Sole v Secretary of State for Trade & Industry & Ors

This claim is an application under section 23 of the Acquisition of Land Act 1981 to challenge the lawfulness, in part, of the London Development Agency (Lower Lea Valley, Olympic and Legacy) Compulsory Purchase Order 2005 ("the CPO") made by the second defendant, the London Development Agency (the "LDA") on 16th November 2005 under section 20(1) of the Regional Development Agencies Act 1998 and confirmed by the first defendant, the Secretary of State for Trade and Industry ("the Secretary of State") on 18th February 2006, following consideration of a report dated 16th October 2006 by his Inspector who conducted a public inquiry into objections to the CPO.

The CPO covered 339 hectares of land in East London falling within the London Boroughs of Newham, Hackney, TowerHamlets and Waltham Forest in an area known as the Lower Lea Valley. The purpose of the CPO is to achieve the comprehensive regeneration of the Lower Lea Valley by enabling the development required for the Olympics in 2012 and the development thereafter, known as the Legacy, to be implemented.

The challenge in this case relates to the area known as the Clays Lane Estate where the claimant, Mr Sole, lives. It is a residential housing estate of about 450 units located on a site of 2.4 hectares towards the north-east part of the CPO boundary. It is the largest residential development within the CPO boundary and it is well located for public open space and for public transport.

It is an unusual form of residential development in so far as it is entirely for single people housed mostly in individual units within communal housing of between four and ten bedrooms arranged in courtyard blocks, although there are some individual flats and bungalows. The estate was originally run as a housing co-operative but that ceased in August 2005 and it is now owned and run by the Peabody Trust.

Of the 450 units on the estate, 347 were occupied at the time of the CPO inquiry. As at March 2007, there remained 112 occupants for whom relocation arrangements had not yet been made. They include the claimant who, together with some others, would like to be part of a group move to try and retain the character of communal housing.

The Clays Lane Estate is located on land required for the Athletes' Village and for some sports facilities. As it is required by July 2007, those requiring a group move will have to move first to temporary accommodation before group accommodation can be provided.

Planning permissions were granted in October 2004 by the four London Boroughs for those parts of the proposed Olympic and Legacy developments which fell within their boundary, the applications having been processed through the Joint Planning Authorities Team ('JPAT'). The planning permission relating to the London Borough of TowerHamlets, within which the Clays Lane Estate is located, included condition 4.6 which provided as follows:

A draft relocation strategy was submitted to the planning authorities about which JPAT had some reservations but, as the Olympic and Legacy Master Plans were revised twice, in January 2006 and in June 2006 during the inquiry, the LDA made it clear at the inquiry that it would not be implementing the 2004 permission and that it intended to submit a fresh application after the close of the CPO inquiry. The draft relocation strategy was therefore never approved. In fact, a fresh planning application was subsequently submitted in January 2007 to the Olympic Delivery Authority ('the ODA') which, by virtue of the London Olympic and Paralympic Games Act 2006, is now the planning authority for the Olympics land, and that planning application is presently being processed.

As the 2004 planning permission is not going to be implemented, the claimant's case is that the CPO should provide the same level of protection to the residents as was provided by the 2004 planning permission.

Before coming to the two main grounds of the claimant's case, I should first refer in summary form to the CPO inquiry, the Inspector's report and the Secretary of State's decision letter.

The CPO inquiry lasted for a total of 41 days. The claimant was an objector who appeared at the inquiry, both as an individual and as part of a collective case of a number of residents. At the outset of the inquiry, the residents had no legal representation. By agreement, the Inspector held informal "round table" sessions to hear their objections but, during that process, the residents obtained funding for legal representation and for a professional witness, so the round table sessions were adjourned for the collective case to be presented formally by counsel supported by witnesses.

The residents raised a wide range of issues, including whether the estate could be retained during the Olympic and Legacy developments, complaints about the procedures for relocating residents, and concerns raised by those, including the claimant, who wished to be relocated as part of a group. It was part of the residents' case that the CPO should not be confirmed due to the LDA's failure to provide an effective relocation strategy or, alternatively, that the inclusion of the estate should only be contemplated with appropriate safeguards to achieve a meaningful relocation for the residents.

