Norris v First Secretary of State & Anor

When making a confirmed compulsory purchase order operative, the Secretary of State’s task may be confined to determining whether effective legal arrangements secure the required replacement open space. He need not investigate, or make the order conditional upon, the continuing validity of the planning permission for the proposed works. A local authority’s later exercise of compulsory purchase powers must remain lawful, fair and reasonable and is open to judicial review. Obiter, works carried out in breach of a planning condition cannot ordinarily commence development, subject to a public-law exception where enforcement would be irrational or otherwise legally objectionable.

The appellant challenged the Secretary of State’s decision making operative a confirmed compulsory purchase order for the Tunstall Northern By-Pass. The order had been confirmed in 1999 without a certificate under section 19 of the Acquisition of Land Act 1981, and was subsequently amended by a Joint Committee of both Houses of Parliament to require additional public open space before it became operative.

After the Secretary of State accepted the proposed replacement land subject to legal agreements and planning approvals, he made the order operative in October 2004. Forbes J dismissed the appellant’s application under section 23 of the Acquisition of Land Act 1981. The appeal concerned whether the Secretary of State had to consider whether the 1997 by-pass planning permission remained extant and whether consultation was required on that issue.

1. Appeal dismissed. Laws LJ held that, after confirmation of the order and the Joint Committee’s amendment, the only outstanding issue was whether the legal components required to deliver the accepted replacement open space were in place. The Secretary of State was not deciding whether the by-pass would ultimately be constructed in accordance with the 1997 planning permission.
2. The Secretary of State’s 2001 letter did not bind him to investigate the continuing validity of that permission. Properly construed, the reference to relevant planning approvals concerned the Option B Phase 1 open-space proposals, including the planning approval, amended section 106 agreement and land-exchange agreement relevant to those proposals. The status of the by-pass permission was therefore irrelevant to the October 2004 decision. It was neither a statutory requirement nor an objective condition of making the order operative.
3. The operative order did not relieve the local authority of its continuing duty to act fairly, reasonably and lawfully when taking further compulsory purchase steps. Such steps would remain amenable to judicial review. It was not, however, the Secretary of State’s function to act as an advance guard against possible future illegality by the authority. Consultation on the status of the planning permission was consequently unnecessary.
4. For completeness, Laws LJ considered the planning-law issue obiter. The Whitley principle, as developed in (1992) 64 P & CR 296, is that unlawful operations cannot commence development under a planning permission. Operations breaching a condition will ordinarily be unlawful, but the public-law exception applies where enforcement would be irrational within the Wednesbury principle or otherwise legally objectionable. The modern statutory framework, including section 73 of the Town and Country Planning Act 1990, leaves very limited scope for non-statutory waiver of conditions.
5. On the facts, there was a strong case that no reasonable planning authority would have enforced against the March 2002 works, since existing open space was not then disturbed and replacement provision had substantially been secured. In any event, the challenge was brought too late because the appellant knew at the time that the works were being treated as commencement and could then have sought judicial review. Arden LJ and Sir Paul Kennedy agreed with dismissal. Arden LJ made clear that it was unnecessary to decide the ultimate theoretical basis of the Whitley principle.

1. Court of Appeal (Civil Division) dismissed the appeal from Forbes J’s decision.
2. Administrative Court Forbes J dismissed the application to quash the Secretary of State’s decision on 13 May 2005. Permission to appeal was granted by Mummery LJ on 11 July 2005.