Asset of Community Value

May 30th, 2018 by James Goudie QC in Land, Goods and Services

In Banner Homes Ltd v St Albans City and District Council (2018) EWCA Civ 1187 a landowner appealed against the Council’s listing under Section 88 of the Localism Act 2011 (“the Act”) of its undeveloped land as a community asset. The land was situated in the metropolitan green belt. It was crossed by two public footpaths. It had been used for more than 40 years by the local community for peaceful and beneficial recreational activities.

The landowner had been well aware of the existing community use when it purchased the land in 1996. It had taken no steps to oppose the use since.

The 820 strong residents’ association made a community nomination for the land to be listed as an asset of community value. The Council acceded, listed the land, and notified the landowner. The landowner applied for an oral review. Read more »

 

Reverter of school site

March 13th, 2018 by James Goudie QC in Land, Goods and Services

Rittson-Thomas v Oxfordshire County Council (2018) EWHC 455 (Ch) concerned two grants of land under Section 2 of the School Sites Act 1841 (“the 1841 Act”). It gave rise to a question concerning the exercise of the power of sale contained in Section 14 of the 1841 Act. Although the operation of the 1841 Act has been amended by the Reverter of Sites Act 1987 (“the 1987 Act”), the 1841 Act remains in force, and has, it seems, generated a good deal of litigation. However, the question at the heart of this case had not previously fallen for determination. Read more »

 

Compulsory Purchase

March 2nd, 2018 by James Goudie QC in Land, Goods and Services

The Compulsory Purchase of Land etc Regulations 2018, SI 2018/253, amend the Compulsory Purchase of Land (Written Representations Procedure) (Ministers) Regulations 2004 (SI 2004/2594) (“the 2004 Regulations”). The amendments make a number of procedural changes to the 2004 Regulations, including to authorise the use of electronic communications and to set out the modifications which will apply where a “confirming authority” appoints an Inspector to act instead of it in relation to the confirmation of a CPO. The “streamlining” amendments provide that any site visit under the written representations process must be undertaken within 15 weeks of the “starting date”, making clear that the 2004 Regulations will be subject to a number of modifications where a confirmation decision is delegated to an Inspector, making various changes to reflect that the decision whether to confirm the CPO will be taken by the Inspector, and clarifying where certain procedural steps will not be required; setting out the procedures to be followed where a decision whether or not to confirm a CPO is quashed following a successful legal challenge; and authorising the use of electronic communications under the 2004 Regulations. Read more »

 

Consumer Protection

September 19th, 2017 by James Goudie QC in Land, Goods and Services

In Camden LBC v Foxtons Ltd [2017] UKUT 349 (AAC) the Council successfully appealed to the Upper Tribunal (Judge Levenson) against Foxtons, Estate Agents, using the term “administration fees” in their letting agencies work.  This was (paragraph 25) a breach of Section 84(3)(c) of the Consumer Credit Act 2015.  The wording did not provide a description of each fee that was sufficient to enable a person who is liable to pay to understand the service or cost that is covered by the fee or the purpose for which it is imposed.

 

Compulsory Purchase Compensation

February 22nd, 2017 by James Goudie QC in Land, Goods and Services

In Homes and Communities Agency v J S Bloor (Wilmslow) Ltd (2017) UKSC 12 raised questions concerning the Pointe Gourde or “no-scheme” rule, by which compensation for compulsory acquisition is to be assessed disregarding any increase or decrease in value solely attributable to the underlying scheme of the acquiring authority.  The particular issue concerned the relationship between the general provisions, in the Land Compensation Act 1961, as explained and expanded by judicial interpretation, for the disregard of the scheme, and the more specific provisions relating to planning assumptions.

The Supreme Court reversed the decision of the Court of Appeal and reinstated that of the Upper Tribunal. The Tribunal were entitled to regard the underlying policies, including the allocation in the development plan, as potentially relevant also to the development apart from the scheme.  The assessment of their significance in the no-scheme universe was pre-eminently a matter for the Tribunal.  They did not ignore potential policy considerations. Their reasoning disclosed no error of law.

The right to claim for potential development value is long established. The specific statutory provisions relating to planning assumptions do not preclude account being taken under the general law of the prospect (certain or a hope) of planning permission for valuable development.  Moreover, the application of the Pointe Gourde principle may result in changes to the assumed planning status of the subject land.  The application of the general law may produce a more favourable result for the claimant than the statutory planning assumptions.

The Supreme Court concluded that the Upper Tribunal’s decision in this case was a powerful illustration of the potential complexities generated by the by the 1961 Act in its unamended form. It was to be hoped that the amendments currently before Parliament will be approved.