The Inspector's report relating to all the objections to the CPO ran to some 400 pages. In the part of the report dealing with the Clays Lane Estate, he rejected the residents' objections for reasons which it will be necessary to refer to, and he recommended that the CPO relating to the Clays Lane Estate land should be confirmed, stating that "the justification for the Games in this particular location and the need to take the estate is irreproachable."

The Secretary of State accepted the Inspector's conclusions and recommendation relating to the Clays Lane Estate, adopting the reasons given by the Inspector. The reasoning of the Inspector therefore became the reasoning of the Secretary of State.

However, in order to appreciate the importance of the project as a whole, its benefits and the urgency of its timing, it is necessary to refer to paragraphs 12 and 13 of the Secretary of State's decision letter, which state as follows:

Although not directly relevant to these proceedings, the Inspector recommended that the CPO should be confirmed subject to satisfactory alternative provision being assured for two gypsy and travellers' sites (one of which adjoins the Clays Lane Estate) and for two bus depots. He also recommended that the CPO for the land for a replacement travellers' site and a replacement bus garage, both of which were outside the Olympics land, should be confirmed subject to planning permission being granted for those uses. So far as the latter recommendation is concerned, the Secretary of State accepted the Inspector's recommendation and exercised his power under section 13C of the Acquisition of Land Act 1981 to postpone consideration of the replacement sites until the planning permission had been determined. However, he did not accept the Inspector's recommendation that confirmation of the CPO should be delayed in relation to the existing gypsy and travellers' sites and the existing bus depots until the relocation to alternative sites had the certainty of planning permission. He concluded that there was a compelling case for confirming the order relating to those sites now in view of the urgency, timing and importance of the Olympic and Legacy developments.

As I have mentioned, this claim is bought under section 23 of the Acquisition of Land Act 1981. The relevant parts of sections 23 and 24 of that Act provide as follows:

The claimant seeks to quash the CPO, pursuant to section 24 of the 1981 Act, only in so far as it relates to the land occupied by the Clays Lane Estate in order that the Secretary of State can consider using his power under section 13C of the 1981 Act to defer confirmation of the CPO relating to the Clays Lane Estate land until an appropriate relocation strategy to protect the residents has been approved by the Secretary of State.

Section 13C of the 1981 Act provides, so far as relevant, as follows:

It was made clear on behalf of the claimant that he was not challenging the benefits of the Olympic and Legacy developments or the finding that the Clays Lane Estate land was needed for the scheme to go ahead. Neither was he challenging the Secretary of State's general remarks about the urgency of the project, although it was not accepted that the urgency relating to gaining possession of the Clays Lane Estate land was such as to weigh against the claimant's case.

The claimant raised two main grounds of challenge:

I turn then to deal with each of those grounds of challenge in turn.

Dealing with the first ground of challenge, Miss Lieven QC made a number of points on behalf of the claimant in support of the contention that the Secretary of State had misdirected himself in relation to the Grampian condition and the protection it afforded tenants seeking relocation.

The first two points relate to paragraph 6.2.59 of the Inspector's report, where he stated:

It was contended on behalf of the claimant, firstly, that the sentence "the relevant condition requiring the submission of a strategy was fulfilled" was incorrect because the condition had not been fulfilled because the relocation strategy had only been submitted and had not been approved. The same error was said to have been repeated in paragraph 6.2.88 of the Inspector's report where he had said that there had been no breach of the condition.

In my view, that point is misconceived and involves a misreading of paragraph 6.2.59. It is tolerably clear, when paragraph 6.2.59 is read as a whole, that the Inspector was referring to the part of the Grampian condition which required the submission of a relocation strategy when he said that the condition requiring the submission of a strategy had been fulfilled. He was well aware that the condition required the strategy to be approved and that the strategy had not been approved. Not only did he correctly set out the nature of the condition when recording the LDA's case at paragraph 4.3.105 of the Inspector's report, but also in paragraph 6.2.55 he expressly stated that the absence of an approved relocation strategy had caused disquiet. The Inspector was correct in saying in paragraph 6.2.88 that there had been no breach of the condition because a breach would only have occurred if the development had commenced before a strategy had been approved.

The second point arising out of paragraph 6.2.59 related to the last sentence where the Inspector referred to the fact that any re-submission of a relocation strategy associated with a new planning application would re-engage consultation. That was said to be irrelevant because the CPO would be confirmed before consultation on the new planning application took place.

