russell's judgment (page 1266 F) is the upholding of the quashing of the confirmed compulsory purchase order. There is nothing else in the judgment which suggests that their Lordships had before them argument as to what the scope of the particular power in question actually was. It seems to have been taken for granted that the power was simply to quash the compulsory purchase order as a whole, not drawing, despite the language of Lord Russell, the distinction with the import attributed to it by Mr Harris.
Mr Village submits that that is the perceived wisdom by reference to a passage in the Law Commission Consultation Paper No 169 2001–2002 when the issue of compulsory purchase legislation was under consideration. At paragraph 4.24 the powers of the court are set out, as I set them out. It is suggested that the provision enabling the order to be quashed —
" ….. may be unnecessarily draconian in many cases. It apparently forces the court to quash the whole order upon its inception, even where the grounds of challenge relate only to the process of confirmation, or even simply to the Secretary of State's reasoning."
Legislative change to remedy that was proposed. Nothing happened.
There is now a further legislative change proposed in March 2015 in the course of "Technical consultation on improvements to compulsory purchase processes" and a Paper prepared by the Department for Communities & Local Government. Question 9 deals with the issue:
"Do you agree that the remedies available to the courts should be wider to allow them to quash the decision to confirm an order as an alternative to quashing the order?"
Paragraph 52 of that Paper repeats the same understanding of the law as must have been the Law Commission's, and it would appear to have been the understanding of the House of Lords in Fairmount.
It is my judgment that Mr Village's submissions are correct. I recognise that this is a conclusion which does not necessarily aptly fit the circumstances which I have found exist here. There would of course have been issues about whether there should be a further Inquiry or whether there should be written representations. There would also have been an issue in the light of my judgment as to what precisely the Port of London Authority's stance was and what the basis for the Secretary of State's decision might have been. None of that would have required for a proper solution the quashing of the decision right back to square 1. Something less, in my judgment, would have sufficed if properly handled. Nonetheless, I cannot accept that Mr Harris is right in the light of what appears to be the established position. I accept that he is right to point to the fact that the quashing must be of the confirmed compulsory purchase order but that is because that is all there is before the court. The question is whether quashing the confirmed compulsory purchase order quashes the whole or whether it quashes it back to the stage at which it was made, but before it was confirmed, and as to where in the confirmation process the procedure would have to restart. In my judgment Parliament would not have intended, to use simple language, to have left such a matter entirely open.
I also recognise that the language of the statute must be intended to cover both the situations where there has been a flaw in the making of the compulsory purchase order so it is the made compulsory purchase order which is itself at issue — perhaps, for example because it is ultra vires, or there has been some procedural failure in its making — as well as the situation where there is a failure in the confirmation process. It seems to me that the language which Parliament has used is not apt to draw the necessary distinctions between the two, even though one can see ways in which it all might be resolved in later quashing the confirmation process.
For those reasons I have come to the conclusion that Mr Village is right as to the form of order and, more importantly, as to the effect which a form of order quashing the compulsory purchase order must have.
MR VILLAGE: I am grateful.
I turn to the question of costs. The claimants seek their costs of the proceedings as a whole and those will include their costs of dealing with what I will call Mr Banner's application prior to trial. Reading Miss Patry's submissions, she seems to be seeking the costs of that application. But I make it clear that we seek costs of that application and we do so on the indemnity basis. And, thirdly, the costs of last Tuesday again on the indemnity basis. As to the reasons for those submissions, I have set out our position on costs in our note which I am not going to repeat save to say that the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party. And the court is bound to bear in mind the nature of this litigation where my clients were seeking to prevent the compulsory acquisition of their site and they have been successful in that. So far as the issues in the case, that was the single issue.
I would also add that the court is also entitled to have regard to what...
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(1) Grafton Group (UK) Plc and Another v (1) Secretary of State for Transport (Defendant/First Appellant) (2) The Port London Authority (First Interested Party/Second Appellant) (1) James Joseph Horada (on behalf of the Shepherds Bush Market Tenants' Association) (Second Interested Party) (2) Orion Shepherds Bush Market Ltd (Third Interested Party)
...against judgments of Ouseley J given in the Administrative Court on 21 April 2015 ( [2015] EWHC 1083 (Admin)) and 27 April 2015 ( [2015] EWHC 1889 (Admin)). Both judgments were given in the same set of proceedings, a challenge to a compulsory purchase order (CPO) brought under s.23 of the......