Norris v The First Secretary of State & Anor

In deciding whether a compulsory purchase order should become operative, the Secretary of State may conduct a practical comparative assessment of proposed replacement public open space. Relevant considerations include development potential, planning policy, cost, compensation, delay and the realistic prospect of delivery. The assessment is not confined to the quality or location of the land considered in isolation.

Where the decision-maker has correctly identified the applicable criteria and reaches a conclusion open to him on the material before him, the court will not intervene on rationality grounds. The Secretary of State was not required to investigate the possible expiry of an underlying planning permission where no party had raised the issue and it did not bear on the outstanding statutory criteria.

The claimant challenged the First Secretary of State’s decision to make operative the City of Stoke-on-Trent Tunstall Northern By-pass Local Government Act Compulsory Purchase Order 1997. The Order required additional public open space because the proposed works affected existing open space.

The Secretary of State had previously accepted a proposal for additional land, subject to legal agreements and planning approvals. Following an earlier decision concerning another objector, the matter was reconsidered. The claimant challenged the October 2004 decision on three grounds: irrational reliance on development and deliverability considerations; failure to investigate whether the by-pass planning permission remained capable of implementation; and failure to consult the petitioners on that issue.

1. Nature of the application. The proceedings were treated as an application under section 23 of the Acquisition of Land Act 1981, rather than judicial review. The claimant was a person aggrieved, the grounds were within section 23(1), and the application was brought in time under section 23(4).
2. Article 3A criteria. The Secretary of State had correctly identified the relevant criteria: at least 5.4 hectares within the Clanway Farm site; land of a suitable nature and location for public open space; adequate synergy with nearby open space; and legally binding arrangements ensuring public availability by completion of the by-pass.
3. Rationality challenge. The Secretary of State was entitled to compare the competing proposals by reference to planning and economic reality. The development potential of the land, current planning policy, compensation liability, delay, regeneration and the practical prospect of delivery were relevant to whether the required land could realistically be provided. The decision to accept Option B Phase 1 was therefore neither irrational nor legally flawed.
4. Planning permission. The Secretary of State was not obliged to investigate whether the by-pass planning permission had lapsed. No party had suggested that it had lapsed, and the outstanding inquiry concerned whether the Option B Phase 1 land would be reclaimed and made available under the Open Spaces Act 1906. The court deliberately expressed no view on the competing arguments about expiry.
5. Consultation. Consultation with the petitioners on the current legal status of the planning permission was unnecessary. The issue was principally one of law and did not form part of the Secretary of State’s required inquiry. The application was dismissed.