The Inspector, however, was well aware that the Secretary of State's consideration of the CPO was likely to pre-date the making and/or approval of the fresh planning application because he said as much in paragraph 6.2.80 of his report, but that does not make the factual point that he was making irrelevant. Even if it did, it would not affect the validity of the decision.

The next point arose out of paragraph 6.2.55 of the Inspector's report, which (quote in full):

The point that was made related to the second sentence of that paragraph inasmuch as it was said that it missed the point that the local planning authorities, who had to approve the strategy, could have required a greater level of detail.

I should mention that the Inspector's conclusions adopted the practice of including superscript brackets at the end of some sentences, referring to numbered paragraphs earlier in his report where he had summarised the parties' cases and from which his conclusions were drawn. Although not included in the way that I have quoted paragraph 6.2.55, the second sentence ended with a superscript reference to paragraphs 4.3.105 to 4.3.109 where the Inspector was recording the LDA's case relating to the relocation strategy. Paragraph 4.3.109 stated as follows:

It seems to me that the Inspector was fully entitled to come to the conclusion that he did in the second sentence of paragraph 6.2.55 as to what the relocation strategy would have contained in the light of the evidence to which he referred and also in the light of the lack of interest shown in the strategy by the residents, as recorded by him in paragraph 6.2.59. Miss Lieven made the point that the residents were under intense pressure to move, being under the shadow of a CPO which was effectively certain to be confirmed and which involved a tight timetable. However, even allowing for all those factors, the level of residents' representations on the submitted relocation strategy was extremely low. It was also suggested that the low level of interest may have been due to earlier statements made about the quality of accommodation that would be provided, but that is simply speculation. I conclude that the Inspector was entitled on the evidence to reach the conclusion that he did as to what would have been required in the strategy and that it is inappropriate to speculate to the contrary.

Finally, it was submitted that the Inspector did not realise the protection which the residents had under the Grampian condition which gave leverage to the planning authorities to secure an appropriate relocation strategy before development could commence and that he did not appreciate that, once the CPO had been confirmed, that protection would be lost because the 2004 planning permission was not going to be implemented. The residents would therefore be entirely at the mercy of the goodwill of the LDA/ODA.

In my view, that is doing the Inspector a disservice. I have already quoted paragraph 6.2.55 of his report. In paragraph 6.2.88, the Inspector stated:

It seems to me that the last sentence of that paragraph is very important. For reasons which he had already expressed in paragraph 6.2.55, namely that it would be hard for anyone to claim that their needs will not be met and that measures had been put in place that would secure relocation for individuals and groups, the Inspector concluded in paragraph 6.2.88 that there was an effective relocation process underway and that there was no basis to make the CPO conditional on the submission of a relocation strategy. The Inspector was therefore rejecting the very thing that the claimant is now saying he should have done. He did not consider that it was necessary for the residents to have the protection that they would have had under the Grampian condition by substituting for it a requirement that the CPO should be conditional on a relocation strategy. He did not consider it necessary for the residents to have that protection and leverage because in his view there was an effective relocation process underway which would mean that it would be hard for anyone to claim that their needs would not be met.

In my judgment, it is quite apparent that the Inspector was well aware of the nature of the Grampian condition and that he concluded, for the reasons that he gave, that there was no need to replicate the protection that it would have afforded by making the CPO conditional on the relocation strategy. In my view, he did not misunderstood or misdirect himself in relation to the nature and effect of the Grampian condition. I therefore conclude that the first ground of challenge fails.

I turn, then, to deal with the claimant's second ground of challenge, namely that the Secretary of State's decision was not proportionate, given the interference with the claimant's Article 8 rights and the failure to protect those rights by delaying the CPO relating to the Clays Lane Estate land under section 13C of the Acquisition of Land Act 1981.

