Iceland Foods Ltd, R (on the application of) v Newport City Council [2010] EWHC 2502 (Admin)

[2010] EWHC 2502 (Admin)

Case No CO/2654/2010

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date 12/10/2010

Before

MR JUSTICE WYN WILLIAMS

Between

R (on the application of ) Iceland Foods LtdClaimant

Newport City CouncilDefendant

Robert Fookes (instructed by Hill Dickinson LLP) for Claimant

Charles George QC & Saira Kabir Sheikh (instructed by Geldards LLP) for Defendant

Hearing Hearing date:1 October 2010

Judgment

[1]In these proceedings the Claimant seeks three substantive orders. They are i) an order quashing the execution and sealing of the Newport City Council (Redevelopment of John Frost Square) Compulsory Purchase Order 2006 General Vesting Declaration Number 1 (hereinafter referred to as the “GVD”); ii) an order quashing the service of notice of the making of the GVD, and iii) a declaration that the GVD is of no effect such that the land referred to therein has not vested in the Defendant on the vesting date or at all. The GVD was executed and sealed on 27 November 2009; it was served on 21 December 2007 and it took effect on 8 March 2010.

[2]The Defendant executed sealed and served the GVD pursuant to decisions of the Cabinet of the Defendant to which I refer more fully below.

Relevant Facts and Chronology

[3]John Frost Square lies within the heart of the city centre of Newport. It is a pedestrian retail precinct dating from the 1960s with associated servicing areas and car parks. For many years the Defendant has considered there to be a need to revitalise the area and improve the quality of the physical environment. The Defendant owns the freehold interest in much if not all of the land in John Frost Square and its immediate environs.

[4]There have been various redevelopment proposals relating to John Frost Square since 2002. In October 2003 the Defendant and the urban regeneration company, Newport Unlimited, embarked on the first stage of delivering a major retail-led mixed use development. Expressions of interest were invited from major UK shopping centre developers. Seventeen development companies responded, from which a short list of five companies was selected in October 2004. The short listed companies were issued with a development brief and invited to submit detail proposals for redevelopment and regeneration in the area of the John Frost Square.

[5]In March 2005 Modus Corovest Newport Ltd (hereinafter referred to as “Modus”) was chosen as the preferred developer. Some time thereafter the Defendant and Modus entered into a development agreement.

[6]On 13 April 2006 the Defendant made the “Newport City Council (Redevelopment of John Frost Square) Compulsory Purchase Order 2006 (hereinafter referred to as the “CPO”). The CPO was accompanied by a Statement of Reasons. Under the heading “Description of Scheme” the following appears:- “The Order land is required to allow the redevelopment of the existing built development on the Land to be Acquired to provide a mixed use development consisting of the following components and approximate floor areas….”

[7]The Claimant, amongst others, objected to the CPO. It had leasehold interests in land which lies within the land which is the subject of the CPO. The National Assembly for Wales appointed an Inspector to inquire into the objections, to report upon them and make a recommendation upon whether the CPO should be confirmed. On 1 November 2006 the Inspector duly appointed, Mr Alwyn Nixon, recommended that the CPO should be confirmed subject to modifications which are not relevant to the present dispute.

[8]At the commencement of his report the Inspector described the purpose for which the CPO was being sought in the following terms:- “Through the Order the Council seeks to purchase compulsorily, for the purpose of securing the carrying out of a comprehensive scheme development (including retail, leisure, residential and hotel uses together with car parking, highway alterations and public realm works), the land described in the Order schedule….”

[9]By letter dated 30 March 2007 the National Assembly for Wales, by its duly authorised employee, confirmed the CPO subject to the modifications suggested by the Inspector. The Order was confirmed and the land acquisition authorised “for the purpose of securing the carry out of a comprehensive scheme of development (including retail, leisure, residential and hotel uses together with car parking, highways alterations and public realm works)”.

[10]By letter dated 4 April 2007 the Defendant gave notice of confirmation of the CPO and notice of its intention to make a GVD.

[11]By 16 June 2009 it had become clear that Modus was not in a position to fulfil the terms of its development agreement with the Defendant. Accordingly, the Defendant’s Cabinet was asked to consider the following proposals:-• “To agree to complete all outstanding acquisitions within the confirmed Newport City Council (Redevelopment of John Frost Square) Compulsory Purchase Order 2006.

• To discuss the consequent financial implications in private later in this meeting.

