R James Powell and Others v (1) Secretary of State for Communities and Local Government (2) Sefton Metropolitan Borough Council

JurisdictionEngland & Wales
JudgeMR JUSTICE SULLIVAN
Judgment Date22 August 2007
Neutral Citation[2007] EWHC 2051 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date22 August 2007
Docket NumberCO/2224/2007

[2007] EWHC 2051 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Before:

Mr Justice Sullivan

CO/2224/2007

Between
The Queen on the Application of James Powell and Others
Claimant
and
(1) Secretary of State for Communities and Local Government
(2) Sefton Metropolitan Borough Council
Defendants

The claimants appeared in person via video link

Mr James Maurici (instructed by the Treasury Solicitor) appeared on behalf of the 1st Defendant

Ms Frances Patterson QC (instructed by Messrs Eversheds) appeared on behalf of the 2nd Defendant

MR JUSTICE SULLIVAN
1

This is an application under section 23 of the Land Acquisition Act 1981 challenging the validity of the Sefton Metropolitan Borough Council (Queens Road and Bedford Road) Compulsory Purchase Order 2005 ("the CPO"). The CPO was made on 29th June 2005 for planning purposes under Section 226(1)(a) of the Town and Country Planning Act 1990. There were a number of objections to the order and so an inspector, Mr Ware, was appointed by the Secretary of State to hold a public inquiry into the objections. The Inspector held the inquiry on various dates between 23rd May and 9th June 2006. He reported to the Secretary of State on 10th October 2006 and his recommendation was that the order should be confirmed without modification. In a decision letter dated 12th January 2007, the Secretary of State agreed with the Inspector's recommendation and conclusions and confirmed the order, essentially for the same reasons as recommended in the Inspector's report.

2

The Inspector's report is a lengthy document; it runs to 353 paragraphs. It is in the conventional form. Having dealt with a number of procedural matters, the case for the acquiring authority is set out, then the cases for the objectors are set out. Finally, the Inspector set out his own conclusions, cross referencing back to the earlier paragraphs, between paragraphs 286 and 353 of the report.

3

The grounds for a challenge under section 23 are constrained; that is to say this hearing is not an opportunity to rerun the merits of the Compulsory Purchase Order, it is simply an opportunity to see whether there is any procedural or legal error in the process of confirmation. The details of the claimant's claim are set out in manuscript grounds. Although there was an application for an adjournment earlier this morning, I refused this application for the reasons given at that time. By way of background, I should mention that on 21st May this year I expedited the hearing of this challenge, and ordered that it be listed in August if possible and that it be heard by a planning judge. I am satisfied that that timescale did not prevent a proper challenge being made to the order or indeed the identification of any error of law, if error of law there was. It has to be borne in mind that the decision letter is dated 12th January 2007. There is, in the statutory framework, a short period, six weeks, within which to challenge the order. The underlying statutory purpose behind that short period for challenge would be frustrated if the court was to delay resolving a challenge. It is very important from everybody's point of view, including those who are not present in court but are affected for good or ill by the CPO, that these kinds of challenge are dealt with promptly by the Court.

4

The grounds were partially numbered but there were a number of sub-grounds and therefore, for the sake of convenience, what I propose to do is to adopt the numbering of the grounds that is set out in Mr Maurici's skeleton argument on behalf of the Secretary of State. Adopting that numbering, grounds 1 and 2 were withdrawn at the outset of the hearing. Ground 3 contends that the order is void in law because the resolution to make the order was made by the Council's Cabinet and the contention was that the Cabinet did not have jurisdiction in law to do that. That was an argument which was raised before the Inspector and not accepted by him. The Inspector was shown the Council's delegation arrangements. There is not the slightest doubt that a decision to make a Compulsory Purchase Order may be delegated by a full council and in the present case the Council's delegation arrangements have been produced and it is plain that the Council's Cabinet did have delegated authority to make Compulsory Purchase Orders. There is nothing unlawful in principle in such delegation and since it in fact happened in this case that really is the end of ground 3.

