CPO

December 1st, 2016

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.

 

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