Hall & Anor v The First Secretary of State & Anor [2007] EWCA Civ 612

[2007] EWCA Civ 612

Case No C1/2006/1606

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QBD, ADMINISTRATIVE COURT

HH JUDGE MOLE QC

CO/8182/2005 & CO/7668/2005

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 28/06/2007

Before

LORD JUSTICE WARD

LORD JUSTICE CHADWICK

LORD JUSTICE CARNWATH

Between

HALL & ANRAppellants

THE FIRST SECRETARY OF STATE1 st Respondent

THE LONDON BOROUGH OF HILLINGDON2 nd Respondent

(Transcript of the Handed Down Judgment of

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Mr T. Straker QC & Mr Gerard Van Tonder (instructed by Messrs. Kingsley Smith Llp) for Appellant s

Mr Rupert Warren (instructed by Treasury Solicitor) for 1st Respondent

Miss Alice Robinson (instructed by London Borough of Hillingdon) for 2 nd Respondent

Hearing Hearing date : Wednesday 6th June, 2007

Judgment

Carnwath LJ :

[1]This is an appeal against a judgment of HH Judge Mole QC refusing to quash a compulsory purchase order for the appellants’ land. The order was the London Borough of Hillingdon (Harmondsworth Moor) Compulsory Purchase Order 2003 (the “CPO”). It was made under section 226(1)(b) of the Town and Country Planning Act 1990, which empowers a local planning authority to acquire compulsorily land if it is – “… required for a purpose which it is necessary to achieve in the interests of the proper planning of the area in which the land is situated”.

[2]The CPO related to three plots of land to the west of Harmondsworth. That is a village lying between the M4 to the north, the A4 and Heathrow Airport to the south, and the M25 motorway to the west. The area between Harmondsworth and the motorways consists mainly of a public park, known as Harmondsworth Moor. It lies within the Green Belt.

[3]We are concerned only with plot 3, also known as the Rose Cottages site. It is owned by the appellants, Mr and Mrs Hall. It was described by the judge:

“Plot 3… lies on the southern side of Moor Lane to the west of the Duke of Northumberland's River. It has an area of about a third of hectare and is between… Scotchlake Farm to the east and Cambridge Lodge to the west…. Plot 3 is used as a scrapyard, the use of which has become established, and is therefore completely lawful in planning law terms. The yard is fenced. The Inspector described the yard as "densely packed with scrap metals of various kinds", including vehicles ranging in height from 1 metre to two and-a-half metres high.”

The adjoining Scotchlake Farm was described by the Inspector (para 2.7) as consisting of “a dwelling and a small group of former buildings, now converted to workshops”.

[4]The planning history leading to the CPO is long and complex, but a summary is sufficient for our purposes. In 1989 British Airways (“BA”) were seeking planning permission for the development of a new headquarters complex. Since such development was contrary to normal Green Belt policy, it was necessary for them to offer associated planning benefits. They proposed to create a substantial public park in the adjoining area. Following a public inquiry, planning permission was granted in October 1992 by the Secretary of State, subject to a “section 106 agreement” with the local planning authority providing for the creation and maintenance of a public park.

[5]A revised section 106 agreement was agreed with the authority on 13th April 1995. It provided for BA to create the park and to maintain it in perpetuity. By clause 6.18 BA was required to use reasonable endeavours to seek to acquire the freehold ownership of a number of specified areas of land, including the Rose Cottages site (plot 3), referred to as “the remaining land”. It also undertook to reimburse the council for the council's costs and expenditure, including compensation under any compulsory purchase orders required for the remaining land.

[6]The judge referred to the protracted course of negotiations for purchase of the remaining land by agreement. These were unsuccessful. In 2001 there was also an attempt before Collins J to challenge the legality of a resolution by the Council to acquire the land compulsorily. Collins J was critical of the delay in advancing the proposals, but dismissed the application. Eventually on 29th January 2003 the Council made the order with which we are concerned. A public inquiry was held in November 2003 into objections, including those of the Halls. Mr Hall represented himself. The inspector recommended confirmation of the order for Plot 3. On 11th August 2004, the Secretary of State indicated that he was minded to confirm the order, but invited further representations (principally, as I understand it, to deal with points on which he had not agreed with the inspector). On 11th February 2005 he issued his final decision confirming the order.

