Horada v Secretary of State for Communities And Local Government

A challenge under section 23 of the Acquisition of Land Act 1981 is confined to public law error. The court does not reconsider the merits of a compulsory purchase decision. The decision-maker must have regard to all material considerations, give intelligible and adequate reasons, and assess whether the statutory and planning objectives can be achieved. Safeguards need not provide certainty or a universal guarantee for every affected trader. It is sufficient that the decision-maker evaluates the proposed measures as a whole and reasonably concludes that they provide sufficient protection. Reliance on future planning-condition approvals and reserved-matters procedures may properly address present uncertainty about detailed physical arrangements.

The claimant challenged the Secretary of State’s confirmation of the London Borough of Hammersmith and Fulham (Shepherds Bush Market Area) Compulsory Purchase Order 2013. The Order supported a mixed-use redevelopment and regeneration scheme for Shepherds Bush Market.

An inspector had recommended that the Order not be confirmed, principally because the proposed safeguards did not sufficiently secure the market’s affordability, diversity, trader retention and physical condition. The Secretary of State disagreed, finding that the planning conditions and section 106 agreement provided sufficient safeguards and that there was a compelling case in the public interest. The central issue was whether that conclusion involved an error of law.

1. The claim was dismissed. The Secretary of State had made no error of law in confirming the compulsory purchase order.

2. The jurisdiction under section 23 of the Acquisition of Land Act 1981 is an error-of-law jurisdiction. The court could not revisit the merits. It had to determine whether the decision-maker considered material matters, excluded immaterial matters, gave adequate reasons and reached a legally open conclusion.

3. The character and qualities of Shepherds Bush Market were a material consideration in assessing the economic, social and environmental well-being objectives. Policy WCOA3, including its requirement to accommodate market traders, properly embraced the need to preserve the market’s suitability, affordability and diversity.

4. The relevant question was whether the planning permission and section 106 agreement contained mechanisms capable of achieving those objectives. The safeguards did not need to be certain, absolute or comprehensive. The Secretary of State was entitled to evaluate the package of measures as a whole and conclude that it was sufficient, despite its limitations.

5. The Secretary of State was entitled to rely on condition 6 and the Council’s control over stall and canopy details, and on the reserved-matters process concerning the market’s external appearance. He was also entitled to conclude that legal certainty concerning repairs to the arches was unnecessary, provided the overall safeguards were sufficient.

6. The Secretary of State understood the scope and limitations of the section 106 arrangements and was entitled to adopt the inspector’s conclusion that they provided necessary protection against hardship. The challenge therefore failed.

The judgment describes the following prior steps:

• Inspector: following a public inquiry, the inspector reported on 10 February 2014 and recommended that the compulsory purchase order should not be confirmed.
• Secretary of State: on 10 October 2014, the Secretary of State confirmed the Order, disagreeing with the inspector.
• High Court (Administrative Court): the challenge under section 23 of the Acquisition of Land Act 1981 was dismissed.