Smith & Ors v Secretary of State for Trade and Industry

The First Claimant is a Romani Gypsy. She currently resides in a caravan located at Plot 6, Clays Lane Caravan Site Newham London E1 5HJ. She is the licensee of that plot and has lived on the site for 20 years. Two children, William and Bonny, live with First Claimant in her caravan. Clays Lane Caravan Site, as its name implies, is an authorised site which consists of 13 plots.

The Second Claimant is an Irish Traveller. She lives in a caravan at Plot 3, Waterden Crescent Caravan Site, Waterden Road Hackney London E1 5EP together with her five children. She has lived at the site for approximately 13 years.

The Third Claimant lives in a caravan on Plot 11 at the same site. She is also an Irish Traveller and she lives in her caravan with three children (two of whom are school age). The Third Claimant suffers from significant disability and one of her children also has a significant disability. Waterden Crescent Caravan Site is also an authorised site and it consists of 20 separate plots.

In the remainder of this judgment Clays Lane Caravan Site and Waterden Crescent Caravan Site are called “the sites.”

On the 16^th November 2005 London Development Agency (LDA) made a Compulsory Purchase Order under section 20(1) of the Regional Development Agencies Act 1998. The Order, as made, authorised the compulsory purchase of 339 hectares of land and it included the sites. The Order was made for the purposes of:

“…securing the economic development and the regeneration of land, promoting business efficiency, investment and competitiveness, promoting employment, enhancing the development and applications of skills relevant to employment and contributing towards the achievement of sustainable development within its area and for the purposes incidental thereto, namely by the development of the land which will result in the significant regeneration of the area by the provision of the main facilities for the 2012 Olympic and Paralympic games, the Legacy facilities and the development of the Stratford Rail Lands.”

There were objections to the Order. The Claimants and other occupiers of the sites were among those who objected.

An Inspector was appointed to hold a local public inquiry. He heard objections on behalf of those persons who occupied plots at the sites. The thrust of the objection was to assert that no compulsory purchase order should be made unless and until alternative sites had been provided upon which the occupiers could pitch their caravans.

The Inspector, Mr Rose, reported to the Defendant in a comprehensive document dated 16^th October 2006. In respect of the objections by the occupiers of the sites his conclusion included the following expression of view.

“In my opinion, although the benefits of the Order are very compelling, a small group should not be left to pay any excessive personal and social cost for those benefits to be achieved. It is also telling that the Objectors do not want to stand in the way of the Olympics and Legacy developments; they object merely to ensure that they continue to have a suitable place in which to live.

Against this background, I consider that the Order should not be confirmed until the Secretary of State is satisfied that suitable relocation sites will be available to meet the reasonable needs of the Gypsies and the Travellers that would be displaced.” (Footnote: ¹)

As was his duty, the Defendant gave consideration to the Inspector’s Report. An Official in his Department issued a decision letter on behalf of the Defendant in respect of the Compulsory Purchase Order on 18^th December 2006. For ease of reference this document will be referred to as the “decision letter” for the remainder of this judgment. The decision contained within the letter was to confirm the Order.

As of the 18^th December 2006 no alternative sites for the occupiers of the sites had been secured. In respect of the Inspector’s conclusion that the order should not be confirmed until alternative sites had been secured the decision letter provided:-

“He has considered the Inspector’s conclusion that the Order should not be confirmed until he, the Secretary of State, is satisfied that suitable relocation sites will be available to meet the reasonable needs of the Gypsies and Travellers that would be displaced (IR 6.2.122). The Secretary of State has considerable sympathy with those living at the Clays Lane and Waterden Crescent sites but as mentioned above, he takes the view that the scale and the extent of physical infrastructure required for the Olympic Games necessitate control of the major part of the Order lands by mid-2007 (IR 6.1.15-6.1.16). Therefore given the urgency, timing and importance of the Olympics and Legacy development, he considers the acquisition of the gypsy and travellers’ sites is vital in order to meet the requirement of the Olympic timetable and there is a compelling case for confirming these sites in the Order now. He consequently disagrees with the Inspector’s conclusion that the Order should not be confirmed until the relocation to alternative sites has the certainty that would be derived from the grant of planning permission. The Secretary of State notes the Inspector was aware of the LDA’s continuing work towards a satisfactory relocation of the gypsies and travellers (IR6.2.116). He is confident that the LDA are fully aware of the issues involved and, as with the bus depots, will make strenuous effort to deal with them so as to ensure the satisfactory relocation of the gypsies and travellers. However, as with the bus garages, the Secretary of State appreciates that there is a risk of failure on the relevant timescale that cannot be eliminated but having regard in particular to the clear and overwhelming importance of the Order and the urgency of the timing issues already referred to considers it right to confirm the Order now.” (Footnote: ²)

On or about the 5^th January 2007 the Claimants commenced these proceedings. They seek an order from this Court quashing the decision of the Defendant to confirm the compulsory purchase order. They bring the proceedings under section 23 of the Acquisition of Land Act 1981 which provides that : -

“(1)

If any person aggrieved by a compulsory purchase order desires to question the validity thereof, or of any provision contained therein, on the ground that the authorisation of the compulsory purchase thereby granted is not empowered to be granted under this Act or any such enactment as is mentioned in section 1(1) of this Act, he may make an application to the High Court.