Article 8 of the European Convention on Human Rights provides:

In his conclusions, the Inspector said at paragraph 6.2.87:

Later in paragraph 6.4.20, he said:

In his overall conclusion, having referred to the extraordinary effort to transform what had gone before by implementing works on an enormous scale within an incredibly short period of time leading to benefits which are likely to be immeasurable, the Inspector stated at paragraph 6.5.3:

I have already quoted earlier in this judgment paragraphs 12 and 13 of the Secretary of State's decision letter. When dealing with Article 8 rights, he stated at paragraphs 39 and 40 of the decision letter as follows:

It is agreed between the parties that the claimant's Article 8 rights are engaged and that the issue is one of proportionality. It is for the Secretary of State to demonstrate that the interference with the claimant's rights is proportionate and therefore justified.

I was referred to the guidance of Lord Bingham in R vShayler [2003] 1 AC 247 about the need for a more rigorous and intrusive review by the court where an alleged violation of a Convention right is involved which can involve the need for the court to review the balance the decision-maker has struck and the weight that was accorded to the relevant interests when deciding whether the interference with the Convention right was proportionate to the legitimate aim being pursued.

I was also referred to a number of cases dealing with the correct legal test to apply in deciding whether or not an interference with a Convention right is justified, in particular whether the measure has to be the least intrusive in order to be proportionate. It is, however, not necessary to refer to those cases because Miss Lieven did not submit that the interference had to be the least intrusive in order to be proportionate. I was referred to the R (Clays LaneHousing Co-operative Limited) v The Housing Corporation [2005] 1 WLR 2229, in which Maurice Kay LJ stated at paragraph 25:

In the subsequent case of Pascoe v First Secretary of State and Another [2006] 4 All ER 1240 Forbes J, after an exhaustive review of the authorities, adopted the same approach as Maurice Kay LJ in Clays Lane Housing Co-operative case.

Miss Lieven submitted that, in the context of a case like this where there is a direct interference with the claimant's fundamental right to his home, the LDA should be required to take all reasonable steps to minimise that interference. She submitted that, in the circumstances of this case, the only way to minimise that interference would be for the Secretary of State to defer the CPO in relation to the Clays Lane Estate land in order to require a high quality agreed relocation strategy. It was also submitted that, in circumstances where the Secretary of State was publicly committed to the project, there was an extra onus on the court to scrutinise the decision to ensure that a proportionate balance had been struck and that all reasonable steps had been taken to protect an individual's rights.

The first and principal matter relied on in support of the contention that the Secretary of State's decision was not proportionate was the alleged failure of the Secretary of State to have proper regard to the nature of the protection given by the Grampian condition, and the failure to defer the CPO so that an agreed relocation strategy could be put in place.

That is a matter which I have already dealt with under the first ground of challenge. The Inspector made an express finding in paragraph 6.2.88 that there was no basis to make confirmation of the CPO conditional on the submission of a relocation strategy because there was an effective relocation process underway. In other words, he decided that the extra protection required by the residents was not reasonably necessary. In those circumstances, adopting for present purposes Miss Lieven's test of requiring all reasonable steps to minimise interference with the claimant's Article 8 rights, he decided that it was not reasonably necessary to defer the CPO for an agreed relocation strategy to be put in place in order to minimise interference with the claimant's Article 8 rights because an effective relocation process was already underway. I am not, therefore, persuaded that this is a matter showing that the interference with the claimant's Article 8 rights was disproportionate.

There were a number of other matters relied upon as showing that the Inspector's approach was not proportionate. Firstly, complaint was made about the Inspector's remark in paragraph 6.2.49 of his report, when he said:

It was contended, firstly, that it was incorrect to say that affordability was not directly relevant to the CPO because a tenant could be deprived of his home because the only offer was unaffordable. Secondly, it was said that it was irrelevant that residents may have had to pay more for their accommodation if they had continued to live at Clays Lane because the point was that they were being forced to pay more as a result of the CPO.

Whilst I have some sympathy with the generality of those points, the Inspector was simply making the point that, if rents were not affordable, social housing would be available and also the normal range of benefits would apply for those who qualified, and he went on in paragraph 6.2.50 to consider the quality of accommodation on offer in the social housing sector. The fact that residents may have had to pay higher rents if they had remained at Clays Lane is simply comparing what might have been the situation if residents had not been forced to move. I appreciate that it may be of little comfort to the residents, but it does not seem to me to be an irrelevant consideration. I do not consider that paragraph 6.2.49 of the Inspector's report can fairly be said to show a disproportionate approach.

