Barnsley Metropolitan Borough Council, R (on the application of) v Secretary of State for Communities and Local Government & Ors

A local authority cannot use the general well-being power in Local Government Act 2000, section 2, together with section 121 of the Local Government Act 1972, to acquire land compulsorily solely for the benefit, improvement or development of its area. Section 121(2)(a) expressly excludes that purpose. Compulsory acquisition is a statutory power affecting proprietary rights and must be construed strictly. A general power to promote economic, social or environmental well-being does not displace the specific statutory restriction. The fact that an acquisition might promote public amenity or satisfy well-being objectives does not itself provide the necessary enabling power. The court expressed no view on whether a compulsory purchase order might have been lawful under the distinct planning power in section 226 of the Town and Country Planning Act 1990.

Barnsley Metropolitan Borough Council made a compulsory purchase order for land registered as a village green. The order stated that it was made under section 121 of the Local Government Act 1972 to enable the Council, relying on section 2 of the Local Government Act 2000, to secure the availability and proper management of the village green.

The Secretary of State declined to confirm the order, deciding that sections 2 and 121, read together, did not provide an enabling power for compulsory acquisition. The Council sought judicial review. The central issue was whether the well-being power could avoid the restriction in section 121(2)(a) of the 1972 Act.

1. The application was dismissed. The Secretary of State was correct not to confirm the compulsory purchase order.
2. The order was expressly made under section 121 of the Local Government Act 1972. It therefore had to be justified within that provision. Section 121(1) permits compulsory acquisition only for a purpose for which the council is authorised by statute to acquire land, subject to section 121(2). Section 121(2)(a) prevents compulsory acquisition for the purpose specified in section 120(1)(b), namely the benefit, improvement or development of the council’s area.
3. The Council could not recast that excluded purpose as an acquisition for the purpose of performing its functions under section 2 of the Local Government Act 2000. The proposed acquisition was directed to securing public access, management and maintenance of the village green for local amenity and recreation. In substance, it was an acquisition for the benefit or improvement of the area. Section 3(1) of the 2000 Act prevents the well-being power from being used to evade a prohibition, restriction or limitation contained in any enactment.
4. Compulsory acquisition is a statutory power and involves a serious interference with private property rights. The court must therefore construe the relevant statutory powers strictly and ensure that a power granted for one purpose is not used for another or collateral purpose. The principles summarised in Regina (Sainsbury's Supermarkets Ltd) v Wolverhampton City Council [2011] 1 AC 437 supported that approach.
5. The breadth of section 2 and the statutory guidance did not alter the conclusion. The absence of any express reference to compulsory acquisition in the guidance was a further indication that Parliament had not intended section 2 to provide such a power. Section 226 of the Town and Country Planning Act 1990 operated in a different statutory context, and no view was expressed on its possible application.

This was a first-instance judicial review claim. Permission was granted on the papers by His Honour Judge Roger Kaye QC, sitting as a Deputy High Court Judge, on 24 November 2011. The Administrative Court dismissed the claim and upheld the Secretary of State’s refusal to confirm the compulsory purchase order.