(2)

If any person aggrieved by –

(a)

a compulsory purchase order or

(b)

…………….

desires to question the validity thereof on the ground that any relevant requirement has not been complied with in relation to the order ……….. he may make an application to the High Court.”

By section 24 of the 1981 Act the Court is empowered to quash a compulsory purchase order or any provision contained therein either generally or in so far as it affects any property of the applicant if the statutory criteria set out in section 23 are fulfilled.

As I have said, the Order as published encompasses some 339 hectares of land. This area is situated within the boundaries of four different local authorities, Newham, Hackney, Tower Hamlets and Waltham Forest. Geographically, the land is within an area known as the Lower Lea Valley.

In his report the Inspector described the Lower Lea Valley as follows: -

“The Lower Lea Valley, within which the Order Lands are located, is generally built up in character. Land uses are mainly industrial, with a high proportion of older buildings and yards; open working/storage type activities; and transport-related facilities. These characteristics contribute to a low employment density, generally, throughout the area. The area has more than its fair share of vacant sites and derelict buildings awaiting re-use or redevelopment. More encouragingly, pockets of comparatively modern industrial and commercial buildings provide a marked contrast; but my general impression is of an area that is, as a whole, used inefficiently and demanding of regeneration.

The general economic outlook is one of decline in the context of the area’s recorded high level of deprivation which manifests itself through a number of economic indicators including: - high unemployment; a high incidence of manufacturing jobs; a low proportion of managerial or professional skills; and a marked concentration of employment in the waste and recycling sub-sector. Socially, crime levels are high; health is poor; the population is generally younger, more diverse and less settled than average.

Outwardly, areas of derelict and overgrown land, fly-tipping and the condition of some water ways, are symptomatic of the physical neglect of the environment; and wide-spread ground contamination is a legacy of the past. Open spaces, in relieving built up form, are generally, at best, functional.

The area as a whole, in my view, conveys a negative impression” (Footnote: ³)

No one, in these proceedings, has suggested that the Inspector’s description of the Lower Lea Valley is in any way inaccurate.

Over years there has been an openly expressed desire and objective to regenerate the area. In respect of this objective, however, the Inspector concluded that the scale of the task required a comprehensive approach which involved the securing of new utilities, transport infrastructure, the remediation of contaminated sites, wide-range improvements to the environment and the provision of improved community facilities.

It is against this background that the plans for hosting the 2012 Olympic Games were formulated. Again, in the words of the Inspector,

“The London Plan 2004, identifies a way forward by defining the Stratford and the Lower Lea Valley as “Opportunity Areas.” Unlike the raft of documents and policies that have gone before, its ambition of accomplishment focuses on the benefits that would surge from the hosting the 2012 Olympic Games. Such an event would drive major change, achieve investment on an unprecedented scale and, more specifically, secure delivery within a short space of time.

At the end of the Games there would be a legacy of: - a rejuvenated environment; improved communications and infrastructure; new facilities major opportunities for employment-creating development; and a significant number of new homes, with a marked contribution to affordable needs for London and the South East.” (Footnote: ⁴)

In Paragraph 6.5.2 of his Report – under the heading “Overall Conclusion” – the Inspector concluded that: -

“The successful outcome of the London Bid will bring a remarkable event to the Lower Lea Valley. That event will require an extraordinary effort to transform what has gone before by implementing works on an enormous scale within an incredibly short period of time. The challenge is immense; but the benefit of hosting the Games and providing the catalyst to a lasting Legacy, are likely to immeasurable.”

Again, it is correct that I should record no one in these proceedings has questioned that conclusion.

The sites are crucial areas of land within the areas the subject of the Compulsory Purchase Order. Their approximate location is shown on a plan entitled “Permitted Legacy Masterplan with CPO Boundary”. The Clays Lane Caravan Site is within or adjacent to the area which will become the Olympic village. The Waterden Crescent Caravan Site lies in close proximity to one of the stadia to be constructed. The Inspector found that there was no question of the Olympics and Legacy developments proceeding without the two sites. (Footnote: ⁵)

In its evidence to the Inspector LDA provided detail as to the scale of the work involved to bring the development proposals to fruition. So far as concernsthe timing of the acquisition of the land upon which the work was to be carried out the LDA asserted that it was essential that all the land required for the Olympic venues and the athletes village was in its control by the summer of 2007 at the latest. In his conclusions the Inspector expressly accepted that part of the case advanced by the LDA. (Footnote: ⁶)

At a comparatively early stage the LDA recognised that it had a duty to identify and provide alternative sites for the occupiers of the two sites. In her evidence to the Inspector Mrs Alison Heine, a planning consultant appointed by the occupiers, paid tribute to the work that had been undertaken by or on behalf of LDA to identify and secure alternative sites. At the Inquiry there was a considerable debate about the merits and disadvantages of some of those sites. As is obvious, however, as of the dates when the Inquiry was proceeding, no alternative sites had been secured for the occupiers. That said no one appeared to doubt the intention of LDA to identify and secure alternative sites within as quick a timescale as was reasonably possible.

At the time the Defendant made his decision to confirm the Order the position about alternative sites was, for practical purposes, the same as it had been at the time the Inspector conducted the Inquiry and made his report.

Since the confirmation of the Order, however, there has been progress towards the provision of alternative sites.