 

 

Open Space

February 15th, 2017 by James Goudie QC in Land, Goods and Services

One of the issues in Whitstable Society v Canterbury City Council [2017] EWHC 254 (Admin) was whether the notification and consultation proceedings required by Section 123(2A) in relation to open space land owned by a local authority ought to have been gone through in respect of the sale of land owned by the City Council.  Dove J held not, notwithstanding that the land had been acquired for development as open space and had not been formally appropriated to any other use.  He said, at paragraph 78:

“In my view the key issue in applying section 123(2A) is whether, at the time of the disposal of the land, it consisted or formed part of an open space. That is the specific language of the section. In my view that is not solely determined by use, if in fact the land has been laid out as a public garden (the breadth of which term does not arise for determination in this case). If the land were to be a public garden the section 123(2A) requirements could not be evaded simply by excluding the public. Thus the phrase “consisting or forming part of an open space” would also include land which might not actually at the point of disposal be being used by the public but which, by virtue of the manner in which it had been landscaped, would consist of or form part of an open space.” Read more »

 

Assets of Community Value

December 22nd, 2016 by James Goudie QC in Land, Goods and Services

R (Patel) v SoS for CLG (2016) EWHC 3354 (Admin) was a challenge to an Inspector’s decision allowing an appeal from a refusal by Wandsworth LBC as LPA of an application for a change of use from retail to residential. One of the grounds of challenge was that the fact that the premises were registered as an Asset of Community Value (“ACV”) under Sections 87 and 88 of the Localism Act 2011 was a “material consideration” that the Inspector had ignored.  Ouseley J ruled that the Inspector had been wrong not to take this into account.  This did not, however, have the consequence that the ground of challenge succeeded.  It was perfectly clear that if the Inspector had considered it to be of relevance it would have made no difference to her decision.  Ouseley J said, at paragraph 58:

“The ACV status of this corner shop reflects the local value put on its services as a shop. That was perfectly evident from the representations made to her, and the Council’s case. Local value was at the heart of the question of the impact of its loss on the provision of services. The status in fact added nothing or nothing much to the arguments. It is another guise in which the same points would be made, except if an issue had arisen as to whether, absent the change of use, the shop would in fact continue in shop use, where the possibility of community purchase could be relevant.”

Ouseley J also dismissed a PSED challenge. Referring to Section 149 of the Equality Act 2010 and the principles summarised by the Court of Appeal in Bracking (2013) EWCA Civ 1345, he said:

“62.    The Defendants submitted, correctly, that what was required was an examination of whether the decision-maker has in substance had due regard to the statutory needs, which depends on the decision and its reasoning …”

“65.    There is no duty to give particular weight to the needs of the elderly or disabled, and no duty to achieve the outcome which advantages them the most or disadvantages them the least. The decision-maker needs to be properly informed about the issues … The question is whether the Inspector applied her mind to the issue in the manner required by Bracking, even though she did not specifically refer to the s149 duty.”

“68.    She is not obliged by s149 to find some countervailing public benefit to set against the greater disadvantage of the longer journey or the loss of those services before she could reach a lawful decision on … approval. The question she has to decide under the Order is still the same. Otherwise, s149 would alter the decision which had to be made.”

 

 

 

CPO

December 1st, 2016 by James Goudie QC in Land, Goods and Services

Mapeley Beta Acquisition Company Limited v SoS for CLG (2016) EWHC 2997 (Admin) concerns the validity of a Compulsory Purchase Order (“CPO”) made by the Interested Party, Swindon Borough Council (“the Council”) and confirmed by the SoS. The CPO related to a strip of land in the centre of Swindon which was vital to the implementation of a Town-Centre Regeneration Scheme (“the Scheme”) in the Council’s Local Plan.

Kerr J observed:-

“2.      The law jealously guards the right of a property owner to enjoy its property, which has been called a constitutional right. A compelling case that the purchase is necessary in the public interest must be made out to take the right away without consent. The Secretary of State may only endorse the destruction of the owner’s property right if it is “clear that the Secretary of State has allowed those rights to be violated by a decision based upon the right legal principles, adequate evidence and proper consideration of the factors which sway his mind into confirmation of the order sought”: …

 

  1. … the draconian nature of the Order will itself render it more vulnerable to successful challenge on Wednesbury/Ashbridge grounds unless sufficient reasons are adduced affirmatively to justify it on its merits.

 

  1. The power of compulsory purchase may be exercised by a local authority if “the authority think that the acquisition will facilitate the carrying out of development, re-development or improvement on or in relation to the land” (Town and Country Planning Act 1990 (TCPA), section 226(1)(a)). The authority cannot exercise the power unless they think that the development, re-development or improvement is likely to contribute to achieving one or more of three defined objectives: promoting or improving the economic, social, or environmental well-being of the authority’s area (TCPA, section 226(1A)).

