The Alliance Spring Co Ltd and others v First Secretary of State

Planning permission — Development including new football stadium — Compulsory purchase order — Secretary of state confirming order contrary to recommendation of inspector — Whether scheme depending upon private developer appropriate for exercise of compulsory purchase — Whether proportionate breach of claimants’ human rights — Claim dismissed Arsenal Football Club (AFC) (the second interested party) obtained planning permission for three interconnected developments, namely the relocation of its stadium, the redevelopment of nearby land to accommodate a waste-recycling centre and the redevelopment of the site of its existing stadium.  Since the redevelopments necessarily involved the demolition of buildings that were not owned either by the council (the first interested party) or by AFC, the council made a compulsory purchase order (CPO) under section 226 of the Town and Country Planning Act 1990 (the 1990 Act). Following objections to the CPO, an inquiry was held before an inspector who, on failing to find a compelling case in the public interest, recommended that the order should not be confirmed. The defendant secretary of state disagreed with his inspector. Having afforded the interested parties the opportunity to comment on his proposed decision in writing, he confirmed the CPO. He concluded that the use of a CPO was justified in order to achieve comprehensive regeneration. The claimants, whose businesses would be affected by the CPO, challenged its validity pursuant to section 23 of the Acquisition of Land Act 1981. They contended, inter alia, that: (i) the real purpose of the scheme was to provide AFC with a new stadium and that this could not properly be regarded as a scheme to achieve a comprehensive regeneration of the area; (ii) it would not be proper for compulsory purchase powers to be used to enable AFC to construct a replacement stadium; and their rights under Article 1 of the First Protocol to the European Convention on Human Rights had not been properly considered. Held: The claim was dismissed. The defendant had been entitled to form his own judgment having regard to all the relevant matters. The fact that the scheme was led by, and to a large extent was dependent upon, a private developer did not justify its rejection. Section 226(4) of the 1990 Act recognised that a council that had determined in favour of a CPO did not themselves have to carry out the purpose for which it was required. The acquiring authority need ensure that the purposes for which the CPO was made sufficiently justified any interference with the human rights of those with an interest in the land affected. Compulsory purchase powers were granted in the public interest and so, provided that they were exercised in accordance with the law and in a properly proportionate fashion, would not constitute a breach of Article 1 of the First Protocol. The defendant had decided that the main purpose of the scheme was the comprehensive regeneration of the area, albeit that the trigger had been AFC’s wish for a new stadium with an increased capacity. There was nothing to indicate that that decision was ill-founded or that it was one that the secretary of state was not entitled to reach. The defendant had considered the claimants’ Convention rights and concluded that any interference with those rights would be proportionate. Once he had decided that there was a compelling case for the CPO, that view was manifestly correct. Matthew Horton QC and Jeremy Pike (instructed by EarthRights Solicitors, of Axminster) appeared for the claimants; John Litton (instructed by the Treasury Solicitor) appeared for the defendant; Christopher Katkowski QC and Karen McHugh (instructed by the solicitor to Islington London Borough Council) appeared for the first interested party, Islington London Borough Council; Karen McHugh (instructed by David Cooper & Co) appeared for the second interested party, Arsenal Football Club. Eileen O’Grady, barrister