Walker v Secretary of State for Communities and Local Government

[2008] EWHC 62 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

MR JUSTICE WILKIE

Case No: 10407/2007 and CO/6942/2006

Between
(1)adrian Allen Walker And Thomas Kevin Brian
Claimants
Secretary Of State For Communities And Local Government And Blackburn With Darwen Borough Council
(2)the Queen On The Application Of Walker And
and
Blackburn & Darwen Borough Council
Defendants/Claimant/Defendant

Andrew Fraser-Urquhart instructed by Davies, Gore, Lomax for the Claimants

David Elvin QC and Graeme Keen (instructed by Blackburn and Darwen Borough Council) for Blackburn with Darwen Borough Council

John Litton instructed by the Treasury Solicitor for the Secretary of State

Hearing dates: 15 January 2008

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

MR JUSTICE WILKIE MR JUSTICE WILKIE
1

The court has to deal with an application made under section 23 of the Acquisition of Land Act 1981 (the ALA) and an application made by the defendant to an associated judicial review application. The parties are agreed that the main matter to be dealt with by the Court is the ALA application. Depending on its outcome I will either, grant the application of the defendant in the associated judicial review as a consequence of dismissing the ALA application, or, if I uphold the ALA application, I will hear brief argument why that application should be granted notwithstanding that decision.

The section 23 application – the background

2

The claimants apply to quash the Borough of Blackburn with Darwen (Darwen Academy) (No 3) Compulsory Purchase Order 2006 (“the CPO”). That order was made on 24 October 2006 pursuant to section 226(1)(a) of the Town and Country Planning Act 1990 (“The TCPA”). The claimants are qualifying objectors to the making of that order and, having made a relevant objection, the Secretary of State, as required by 13A(3) of the ALA, caused a local inquiry to be held during June 2007. The Inspector's report of 17 August 2007 recommended that the CPO be confirmed by the Secretary of State without modification. The Secretary of State did so by her decision letter dated 3 October 2007.

3

The underlying subject matter of the CPO was the decision of the Borough Council to provide a site (“the Redearth site”) adjacent to Darwen town centre, for the establishment of a City Academy. The siting of such an Academy was the subject of dissent, in particular by those whose view was that such a school should, if at all, be sited on the site of the existing Darwen Moorlands High School whose site was some distance from the town centre and on a ridge above the river which flows through the town centre. By the time of the inquiry the Council had granted outline planning permission and reserved matters approval for the provision of the Academy on the Redearth site. The process by which the Borough Council had, prior to that application, taken the decision to site the Academy on the Redearth site was the subject of criticism. This focussed on the adequacy of consultation. The view the inspector took on that issue forms one of the major planks of the application.

The statutory scheme

4

Section 226(1) of the Town and Country Planning Act 1990 (TCPA) provides as follows:

“A local authority to whom this section applies shall, on being authorised to do so by the Secretary of State, have power to acquire compulsorily any land in their area.

(a) If the authority think that the acquisition will facilitate the carrying out of development/redevelopment or improvement or in relation to the land…

(1A) But a local authority must not exercise the power under paragraph (a) of sub-section (1) unless the think the development, re-development or improvement is likely to contribute to the achievement of any one or more of the following objects:

(a) The promotion or improvement of the economic well being of their area;

(b) The promotion or improvement of the social well being of their area;

(c) The promotion or improvement of the environmental well being or their area…”

5

Section 23 of the ALA provides, amongst other things, as follows:

(1) If any person aggrieved by a compulsory purchase order desires to question the validity thereof, ….on the ground that the authorisation of a compulsory purchase thereby granted is not empowered to be granted under this act or any such enactment as is mention in Section 1(1) of the Act, he may make an application to the High Court.

(2) If any person aggrieved by –

A compulsory purchase order…desires to question the validity thereof on the ground that any relevant requirement has not been complied with in relation to the order or certificate he may make an application to the High Court…

(4) An application to the High Court under this section shall be made within 6 weeks…

(b) From the date on which notice of confirmation or making of the order is first published in accordance with this Act…”

6

Section 6 of the Human Rights Act 1998 ( HRA) makes it unlawful for a public authority to act in a way which is incompatible with a convention right. Of particular relevance in the context of this case are Article 8 (Right to respect for private and family life) and Article 1 of the First Protocol to the Convention (Entitlement to peaceful enjoyment of possessions).

7

Rule 19 of the Compulsory Purchase by Non Ministerial Acquiring Authorities (Inquiries Procedure) Rules 1990, requires the Secretary of State to give reasons for her decision to confirm a compulsory purchase order.

8

The Secretary of State has set out, most recently in ODPM Circular 06/2004, her policy on how she will approach the confirmation of compulsory purchase orders. That document comprises a memorandum and a number of appendices. In the memorandum there are various subject headings. Under the heading “Justification for making a compulsory purchase order” paragraph 17 provides as follows:

“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 interfering with the human rights of those with an interest in land affected. Regard should be had in particular to 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 the Convention.

18

The confirming minister has to be able to take a balanced view between the intentions of the acquiring authority and the concerns of those whose interest in land it is proposed to acquire compulsorily. The more comprehensive the justification which the acquiring authority can present, the stronger its case is likely to be. But each case has to be considered on its own merits…”

9

The memorandum also contains paragraphs concerning resource implications of the proposed scheme and whether there are any anticipated impediments to implementation (paragraphs 20–23).

10

Appendix A deals specifically with orders under section 226 of the TCPA. Paragraph 2 states that the powers given by that section are:

“Intended to provide a positive tool to help acquiring authorities with planning powers to assemble land where this is necessary to implement the proposals in their community strategies and local development documents. These powers are expressed in wide terms and can therefore be used by such authorities to assemble land for re-generation.”

11

Paragraphs 6 – 11 deals with the “well being power”. It includes, in paragraph 7, a reference to other statutory guidance issued by ODPM in 2001 to which I return below.

12

Paragraph 11 contains, amongst other things, the following:

“The re-creation of sustainable communities through better balanced housing markets is one regeneration objective for which the section 226(1)(a) power might be appropriate. For example it is likely to be more appropriate than a Housing Act power if the need to acquire and demolish dwellings were to arise as a result of an over supply of a particular house type and/or housing tenure in a particular locality…(it) may involve acquiring land to secure a change in land use, say, from residential to commercial/industrial or to ensure that new housing is located in a more suitable environment than that which it would replace. In urban areas experiencing market renewal problems, the outcome may be fewer homes in total.”

13

Paragraphs 12 to 15 of Appendix A concern “planning matters.” This segment includes the following paragraphs:

“12. Any programme of land assembly needs to be set within a clear strategic framework, and this will be particularly important when demonstrating the justification for acquiring land compulsorily under section 226(1)(a) powers as a means of furthering the well being of the wider area. Such a framework will need to be founded on an appropriate evidence base and to have been subjected to consultation processes including with those whose property is directly affected…

14.Where the local plan is out of date and local development documents are still in preparation, it may well be appropriate to take account of more detailed proposals being prepared on a non statutory basis with the intention that they will be incorporated into the local development framework at an appropriate time….Where such proposals are being used to provide additional justification and support for a particular order, there should be clear evidence that all those who might have objections to the underlying proposals in the supporting non statutory plan have had an opportunity to have them taken into account by the body promoting that plan, whether or not that is the authority making the order.”

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