Hall & Anor v The First Secretary of State & Anor

A compulsory purchase order which deprives a private owner of land requires a clear and compelling public-interest case. The decision-maker must consider whether the planning purpose justifies the interference with property rights, including whether an obvious and less intrusive alternative is available. The primary task is to determine the objections, not to devise alternatives, although fairness may require consideration of obvious alternatives, especially where objectors are unrepresented. Where the decision turns on planning-policy judgments, review is confined to conventional judicial review grounds. An alternative that was never proposed and lacks enforceable arrangements will not ordinarily undermine the decision. The principle reflects the Convention balance recognised in [2005] 1 WLR 2229.

The appellants owned a lawful scrapyard at Rose Cottages, plot 3, Harmondsworth. The London Borough of Hillingdon made a compulsory purchase order under section 226(1)(b) of the Town and Country Planning Act 1990, in connection with environmental improvements and public parkland associated with British Airways’ development. Following a public inquiry, the inspector recommended confirmation and the Secretary of State confirmed the order on 11 February 2005.

HH Judge Mole QC refused to quash the order. The appeal concerned whether compulsory acquisition was necessary when plot 3 would not itself form part of the parkland, and whether discontinuance or maintenance powers offered less intrusive means. The central issue was whether the Secretary of State had adequately considered alternatives and established a compelling public-interest case.

1. Disposition. Carnwath LJ gave the judgment of the court. Chadwick LJ and Ward LJ agreed. The appeal was dismissed.
2. A clear case is required, under domestic law and the European Convention on Human Rights, before private land is compulsorily acquired in the public interest. The requirement in Circular 02/2003 for a compelling public-interest case sufficiently reflects the Convention balance. The Secretary of State’s decision was therefore reviewable only on conventional judicial review grounds where it depended on planning-policy judgments. The court referred to [2005] 1 WLR 2229.
3. The central question was whether the planning objectives could be achieved by less intrusive means. The Secretary of State’s primary task was to consider the issues raised by the objections, rather than search for alternatives. Nevertheless, fairness may require consideration of obvious alternatives, particularly where objectors are unrepresented. He had considered discontinuance under section 102 of the Town and Country Planning Act 1990, but was entitled to reject it because it left uncertainty about future use and management, whereas the proposed acquisition was supported by enforceable obligations under a section 106 agreement.
4. There was no unfairness in failing to consider section 215 of the Town and Country Planning Act 1990. That provision addressed the condition of land, whereas the problem was the impact of a lawful scrapyard use. Cessation of that use required statutory action providing for proper compensation. The conclusion that the scrapyard was incompatible with the planning objectives was a planning judgment not open to legal challenge.
5. No credible alternative package had been proposed at the inquiry, before the judge or before the Court of Appeal. The inspector was not required to devise one. On the material before him, the Secretary of State was entitled to conclude that the compulsory purchase order was necessary to achieve the planning objectives. A hypothetical package combining discontinuance with enforceable restoration and maintenance obligations might have cast doubt on the order, but that possibility did not affect the result.

• Court of Appeal (Civil Division) — The appeal against the refusal to quash the compulsory purchase order was dismissed: [2007] EWCA Civ 612.
• Administrative Court — HH Judge Mole QC refused the application to quash the London Borough of Hillingdon (Harmondsworth Moor) Compulsory Purchase Order 2003.