Durand Education Trust, R (On the Application Of) v Secretary of State for Education

A deprivation of possessions under article 1 of the First Protocol must strike a fair balance. Taking property without compensation will normally be disproportionate, but total absence of compensation may be justified in exceptional circumstances. The legality requirement applies to the compensation decision as well as to the transfer itself. A formal procedure or guidance is not essential where the decision-maker has in fact used a fair process and allowed an overall assessment. Under article 14, the claimant must establish analogous treatment before justification is considered. For an admitted procedural error, relief must be refused under section 31(2A) of the Senior Courts Act 1981 where it is highly likely that the outcome would have been substantially the same.

Durand Education Trust held land used for a publicly funded school. After the school ceased to operate as an academy, the Secretary of State directed that the remaining leisure-centre land be transferred to Lambeth without compensation under the Academies Act 2010.

The Trust sought judicial review, alleging breaches of article 1 of the First Protocol, article 14 and the public sector equality duty. Griffiths J and Lang J refused permission. Lewison LJ granted permission and retained the claim in the Court of Appeal. The central questions were whether the uncompensated transfer was disproportionate or insufficiently regulated, whether it was discriminatory, and whether relief should be refused despite the admitted breach of the equality duty.

1. Disposition. Lord Justice Newey dismissed the judicial review claim. Lord Justices Flaux and McCombe agreed.
2. Article 1 of the First Protocol. The principles in Sporrong and Lönnroth v Sweden (1983) 5 EHRR 35, Jahn v Germany (2006) 42 EHRR 49 and Vistiņš v Latvia (2014) 58 EHRR 4 required a fair balance between the general interest and protection of property. Compensation was material, but the absence of compensation could be justified in exceptional circumstances.
3. The circumstances were exceptional. DET held the land for school purposes and had not carried out the relevant works while it owned the land. The improvements were funded through an enterprise which was effectively an arm of the school’s public-purpose bodies. Lambeth received the land as custodian for the successor school and could not profit from it. Compensation would instead have conferred a windfall on DET.
4. The legality requirement under article 1 of the First Protocol applied to compensation as well as to the transfer. The statutory discretion under paragraph 15(3)(a) of Schedule 1 to the Academies Act 2010 was constrained by its purpose, ordinary public law principles and Convention rights. Although formal regulations or guidance might have been preferable, the extensive correspondence and meetings provided a fair procedure and enabled an overall assessment.
5. Article 14. The four-question approach stated in R (Stott) v Justice Secretary [2018] UKSC 59 was applied. DET was not in an analogous position to a foundation holding land for a foundation school. Under Schedule 22 to the School Standards and Framework Act 1998, the whole proceeds would have been publicly funded proceeds, subject to statutory restrictions on their use. The discrimination claim therefore failed.
6. Public sector equality duty. The breach was admitted. Applying section 31(2A) of the Senior Courts Act 1981, the court made its own objective assessment and concluded that it was highly likely that compliance would have produced the same decision. The equality impact analysis and evidence from the actual decision-maker supported that conclusion. There were no reasons of exceptional public interest requiring relief.

1. Court of Appeal (Civil Division). Permission having been granted by Lewison LJ, the judicial review claim was retained and dismissed.
2. High Court, Lang J. Permission to apply for judicial review was refused after renewal of the application.
3. High Court, Griffiths J. Permission to apply for judicial review was initially refused on the papers.