 

  1. As for the application of the Human Rights Act 1998 and article 1 of the first protocol to the European Convention, it is common ground that the question is whether the decision of the Secretary of State to accept the recommendation of the inspector and confirm the CPO was a proportionate interference with the rights of the objector and no more than necessary to accomplish the objective of the CPO; …”

 

7.       “… the Secretary of State’s primary task is to consider the issues raised by objections to the CPO, not to search for alternatives. But fairness may require him to “consider at least any obvious alternatives” … put forward by way of alternative to the CPO, “it might have thrown serious doubt over the need for the CPO”. Where, however, there is no such package before the inquiry, “the inspector was under no duty to devise one” (paragraph 22).

 

  1. … principles … require the decision maker to take account of relevant considerations.

 

  1. To do so requires an evaluation of the principal contested issues, including the viability of any proposed alternative advanced by the objector. Adequate and intelligible reasons must be given: South Bucks DC v. Porter (no. 2) [2004] 1 WLR 1953, per Lord Brown at paragraph 36. While there is only one standard of adequacy, the degree of particularity required to meet it will vary according to the nature of the issues falling for decision. Thus, fuller reasoning may need to be given where the inspector’s recommendation is rejected than where it is accepted …”

The Claimant had objected to the CPO on the basis that the Scheme could be delivered without its land. The Council’s case at the Inquiry was that the Claimant’s land was essential to successful implementation of the Scheme because (i) it provided a vital link walkway and (ii) there was no viable alternative.  There was a contest between two routes.

Kerr J held: (1) The CPO Inspector’s reasoning and conclusions on the viability of the link without the Claimant’s land could not be criticized; (2) the Inspector had been fully alive to the issue of preserving the Claimant’s ownership of its land and addressed that issue adequately in his Report, justifying the Inspector’s Conclusion that the CPO had indeed been used as a “last resort”; and (3) the Inspector’s Reasons duly let the Claimant know why it had lost and why the Council’s CPO had been confirmed by the SoS.

The interference with the Claimant’s property rights had been proportionate. The compelling public interest requirement in the case of a CPO does not generate any different or higher duty to give reasons than in other cases, especially where the reasons are addressed to an audience already very familiar with the issues: paragraph 53.

 

 

Best Consideration

September 9th, 2016 by James Goudie QC in Land, Goods and Services

The policy of legislation such as Section 123 of the Local Government Act 1972 is to ensure, so far as reasonably possible, that public assets are not sold by public authorities at an undervalue, save, if at all, with the consent, general or specific of the Secretary of State.  In R (Faraday Developments Ltd) v West Berkshire Council [2016] EWHC 2166 (Admin) Holgate J distilled, at paragraph 131, the following principles from the case law as to the circumstances in which a judicial review Court may or may not intervene in relation to the application of Section 123:-

(1) The Court is not entitled to substitute its own view on the facts and merits for that of the local authority, the Court may interfere only if there was no material upon which the authority’s decision could have been reached, or if in reaching that decision, the authority disregarded matters it ought to have taken into consideration, or if it took into account matters which were irrelevant, or if its decision was irrational;
(2) The Court is likely to find a breach of Section 123(2) only if the local authority (a) has failed to take proper advice, or (b) failed to follow proper advice for reasons which cannot be justified, or (c) although following advice, it followed advice which was so plainly erroneous that in accepting it the authority must have known, or at least ought to have known, that it was acting unreasonably;
(3) Section 123(2) does not mandate the authority to have regard to any particular factors;
(4) There is no need for the authority’s decision-making process to refer to Section 123(2) explicitly, provided that the Court is able to see that the duty has in substance been performed;
(5) The obligation under Section 123 is not to conduct a particular process, but to achieve a particular outcome, (albeit process may have an important, or even determinative, evidential role in deciding whether the authority has complied with Section 123(2));
(6) “Consideration” in Section 123(2) is confined to those elements of a transaction which are of commercial or monetary value, and therefore the Court will quash a decision to sell property where the authority has taken into account an irrelevant factor, eg job creation, when assessing whether it is obtaining the best “consideration” reasonably obtainable;
(7) The deliverability or credibility of a bid, or the care with which it has been prepared, are commercial factors which are relevant to an assessment of whether the “consideration” offered is the best reasonably obtainable: the highest offer on the table need not represent the best “consideration”, because an authority may conclude that “a bird in the hand is worth two in the bush”;
(8) In order to discharge the duty under Section 123(2) there is no absolute requirement to market the land being disposed of, or to obtain an independent valuation.

The case also concerned whether the Development Agreement was a “public contract” to which the public procurement regime applied; from paragraph 171, addressed the principles concerning the “main object” of a contract and the concept of direct and indirect and enforceable legal obligations; and, from paragraph 196, whether the Development Agreement contained artificial measures or devices to avoid public procurement legislation.

 

CPOs

June 22nd, 2016 by James Goudie QC in Land, Goods and Services

The Court’s power, under Section 24(2) of the Acquisition of Land Act 1981, to quash a Compulsory Purchase Order relates to the whole of the Order, not only its confirmation by the Secretary of State: Grafton Group v SoS for Transport (2016) EWCA Civ 561.