• To not agree to extend the present development agreement in force with Modus Corovest.

• To draw up proposals to re-market the site.

• To seek financial support from external sources in order to advance the provision of a major shopping development in the heart of the city.”

[12]The Defendant’s Cabinet agreed upon five resolutions. Four of the resolutions were identical to the first, third, fourth and fifth bullet points set out immediately above. The Cabinet also resolved to agree the consequential financial implications of completing all outstanding acquisitions within the CPO and to include provision for the CPO in the Defendant’s capital programme.

[13]There is no evidence that the Defendant notified the Claimant of the decisions made on 16 June 2009 in the immediate aftermath of those decisions. It is clear, however, that the Claimant knew of the decisions by 12 November 2009. On that date its solicitors wrote to the Defendant alleging that the execution and sealing of the GVD would be illegal.

[14]On 19 November 2009 the Claimant’s solicitors wrote again to the Defendant. They requested documentation and further information. The Defendant replied to the letters of 12 November 2009 and 19 November 2009 in a letter dated 23 November 2009. In summary, the Defendant provided the documentation and information sought. Further, the Defendant refuted the suggestion that the execution and sealing of the GVD would be illegal. As I indicated earlier in this judgment the GVD was executed and sealed on 27 November 2009.

[15]On 30 November 2009 the Claimant’s solicitors wrote a detailed letter before action. They acknowledged that the letter was not in the standard form of a pre-action protocol letter for judicial review. However, it was intended to be and expressed to be a letter before claim. On 4 December 2009 the Defendant responded by informing the Claimant's solicitors that the GVD had been executed and sealed. The Defendant also asked the Claimant to refrain from issuing proceedings for judicial review until its Cabinet had considered the Claimant's solicitor’s letter of 30 November 2009.

[16]On 8 December 2009 the Defendant’s Cabinet met to consider the Claimant's solicitor’s letter. It was provided with a detailed report from officers of the Defendant. The report set out three options for the Cabinet’s consideration; the report also identified a preferred choice which was to endorse and reaffirm the decisions taken by Cabinet on 16 June 2009. That was the decision taken by Cabinet following discussion. The Defendant’s Head of Law and Standards, Mr. Gareth Price, emailed the Claimant’s solicitor to inform him of the decision in the afternoon of 8 December.

[17]The Defendant did not serve notice of the making of the GVD immediately. It did so on 21 December 2009 and the Claimant received it on 22 December 2009. Before the GVD had been served the Claimant’s solicitor wrote again to the Defendant on 11 December 2009. The Defendant replied to that letter on 23 December 2010. There was no further correspondence so far as I am aware; certainly there was no further correspondence which the parties rely upon.

[18]These proceedings were issued on 24 February 2010.

The Claimant's Grounds

[19]The Claimant relies upon two distinct grounds of challenge although it is accepted that at least to some extent they are interlinked. It is submitted first that the Defendant acted unlawfully in executing the GVD and thereafter serving it since those steps were taken for a purpose which was not the same purpose as that which was put forward when the CPO was made and confirmed. The second ground alleges that the Defendant acted unlawfully in executing and serving the GVD since so to do was contrary to the rights of the Claimant under Article 1 of the First Protocol of the European Convention on Human Rights as brought into force in the United Kingdom by the Human Rights Act 1998. I deal with each ground in turn.

[20]In Simpsons Motor Sales (London) Ltd v Hendon Corporation

[1964] AC 1088

the House of Lords held unanimously that where a body, such as the Claimant in this case, obtains a power of compulsory acquisition which is expressed or limited by reference to a particular purpose it is not legitimate for such a body to seek to use such power for some different purpose or for a collateral purpose – see the speech of Lord Evershed (in particular at page 1118) with which all the other law lords agreed. There is no dispute before me but that this principle holds good notwithstanding the changes in the statutory provisions relating to compulsory purchase which have occurred since 1964.

