Smith & Ors v Secretary of State for Trade and Industry

Confirmation of a compulsory purchase order may be proportionate under Article 8 even where alternative accommodation has not yet been secured and the interference is substantial. The assessment is context-sensitive. Where compulsory acquisition is already justified, the court may focus on whether confirmation at the particular time was reasonably necessary to achieve the public objective; the least intrusive measure need not invariably be demonstrated.

The court must conduct a rigorous, objective proportionality assessment. It must consider the full scope of the affected rights, including the traditional way of life of gypsies and travellers, and make a value judgment by reference to the circumstances existing when the decision was taken.

The claimants, Romani Gypsies and Irish Travellers living on two authorised caravan sites, sought to quash confirmation of a compulsory purchase order made for the regeneration of the Lower Lea Valley and the construction of facilities connected with the 2012 Olympic and Paralympic Games.

The order included their sites. At the date of confirmation, suitable alternative sites had not been secured. The inspector considered that the order should not be confirmed until relocation sites were available, but the Secretary of State confirmed it because control of the land was required by mid-2007 and the development was considered exceptionally important and time-critical.

The central issues were whether confirmation unjustifiably interfered with the claimants’ Article 8 rights, whether the Secretary of State had properly considered their traditional way of life and positive protection, whether alternative arrangements had been adequately examined, and whether adequate reasons had been given.

1. Claim dismissed. The Secretary of State’s decision to confirm the compulsory purchase order was justified and proportionate under Article 8.
2. The lawfulness of the decision had to be judged at the date it was made. Later progress towards alternative sites could not be taken into account.
3. The rights protected by Article 8 included respect for the claimants’ homes and family life and, in the case of gypsies and travellers, their traditional way of life. The court accepted the guidance in Chapman v United Kingdom [2001] 33 EHRR 399, including the need for special consideration and the positive obligation to facilitate that way of life.
4. The proportionality assessment was context-sensitive. The court agreed with the approach in Pascoe v First Secretary of State [2006] 4 AER 1240 that a measure could be proportionate even though it was not the least intrusive available. In this case the issue was not whether compulsory acquisition was justified in principle, but whether confirmation should await alternative sites. The court held that, even on the stricter least-intrusive approach advanced by the claimants, confirmation was the only realistic means of securing control of the land by mid-2007 and protecting the Olympic and Legacy development timetable.
5. The court applied the approach stated by Lord Bingham in R(SD) v The Governors of Denbeigh High School [2007] 1 AC 100. Proportionality required a more intensive review than traditional judicial review, but not a merits review. The court had to make an objective value judgment by reference to the circumstances prevailing at the relevant time.
6. The substantial interference, the lawful status of the sites, the risk of eviction without alternative accommodation and the claimants’ personal circumstances were important factors. They were outweighed by the compelling public interest, the exceptional importance and urgency of the development, the need for land control by mid-2007, and the efforts being made to secure replacement sites.
7. The remaining grounds failed. The decision maker had sufficiently considered the claimants’ Article 8 rights and relevant policy, had no obligation to defer confirmation, and gave adequate and intelligible reasons. The possibility of temporary relocation remained a matter for implementation of the order.