Peart v Secretary of State for Transport, Local Government & the Regions

A challenge under section 23(2) of the Acquisition of Land Act 1981 concerns procedural validity and the adequacy of the decision-making process. It does not permit the court to substitute its view merely because the applicant disagrees with the answer reached.

Article 8 has no independent application to compulsory acquisition of property that is not the applicant’s home where the alleged interference concerns the preferred method of providing retirement income. Under Article 1 of the First Protocol, the decision-maker must balance the public interest against the owner’s private interest and assess whether the acquisition pursues a legitimate aim by proportionate means. Past inactivity may be relevant to the likelihood of alternative proposals being implemented.

The claimant owned a vacant and derelict house. The Secretary of State confirmed a compulsory purchase order made by the London Borough of Newham under section 17 of the Housing Act 1985, so that the property could be returned to residential use to meet local housing need.

The claimant challenged the confirmation in the Administrative Court under section 23(2) of the Acquisition of Land Act 1981. Maurice Kay J rejected complaints that the decision-maker had failed to consider the claimant’s proposals, Article 8, and proportionality. The claimant sought permission to appeal, raising the same issues and arguing that the compulsory purchase would harm his retirement plans.

1. Disposition. Lord Justice Chadwick delivered the substantive judgment and Lord Justice Auld agreed. The application for permission to appeal was refused and the order records that the application was dismissed.
2. Scope of the statutory challenge. Section 23(2) of the Acquisition of Land Act 1981 provides a challenge to the validity of a compulsory purchase order for non-compliance with a relevant statutory or inquiry-related requirement. The challenge is directed to the procedure and reasoning of the decision-making process. Once the relevant question has been addressed, the fact that the decision-maker reached an answer which the applicant dislikes is not itself a ground under the subsection.
3. Article 8. The claimant’s property was not his home. Article 8 therefore had no independent application to the complaint that compulsory purchase interfered with his preferred arrangements for retirement income. The claimant remained free to invest capital in residential property or by other means; Article 8 did not give him a right to insist that the investment remain in this particular property.
4. Article 1 of the First Protocol and proportionality. The relevant question was whether the public interest served by compulsory purchase outweighed the claimant’s private interest as owner. In the Strasbourg formulation, the acquisition had to pursue a legitimate aim and employ means proportionate to that aim. The Inspector and Secretary of State had directed themselves to that balancing exercise and reached a conclusion plainly open to them. An appeal based on lack of proportionality therefore had no prospect of success.
5. Assessment of the alternative proposals. The decision-maker was entitled to consider objectively which course was most likely to bring the property into residential use. The claimant’s past inactivity was relevant evidence of what was likely to happen if the property remained in his hands. The issue was not simply whether his stated intentions were truthful.
6. Permission test. Applying the test in CPR 52.3(6), the application failed because there was no prospect of a successful appeal and no compelling reason for an appeal to be heard. The court left open whether an application under section 23(2) should instead be treated as an appeal for the purposes of section 55(1) of the Access to Justice Act 1999, which might engage the more stringent test in CPR 52.13(2).

1. Court of Appeal (Civil Division) — On 25 February 2003, the application for permission to appeal was refused; the application was dismissed: [2003] EWCA Civ 295.
2. High Court of Justice, Queen’s Bench Division, Administrative Court — Maurice Kay J rejected the challenge to the Secretary of State’s confirmation of the compulsory purchase order.