[21]In order to determine whether the Claimant has executed and served the GVD for a purpose which is different from or collateral to the purpose for which the CPO was confirmed it is necessary, first, to ascertain the purpose for which the CPO was confirmed. The Order was made pursuant to section 226(1) of the Town & Country Planning Act 1990. That subsection reads as follows:- “1. A local authority to whom this section applies shall, on being authorised to do so by the Secretary of State, have power to acquire compulsorily any land in their area – a) if the authority thinks that the acquisition will facilitate the carrying out of development/re-development or improvement on or in relation to the land….” Subsection 1A introduces restrictions upon the exercise of the power conferred in section 226(1). “But a local authority must not exercise the power under paragraph (a) of subsection (1) unless they think that the development, redevelopment or improvement is likely to contribute to the achievement of any one or more of the following objects –(a) the promotion or improvement of the economic well-being of their area;

(b) the promotion or improvement of the social well-being of their area;

(c) the promotion or improvement of the environmental well-being of their area.” (a) the promotion or improvement of the economic well-being of their area; (b) the promotion or improvement of the social well-being of their area; (c) the promotion or improvement of the environmental well-being of their area.”

[22]The CPO is entitled “the Newport City Council (Redevelopment of John Frost Square) Compulsory Purchase Order 2006.” That title makes it obvious that the purpose of the Order is redevelopment of John Frost Square. The Statement of Reasons contains the description of the scheme which I have set out at paragraph 6 above. That description, obviously, conveys to the reader that the purpose of the scheme is to allow for a comprehensive redevelopment. The Inspector’s report records that:

“The Order is required to facilitate a regeneration scheme in circumstances where the need for regeneration is not in dispute. ……whilst the objectors to the scheme raise concerns about its effect on their own particular interests, there is no challenge to the acquiring authority’s case that the redevelopment scheme would achieve regeneration that will contribute to the economic, social and environmental well-being of its area.”

The letter conveying the decision of the National Assembly for Wales to confirm the CPO records that the Defendant was seeking to acquire the Order land “for the purpose of securing the carrying out of a comprehensive scheme of development (including retail, leisure, residential and hotel uses together with car parking, highways alterations and public realm works).”

[23]In my judgment there can be no reasonable doubt about the purpose underlying the CPO. The land was being acquired for the purpose of carrying out a comprehensive scheme of development which included many and various different land uses. The purpose of the scheme fell squarely within the statutory power conferred by section 226(1) of the 1990 Act.

[24]I should say now that I do not accept that the purpose of the land acquisition was to secure the carrying out of a comprehensive scheme of development by a particular developer. I acknowledge, of course, that the Defendant adduced evidence before the Inspector to the effect that the scheme was to be undertaken by Modus and that Modus had the wherewithal to undertake the scheme. Nonetheless, to repeat, it would not be correct to conclude that the purpose underlying the confirmation of the CPO involved the undertaking of a scheme of redevelopment by a particular company. In my judgment the documents coming into existence prior to the confirmation of the CPO simply do not justify such a conclusion.

[25]I turn to consider whether the Defendant has executed the GVD and served it for a purpose different from or collateral to that which underpinned the confirmation of the CPO.

[26]There is comparatively little detail contained within the papers before me as to what transpired between the confirmation of the CPO on 13 March 2007 and the Cabinet meeting of 16 June 2009. It is clear, however, that the following must have occurred. First, a significant percentage of the floor space proposed by the redevelopment was ‘pre-let’. Second, at least one aspect of the scheme proposed in 2006 was changed – it was decided not to provide a hotel as part of the scheme. Third, a number of persons or companies affected by the CPO vacated the premises which they occupied. In some instances those parties incurred expenditure; compensation has been agreed with at least some of those parties although, to date, not paid. In my judgment, all of these events point unequivocally to the Defendant making progress towards the implementation of a scheme of redevelopment in John Frost Square. As I have set out above, however, by June 2009 the financial viability of Modus was in doubt. Further, the development agreement between the Defendant and Modus was due to expire on 31 July 2009 unless extended.

[27]It is against this factual background that I turn to consider the reports which were submitted to Cabinet prior to 16 June 2009. The report which was made public contains the following important paragraphs:- “2. The present situation This has been a complex project which relied on many elements coming together. As mentioned above, the scheme needed to proceed through the planning process, there was a need to pre-let a certain % of the floor space (this was eventually achieved); there was a need to get funders in place. Funders were eventually found by the developers but the impact of the credit crunch hit hard and funding opportunities diminished. Investors who were providing funding for the scheme were affected severely by the banking sector difficulties and the economic downturn. The scheme is effectively well placed to proceed other than for the critical issue of available funds. But for that it is highly likely [the scheme] would now be being built. The Newport scheme is, of course, not unique with very few, if any, new schemes on site. Over the last 6 months or so the situation has deteriorated. Modus as a company has also suffered difficulties. These will be discussed privately later in the meeting. The present development agreement with Modus Corovest will expire on 31 July 2009 unless extended. In these circumstances the Cabinet was advised that the appropriate way forward is to offer our city centre development scheme as an opportunity to the market. 3. Compulsory Purchase Order One of the immediate issues facing the Council is the completion of the acquisitions within the Newport City Council (Redevelopment of John Frost Square) Compulsory Purchase Order 2006. The Order is due to expire on 10 April 2010 and acquisitions must be undertaken before that date. Modus Corovest is unable to fund a 100% of the capital required to secure control of the development area. Hence there are three options available to the Council:-• Not to proceed to complete outstanding acquisitions. This would likely necessitate a further and fresh CPO at a later stage with no guarantee this could be secured.

