Belfields Ltd and others v Secretary of State for Communities and Local Government and another
Mr George Bartlett QC, sitting as a deputy judge of the division
Development – Acquisition of land – First defendant confirming compulsory purchase order – Objectors complaining that order unnecessary and unfair – Whether first defendant applying correct test for proportionality of decision – Applications dismissed
The second defendant local authority made a compulsory purchase order (CPO), under section 226(1) of the Town and Country Planning Act 1990, in connection with a key development. The CPO related to 10.2 ha of land consisting principally of disused industrial land and terraced housing. The first defendant secretary of state confirmed the CPO. The claimants each owned land affected by the CPO. They applied, under section 23 of the Acquisition of Land Act 1981, for an order quashing the CPO. The first defendant had agreed with the inspector that it was doubtful that the development would go ahead without a CPO.
Policy statements 17 and 18 of Circular 6/2004 stated that an acquiring authority should be sure that the purposes for which it was making the CPO justified the interference with the human rights of those with an interest in the land affected. Further, the confirming minister had to be able to take a balanced view between the intentions of the acquiring authority and the concerns of those with an interest in the affected land..
Development – Acquisition of land – First defendant confirming compulsory purchase order – Objectors complaining that order unnecessary and unfair – Whether first defendant applying correct test for proportionality of decision – Applications dismissedThe second defendant local authority made a compulsory purchase order (CPO), under section 226(1) of the Town and Country Planning Act 1990, in connection with a key development. The CPO related to 10.2 ha of land consisting principally of disused industrial land and terraced housing. The first defendant secretary of state confirmed the CPO. The claimants each owned land affected by the CPO. They applied, under section 23 of the Acquisition of Land Act 1981, for an order quashing the CPO. The first defendant had agreed with the inspector that it was doubtful that the development would go ahead without a CPO.Policy statements 17 and 18 of Circular 6/2004 stated that an acquiring authority should be sure that the purposes for which it was making the CPO justified the interference with the human rights of those with an interest in the land affected. Further, the confirming minister had to be able to take a balanced view between the intentions of the acquiring authority and the concerns of those with an interest in the affected land.. The claimants contended, inter alia, that the first defendant had failed to apply the correct test in determining whether there was a compelling case in the public interest that could justify the acquisition.They submitted that the court was required, when reviewing a decision to confirm a CPO, to consider objectively the proportionality of the decision. To be proportionate, the CPO had to be either the “least intrusive” means of achieving the public benefit sought or reasonably necessary to achieve that benefit. Furthermore, the first defendant was applying an unnecessary and unfair test that conflicted with the policy in Circular 6/2004 by requiring the claimants to establish the assurance or certainty of the development without the CPO. Held: The applications were dismissed.In a case such as this, proportionality was not to be determined by requiring the CPO to be the “least intrusive” means of achieving the public benefit. Such a test had been rejected by both the Court of Appeal and the High Court: Prest v Secretary of State for Wales [1983] 1 EGLR 17; (1983) 266 EG 527; Chesterfield Properties plc v Secretary of State for the Environment, Transport and the Regions (1998) 76 P&CR 117; De Rothschild & Eranda Ltd v Secretary of State for Transport [1989] 1 EGLR 19; [1989] 06 EG 123; R (on the application of Clays Lane Housing Cooperative Ltd) v Housing Corporation [2004] EWCA Civ 1658; [2005] 1 WLR 2229; Pascoe v First Secretary of State [2006] EWHC 2356 (Admin); [2007] 1 WLR 885 considered.The policy requirement that a CPO would not be confirmed in the absence of a compelling case in the public interest fairly reflected the necessary balance required under the Human Rights Act 1998 and the secretary of state had to be satisfied of that: Bexley London Borough Council v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 323 (Admin); [2001] 18 EG 172 (CS); R (on the application of Hall) v First Secretary of State [2007] EWCA Civ 612; [2008] JPL 63 considered. It was necessary to read both the decision letter and the inspector’s report as a whole. It was clear that both were weighing the degree of uncertainty that the development would not take place in the absence of the CPO against the particular contribution that the site would make to the regeneration of the area and the need for its development in accordance with the agreed timescale. That approach was palpably proportionate and the first defendant was justified in concluding that there was a compelling need for the CPO. John Barrett (instructed by Glassbrooks Ltd, of St Annes on Sea) appeared for the first claimant; John Hunter (instructed by Planning and Law Ltd, of St Annes on Sea) appeared for the second claimant; the third claimant appeared in person via video link; Paul Brown (instructed by the Treasury Solicitor) appeared for the first defendant; Frances Patterson QC (instructed by Eversheds LLP, of Manchester) appeared for the second defendant.Eileen O’Grady, barrister
