Walker v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene,Lord Justice Pill |
| Judgment Date | 06 March 2008 |
| Neutral Citation | [2008] EWCA Civ 328 |
| Docket Number | Case No: C1/2008/0233 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 March 2008 |
[2008] EWCA Civ 328
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE WILKIE)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill and
Lord Justice Keene
Case No: C1/2008/0233
Mr G Nardell (instructed by Messrs Davies Gore Lomax) appeared on behalf of the Appellant.
Mr J Litton (instructed by Treasury Solicitors) appeared on behalf of the Respondent Secretary of State.
Mr D Elvin QC and Mr G Keen (instructed by Blackburn with Darwen Borough Council) appeared on behalf of the Respondent Council.
Judgment (As Approved by the Court)
This is a renewed application for permission to appeal from a decision of Wilkie J dated 24 January 2008, permission having been refused on the papers by my Lord, Lord Justice Pill.
It arises out of a compulsory purchase order made under section 226(1)(a) of the Town and Country Planning Act 1990, which broadly speaking empowers a local authority, if authorised by the Secretary of State, to acquire land compulsorily to facilitate the carrying out of development or redevelopment or improvement of land in their area so long as that is likely to contribute to one or more of the objects set out in section 226(1A) for the promotion or improvement of the economic social or environmental wellbeing of their area.
The Blackburn with Darwen Borough Council made such an order on 24 October 2006. Objections were lodged by a number of people, including the present applicants. A public inquiry was then held, after which the Inspector recommended confirmation of the CPO, which the Secretary of State duly did by her decision letter dated 3 October 2007.
The applicants applied under section 23 of the Acquisition of Land Act 1981 to quash the CPO on a number of grounds. Wilkie J was unpersuaded by any of those grounds and dismissed the application along with an associated claim for judicial review.
Only one ground is now relied upon in this renewed application, that being one shortly described as the “Funding Point”. It is a point which arises in this way. The underlying purpose of the CPO was to provide a site adjacent to Darwen Town Centre for the establishment of a city academy, for which planning permission had already been granted. The capital for the construction of the academy itself was and is to be provided partly by a charitable trust and partly by the Department for Education and Skills but this was dependent upon the Borough Council acquiring the buildings within the CPO and demolishing them so as to deliver a cleared site for the proposed academy.
The funding for that stage of the process was to be provided under an agreement dated 25 March 2004 entitled a “Market Restructuring (Implementation) Agreement”, which I will refer to henceforth simply as “The Agreement.” That agreement was entered into by the Secretary of State's predecessor and a number of local authorities in the East Lancashire area, including the Blackburn with Darwen Borough Council. The funding, as I understand the position, comes from the Secretary of State but is channelled through a consortium of local authorities in the area.
The argument was raised at the public inquiry and before Wilkie J that the terms of the agreement did not authorise the provision of funding unless the end result would be the provision of housing, either exclusively or as part of a mixed development on the cleared land, and that the city academy scheme did not achieve any such end result. That argument failed in the court below. In his judgment Wilkie J referred to the first two recitals to the agreement which read as follows:
“(A) The first Secretary of State and the Office wish to deliver thriving, inclusive and sustainable communities in all regions, are committed to achieving a balance between housing availability and demand in all English regions, and in particular, to addressing the problems of low demand for and abandonment of housing in the North and Midlands;
(B) The Office has, for these purposes, initiated the creation of partnerships of local authorities and other stakeholders (“Pathfinders”) to carry out the regeneration and development of the Pathfinder Area with specific reference to the problems of low demand for and abandonment of housing, and the Office has confirmed the establishment of the Pathfinder”
I shall come back later in this judgment to another of the recitals.
Expenditure which is eligible for grant under the agreement is defined by Clause 8.1. The relevant part of that reads as follows:
“Eligible Expenditure shall consist of payments made by any of the Participating Authorities during the Agreement Term towards implementing the Scheme which are made in the following categories:
(i) Physical implementation consisting of:
(a) in relation to land, its acquisition, reclamation, improvement or refurbishment for the purpose of redevelopment for residential or mixed use
(b) in relation to buildings intended for residential or mixed use, their acquisition, demolition, conversion or improvement”
The essence of the argument advanced by Mr Nardell on behalf of the applicants is that sub-clause (i)(b) there only relates to the acquisition, demolition, conversion or improvement of buildings when the purpose is to achieve a residential or mixed use including residential. He emphasises the use of the word “intended” in the description of the buildings in question and he also refers to material from the Audit Commission dealing with the objectives of the...
To continue reading
Request your trial