5

As set out in the grounds, ground 4 complained that the Secretary of State in confirming the order for the purposes of "the creation of a sustainable community through a better balanced housing market" failed to have regard to the requirements of her policy on housing and housing market failure and renewal. Various policy documents are referred to. It is not clear why some of them are said to be relevant to the present case since they deal with Compulsory Purchase Orders under the Housing Act but, in any event, the submission that the Secretary of State failed to have regard to her own policies is really a non-starter. There is no reason whatsoever to suppose, and the onus would lie on the claimants to establish, that the Secretary of State did fail to have regard to the relevant policies. Certainly there is nothing in the decision letter to suggest that there was any failure to have regard to them. In reality, as put by Ms Joyce, whom I permitted to speak on behalf of the claimants, the complaint under this ground appears to be rather more a challenge to the rationality of the Secretary of State's housing market renewal policy. The gist of the complaint, as it is now put, is that the policy effectively runs counter to other government's policies on affordable housing and therefore that the policy is irrational. I quite understand that the claimants may disagree with the Government's housing market renewal policy but it is really quite impossible to say that the policy itself is irrational, given the highly judgmental nature of housing policy generally. So it seems to me that ground 4, as now put, which is in essence a bald assertion that the housing renewal policy is irrational, is misconceived.

6

I move on, adopting the numbering, as I say, in the Secretary of State's skeleton argument. Ground 5 was an allegation that the Secretary of State failed to take into account the Inspector's findings. That has not been pursued in argument, in my judgment for good reason, because it is quite obvious from the face of the decision letter that the Secretary of State did indeed take into account the Inspector's report. One might have somewhat more concern in a case where the Secretary of State was disagreeing with an Inspector's recommendation or conclusions. One might then look quite closely to see the extent to which the Secretary of State had properly taken on board what the Inspector was saying, but this is not such a case. Effectively, the Secretary of State endorsed the conclusions of the Inspector and so really there is no warrant for the suggestion that the Inspector's report was not considered.

7

Ground 6 was an aspect of ground 4, that is to say the alleged irrationality of the housing market failure and renewal policy. Again, the merits of that argument were put at the inquiry and not accepted by the Inspector. As a rationality challenge, at this stage it is bound to fail. The principal arguments advanced during the course of this hearing by Ms Joyce fell under ground 6 and, in broad terms, what the objectors are saying is that they did not have a fair hearing before an independent and impartial tribunal in accordance with Article 6. Although it is said on their behalf that the Alconbury decision can be distinguished, it is plainly the starting point and it establishes the proposition that the system is in principle fair. Of course, in individual cases there may be unfairness but overall the system of having inquiries conducted by an independent inspector reporting to the Secretary of State whose decision is subject to legal challenge in the court is a fair one, so one has to look to see why it is said that there might have been unfairness in the circumstances of the present case.

8

The reasons, as I understand them, were principally these. First of all, it was contended that the Inspector should have been required to make findings of fact and it seemed to form a substantial part of the objectors' case that there had been a change in the relevant inquiries procedure rules from requiring the Inspector to make findings of fact and recommendations requiring him to make conclusions and recommendations. That criticism of the change in the rules is wholly misconceived. The change in the rules reflected the reality in planning and Compulsory Purchase Order inquiries and other inquiries of a similar kind. It is very difficult to disentangle straightforward findings of fact from matters of judgment or opinion and thus one very often sees findings of fact and conclusions and opinions mixed up. Thus, whether a site is a particular acreage or not is a question of fact; whether it is unduly prominent, whether it is run down, why it is run down, those are matters of opinion, and judgment. Thus it is that conclusions are required from an Inspector and those conclusions will embrace both matters of fact and matters of opinion or judgment on which the Inspector will ultimately make his or her recommendation. If it can be demonstrated that in reaching his or her conclusions the Inspector has omitted to make an essential finding of fact, not a matter...

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