Walker & Anor v Secretary of State for Communities and Local Government & Ors

Confirmation of a compulsory purchase order requires a compelling case in the public interest. In assessing that question, the decision-maker must consider relevant consultation deficiencies, planning permission, the statutory and policy framework, well-being, financial viability, alternatives and the interference with Convention rights.

An early failure to consult is relevant but is not necessarily fatal where the objections to the underlying scheme are fully examined at the inquiry and other relevant matters are properly considered. The compelling-public-interest test ordinarily supplies the necessary proportionality assessment under Article 8 and Article 1 of the First Protocol. A late challenge based on best value will fail where the alleged duty does not bind the decision-maker or is expressly excluded in the relevant transaction.

The claimants sought to challenge the confirmation of a compulsory purchase order made to facilitate the acquisition and clearance of land for a City Academy. The order had been made under section 226 of the Town and Country Planning Act 1990 and confirmed by the Secretary of State after a public inquiry.

They alleged inadequate consultation, unlawful interference with Convention rights, lack of financial viability, failure to consider best value, and failure to take account of a late site plan showing how the Academy might be accommodated at an alternative site. An associated judicial review concerned earlier demolition works.

1. Section 23 application dismissed. The associated judicial review was also dismissed. The stay imposed on demolition works was lifted and the undertaking given on that occasion was discharged.
2. The Secretary of State had to decide whether there was a compelling case in the public interest for the compulsory acquisition. The initial decision to favour the site without adequate consultation was a relevant consideration. However, it was not determinative. The Secretary of State was entitled to consider the later planning permission, the proper consultation undertaken in that process, the full examination of objections at the inquiry, and the absence of a reasonable alternative.
3. The Inspector and Secretary of State had not misdirected themselves on Convention rights. The seriousness of the loss of homes and community was recognised. The compelling-public-interest test, applied to the relevant facts, provided the necessary balancing exercise under Article 8 and Article 1 of the First Protocol. The Academy’s location adjacent to, rather than within, the town-centre regeneration area was understood and relevant countervailing economic arguments were considered.
4. The funding agreement permitted expenditure on the acquisition and demolition of existing buildings intended for residential or mixed use. It did not require the cleared land itself to be used for residential or mixed use. The scheme was therefore financially viable, particularly in light of the funder’s indication that it would not claw back the money.
5. The best-value ground was refused as a late amendment and failed on its merits. The general duty of best value did not bind the Secretary of State or the Inspector. The local authority was not spending its own money, and the specific disposal duty under section 123(2) of the Local Government Act 1972 was excluded for an Academy by Schedule 35A, paragraph 10 of the Education Act 1996.
6. The Secretary of State had considered the late alternative-site plan. Her decision not to take it into account meant that it added nothing to the issues already determined, not that it had been ignored.

The judgment was at first instance. It records that an earlier compulsory purchase order had been unsuccessfully challenged in the High Court and that interim relief had been granted in the associated judicial review on 9 November 2006.