The London Borough of Newham has resolved to grant planning permission for a caravan site at Major Road. This site is capable of providing 15 pitches and, therefore, it is capable of accommodating all of the residents currently occupying the Clays Lane Site. The only impediment to the provision of that site for the occupiers of Clays Lane appears to be the possibility of a challenge to the grant of planning permission by way of judicial review by a body of residents opposed to the grant.

Planning applications have been made to Hackney Borough Council in respect of sites at Homerton Road and Wallis Road. The site at Homerton Road was granted planning permission on 19 February 2007 and it will accommodate at least 7 pitches. An application in respect of the site at Wallis Road has been refused once by the local planning authority but a scheme in different form has recently been submitted. The indications are that this application will be considered at a meeting of the relevant committee of the local planning authority in June 2007. The Travellers currently occupying the site at Waterden Crescent cannot all be accommodated at Homerton Road and Wallis Road. The current proposal is that a site known as Millfield Depot will also be provided although no planning application has yet been determined in relation to this site.

The parties agree that the lawfulness of the decision of the Defendant is to be judged as at the time he made it. Accordingly only those circumstances which existed at that time can be taken into account.

The parties seem to me also to agree about the nature of the decision under challenge. The decision under challenge is a decision to confirm the Order. The effect of confirmation is to confer upon LDA the power to acquire the land to which the Order relates. The order does not, itself, constitute the means by which title to the land is vested in LDA and, obviously, it is for LDA to determine precisely when it seeks to exercise the power which is now conferred upon it.

The first, and in my judgment, principal ground of challenge, is that the Defendant acted unlawfully in confirming the Compulsory Purchase Order since the decision to confirm constituted unlawful interference with the Claimants’ rights under Article 8 European Convention on Human Rights. Article 8 provides that: -

“1.

Everyone has a right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others”.

The Defendant and LDA do not assert that the confirmation of the Order does not interfere with the Claimants’ rights to respect for their private and family life and their home. The case for the Defendant and LDA is that such interference is in accordance with the domestic law and necessary in the interests of the economic wellbeing of the country.

Before turning to deal with whether or not the admitted interference is justified in this case it is necessary that I say something about the nature of the rights under Article 8 in so far as it has been applied to gypsies and travellers. It suffices that I refer to relevant extracts from the leading case in the European Court of Human Rights namely, Chapman v United Kingdom [2001] 33 EHRR 399. At paragraph 73 the Court gave consideration to the nature of a gypsy’s rights under Article 8. It said: -

“The Court considers that the applicant's occupation of her caravan is an integral part of her ethnic identity as a gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. This is the case even though, under the pressure of development and diverse policies or from their own volition, many gypsies no longer live a wholly nomadic existence and increasingly settle for long periods in one place in order to facilitate, for example, the education of their children. Measures which affect the applicant's stationing of her caravans have therefore a wider impact than on the right to respect for home. They also affect her ability to maintain her identity as a gypsy and to lead her private and family life in accordance with that tradition.”

At paragraph 96 the Court said: -

“Nonetheless, although the fact of being a member of a minority with a traditional lifestyle different from that of the majority of a society does not confer an immunity from general laws intended to safeguard assets common to the whole society such as the environment, it may have an incidence on the manner in which such laws are to be implemented. As intimated in the Buckleyjudgment, the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at the decisions in particular cases. To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life.”

All the parties before me accept that these extracts from Chapman accurately reflect the nature of the rights enjoyed by gypsies and travellers under Article 8 and it was those rights which had been infringed by the confirmation of the Order.

The debate before me centred upon whether or not the Defendant had justified the interference. However, the debate was not just about whether the interference was justified as a matter of fact but also about the correct legal test to apply in deciding whether or not the interference was justified.

As will become apparent, it is, strictly, unnecessary for me to make a decision about the correct legal test. However, in order to explain the position of the parties it is probably sensible that I set out their rival contentions and offer a view.

Mr Willers, Counsel for the Claimants, accepts, indeed submits, that at the heart of the issue of whether or not the interference is justified lies the concept of proportionality. He submits, quite correctly, that it is for the Defendant to demonstrate to the Court that the interference with the Claimants’ rights is proportionate and therefore justified. He relies upon two authorities to justify a submission that a decision is not proportionate unless it is the “least intrusive” measure available to the decision maker in the context of the case before him.

In R (Daly) v SSHD [2001] 2 WLR 1622 Lord Steyn said at paragraph 27 of his speech: -

“The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  [1999] 1 AC 69 the Privy Council adopted a three-stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself:

"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."”

In R (Samaroo) v SSHD [2001] EWCA Civ 1139, UKHRR 150 the Court of Appeal concluded that the issue of proportionality: -

“will usually have to be considered in two distinct stages. At the first stage, the question is: can the objective of the measure be achieved by means which are less interfering of an individual’s right? ……. At the second stage, it is assumed that the means employed to achieve the legitimate aim are necessary in the sense that they are the least intrusive of Convention Rights that can be devised in order to achieve the aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons?” (Footnote: ⁷)

To repeat, Mr. Willers submits that the approach in these cases compels a conclusion that a measure which is not the least intrusive of convention rights is not proportionate.

