Horada v Secretary of State for Communities And Local Government

The claimant challenged the Secretary of State's decision to confirm a Compulsory Purchase Order for the phased redevelopment of Shepherds Bush Market under section 23 of the Acquisition of Land Act 1981. The principal legal question was whether the Secretary of State had made an error of law in concluding that the planning permission, planning conditions and the section 106 agreement (notably Schedule 15) provided sufficient and enforceable safeguards to protect the market's character, affordability and diversity.

The court applied the public law standard of review for CPO confirmation: a CPO requires a compelling case in the public interest and the decision must be free from legal or procedural error. The judge found that the Inspector had identified uncertainties but had not rejected the protections in Schedule 15; the Secretary of State had been fully aware of the limitations of the section 106 package and permissibly concluded that, when read as a whole with planning conditions and the reserved matters processes, there were sufficient safeguards. Reliance on the discharge of planning conditions (including condition 6) and the reserved matters approval process was lawful. The disagreement between the Inspector and the Secretary of State was one of evaluative judgment on the merits rather than a legal error. The judicial review claim was dismissed.

Background and parties: Shepherds Bush Market, a long-established and ethnically diverse retail market, was the subject of an outline planning permission (30 March 2012) for phased mixed-use redevelopment and of a section 106 agreement containing Schedule 15 provisions aimed at protecting market traders. The Council promoted a Compulsory Purchase Order under section 226(1)(a) of the Town and Country Planning Act 1990. An Inspector recommended the Order should not be confirmed, principally because of uncertainty that the redevelopment would retain the market's essential character; the Secretary of State disagreed and confirmed the Order. The claimant (a market trader and representative of the tenants' association) sought judicial review under section 23 of the Acquisition of Land Act 1981 to challenge that confirmation.

Nature of the claim and relief sought: The claimant sought to quash the Secretary of State's decision confirming the CPO on the basis that the decision involved errors of law, in particular a misapprehension about the adequacy and effect of Schedule 15 of the section 106 agreement and an improper or unsupported reliance on planning conditions and reserved matters processes to secure the market's future.

Issues framed by the court:

• Whether the Secretary of State misdirected himself as to the content or effect of Schedule 15 and thereby made an error of law.
• Whether the Secretary of State erred in law by requiring, as a litmus test for confirmation, protection of the market's suitability, affordability and diversity and then failing to ensure those protections were secured.
• Whether reliance on the planning conditions (including the discharge of condition 6) and the reserved matters process was legally impermissible or insufficient to address the Inspector's concerns about stall design, external appearance and arch repairs.

Court’s reasoning and conclusions: The court recited the applicable public law principles for CPO challenges and emphasised that review under section 23 is confined to legal error rather than merits. It found that the Inspector, while expressing legitimate concerns about uncertainties (for example size and design of replacement stalls, refurbishment of arch units and long-term affordability), had accepted that Schedule 15 provided protection against hardship and did not treat Schedule 15 as wholly inadequate. The Secretary of State was aware of the limitations in the section 106 package and was entitled to reach a different evaluative conclusion that, together with planning conditions and the reserved matters and condition-discharge processes, the measures amounted to sufficient safeguards. The court held that any disagreement was an evaluative judgment on available material and did not amount to a legal or procedural error. The claim therefore failed and the confirmation of the Order was not quashed.

Procedural note: The judgment comments on timing and procedure for any appeal and on the limited appellate role, but the court made no substantive alteration to the Secretary of State's decision.

The claim is dismissed. The court held there was no error of law in the Secretary of State's decision to confirm the Compulsory Purchase Order. The Secretary of State had properly considered the Inspector's report and the limitations of Schedule 15 of the section 106 agreement and was entitled to conclude, as an evaluative judgment, that the combination of the section 106 safeguards and the planning conditions/reserved matters processes provided sufficient protection for the market and its traders; reliance on those processes was lawful and not a material misdirection.