Next, complaint is made about the last sentence of paragraph 6.2.50 of the Inspector's report. As I have just referred to the earlier part of that paragraph I should quote it in full:

Complaint is made about the Inspector's remark that the process of relocation has been one of choice. That is said to show an unrealistic, biased and unbalanced approach because residents were under the shadow of the CPO which was almost certain to be confirmed and they were therefore moving under pressure, rather than as a matter of choice.

Whilst I would accept that there must be an element of pressure on residents to move in the circumstances of this case, that does not detract from the factual statement by the Inspector that the process of relocation was one of choice. He was of course well aware that the choice was made in the context of the CPO. It is, in my view, inappropriate to pluck out individual sentences without considering the report as a whole.

Another example of cherry picking sentences from the Inspector's report relates to the last sentence in paragraph 6.2.55, already quoted earlier in this judgment, when the Inspector said:

Again, that seems to me to be an unfair criticism. That sentence has a superscript reference at the end of it to paragraph 4.3.97 of the report which is recording the LDA's case and which provides the context for the Inspector's remark. That paragraph states:

Having considered all those detailed criticisms of the Inspector's report and, more importantly, having read all the relevant parts of the Inspector's report as a whole, I am not persuaded that it involved an unbalanced or disproportionate approach to issues affecting the claimant's Article 8 rights. On the contrary, it seems to me to constitute a thorough, detailed and balanced approach to the issues affecting the Clays Lane residents.

The remaining issue on the topic of proportionality relates to the question of timing. As I mentioned earlier in this judgment, the claimant is not challenging the urgency of the project and the absolute nature of the timescale in relation to the CPO lands as a whole, but the claimant does not accept that there was any special urgency relating to possession of the Clays Lane Estate land such as to prevent the court quashing the decision so far as that land is concerned.

The first point that was made was that there is no evidence before the court to show why the eviction of the Clays Lane residents is on the "critical path" for the timing of the works so as to necessitate possession by July 2007. It was said that the only evidence was in paragraph 3.91 of the Inspector's report, which stated:

The second point that was made was that the Inspector, when dealing with the part of the CPO relating to the Clays Lane gypsy and travellers' site, which was also needed for the Athletes' Village, did not feel that the urgency of the acquisition of that site was such as to outweigh the need to protect the gypsies and travellers.

Dealing with that second point first, the fact of the matter is that the Secretary of State disagreed with the Inspector's recommendation. He stated at paragraph 30 of the decision letter:

An application under section 23 of the Acquisition of Land Act 1981 was recently made to the High Court by some gypsies and travellers challenging that part of the decision. In his judgment given recently in Smith and Others vSecretary of State for Trade and Industry and London Development Agency [2007] EWHC 1013 (Admin), Wyn Williams J stated at paragraph 50:

Turning to the first point raised by Miss Lieven relating to the alleged lack of evidence to show that the Clays Lane Estate land was on the critical path to necessitate possession by July 2007, whilst paragraph 3.91 of the Inspector's report sets out the timetable quite briefly, there was plenty of other evidence relating to the scale and nature of the works which showed the need for a comprehensive approach to the timetable. As Wyn Williams J remarked in the Smith case, the need for the land to be under the control of the LDA by July 2007, including the Clays Lane gypsy and travellers' site which adjoins the Clays Lane Estate land, both of which were needed for the Athletes' Village, was, in his words, unchallenged and, on the evidence, unchallengable.

The fact that the Secretary of State agreed to postpone the CPO relating to the replacement sites, which were outside the Olympics land, pursuant to section 13C of the 1981 Act is neither here nor there because, as I have said, they were outside the Olympics land. Unlike the Clays Lane Estate site or the Clays Lane gypsy and travellers' site, they were not needed for the Athletes' Village.

The claimant in this case suggested that it would be appropriate to postpone confirmation of the CPO relating to the Clays Lane Estate land pursuant to section 13C of the 1981 Act. There was a dispute on the proper construction of that section, which I quoted earlier in this judgment, and I was referred to some provisions of Circular 06/2004 relating to it. Both Mr Drabble QC on behalf of the Secretary of State and Mr Roots QC on behalf of the LDA submitted that, as a matter of law, section 13C could not be implemented in the manner proposed because it was not possible to confirm the CPO relating to the rest of the Olympics land without knowing whether the CPO relating to the Clays Lane Estate land was going to be confirmed.