• Undertaking the CPO in conjunction with Modus Corovest. Cabinet members were appraised of the cost of this option. This would presume that Modus Corovest can bring forward at an appropriate stage a viable and fundable development.

• The Council undertakes full control of the development itself by undertaking the CPO at own cost. The Council would then select at an appropriate time a developer partner. If the CPO is not implemented within its 3 year period then it will lapse and the Council will be faced with the considerable risk and uncertainty of pursing a fresh CPO inquiry, together with a significant delay that this would entail. Therefore the Council needs to secure ownership of the CPO site in order to safeguard its development potential.”

• Not to proceed to complete outstanding acquisitions. This would likely necessitate a further and fresh CPO at a later stage with no guarantee this could be secured.

[28]The confidential report deals in more detail with financial considerations. Paragraph 2.3 indicates that Modus had withdrawn from the development of new shopping centres and that two of its projects in Wakefield and Wigan had run into financial difficulties. Paragraph 2.4 reads as follows:- “Fresh appraisals of a financial viability of the …… project have been undertaken. These show that in the present financial climate the scheme is not viable….” Paragraph 2.7 reads:- “On 29 May 2009 members and officers met with Modus/Corovest. They informed us that the previous scheme is undeliverable in the current economic climate and that Modus Ventures is about to go into administration. This has now taken place. However, Corovest wish to take forward a developments project of a smaller scale and cost and anchored by Debenhams and Vue Cinema. This is at a preliminary sketch stage and if taken forward would require extensive evaluation. The scheme, should it prove acceptable, is a significant departure from their tendered scheme and if accepted would breach EU procurement rules. Hence, in these circumstances, the appropriate way forward is to offer our city centre development scheme as an opportunity to the market.”

[29]Under the heading “Conclusion” the author of the confidential report writes:- “We have now probably done all that we can to advance the ….scheme in partnership with Modus Corovest. There now needs to be an opportunity to see who else would have the capacity and capability to take forward the major shopping scheme for Newport City Centre building on all the work, investment and progress achieved to date. It may well be that Modus Corovest put forward further proposals but these need to be assessed against others. It is also our view that for this to move forward the acquisitions under the CPO need to be completed and resources have been identified. However, at the same time we will seek financial assistance from our partners in view of the strategic significance to SE Wales of the regeneration of Newport City centre, from not only this crucial stage of the scheme, but also for the future stages of development.”

[30]I should also record some of the comments made by the Monitoring Officer employed by the Defendant; These comments are contained in the confidential report submitted to Cabinet. First, he/she expressed the view that the Defendant needed to secure ownership of the CPO site “in order to safeguard its development potential”. Second, the officer wrote:- “…. Therefore, if the Council is to implement the CPO and fund the property acquisition itself, then it should re-tender the scheme and invite new bids. At this stage, because the bids would be invited on the basis of the original development brief and the current planning consent for the site then the statement of reasons under the CPO would remain valid and it would still be expedient within the public interest to implement the CPO to facilitate this…..”

[31]In his submissions Mr Fookes relies heavily upon those parts of the reports which suggest that the scheme had been rendered unviable by the economic circumstances prevailing in 2009 and by those parts of the reports which use phraseology such as “safeguarding development potential”. Those parts of the report show, submits Mr Fookes, that the Defendant was not implementing the CPO for the purpose of a redevelopment scheme but rather to accumulate a land bank so as to facilitate some unspecified development in the future. On that basis, Mr Fookes submits that the purpose motivating the execution and serving of the GVD is different from or collateral to the purpose underpinning the confirmation of the CPO.