In his written and oral submissions Mr. Willers accepts that there is a line of authority which suggests that a decision or measure might be proportionate even if it is not the least intrusive measure available. I will deal with that line of authority in a moment. Mr. Willers, however, seeks to confine it to cases where there is a conflict between two or more groups of private interests. He submits that one cannot view the instant case in that way. The present is a case in which a Minister has confirmed a compulsory purchase order made by a public body authorised so to do by Parliament.

The line of authority which casts doubt upon whether a measure need be the least intrusive available before it can be said to be proportionate begins with the decision of the Court of Appeal in Lough & Others v The First Secretary of State [2004] 1 WLR 2557. In that case, a local authority refused planning permission to the owners of a site for proposed development involving demolition of existing buildings and redevelopment on the basis that the proposals breached the planning authority’s unitary development plan through loss of amenity to adjacent residents. A planning inspector appointed by the Secretary of State allowed the appeal of the developers, granting permission to redevelop the site. Members of a local unincorporated residents’ association applied to the High Court to quash the grant of planning permission on the grounds, inter alia, that the proposed development breached the residents’ rights of respect for their private and family life and homes under Article 8 of the Convention and their rights to peaceful enjoyment of their possessions under Article 1 of the First Protocol. The judge refused the application and the Court of Appeal dismissed the appeal. In his judgment, Pill LJ ( at paragraph 49) dealt with proportionality and said :-

“49.

The concept of proportionality is inherent in the approach to decision making in planning law. The procedure stated by Dyson LJ in the Samaroo case [2001] UKHRR 1150, as stated, is not wholly appropriate to decision making in the present context in that it does not take account of the right, recognised in the Convention, of a landowner to make use of his land, a right which is, however, to be weighted against the rights of others affected by the use of land and of the community in general. The first stage of the procedure stated by Dyson LJ does not require, nor was it intended to require that, before any development of land is permitted, it must be established that the objective of the development cannot be achieved in some other way or on some other site. The effect of the proposal on adjoining owners and occupants must however be considered in the context of Article 8, and a balancing of interests is necessary. The question whether the permission has “an excessive or disproportionate effect on the interests of affected persons” (Dyson LJ at paragraph 20) is, in the present context, no different from the question posed by the Inspector, a question which has routinely been posed by decision makers both before and after the enactment of the 1998 Act. Dyson LJ stated, at paragraph 18, that “It is important to emphasise that the striking of a fair balance lies at the heart of proportionality”.

50.

I am entirely unpersuaded that the absence of the word “proportionality” in the decision letter renders the decision unsatisfactory or liable to be quashed…………. The need to strike a balance is central to the conclusion in each case. There may be cases where the two-stage approach to decision making necessary in other fields is also appropriate to a decision as to land use, and the concept of proportionality undoubtedly is, and always has been, a useful tool in striking a balance, but the decision in the Samaroo case does not have the effect of imposing on planning procedures the straight-jacket advocated by Mr. Clayton. There was no flaw in the approach of the Inspector in the present case.”

In a short concurring judgment Keene LJ said that he agreed with Pill LJ: -

“that the process outlined in Samaroo while appropriate where there is direct interference with Article 8 rights by a public body, cannot be applied without adaptation in a situation where the essential conflict is between two or more groups of private interests.”

In R (Clays Lane Housing Co-operative Limited) v The Housing Corporation [2005] 1 WLR 2229 the Housing Corporation, the regulatory body for registered social landlords under the Housing Act 1996, conducted an inquiry into the management of the Claimant housing co-operative, a registered social landlord, and concluded that there had been mismanagement in its administration. In exercise of its powers the Corporation directed the Claimant, against its wishes, to transfer its land to another registered social landlord instead of permitting the Claimant to make a voluntary transfer to another housing co-operative. The Claimant sought judicial review of the Housing Corporation’s decision on the ground, amongst others, that a transfer against its preferred wishes amounted to an unlawful interference with its rights under Article 1 of the First Protocol. The judge at first instance held that the Housing Corporation had asked itself the correct question, namely, whether a compelling case in the public interest had been established for the transfer and had properly balanced the comparative benefits of the compulsory transfer and the Claimant’s preferred voluntary transfer and had properly found in favour of compulsory transfer. On the Claimant’s appeal one of the issues was whether it was disproportionate for the Housing Corporation to adopt a course that was not the least intrusive of the Claimant’s rights under Article 1 of the First Protocol. Maurice Kay LJ considered that issue in paragraphs 18 to 28 of his judgment. It is unnecessary to read those paragraphs as a whole. In summary, however, the learned judge decided that it was the context of the case which was crucial in determining whether or not a decision had or had not been proportionate or justified. Having reached that conclusion he went on to say (paragraphs 24 and 25): -

“I therefore focus on the context in this case. It is not a case of naked property deprivation. It is common ground that the decision of 24 June 2002 that there should be a transfer by reason of mismanagement of CLCH is unassailable. The context is one wherein a statutory regulator, the Housing Corporation, having unobjectionably decided upon a transfer, then had to choose between two alternatives …………

In my judgment, the task in which HC was engaged was wholly different from the task of the Secretary of State in Samaroo’s case [2001] UKHRR 1150.. Having lawfully decided that there would have to be a transfer, the decision was then one between two preferred alternatives. Although not in every respect the same as a planning decision, it approximated to what Keene LJ was describing in Lough v First Secretary of State [2004] 1WLR 2557, para 55, namely “a situation where the essential conflict is between two or more groups of private interests”. I conclude that the appropriate test of proportionality requires a balancing exercise and a decision which is justified on the basis of a compelling case in the public interest and as being reasonably necessary but not obligatorily the least intrusive of Convention rights. That accords with Strasbourg and domestic authority. It is also consistent with sensible and practical decision making in the public interest in this context. If “strict necessity” were to compel the “least intrusive” alternative, decisions which were distinctly second best or worse when tested against the performance of a regulator’s statutory functions would become mandatory. A decision which was fraught with adverse consequences would have to prevail because it was, perhaps quite marginally, the least intrusive. Whilst one can readily see why that should be so in some Convention contexts, it would be a recipe for poor public administration in the context of cases such as Lough v First Secretary of State and the present case.”