As I do not consider that there is any justification for postponing the CPO relating to the Clays Lane Estate land on the grounds of proportionality or for any other reason, it is not necessary for me to decide the point of construction. All I do say is that, on the facts, it seems to me that it would be wholly inappropriate to implement section 13C in relation to the Clays Lane Estate land both on the ground of timing and on the ground of uncertainty that it would create in relation to the whole project.

One cannot but have sympathy with the claimant who will lose his home. Whilst the interference with his Article 8 rights is substantial, the importance of the Olympics and Legacy project, its benefits and the urgency of its timing, make the case for compulsory purchase overwhelming. In my view, the decision of the Secretary of State to accept the Inspector's recommendation to confirm the CPO relating to the Clays Lane Estate land was justified and it was not disproportionate. The Inspector was entitled to conclude that there was no basis for making the CPO conditional on a relocation strategy for the reason that he gave. I am satisfied that he well understood the nature of the Grampian condition and the reason why the objectors sought conditional confirmation of the CPO. I do not consider that the other points raised on behalf of the claimant show that the Inspector adopted a disproportionate approach. In my judgment, having subjected the Inspector's report and the Secretary of State's decision letter to a rigorous assessment, the interference with the claimant's Article 8 rights and the decision to confirm the CPO was justified and proportionate. The second ground of challenge therefore fails.

It follows that, for the reasons I have given, both of the grounds of challenge fail. The application under section 23 of the 1981 Act must therefore be dismissed.

MR MAURICI: My Lord, I am grateful. In addition to the order dismissing the claim, I seek an order that the claimant pay the Secretary of State's costs, subject to the usual restriction, because, as you know, the claimant is in receipt of community legal funding.

SIR MICHAEL HARRISON: Mr Wald, do you resist that?

MR WALD: My Lord I do. In your Lordship's judgment you have made reference to the sympathy that one cannot but have for the claimant who will lose his home. It is of course a matter of discretion whether costs are to be awarded. The claimant has lost; but in my submission, given that Mr Sole is legally aided, given the type and level of public interest in this matter -- of course Mr Sole is the claimant. Some play was made of a possible ambiguity about who the true claimants were, but whilst in my submission there was no ambiguity about who the claimant was in this matter, there were others whose interests rode on the outcome of this piece of litigation. So, given the legal aid status of Mr Sole, given the public importance of the issue generally and of the specific issue to Mr Sole and others, effectively the Clays Lane Estate, given Mr Sole's medical condition -- Mr Sole is in receipt of incapacity benefit. Any compensation that he receives as a result of the displacement from his home will of course go towards relocation. Any award of costs made against Mr Sole would have to come out of that award, my Lord. So even if it were a football pools order, in my submission in the interests of justice an additional liability should not be placed on Mr Sole who, in my submission, has brought a very reasonable case to this court, even if that liability should be a theoretical one. On that basis, my Lord, I do resist the application for costs made by the Secretary of State.

SIR MICHAEL HARRISON: Thank you very much, Mr Wald. Do you wish to reply to that, Mr Maurici?

MR MAURICI: Just briefly, my Lord. First of all, my learned friend makes three points. The first is that he relies on the fact that your Lordship expressed some sympathy for the claimant, because obviously he faces displacement under the order. My Lord, in my submission the relevant point is that the claim itself was a claim your Lordship found to have no merit in terms of the actual claim brought to this court. My Lord, I say that is the key point in answer to that. These are the costs in relation to this claim, and your Honour has clearly found that the claim had no merits.

My Lord, the second point my learned friend makes is to rely on the fact that the claimant has the benefit of community legal funding; but my Lord, of course that in itself is no reason why an order cannot be made subject to the normal restrictions. So the second point my learned friend makes does not assist him. The fact that the claimant has legal aid does not mean in any way that an order should not or could not be made.

The third point my learned friend makes is the public interest. My Lord, there clearly is strong public interest underlying the making of the order, but that does not mean that there is a public interest in the bringing of this claim, which your Lordship has found to be without merit. My Lord, I should point out to your Lordship that in Smith -- the similar case of Smith -- an order was made in Smith subject to the normal legal aid restrictions, and my Lord, the public interest in that case, if there is a public interest, cannot be any stronger than it was in this case. For all those reasons I ask for the ordinary order.