[32]Despite Mr Fookes’ attractive arguments I do not accept what he says. The reports presented to Cabinet must be read as a whole and together. They must be read in the factual context which I have set out in this section of my judgment. Read in that context and read together the reports demonstrate that the Cabinet is being advised to take a course of action which will best facilitate the carrying out of a redevelopment scheme at John Frost Square. In my judgment no other interpretation of those reports, read as a whole, is possible.

[33]Not surprisingly Mr Fookes paid particular attention to that part of the confidential report which suggested that in the financial climate prevailing in 2009 the redevelopment scheme was not viable. However, on this specific point, I accept the submission of Mr George QC that the scheme was not financially viable on the basis that the developer funded the scheme in its entirety. As the confidential report, in particular, makes clear the Defendant intends that the scheme which is presented to the market should be funded, at least in part, from sources other than sources provided by the developer.

[34]I have reached the clear conclusion that the Claimant has failed to establish that the Defendant acted unlawfully when it took the decision on 16 June 2009 to implement the CPO or when it executed the GVD on 27 November 2009.

[35]The execution of the GVD took place before receipt of the Claimant’s solicitor’s letter of 30 November 2009. As I have said the Defendant considered that letter at a meeting of Cabinet of 8 December 2009. In advance of that meeting a detailed report was prepared by officers and, thereafter, submitted to Cabinet.

[36]The report contains a detailed appraisal of the points made in the Claimant's solicitor’s letter of 30 November 2009. It acknowledges that the decision of the Defendant to implement the CPO is potentially susceptible to challenge by way of judicial review. However, it provides a robust defence of the decision taken on 16 June 2009. In relation to the ground of challenge now under consideration the report contains the following which is of relevance:- “10. Turning to the legal basis of the purported challenge, Iceland Foods first contend that the Council is acting “unlawfully” by deciding to implement the powers of compulsory acquisition for a different purpose to that envisaged by the CPO. They argue that, because the ….. scheme is no longer viable and the development agreement with Modus Corovest has been terminated, any compulsory acquisition of the land would not be for the express purpose of facilitating the scheme for which CPO powers were originally granted, but for the development of a different scheme.11. This point is already covered in the original reports to Cabinet. In particular, the comments of the monitoring officer advise that “…any material change to the original scheme could undermine the basis of the CPO”, but also confirms that “because bids would be invited on the basis of the original development brief and the current planning consent for the site, then the statement of reasons under the CPO would remain valid and it would still be expedient and in the public interest to implement the CPO to facilitate this.”

12. The solicitors acting for Iceland claim that this assertion is “disingenuous” and not supported by the other elements of the reports, because the scheme is no longer viable. However, this argument is clearly misconceived and incorrect. The decision taken by Cabinet on 16 June simply acknowledged that the revised financial appraisal of the Modus scheme was no longer viable and Modus Corovest was unable to secure funding to deliver the original development agreement. However, based on the information obtained in the report, Cabinet was satisfied that the mixed use redevelopment scheme envisage by the CPO could still be delivered notwithstanding the termination of the development agreement with Modus Corovest. Cabinet was advised that the essential elements of the large scale redevelopment set out in the original brief and the statement of reasons put forward at the CPO inquiry was still in place. Indeed, one of the reasons for deciding to terminate the development agreement with Modus Corovest was Cabinet’s refusal to accept any material variation to the original CPO scheme and the smaller scale option being produced by Modus. Cabinet had regard to the fact that there is still an extant planning permission for such a scheme and, based upon the level of pre-lets previously agreed by Modus and discussions between Council officers and various interested parties, members were also satisfied that there is a continuing demand for this type of redevelopment. Furthermore, the acquisition of the land interest under the CPO would effectively “de-risk” one of the major elements of such a scheme from a perspective of development partners and make this a far more attractive proposition for the property investment markets when the Council re-tender the scheme. Therefore, the scheme envisaged by the CPO remains viable even if the development agreement with Modus was not deliverable due to the financial circumstances of that particular company and the prevailing economic climate at that time. Consequently, the Cabinet decision was in accordance with express powers granted under the CPO and for the purposes originally envisaged.”

[37]Mr Fookes submits that aspects of paragraph 12 are misleading if they are intended to reflect what was discussed or decided at the Cabinet meeting on 16 June 2009. He submits that there is nothing in the minutes of that meeting to justify the assertion that members were satisfied that there was a continuing demand for the type of redevelopment under consideration or that the acquisition of the land interest under the CPO would effectively de-risk a major element of the scheme and that the scheme envisaged by the CPO remained viable even though the development agreement with Modus had been terminated.

