Swish Estates Ltd v Secretary of State for Communities & Local Government
| Jurisdiction | England & Wales |
| Judge | Robin Purchas |
| Judgment Date | 07 December 2017 |
| Neutral Citation | [2017] EWHC 3331 (Admin) |
| Date | 07 December 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3529/2017 |
[2017] EWHC 3331 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Robin Purchas QC
(Sitting as a Deputy Judge of the High Court)
CO/3529/2017
APPEARANCES
Mr N Mohammed (instructed by OJN Solicitors) appeared on behalf of the First Claimant and Second Claimant.
Mr R Moules (instructed by Government Legal Department) appeared on behalf of the First Defendant.
Mr G Williams (instructed by Bevan Brittan) appeared on behalf of the Second Defendant.
THE DEPUTY JUDGE:
Introduction
In this claim the claimants apply under s.23 and s.24 of the Acquisition of Land Act 1981 to quash the decision of the first defendant dated 16 th June 2017 confirming the London Borough of Enfield (Ponders End Electric Quarter) Compulsory Purchase Order 2016 made by the second defendant under s.226 of the Town & Country Planning Act 1990.
The claimants rely on two grounds: (1) that the first defendant failed to comply with his guidance in not giving sufficient weight to the opportunity for development of the claimants' land by agreement without the need for compulsory acquisition. Further, in placing weight on the letter from the first claimant's former architect, the first defendant had taken into account an irrelevant consideration or acted irrationally; (2) that the interference with the claimants' rights was not justified or proportionate in breach of their rights under Art.1 of the First Protocol to the European Convention on Human Rights (“ECHR”).
Background
The first claimant is the freeholder of 216 High Street, Ponders End which formed Plot 17 as part of the compulsory purchase order. The second claimant is the guarantor of the loan for the land's acquisition. Although the second claimant was not an objector as such to the compulsory purchase order, it is not contended that it does not have sufficient interest to bring this challenge under s.23 together with the first claimant.
The second defendant had a longstanding ambition for the redevelopment of an area including the claimants' land in and around the High Street at Ponders End. In 2009 the second defendant had approached the first claimant with proposals to acquire its land or explore a joint redevelopment venture. Negotiations continued upto 2015 without reaching agreement. On 5 th June 2015 the first claimant submitted an application for the development of its land for 20 residential units and three commercial units. That was refused on 28 th September 2015 and the first claimant's appeal was dismissed by an inspector following a hearing on 28 th September 2016.
In his decision letter the Inspector identified the main issues at para.4. The first two issues were:
“4 …
• The effect of the proposed development on the character and appearance of the site and surrounding area;
• Its effect on the development potential of adjoining sites and on the comprehensive redevelopment of the former Middlesex University site and High Street frontage.”
He dealt with the effect on character and appearance from para.5 and following. At para.7 he described the site as follows:
“7 … Its current appearance is rather at odds with the grain of the street scene in that it contains no buildings, is bounded by reasonably high hoardings and is rather overgrown.”
He concluded on that issue at para.14:
“14 Overall, therefore, and notwithstanding the current appearance of the appeal site, the proposed development would have a harmful effect on the character and appearance of the surrounding area. Consequently in that regard it would conflict with Core Policy 30 (quality of the built and open environment) of the Core Strategy 2010 as well as with Policies DMD8 (standards for new residential development), DMD25 (new retail development) and DMD37 (good design) of the Development Management Document 2014 … Policy 10.2 (Ponders End Central) of the North East Enfield Area Action Plan 2016 … and with the principles of the PECPB SPD.”
From para.15 he dealt with the effect on adjoining sites development potential and comprehensive redevelopment, concluding at para.19:
“19 The appeal scheme would, therefore, unacceptably affect the development potential of adjoining land, which forms part of the former Middlesex University site and High Street frontage thereby undermining their comprehensive redevelopment. In these respects the proposals would conflict with Core Policy 41 (Ponders End policy for places) of the Core Strategy, Policy 10.2 of the NEEAAP and the … SPD.”
In coming to that conclusion, at para.16 he had said:
“16 In my view, this kind of comprehensive approach may not necessarily require a single development and/or developer provided that any constituent but separate elements of the greater development are well co-ordinated and complementary. In this case the council's preferred scheme and the appeal development are not co-ordinated or complementary as they would involve overlapping, conflicting development within the appeal site.”
Para.33 gave an overall conclusion on other matters:
“33 I recognise that the proposed development would bring a number of benefits under all three dimensions of sustainable development as identified by the appellant, including — but not only — the delivery of market housing and the regeneration of an underused and rather unsightly property. Notwithstanding the appellant's evidence regarding the council's past record on housing delivery, the information before me indicates that the council can demonstrate a National Planning Policy Framework compliant supply of housing land. In this context, all of the benefits that have been brought to my attention do not outweigh the substantial identified harm and planning policy conflict.”
For all those reasons, as I have said, he dismissed the appeal.
On 8 th February 2016 the second defendant had made the compulsory purchase order under s.226 of the 1990 Act to facilitate the carrying out of development and redevelopment and improvement works on land at High Street, Ponders End. The Compulsory Purchase Order Scheme was for the redevelopment of the compulsory purchase order site for 167 residential units and 1,379 sq.m of commercial, retail and community floor space to include a new library, access and car-parking amenity space. The authority considered that the proposal would contribute to the promotion and improvement of the economic, social and environmental well-being of the area for the purposes of s.226 of 1990 Act. The first claimant objected to the order and an inquiry was held in November and December 2016, at which the first claimant appeared, represented by leading counsel, which included calling evidence.
The Decision
In his decision letter the first defendant explained the order at paras.2 to 5. At para.6 he stated:
“6 The Secretary of State has considered the acquiring authority's Statement of Reasons for making the order. He is satisfied that the compulsory purchase order is justified to achieve the purpose for which it has been made. He is also satisfied that the lands included in the order are required for this purpose. He considers that a compelling case in the public interest has been made for confirmation of the order.”
He referred to the Inspector's report at paras.7 and 8 including the recommendation that the order should be confirmed. At para.9 he referred to post-inquiry representations, including one complaining about lack of progress from the first claimant. In commenting on the third of those post-inquiry representations, which expressed concerns about the failure to progress relocation negotiations since the inquiry closed, he said:
“Paragraph [44 of the Inspector's report] addresses the points raised above regarding the council's failure to engage in negotiations with landowners, leaseholders and occupiers. [Paragraph 45 of the report] states that the Acquiring Authority remains committed to acquiring the remaining relevant interests by private treaty negotiation but is seeking confirmation of the Order as a last resort should it be unable to acquire all the relevant interests.”
At para.10 he considered whether the purposes for which the compulsory purchase order was made sufficiently justified interfering with the human rights of the objectors, the owners/lessees/occupants/tenants/qualifying persons under section 12(2A) of the [1981 Act] and expressed his satisfaction that such interference was justified. In particular, he considered Art.1 of the First Protocol to the European Convention on Human Rights and in that respect the Secretary of State was satisfied that in confirming the compulsory purchase order a fair balance had been struck between the public interest and the interests of the objectors, the owners, lessees, occupants, tenants and qualifying persons. At para.12 he stated:
“12 The Secretary of State has also given...
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