Lomax and others v Secretary of State for Transport, Local Government and the Regions and another

Restoration of canal — Compulsory purchase of land — Claimants withdrawing objections at inquiry — Inspector recommending refusal of CPO as claimants’ legal interests not sufficiently protected — Secretary of State overruling inspector — Secretary of State failing to reopen inquiry — Whether Secretary of State in breach of r 17(4) of Planning Rules — Whether claimants suffering substantial prejudice — Application to quash CPO dismissedFor the purpose of restoring the Rochdale Canal, the second defendant council made a compulsory purchase order (CPO), under section 266 of the Town and Country Planning Act 1990, in respect of land that included an underpass beneath the M62 motorway. The underpass was regularly used by the claimants. In particular, the second claimant’s farmland, which was situated on both sides of the motorway, was primarily accessed by means of the underpass. The claimants registered their concerns about the scheme at a public inquiry held in 2000. They did not oppose the restoration, but they sought to protect their interests in relation to the specified works. During the course of the inquiry, the claimants reached an agreement with the second defendant council in this respect, and formally withdrew their objections to the scheme. The inspector concluded, in his report, that the agreement was unsatisfactory because it involved the co-operation of third parties who were not represented at the inquiry, and provided no legal certainty that the claimants’ interests would be protected in the manner they envisaged. As a result, he recommended against confirmation of the CPO. The first defendant Secretary of State subsequently entered into a lengthy correspondence with the claimants and the council, eventually confirming the CPO without modification. The claimants brought proceedings to challenge the confirmation on the grounds that: (i) the Secretary of State had failed to comply with r 17(4) of the Compulsory Purchase Rules 1990, in that he should have notified the claimants of his disagreement with the inspector’s recommendation, thereby affording them the opportunity to make further representations; and (ii) their interests were substantially prejudiced as a result. The defendants argued that the claimants, having withdrawn their objections at the original inquiry, were not “persons aggrieved” for the purposes of section 23(2) of the Acquisition of Land Act 1981, and were not therefore in a position to challenge the decision of the Secretary of State. Held: The claim was dismissed. For r 17(4) to be breached, the new material taken into account by the Secretary of State had to have been a causative factor in his decision. This was clearly the case, since the new material was examined at length in his decision letter. Hence, there was a failure to comply with the relevant requirement of r 17(4). In order for the claimants to have suffered substantial prejudice, they needed only to show that the Secretary of State’s decision might have been different had r 17(4) been complied with. They had failed to show this. The claimants had engaged in extensive post-inquiry correspondence with the Secretary of State, and, therefore, he was fully aware of their position. This correspondence had confirmed his understanding that satisfactory arrangements could be reached by the claimants and other landowners without impeding the progress of the canal restoration, which had been the claimants’ original position at the inquiry. Thus, although the Secretary of State had failed to comply with a relevant requirement, the interests of the claimants had not been substantially prejudiced as a result. Martin Carter (instructed by Field Cunningham & Co, of Manchester) appeared for the claimants; Timothy Mould (instructed by the Treasury Solicitor) appeared for the first defendant; Philip Kolvin (instructed by Sharpe Pritchard) appeared for the second defendants, Rochdale Borough Council. Vivienne Lane, barrister