[38]It does not seem to me to be fruitful to seek to analyse the minutes of the meeting of 16 June 2009 to check whether or not those assertions are recorded. What matters is whether there is a real basis for the submission that the Defendant was implementing the CPO for a purpose which was different from or collateral to the purpose which was put forward to justify the confirmation of the CPO. There is no basis for so concluding upon a fair reading of the paragraphs of the report set out above.

[39]In my judgment the first ground of challenge, as formulated above, fails.

[40]During the course of oral submissions Mr Fookes also submitted that even if the CPO was not being implemented for a different or collateral purpose to that put forward to justify the confirmation of the CPO it was nonetheless unreasonable in the Wednesbury sense to implement the CPO. Mr. George QC suggests that this ground of challenge is not pleaded. A close examination of the pleadings reveals that an allegation of unreasonableness is made against the Defendant, although it is fair to say that it does not receive the prominence in the pleadings which it assumed in oral submissions.

[41]I accept that this court has jurisdiction to entertain a challenge based on Wednesbury principles. In my judgment that is confirmed in the judgment of the Court of Appeal in Norris v First Secretary of State & Another

[2006] EWCA Civ 12

– see in particular paragraph 27 of the judgment of Laws LJ. Although Mr George QC may be right when he says that this passage of the judgment was obiter nonetheless, I have no doubt that the paragraph represents the law and, to be fair to Mr George QC, he did not seek to question that in any serious way.

[42]Mr Fookes’ main submission is that it was unreasonable of the Defendant to implement the CPO given that, as Mr Fookes submits, the scheme has been categorised by the Defendant as unviable. I accept that if the Defendant had, indeed, categorised the scheme as unviable at the time it made its decision and had also concluded that it would remain unviable for the foreseeable future it might well be that it acted unreasonably by implementing the GVD.

[43]As I have already concluded, however, I do not consider that the Defendant has decided that the scheme is unviable in the way that Mr Fookes submits. Of course the Defendant has concluded that the scheme was unviable in 2009 if the developer was expected to pay all the costs associated with the scheme. However, it has not concluded that a scheme of redevelopment in keeping with that for which planning permission has been granted is inevitably financially unviable. As is pointed out in the skeleton argument on behalf of the Defendant all that the Defendant has concluded is that the timing of the scheme must be delayed pending the obtaining of the necessary funds to undertake the scheme. I accept that the Defendant’s view is that the scheme is well placed to proceed and remains viable albeit that alternative funding has to be obtained. I am conscious, too, that the ground of challenge based upon Wednesbury principles must be viewed in the context of my finding that the Defendant has not executed the GVD or served it for a purpose which is different from or collateral to the purpose underpinning the CPO.

[44]I make it clear that I accept that the implementation of the CPO is just as draconian a measure for the property owners concerned as is the making of a CPO or its confirmation. That being so I also accept that it is incumbent on a local authority to act both fairly and reasonably in deciding whether and when to take the step of executing a GVD – see the views expressed by Forbes J in Norris and quoted with approval at paragraph 27 of Norris.

[45]The plain fact is, however, that the Defendant has proceeded on the basis that the scheme which underpins the CPO can still be achieved. That being so the public benefits which would accrue from the implementation of such a scheme remain unchanged – the compelling case in the public interest for the making of the CPO and accepted by the Inspector remains.

[46]I have reached the clear conclusion that a challenge based upon Wednesbury principles also fails.

[47]I turn to the second ground relied upon by the Claimant. Much of the reasoning which underpins my decision on ground 1 is equally applicable to ground 2 – particularly that relating to Wednesbury unreasonableness. Accordingly I can deal with this ground quite shortly.

[48]At paragraph 4.57 of his report the Inspector concluded:- “Overall, and having regard to all relevant considerations, I conclude that there is a compelling case in the public interest for the Order in the modified form now requested by the acquiring authority, which outweighs the private loss arising from the expropriation of the land and rights concerned and is sufficient to justify the interference with human rights in relation to the Order lands that will occur.”

[49]It is clear beyond any doubt that proper consideration was given to the Claimant’s human rights before a decision was taken to confirm the Order.

[50]The issue for me is whether there has been such a change of circumstances since the confirmation of the Order which should lead to the conclusion that its implementation would be an unjustified infringement of the Claimant's human rights.