SIR MICHAEL HARRISON: Thank you very much, Mr Maurici. Mr Wald, you are not seeking to reply to that, are you?

MR WALD: No.

SIR MICHAEL HARRISON: You have made all the points which can reasonably be made, which I understand, but in my view none of those points are sufficient to avoid what I think is appropriate in this case, which is the usual course which is that costs should follow the event. So in those circumstances I will make an order that the claimant pays the first defendant's costs, subject to the usual order for a community funded applicant, which the associate will be well aware of, I am sure. Is there anything else?

MR WALD: My Lord, yes, there is. I rise to seek leave to appeal in this matter, essentially on two bases. The first relates, my Lord, to the Grampian condition. My Lord, in my submission some of the case law was brought before your Lordship and your Lordship's judgment makes reference to some of those cases. In the claimant's skeleton argument reference is made to the judgment of Wyn Williams J where he adopts the relevant part of the judgment in the Clays Lane case. In that particular case it was regarded to be of note that is not a case of naked property deprivation -- that was a phrase that was brought to your Lordship's attention during the trial. In this particular case there is an instance of naked property deprivation, and, in my submission, there is need for clarification as to how the proportionality balance is to being struck in the context of a CPO. The Love(?) case engaged circumstances of a planning appeal, and whilst it was accepted by my learned leader, Miss Lieven, that the summary test is not of itself the appropriate one to apply in this case, in my submission the proper test lie somewhere between those two, and there is not as yet -- certainly not in the Court of Appeal -- clear authority offering guidance as to how one is to apply proportionality in such circumstances. So my Lord that is the first basis upon which, in my submission, this matter should have leave to appeal further.

The second basis does relate to section 13C, and I note your Lordship's comment about not determining that matter because it was not regarded in the context of your Lordship's overall judgment to be of importance or of relevance, given other matters. It was, my Lord, nonetheless a matter that was debated between the parties. It was of note, in my submission, that at that stage there was some inconsistency between the Circular, to which your Lordship referred, and the terms of the statute itself; and albeit that it did not form a central part of your Lordship's judgment, in my submission that is an area of the law that could usefully be clarified by the Court of Appeal.

SIR MICHAEL HARRISON: Thank you very much. Mr Maurice.

MR MAURICI: My Lord, in short my answer is in relation to both these points. The legal points that my learned friend seek to identify are not points, my Lord, which forms(?) the ratio in any way of your Lordship's decision. My Lord, first of all on the conflicting, so it is said, case law, about whether the test is one of least intrusive means, as your Lordship correctly identified Miss Lieven's submission was not that it had to be within intrusive means, but that the measures had to be measures that were reasonably necessary. Your Lordship on the facts found that, even applying Miss Lieven's test, there was effectively no case that could be made by the claimant in respect of the cases in issue. So my Lord, in that sense your Lordship has not found it necessary to have to deal with this case law. My Lord, in those circumstances it will be very odd, very unusual indeed, for your Lordship to give leave to the Court of Appeal for a point your Lordship has not found it necessary to decide on fact.

My Lord, the same point applies, if even more strongly, in relation to 13C, because your Lordship found on the facts that there was no basis for making the confirmation of the order conditional on a further relocation strategy, and because your Lordship found that your Lordship did not have to look at whether in any event that could have been achieved under 13C or any other way. So both points, in my submission, are quite clearly points which your Lordship has not found it necessary to reach a view, and the legal issues which my learned friend identifies, however interestingly they might be in theory, simply do not arise in this case. In those circumstances, I submit to your Lordship it would not be proper to grant permission to the Court of Appeal. Thank you, my Lord.

SIR MICHAEL HARRISON: Thank you very much. Mr Roots, do you wish to say anything on this?

MR ROOTS: I would adopt gratefully what my learned friend, Mr Maurice, has just said, and would add that, as I heard your Lordship's judgment, the matter has turned entirely on the interpretation of the Inspector's report and the decision letter, and I noted in particular that your Lordship used the term "cherry picking" to indicate that very large part of this claim has been put forward upon a misreading of the Inspector's report and reading passages out of context; and in my submission any appeal would be completely unarguable.

