R (on the application of Iceland Foods Ltd) v Newport City Council

Compulsory purchase – Development – Defendant council making compulsory purchase order (CPO) in connection with scheme to redevelop city centre retail site — Claimant with leasehold interest in site objecting to CPO — Planning inspector recommending confirmation of CPO – Defendants confirming CPO and making general vesting declaration (GVD) — Claimant seeking permission to apply for judicial review of decision to execute and seal GVD — Whether administrative actions amenable to judicial review — Whether execution of GVD unlawful — Whether making of CPO unreasonable — Application dismissed The defendant council made a compulsory purchase order (CPO) in respect of land required for a retail-led, mixed-use development in Newport city centre. A number of objections were received, including those made by the claimant, which had leasehold interests in land included in the CPO. An inspector appointed by the National Assembly for Wales to inquire into the objections recommended that the CPO should be confirmed “for the purpose of… carrying out a comprehensive scheme”. The defendants duly gave notice of confirmation of the CPO and notice of their intention to make a general vesting declaration (GCD). It transpired that the preferred developer was not in a position to fulfil the terms of its development agreement with the defendants. The latter therefore agreed, inter alia, to implement the CPO and to seek financial support from external sources so that a major shopping development could go ahead. The defendants executed and sealed the GVD despite objections by the claimant that that was illegal. The claimant received notice of the making of the GVD pursuant to section 6 of the Compulsory Purchase (Vesting Declaration) Act 1981.The claimant applied for orders to quash the CPO and the GVD. It submitted that the defendants had acted unlawfully in executing and serving the GVD because those steps had been taken for a purpose that differed from that which had been put forward when the CPO was confirmed. Further, the decision to implement the CPO had been Wednesbury unreasonable.The defendants argued that, although its decisions prior to the execution and service of the GVD were amenable to judicial review, the execution and service of the GVD were not. Furthermore, the notice under section 6 had not been brought promptly as required by CPR 54.5(1)(a). Held: The application was dismissed.Where a body such as the defendants obtained a power of compulsory acquisition that was expressed or limited by reference to a particular purpose, it was not legitimate for that body to seek to use the power for a different or collateral purpose: Simpson’s Motor Sales (London) Ltd v Hendon Corporation (No 1) [1964] AC 1088 applied. There could be no reasonable doubt concerning the purpose underlying the CPO. The land was required for the purpose of carrying out a comprehensive scheme of development. The scheme included various different land uses and fell within the statutory power to make a CPO conferred on the defendants under section 226(1) of the Town and Country Planning Act 1990.There was no basis for concluding that the defendants were implementing the CPO for a purpose that was different from or collateral to the purpose that justified the confirmation of the CPO. The claimant had failed to establish that the defendants had acted unlawfully when they decided to implement the CPO or when they executed the GVD. The defendants had proceeded on the basis that the scheme that underpinned the CPO was achievable and that the public benefits accruing from it were unchanged; the compelling case in the public interest that justified the CPO and was accepted by the inspector remained. The decision to implement the CPO was not unreasonable: Norris v First Secretary of State [2006] EWCA Civ 12; [2006] 1 P&CR 3 considered.It was clear from sections 4 and 6 of the 1981 Act that the GVD conferred title to the land in question and therefore it was the GVD, when executed, that would be subject to any challenge by way of judicial review. The right to challenge first arose when the GVD was executed. The service of a notice under section 6 neither triggered a separate right of challenge nor delayed the point in time at which the right to make a challenge arose. The obligation to serve notice under section 6 was an obligation to serve the notice “as soon as may be”. Service would usually take place on the day on which the GVD was made or shortly thereafter. If the notice was served a significant time after the execution of the GVD and the affected party became aware of its execution only when it received notice, that could be taken into account if any issue arose as to whether that party had delayed in bringing proceedings for judicial review: R (on the application of Burkett) v Hammersmith and Fulham London Borough Council (No 1) [2002] UKHL 23; [2002] PLR 90 considered.The proceedings had been issued shortly before the expiry of the three-month period specified in CPR 54.5. It was probably not brought promptly, but that was not a sufficient reason for refusing permission.Robert Fookes (instructed by Hill Dickinson LLP) appeared for the claimant; Charles George QC and Saira Kabir Sheikh (instructed by Geldards LLP) appeared for the defendants.Eileen O’Grady, barrister