[51]I have set out the relevant history between the confirmation of the Order and the execution and service of the GVD. The only significant changes in the relevant circumstances relate to the position of Modus and the funding of the scheme. Since I have found that the implementation of the CPO was not unreasonable and not undertaken for a purpose different from or collateral to that which underpinned the scheme it is extremely difficult to see how the implementation could be categorised as an unjustified infringement of the Claimant's human rights. Most of the points made in Mr Fookes’ skeleton argument in support of this ground fall away in the light of my findings in relation to the first ground.

Delay

[52]The primary submission on behalf of the Defendant is that neither the execution of the GVD or its service is susceptible to judicial review. The Defendant submits that the decisions which preceded the execution and service of the GVD are susceptible to judicial review but not the administrative acts of execution and service.

[53]Section 4 of the Compulsory Purchase (Vesting Declaration) Act 1981 provides as follows:- “(1) The acquiring authority may execute in respect of any of the land which they are authorised to acquire by the Compulsory Purchase Order a declaration in prescribed form vesting the land in themselves from the end of such period as may be specified in the declaration (not being less than 28 days from the date on which the service of notice is required by sections 6 below is completed). (2) For the purpose of this Act a certificate by the acquiring authority that the service of notices required by section 6 below was completed on the date specified on the certificate shall be conclusive evidence of the facts so stated. (3) In this Act the “vesting date” in relation to a General Vesting Declaration means the first day after the period specified in the declaration in accordance with subsection (1) above.” Section 6 of the 1981 provides:- “As soon as may be after executing a General Vesting Declaration the acquiring authority should serve – a) on every occupier of any of the land specified in the declaration (other than land in which there subsists a minor tenancy or a long tenancy which is about to expire), b) on the other person who has given information to the acquiring authority with respect to any of that land in pursuance of the invitation published and served under section 3(1) above, c) a notice in the prescribed form specifying the land and stating the effect of the declaration.”

[54]As is clear from these statutory provisions it is the GVD which confers title to the land in question upon the acquiring authority. Almost as a matter of instinct, therefore, it would seem to me that it is the GVD itself, when executed, that should be the subject of any challenge by way of judicial review.

[55]I am fortified in that approach by the reasoning which underpins the decision of the House of Lords in R (Burkett) v Hammersmith LBC

[2002] 1WLR 1593

[56]I do not think that the service of the notice under section 6 either triggers a separate right to challenge or delays the point in time at which the right to make a challenge arises from the date of the execution of the GVD. The obligation to serve notice under section 6 is an obligation to serve the notice “as soon as may be”. Normally service will take place on the day of the making of the GVD or shortly thereafter. In the unusual event that a notice is served a significant period of time after the execution of a GVD and the person affected by the GVD does not know of its execution until he receives notice that factor can be taken into account if any issue arises as to whether the person has delayed in bringing proceedings for judicial review.

[57]Mr Fookes floated before me the possibility that no right to challenge by way of judicial review arose until after the date specified in GVD for its taking effect. I see some force in what Mr Fookes says but, on balance, I prefer the view that the right to challenge first arises when the GVD is executed. Mr. Fookes’ suggestion would lead to a period of delay for which there is no real justification.

[58]It follows that these proceedings were issued very shortly before the 3 month period specified in CPR 54.5 expired.

[59]I have grave reservations about whether the proceedings were brought promptly. That said I consider that it would be wrong to refuse permission in a case of this type on the grounds of lack of promptness; further if illegality had been proved I would be very reluctant to withhold relief when the consequence would be that the Claimant would be deprived of valuable property rights in breach of its human rights. However, I do not propose to consider this issue in any detail not least because the parties are anxious for this judgment and, the reality is that I have considered and determined this claim on the merits.

Conclusion

[60]This claim was brought within 3 months of the execution of the GVD. It was probably not brought promptly but I do not consider that to be a sufficient reason for refusing permission.

[61]I grant permission to apply for judicial review but reject both grounds relied upon by the Claimant so that in the result the claim fails.

Consequential Matters

[62]I assume that costs will follow the event although, obviously, I am open to submissions to contrary effect. If the Claimant wishes to oppose an order for costs it can do so by filing written submissions or attending at the handing down of this judgment.

[63]If the Claimant wishes to seek my permission to appeal, similarly, it can do so by filing written submissions or attending at the handing down of the judgment.

Cited in 1 later judgment

Bizzy B Management Ltd, R (On the Application Of) v Stockton-On-Tees Borough Council 2011