In Pascoe v First Secretary of State and another [2006] 4 AER 1240 the Urban Regeneration Agency made a compulsory purchase order for the purpose of regeneration of land. The order covered the claimant’s land who objected to it. A public inquiry was held. An Inspector issued a report in which he concluded that the evidence established that the order land was predominantly under-used or ineffectively used urban land. Further, he considered that the interference by the order with the rights to respect to privacy and family life under Article 8 was justified. He recommended that the Secretary of State should confirm the order which he did. The claimant issued proceedings questioning the validity of the order and Forbes J concluded that the Defendant had acted outside his powers in confirming the order for reasons which are unimportant to this case. He also gave detailed consideration, however, to the issue of whether or not the decision to confirm the compulsory purchase order had been an unjustified interference with the Claimant’s rights under Article 8. The learned judge records the claimant’s essential points on this issue as follows: -

“[58] Central to his submissions on this ground of challenge was Mr. McCracken’s [counsel for the claimant]contention that it is well established that the means used must be no more than that which is necessary to accomplish the objective: in this case, in order to be necessary the means used to achieve the legitimate aim of the regeneration of the Edge Lane area must be the least intrusive of the Claimant’s convention rights that can be devised in order to meet that aim.”

Having set out that submission the learned judge then reviewed all the authorities set out above as well as many others. At paragraph 73 the judge said:-

“I accept Mr. Maurici’s [counsel for the defendant]submission that the intensity of review depends on the particular context in question in a given case. I also agree that the Samaroo approach is not one of universal application.”

Forbes J then cited the passages from the judgment of Keene LJ in Lough and from the judgment in Maurice Kay LJ in Clays Lane which I have set out above before concluding that he rejected the Claimant’s approach that the means used to achieve the regeneration must be the least intrusive of the Claimant’s Convention rights.

I appreciate that the decision in Pascoe is not strictly binding upon me. Forbes J’s analysis of the issue of proportionality was obiter. Nonetheless, I would not consider it appropriate to depart from his approach unless I was satisfied that it was clearly wrong.

In fact, I agree with Forbes J that a decision to confirm a compulsory purchase order may be proportionate even though it does not amount to the least intrusive interference of the land owner’s rights under Article 8. In my judgment the analysis of the relevant lines of authority undertaken by Forbes J in Pascoe is highly persuasive. Nothing would be achieved by my attempting to reformulate his analysis in my own words. I stress, however, that the context is all important. In this case the issue of proportionality has to be judged against the background that everyone accepts that an overwhelming case has been made out for compulsory acquisition of the sites for the stated objectives and that compulsory purchase is justified. The issue of proportionality arises only in relation to whether the confirmation of the order should await the provision of alternative sites i.e. in relation to the point in time at which the compulsory purchase order should be made. In that context, in my judgment, it is unnecessary for the Defendant to demonstrate that the measure he proposes to take is the least intrusive available.

I am conscious, however, that an alternative view point is clearly arguable. It is for that reason that I proceed on the basis, contrary to my view, that a decision to confirm this compulsory purchase order will not be proportionate unless, on the particular facts of the case, it is the least intrusive measure open to the decision maker.

Once a Court has decided upon the necessary ingredients of the test of proportionality how should it approach the issue of whether the decision in the particular case is proportionate? Upon this aspect there is no dispute between the parties. Each of the parties accepted that the approach of the Court is that which is set out in the speech of Lord Bingham in R(SD) v The Governors of Denbeigh High School [2007] 1 AC 100. At paragraph 30 of his speech Lord Bingham said: -

“Secondly, it is clear that the court’s approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The inadequacy of that approach was exposed in Smith and Grady v The United Kingdom [1999] 29 EHRR 493, para 138, and the new approach required under the 1998 Act was described by Lord Steyn in R (Daly) v The Secretary of State for the Home Department [2001] 2 AC 532, paragraphs 25 – 28, in terms which have never to my knowledge been questioned. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Minister of Defence ex parte Smith [1996] QB 554. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time: Wilson v The First County Trust Limited (No. 2) [2004] 1 AC 816, paragraph 62-67. Proportionality must be judged objectively, by the Courts: R (Williamson) v The Secretary of State for Education and Employment [2005] 2 AC 246, paragraph 51.”