Proposals for Plot 3

[7]It is important to note that neither BA nor the council had any specific proposals for the future of the Rose Cottages site itself. It was not to be included in the park itself, nor in the “Landscaping Works” which BA was required to carry out by the agreement. A Master Plan prepared in accordance with the agreement showed it as “amenity grass”. Clause 6.21 provided:

“If (BA) acquires freehold ownership of the Rose Cottages Site it will not use or permit the continued use of this land for open storage or as a scrap yard or for commercial or industrial purposes and the Company will improve the appearance of the New Park Land after completion of the Landscaping Works PROVIDED THAT the Company may carry out development on the Rose Cottages Site pursuant to a planning permission granted after the date of this Agreement notwithstanding that the implementation of the development will affect the appearance of the Rose Cottages Site.”

[8]At the inquiry the inspector was told that there was no proposal to acquire the adjoining property, Scotchlake Farm, whose residential use was regarded as “compatible with the new park” (para 3.6; although not stated, I assume this also applied to the workshops on Scotchlake Farm). Of Plot 3, he noted: “Public access is not intended for plot 3. It has not been decided how this plot would be used. If acquired, its future would be considered with that of the adjoining Cambridge Lodge, which is now owned by BA. There is a possibility that the Lodge might be used as a permanent visitors’ centre.” (para 3.11)

[9]The council’s case for acquisition was summarised by the inspector: “Plot 3 is one of the few reminders of the degraded nature of this urban fringe land prior to the implementation of the parkland. Its removal and the reclamation of the site would ensure the remediation of damage land in the Green Belt. The Order Lands are typical urban fringe land where there is always a high risk of poor management or unauthorised activity. Their acquisition would remove the threat of harmful uses in the future and secure proper management in perpetuity.” (para 3.37)

The reasons for the decision

[10]The substance of the inspector’s conclusions following the 2003 inquiry is in paragraph 8.49-50:

"The proposed parkland with public access on plots 1 and 2 and the removal of the scrapyard on plot 3 would be fully compliant with the purposes and uses of the Green Belt set out in PPG 2 and with the UDP policies for the Green Belt and for the promotion of access to the countryside. The purposes for which the Order Lands are sought accord with policy 0L25 (comprehensive rehabilitation area); the speedy removal of waste and visual dereliction on plot 2 and the scrapyard on plot 3 would achieve the objectives of UDP policies concerning damaged, derelict and degraded land… "

The benefits of the parkland and public access would be secured in perpetuity. The implementation of the parkland and the removal of the scrapyard would complete the transformation of the land between Harmondsworth and the M4/M25 that BA has undertaken over the past 10 years, avoid activities detracting from the existing parkland and the possibility of other harm in the future. In my view, the Order Lands are required to achieve the proper planning of the area so as to remove existing or potential harmful activities, to provide parkland for the benefit of the public and to enhance the public benefit of the parkland that has already been provided.”

[11]Following this report, as I have said, the Secretary of State invited further representations. In a letter of 24th August 2004 Mrs Hall summarised their objection. She pointed out that the site had been a working scrapyard for 40 years; that it was bounded by industrial workshops on Scotchlake Farm, and Cambridge Lodge which had been left derelict by BA for 6 years; that it was not required for the park itself, and there were no environmental problems; and that the CPO would force the business to close and leave 3 people unemployed. She concluded:

“… if this CPO is confirmed the Secretary of State will be guilty of land grabbing, for the sake of a private corporation’s greed as the site has industrial use, is NOT in the Park and will be redeveloped, which is in direct violation of our Human Rights…”

[12]In his final decision-letter the Secretary of State accepted the Inspector’s general conclusions as to the merits of the proposals: "Subject, therefore, to the effects of the proposal for a third runway at Heathrow, the Secretary of State agrees with the Inspector's view (in IR 8.49 and 8.50) of the benefits to be secured by confirmation of the CPO, and his view that this would be in the interests of the proper planning of the area. He also places weight on the consideration that the creation of the park accords with the purposes of the section 106 agreement accepted by British Airways (BA) in connection with the planning permission granted to them in 1992 for a corporate headquarters and business centre, landscaping and public parkland. The second (1995) agreement (the one now in force) requires BA to use reasonable endeavours to acquire those parts of the site which were not then in their ownership to form the new park. The decision letter issued by the Secretary of State in 1992 relies on the Inspector's finding that the creation of the parkland for public use is one of the very special circumstances that would justify investment in Green Belt in the particular case." (para 23)

