Powell & Ors, R (on the application of) v Secretary of State for Communities & Local Government & Anor

A statutory challenge to confirmation of a compulsory purchase order is confined to procedural or legal error. It is not an opportunity to rehear the merits. An inspector’s conclusions may combine findings of fact, opinion and judgment, but failure to identify an essential fact may constitute an error of law where that fact was a relevant consideration. A policy disagreement or disagreement with the balance struck between public and private interests does not establish irrationality. An inquiry system involving an independent inspector, a ministerial decision and court supervision is in principle compatible with Article 6. Prior policy commitments and funding arrangements do not amount to unlawful predetermination unless objections were not genuinely considered. The application was dismissed.

The claimants challenged under section 23 of the Land Acquisition Act 1981 the confirmation of the Sefton Metropolitan Borough Council (Queens Road and Bedford Road) Compulsory Purchase Order 2005. The order had been made under section 226(1)(a) of the Town and Country Planning Act 1990 for planning purposes.

An inspector conducted a public inquiry and recommended confirmation without modification. The Secretary of State accepted that recommendation. The claimants alleged unlawful delegation, failure to consider relevant policy and the inspector’s findings, unfairness, irrationality, breaches of the Convention rights to a fair hearing and respect for property and family life, and unlawful predetermination. The central issue was whether the confirmation process disclosed any procedural or legal defect justifying a quashing order.

1. Outcome. The application was dismissed. No procedural or legal defect justified quashing the confirmed compulsory purchase order under section 23 of the Land Acquisition Act 1981.
2. Scope of the challenge. A section 23 challenge is confined to procedural or legal error. It cannot be used to rerun the merits of the order or to substitute the court’s view for the decision-maker’s assessment. The six-week challenge period also reflected the need for prompt determination of such challenges.
3. Delegation and policy. A full council may delegate authority to make compulsory purchase orders. The Council’s Cabinet had been given that authority, so the challenge to the resolution failed. There was no basis for concluding that the Secretary of State had failed to consider relevant policies. The claimants’ real complaint was disagreement with the housing market renewal policy, whose highly judgmental nature made the irrationality challenge untenable.
4. Inspector’s conclusions. Inquiry rules requiring conclusions and recommendations did not prevent an inspector from addressing essential facts. Facts, opinion and judgment may be interwoven in planning inquiries. An omission to find an essential fact could amount to legal error if the fact was a relevant consideration, but there was no evidential basis for such an omission here. The Secretary of State had plainly considered and endorsed the inspector’s report.
5. Fairness and Convention rights. The inquiry system was in principle fair, consistent with the approach in Alconbury. The inspector and Secretary of State had considered the claimants’ objections and the requirements of Article 8 and Article 1 of the First Protocol. The court could intervene in the proportionality assessment only if the Secretary of State’s conclusion was irrational or perverse, which it was not.
6. Predetermination. Policy support, regeneration funding and targets did not make the outcome a foregone conclusion. Applying Franklin v Minster of Town and Country Planning, unlawful predetermination would arise only if objections were not genuinely considered. The inspector had carefully considered the individual objections and reached conclusions open to him on the evidence. Section 90(1) of the Town and Country Planning Act 1990 was irrelevant because the decision letter confirmed the order and did not deem planning permission to be granted.
7. Costs. The claimants were ordered to pay the Secretary of State’s costs, summarily assessed at £7,000. No order was made for the Council’s costs.