In paragraph 16 above, I set out the conclusion of the Inspector as to the economic benefits to be derived from the scheme which underlies the need for the compulsory purchase order. The Inspector found that a compelling case in the public interest had been made out for the making and confirmation of the Order. His conclusion on proportionality, however, is that which is encapsulated in paragraphs 6.2.114 and 6.2.115. I quote: -

“Circular 01/2006, Planning for Gypsy and Traveller Caravans Sites, provides the policy context for the consideration of proposals such as these. Its main thrust is to ensure that Gypsies and Travellers have access to suitable accommodation; and that where new development requires an authorised site to be relocated, the onus is placed on the planning applicant to identify and provide an alternative site. Here that responsibility rests with the LDA as the acquiring authority. In proposing relocation and in seeking a relocation site, regard will need to be paid both to the Gypsy and Traveller communities’ social, economic and environmental needs and identified social, economic and environmental benefits that the major redevelopment project will bring to the wider area.

In my opinion the removal of these lawful sites, without suitable replacements would fundamentally undermine the intentions of up-to-date Government Policy. As there is a lack of Gypsy and Traveller sites in the area generally, the loss of these sites would almost certainly lead to camping at the roadside, with all the attended difficulties that presents. Throughout my conclusions I have acknowledged the substantial benefits that would arise from the Olympic and Legacy proposals; but these must be weighed against the needs of the Gypsies and Travellers. To my mind the loss of their homes, with no where else to go, would amount to a disproportionate interference with their rights to their peaceful enjoyment of their homes and there would therefore be a violation of their Human Rights.”

The Defendant’s views upon the justification of the compulsory purchase order as a whole are in encapsulated in paragraphs 12 and 13 of the decision letter. I quote in full: -

“12.

The Secretary of State is of the opinion that this is one of the most important and significant development projects planned for the United Kingdom for some considerable time. He has taken into account the clear and overwhelming importance of the Order, not only nationally but regionally and locally and the benefits that it will bring for all. He notes particularly its main purpose in acquiring land in this part of London, not only for the purposes of the London Olympics in 2012, although that of course is important, but, more crucially, in the use of the location of the Games in London as a mechanism whereby much needed regeneration of this area of East End of London can be carried out. So he particularly gives great weight to the Inspector’s conclusions that the need to regenerate the Lower Lea Valley is striking and without question and the Olympic Games offer the exceptional means to secure that objective in a wide-ranging comprehensive and timely manner (IR 6.4.7).

13.

The Secretary of State is also conscious of the critical time table that is required to be met in order to bring about this regeneration and to hold the Olympics on time in July 2012 and notes that the scale and extent of the work necessitate control of a major part of the Order lands by mid-2007 (IR6.1.16) He accepts the Inspector’s overall conclusion that the event will require an extraordinary effort to transform what has gone on before by implementing work on an enormous scale within an incredibly short period of time but agrees with him that, while the challenge is immense, the benefits of hosting the Games and providing the catalyst to a lasting Legacy are likely to be immeasurable (IR 6.5.2). The Secretary of State has therefore reached the view that the decision on the Order is crucial to this time table and has therefore been a factor to which he has attached considerable weight in his consideration of the objections.”

His consideration of the Claimants’ objections is to be found in that part of the decision letter headed “Clays Lane & Waterden Crescent Gypsy and Travellers’ sites” and paragraphs 27 to 34 thereunder. At paragraph 27 the Defendant sets out paragraph 57 of Circular 01/2006 in full and in paragraph 28 records that normally he would regard that policy framework as requiring “a greater degree of assurance about alternative arrangement than this case presents”. At paragraph 29 the Defendant accepts the conclusion of the Inspector that there can be no question of the “Olympics and Legacy Developments Proceedings without” the sites. Paragraph 30 (set out above at paragraph 10) is crucial to the Defendant’s reasoning as to why he disagrees with the Inspector’s recommendation that the Order should not be confirmed until suitable relocation sites are available. In paragraphs 31 to 33 the Defendant considers some of the potential relocation sites and also whether or not it would have been appropriate to use his powers under Section 13C of the Acquisition of Land Act 1981. That section empowered him to confirm the Order in respect of part of the Order lands but defer consideration of whether or not to confirm other parts until some future time. Importantly, in my judgment, the Defendant concluded that this power should not be exercised in relation to the sites. Finally, in paragraph 34 the Defendant confronts, head on, the issue of whether or not the Claimants’ human rights are violated unjustifiably if the Order is confirmed. I quote: -

“The Secretary of State notes that the Inspector considered the loss of the gypsies and travellers’ homes would be a violation of their human rights. He has also taken into the Inspector’s opinion that the loss of their homes, with nowhere else to go, would amount to a disproportionate interference with their rights to the peaceful enjoyment of their homes and so there would be a violation of their Human Rights (paragraph 6.2.115). Nevertheless the Secretary of State takes the view that, as mentioned above, the Olympic and Legacy developments represent a wholly exceptional project with convincing and significant benefits for the whole country. Taking these factors together with the demanding Olympic timetable which must be met by a certain date ie, July 2012, he considers that a clear and compelling case for acquiring the land has been made which falls within Article 8 (2) of the European Convention of Human Rights and that, on the fact of this case, the interference with home and family life is proportionate.”