[13]He then dealt specifically with the issues relating to plot 3:

“24. The Inspector recognises (IR 8.35) the compulsory acquisition in the case of plot 3 is sought so as to remove the present use rather than establish a new one, though he sees the result (IR 8.37) as being that the site would be made compatible with the appearance of the park, with contamination removed, and considers that this would be a significant benefit in the public interest. He says (IR 8.35) that in his view, the scrapyard significantly detracts from the appearance of its immediate surroundings, though not the village conservation area, and can not envisage the use continuing without its being readily noticeable by the public. In IR 8.39 the Inspector also indicates a range of benefits that would arise from the compulsory acquisition of plot 3, including the completion of the package of environmental improvements on the western side of the Duke of Northumberland's River. In IR 8.45, the Inspector indicates that a third runway at Heathrow would not render the existing adjacent parkland west of the Duke of Northumberland's River and south of Moor Lane unattractive or unusable, and that the removal of the scrapyard would be a benefit to that parkland in perpetuity. That said, in IR 8.38 he also recognises as a disbenefit the possibility that confirmation of the CPO could result in the cessation of the scrapyard business on plot 3 because it may not be possible to relocate it. In IR 8.53 he considers that there is a compelling need in the public interest to acquire all of the Order Lands, and that this need outweighs the desire of Mr Hall to continue his business. He recommends in IR 9.1-9.3 that the Order should be confirmed for plot 3, whatever decision is made on the third runway.”

[14]He referred to the points made in Mrs Hall’s letter of 23rd August 2004, and commented:

“26. The Secretary of State agrees with the Inspector that the removal of the scrapyard would render the site compatible with the adjacent parkland (IR 8.37), is in accordance with relevant Unitary Development Plan policies (IR 8.39) and would bring other desirable environmental benefits, including the removal of any contamination and the potential for contamination (IR 8.36 and 8.37). He agrees with the Inspector's view (in IR 8.50) that the implementation of the parkland and the removal of the scrapyard would complete the transformation of the land and avoid activities detracting from the existing parkland. He notes that (IR 8.20) there is no proposal that plot 3 should itself become parkland, and that BA has no specific plans for the site other than compliance with its obligations. 27. The Inspector indicates (IR 8.39) that the benefits arising from the removal of the use would occur only by confirmation of the CPO. The Secretary of State agrees with that conclusion. Discontinuance action under section 102 of the Town and Country Planning Act 1990 could bring about a cessation of the use of the land as a scrapyard, without depriving the owner of his land. However, the Secretary of State considers that this would leave uncertainties over the future use and management of the land which could greatly reduce the benefits to the public from the adjacent parkland. The representations made on his 'minded to' letter do not alter the balance of factors that lead him to this view. The Secretary of State therefore considers that acquisition of the land is necessary for the proper planning of the area. Notwithstanding the potential adverse effect of confirmation on the scrapyard business, he considers that there is a compelling case in the public interest for confirmation of the Order in relation to plot 3.”

The legal issue

[15]It is well-established that a clear case is required, both under domestic law and under the European Convention of Human Rights, to justify depriving a private owner of his land in the public interest. Circular 02/2003 states the principle: “A compulsory purchase order should only be made where there is a compelling case in the public interest. An acquiring authority should be sure that the purposes for which it is making a compulsory purchase order sufficiently justify interfering with the human rights of those with an interest in the land affected, having regard in particular to the provisions of Article 1 of the First Protocol to the European Convention on Human Rights…” (para 14) The courts have accepted that this principle fairly reflects the necessary balance required by the Convention (see R(Clays Lane Housing) v Housing Corporation

[2005] 1WLR 2229

, 2236). Where the balance depends on judgments of planning policy, the Secretary of State’s decision will not be open to challenge save on conventional judicial review grounds.

[16]Although the appellants have put their case in various ways, at the heart of the challenge is a single issue: whether the Secretary of State adequately considered the achievement of the objectives of the CPO by less intrusive means, not involving deprivation of their land.