While I am on my feet, my Lord, could I mention that, depending on your Lordship's decision on this application, I would like to make a point about the timing of any further application if the claimant should wish to go to the Court of Appeal with this matter, but perhaps I could come to that separately.

SIR MICHAEL HARRISON: Yes, thank you. Is there anything you want to so in reply, Mr Wald?

MR WALD: My Lord, no. Thank you.

SIR MICHAEL HARRISON: For the reasons actually given by Mr Maurici, with which I entirely agree, this is not an appropriate case to grant leave to appeal. So if you wish to go to the Court of Appeal you have to ask the Court of Appeal itself.

Mr Roots, you had some point about timing.

MR ROOTS: My Lord, the claimant has 21 days under the rules. Your Lordship has power to abridge that time. I need hardly take further time for reminding your Lordship about the urgency of this matter, and my application is that your Lordship should make a direction that should the claimant wish to pursue the matter of an appeal the first and initial step should be taken within seven days and not 21. My Lord, the claimant's solicitors have been notified by those instructing me that this application will be made, so that they have had time to consider their position. It will come as no surprise to them, and the reasons are obvious -- I will elaborate if your Lordship would wish.

SIR MICHAEL HARRISON: I do not think that is necessary.

MR ROOTS: I would just add that your Lordship will recall that this claim came before your Lordship because it was adjourned from an earlier date. It would otherwise have been heard with the other matters by Wyn Williams J. When the application for the adjournment went before Sullivan J he made it very clear indeed that the date which he set, which turned out to be your Lordship's hearing, he would not agree to any further postponement because he recognised that there was a need to dispose of any appeal before July. He also was satisfied about the need for urgency.

SIR MICHAEL HARRISON: I see, thank You. Mr Maurici, would you want to say anything on this point?

DEFENCE: My Lord, I support that application entirely as an appropriate case for your Lordship to abridge time for any appellant's notice to be filed within seven days. Your Lordship has that power under CPR 52.4 to abridge the time for appellant's notice from 21 days. I say there could not be a more appropriate case for it. I only need to refer your Lordship to paragraph 13 of the Secretary of State's decision letter which your Lordship (inaudible) to the judgment in relation to the urgency of this matter.

SIR MICHAEL HARRISON: Thank you. Yes, Mr Wald.

MR WALD: My Lord, whilst there is no dispute about your Lordship's powers under 52(4) I would not wish for your Lordship to have the impression that any previous judge had indicated that appeals would not be considered within a reasonable time. This is a claim that has been brought through public funding. If an application for leave is to be made to the Court of Appeal that would have to be with the benefit of public funding; that would have to be pursuant to counsel's advice that there are reasonable prospects; to a proper assessment of your Lordship's judgment through a consideration of the transcript, a copy of which for obvious reasons we do not have at the moment. So I would make the application that that matter be expedited, but in all those circumstances, my Lord, I would consider and submit that a period of seven days is too short, and that the 21 days allowable be retained in place, perhaps with some shortening of that period but not to the extent of seven days, so that the matters that are required to be completed in order for this application to be made can reasonably be done.

SIR MICHAEL HARRISON: Yes, thank you. Is it possible to know how long? The transcript on an urgency basis would be available within five days. What I will order is that if the claimant wishes to pursue an application for permission to appeal to the Court of Appeal then the application under section 52(4) should be made within 14 days. There is one practical difficulty which I foresee, which is that I will not be available for correcting the transcript. It therefore seems to me going to be inevitable that the application for permission, if it is made, will have to be made on the basis of an uncorrected transcript. I see no alternative to that. So perhaps it is as well if I were to say publicly that I realise that will be done and that I will of course correct the transcript as soon as I can.

MR WALD: My Lord, I wonder if I could seek a point of clarification. Is it intended that those 14 days should run from the date of receipt of the transcript or from today?

SIR MICHAEL HARRISON: No, from today.

MR WALD: No matter when the transcript is received.

SIR MICHAEL HARRISON: I am doing it on the basis that the transcript will be received by Friday. That is the information which I have been given and I am proceeding on that basis. Is that quite clear to all involved? In order to overcome any possible difficulties there may be I will order that the transcript be provided at public expense. Are there any other matters? Thank you.