In support of his submission that this was indeed a proportionate interference with the Claimant’s rights Mr. Drabble QC, on behalf of the Defendant, points out that in relation to the objection by the Claimants and other occupiers of the sites the issue before the Defendant was whether or not as at December 2006 it was a proportionate or justified interference with their rights that the compulsory purchase order should be confirmed then. In reaching that decision, he submits, it was crucial for the Defendant to consider not just the merits of the development as a whole but also the risk that the development would not be implemented if there was any significant delay in the making of the Order. That was so, to repeat, since the acquisition of the caravan sites was crucial to implementation of the development. Both Mr. Drabble QC and Mr. Roots QC stress the concluding sentence of paragraph 30 of the decision letter;

“However…..the Secretary of State appreciates that there is a risk of failure on the relevant time scale that cannot be eliminated [to provide alternative sites] but having regard in particular to the clear and overwhelming importance of the Order and the urgency of the timing issues already referred to considers it right to confirm the Order now.”

They both submit that this is a key passage in the reasoning of the Defendant. They do so because, they say, it demonstrates that the making of the Order in December 2006 was the only course open to the Defendant, in reality, if the purpose of the Order was to be achieved. Consequently, it was the least intrusive measure open to the Defendant to achieve the legitimate aim which was advanced as the justification for the interference.

I am mindful of the fact, as pointed out by Mr. Willers, that the interference with the Claimants’ rights is, on any view, substantial. I am also mindful of the fact that the sites in this case are lawful. As is pointed out in Chapman:

“If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move.” (Footnote: ⁸)

I accept that as at December 2006 there was a risk that the Claimants might be evicted from the sites with no alternative lawful sites available and to which they might move. On any view that is an important consideration in an assessment of proportionality. I accept, without reservation, the evidence of the personal circumstances of the particular Claimants.

All that said, I do not find that the Defendant’s decision to confirm the order was unjustified or disproportionate. In my judgment, it was the least intrusive measure available to him. Realistically, the only way of ensuring that a substantial proportion of the Order lands (which included the sites) was under the control of the LDA by mid 2007 was to make the order. No other measure, in my judgment would have achieved that objective. Further, the need for the land to be under the control of the LDA by that date was unchallenged and, indeed, on the evidence before both the Inspector and the Defendant, unchallengeable. Unless a substantial proportion of the order lands (including the sites) was under the control of the LDA by mid 2007 the Olympic and Legacy development would be put at risk. Applying the test laid down by Lord Bingham in the Denbeigh School case I find that the Defendant has established that his decision to confirm the Order in December 2006 was proportionate and that the interference with the Claimants’ rights under Article 8 was justified. I stress that in reaching that conclusion I have proceeded on the basis that the proportionality of the interference has to be considered against the interference with the whole of the Claimants’ rights under Article 8 as previously elucidated. I have also had regard to the fact that as at December 2006 the LDA was taking all reasonable steps to resolve the provision of alternative sites expeditiously.

I turn to the other grounds of challenge. I mean no disrespect to Mr. Willers when I say that these have much less force than his principal ground. It may be that all the grounds except the last are, in reality, aspects of the debate about proportionality. However, since they were identified as separate grounds I deal with them in that way. I can deal with each ground quite shortly.

This is a complaint that the Defendant failed to appreciate and take into account the fact that the “interference” under Article 8 was not limited to the Claimants’ right to respect for their homes and family life but also their right to respect for their traditional way of life. As I pointed out earlier in this judgment it is common ground that the rights under Article 8 include a right to respect for the traditional way of life of gypsies and travellers.

It is true that this point is not mentioned expressly in the decision letter. However, it would be a bold conclusion, indeed, to hold that such a failure provides a sound basis to find that the Defendant did not appreciate or have regard to the extent the Claimants’ rights under Article 8.

In the instant case the Defendant was clearly aware of recent planning policy guidance relating to gypsies. It is mentioned specifically in the decision letter. I refer, of course, to Circular 01/2006 Planning for Gypsy and Traveller Caravan Sites. Paragraph 12 of the Circular sets out nine specific objectives and the fourth objective under sub-paragraph (d) is “to recognise, protect and facilitate the traditional travelling way of life of gypsies and trsavellers, whilst respecting the interests of the settled community.”. It seems to me that the Defendant must have been well aware of that provision.

In their Skeleton Argument Mr. Drabble QC and Mr. Maurici refer to two decisions at first instance which are also of some relevance. In Hatfield Construction Limited v The Secretary of State for the Environment [1983] JPL 605 Mr. David Widdecombe QC sitting as a Deputy High Court Judge held that national planning policies “were part of the background to every planning appeal and it could be assumed that they have been taken into account, unless it could clearly be demonstrated that they were ignored”. In Boulevard Land Limited v The Secretary of State for the Environment [1998] JPL 983, Mr. George Bartlett QC sitting as a Deputy High Court Judge thought that the matter was not to be approached on the basis of mere assumption but accepted that Circulars and PPGs were likely to be familiar to decision makers as one of the factors to be taken into account and the simple absence of a reference to a particular policy would be insufficient in itself to show that the policy had been left out of account. (See page 991)

In my judgment the Defendant in this case is very likely to have known the true extent of the Claimants’ rights under Article 8 and given those rights very careful consideration in his decision making process.

In my judgment that conclusion is reinforced by the fact that the Defendant was, in effect, disagreeing with a conclusion reached by his Inspector. Given the care with which the Inspector considered the Claimants’ objections and given his conclusion that the Claimants’ rights under Article 8 would be breached if the order was confirmed before relocation sites were provided, it is obvious, in my judgment, that the Defendant would have given very careful consideration to that view before departing from it. Part of that careful consideration would be an appraisal of the rights in question. I do not think that one can infer from the fact that the extent of the rights was not spelled out means that the Defendant failed to have regard to any one aspect of the rights in question.