[17]The foundation of Mr Straker’s submissions on their behalf is the admitted fact that the land as such will not be part of the parkland, the creation of which is the primary purpose of the CPO. The purpose of the acquisition is simply to enable BA to improve the appearance of their land, as part of the setting of the park. This is a purpose which could be achieved within the appellants’ control. He points to the powers available to the authority under the 1990 Act, including section 102 (discontinuance of use) and section 215 (power to require proper maintenance of land). The Secretary of State discounted section 102, because it would leave “uncertainties over the future use and management of the land”. However, there is uncertainty also over what will happen to the land in BA’s hands. In so far as the section 106 agreement gives the authority a degree of management control, that could be achieved by a similar agreement with the appellants.

[18]Mr Straker also points to the possibility of future development being permitted on the site in BA’s hands. The section 106 agreement (clause 6.21) envisages that, following clearance of the scrap metal business, and discontinuance of commercial use, future development may be the subject of planning permission. There was some debate before us whether, as a matter of construction, the prohibition on use for “commercial or industrial purposes” is qualified by the proviso, which allows “development” subject to specific planning permission. I find it unnecessary to resolve that issue. On any view, the clause does not require the site to be sterilised. Mr Straker submits that any valuable development potential should belong to the appellants, not to BA.

[19]I have considerable sympathy with this argument. However, I think it ignores both the practicalities, and the context in which the Secretary of State’s decision was made. The main focus of the appellants’ case at the inquiry, not surprisingly, was the protection of their scrap-metal business. It was not part of their case to propose alternative, compatible use of the land in their own hands. Nor could they be expected to do so without an assurance of adequate compensation for their business. However, as Mr Straker has to accept, the protection of the business is no longer a realistic option. The Secretary of State has decided that its retention is not compatible with the planning objectives for the area. That is a matter of planning judgment, which is not open to legal challenge.

[20]That principle having been established, the only question was how it was to be achieved. The authority’s proposed CPO, underpinned by the agreement with BA, offered a clear and practical way forward. It would result in enforceable obligations on BA for the improvement and future maintenance of the land, together with provision for proper compensation to the appellants. There was no viable alternative before the inquiry. It was no part of the appellant’s case that the same result should be achieved by use of other powers under the planning Act. It is, of course, no criticism of the appellants that they did not make such a proposal, because it would have been wholly inconsistent with their primary case.

[21]To what extent was the Secretary of State under a duty to explore such alternatives, even if not presented by the parties? His primary task under the statute is to consider the issues raised by objections to the CPO, not to search for alternatives. On the other hand, to satisfy himself that there is a “compelling case” for compulsory acquisition, particularly where objectors are unrepresented, fairness may require him to consider at least any obvious alternatives. In this case, the Secretary of State did consider the possibility of a discontinuance order, even though it had not been suggested by the objectors. He dismissed it because it would not resolve future management issues, as would be achieved by the agreement with BA. I do not think he can be criticised for not considering section 215. It was not mentioned at the inquiry. On its face it is not directed to the real problem. It enables the authority to serve a notice where the amenity of the area is adversely affected by “the condition of land in their area”. But the problem here was not the “condition” of the land, but the inevitable impact of its lawful use. That could only be remedied by statutory action providing for cessation and proper compensation. In my view his judgment on the material before him cannot be categorised as unfair or irrational.

[22]One could in theory envisage a more detailed package of arrangements to address the management concerns. For example, the appellants might have offered to accept a discontinuance order without objection, and to combine it with a section 106 agreement to restore and maintain the land, on similar terms to those undertaken by BA. Had a credible package of that kind been before the inquiry, it might have thrown serious doubt over the need for the CPO. However, there was no such package before the inquiry, and the inspector was under no duty to devise one. Nor has any such proposal been put before the judge, or this court.

[23]In those circumstances, in my view, the Secretary of State was entitled to conclude, on the material before him, that the CPO was necessary to achieve the planning objectives for the area.

Conclusion

[24]For those reasons, which are in substance the same as those of the judge, I would dismiss the appeal.

Lord Justice Chadwick :

[25]I agree.

Lord Justice Ward :

[26]I also agree.