Even if I am wrong about that it seems to me that the true significance of understanding the extent of the rights under Article 8 is so that a proper consideration can be made as to whether or not it is permissible or proportionate to interfere with the rights by the making of the decision in question. The speech of Lord Bingham in the Denbeigh High School case makes it clear that the issue for the Court is not whether there was some defect in the decision making process about whether or not the interference was permissible or proportionate but whether in fact the decision was permissible or proportionate.

In my consideration of the first ground of challenge I held that the Secretary of State’s decision to confirm the order was a proportionate measure taking into account the full extent of the Claimants’ rights under Article 8. It follows, inevitably, that even if the Defendant failed to have regard to the respect which was to be afforded for the Claimants’ traditional way of life, nonetheless, his decision to confirm the order was proportionate.

This complaint is identical, in concept, to the complaint under Ground 2. The Claimants argue that the Defendant failed to have regard to his positive obligation to facilitate the gypsy way of life. As Mr. Drabble QC points out special consideration to the needs and different lifestyle of gypsies is recognised in terms in Circular 01/2006. For reasons I have given, already, I have no doubt that the Defendant had regard to the Circular when making his decision. It is obvious from the decision letter itself that he clearly considered and understood the impact of his decision upon the Claimants.

The Claimants submit that the Defendant failed to consider whether it would be possible to proceed with the development of the Olympic sites without having secured the compulsory purchase of the sites. They also make the connected point that he failed to consider whether the continuing use of the sites for residential purposes would prejudice the construction of the Olympic Games facilities. Mr. Willers did not elaborate those points, to any extent, either in his written or oral submissions.

I agree with Mr Drabble QC that the first aspect of this ground is entirely without merit. The Inspector made an express finding that there was no question on the Olympics and Legacy development proceeding without the acquisition of the sites. The Defendant specifically endorsed that finding. Earlier in this judgment I indicated that the Clays Lane site lay within or adjacent to the proposed athletes village and the Waterden Crescent site was within the area earmarked for one of the stadia.

The second aspect of the ground is also without merit. There is simply no evidence which begins to suggest that the continued use of the sites as areas for siting caravans is possible whilst construction of facilities takes place. In any event, of course, the issue is whether or not the decision to confirm the compulsory purchase order is justified. The issue of when, precisely, the LDA needs to acquire possession of the site must be a matter for the LDA and if not the LDA those who will organise or engage in the construction process.

The Claimants also raised as an issue whether or not they could be relocated on a temporary site somewhere within the order lands until such time as permanent and suitable sites were found for them. I can do no better than repeat the response made on behalf of the Defendant in the Skeleton Argument presented on his behalf. The allegation seems to accept as its starting points the necessity to acquire the two sites and the need to confirm the order. The possibility that the Claimants and other occupiers may be temporarily relocated either within the order lands or, for that matter outside them, pending the finding of permanent sites is a matter that remains open for consideration as part of the process of implementing the Order.

In this ground the Claimants alleged that the Defendant failed to adopt the least intrusive means of achieving the legitimate aim since he failed to adopt the recommendation by the Inspector that the Order should not be confirmed until the Secretary of State was satisfied that suitable relocation sites would be available to meet the reasonable needs of gypsies and travellers that would displaced. I have dealt with this issue in that part of my judgment which deals with proportionality. For the reasons set out therein this ground of challenge must fail.

In his Skeleton Argument, Mr. Willers submits that the Defendant failed to provide adequate and intelligible reasons for his conclusion that the interference with the Claimants’ homes and family life was proportionate. There is no dispute about the fact that the Defendant has a duty to provide adequate and intelligible reasons. I have no doubt that the Defendant did so. In short the Court is obliged to make an assessment of what is contained within the decision letter. In this case I have to consider the reasons provided by the Defendant for reaching his conclusion that the interference with the Claimants’ human rights was proportionate. The Defendant’s reasons, as I have said earlier, are set out in paragraphs 27 to 34 of the decision letter. The reasoning is clear. The language is clear. There is no substance, in my judgment, in this ground of complaint.

When a decision maker admits that his decision involves a very significant interference with the human rights of a group of people the Court has a duty to analyse, rigorously, the basis upon which that decision is said to be justified and proportionate. Having subjected the decision of the Defendant to such a rigorous assessment I have reached the clear conclusion that the Defendant’s decision to confirm this compulsory purchase order is justified. Accordingly, this claim fails.

I should add two things for completeness. During the course of the hearing Mr. Willers told me that the Claimants were prepared to withdraw these proceedings if the LDA were prepared to give certain undertakings to the court which related to the provision of suitable alternative sites. I asked Mr. Willers to reduce the undertakings to writing so that there could be no misunderstanding of them. He did so but the LDA felt unable to offer undertakings in that form to the court for reasons explained by Mr. Roots QC. The possibility of the Claimants’ withdrawing the claim on the basis of those undertakings has played no part in my consideration of this case. Secondly, during the debate on proportionality there was some reference to concepts such as “margin of appreciation” and “deference” in relation to how the court should approach the Defendant’s decision. On the facts of this case there was no need for me to consider such concepts and, as will be apparent, I have not done so.