Walker & Anor v Secretary of State for Communities and Local Government & Ors

The court has to deal with an application made under section 23 of the Acquisition of Land Act 1981 (the ALA) and an application made by the defendant to an associated judicial review application. The parties are agreed that the main matter to be dealt with by the Court is the ALA application. Depending on its outcome I will either, grant the application of the defendant in the associated judicial review as a consequence of dismissing the ALA application, or, if I uphold the ALA application, I will hear brief argument why that application should be granted notwithstanding that decision.

The claimants apply to quash the Borough of Blackburn with Darwen (Darwen Academy) (No 3) Compulsory Purchase Order 2006 (“the CPO”). That order was made on 24 October 2006 pursuant to section 226(1)(a) of the Town and Country Planning Act 1990 (“The TCPA”). The claimants are qualifying objectors to the making of that order and, having made a relevant objection, the Secretary of State, as required by 13A(3) of the ALA, caused a local inquiry to be held during June 2007. The Inspector’s report of 17 August 2007 recommended that the CPO be confirmed by the Secretary of State without modification. The Secretary of State did so by her decision letter dated 3 October 2007.

The underlying subject matter of the CPO was the decision of the Borough Council to provide a site (“the Redearth site”) adjacent to Darwen town centre, for the establishment of a City Academy. The siting of such an Academy was the subject of dissent, in particular by those whose view was that such a school should, if at all, be sited on the site of the existing Darwen Moorlands High School whose site was some distance from the town centre and on a ridge above the river which flows through the town centre. By the time of the inquiry the Council had granted outline planning permission and reserved matters approval for the provision of the Academy on the Redearth site. The process by which the Borough Council had, prior to that application, taken the decision to site the Academy on the Redearth site was the subject of criticism. This focussed on the adequacy of consultation. The view the inspector took on that issue forms one of the major planks of the application.

Section 226(1) of the Town and Country Planning Act 1990 (TCPA) provides as follows:

“A local authority to whom this section applies shall, on being authorised to do so by the Secretary of State, have power to acquire compulsorily any land in their area.

(a)

If the authority think that the acquisition will facilitate the carrying out of development/redevelopment or improvement or in relation to the land…

(1A) But a local authority must not exercise the power under paragraph (a) of sub-section (1) unless the think the development, re-development or improvement is likely to contribute to the achievement of any one or more of the following objects:

(a)

The promotion or improvement of the economic well being of their area;

(b)

The promotion or improvement of the social well being of their area;

(c)

The promotion or improvement of the environmental well being or their area…”

Section 23 of the ALA provides, amongst other things, as follows:

(1)

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

(2)

If any person aggrieved by –

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

(4)

An application to the High Court under this section shall be made within 6 weeks…

(b)

From the date on which notice of confirmation or making of the order is first published in accordance with this Act…”

Section 6 of the Human Rights Act 1998 (HRA) makes it unlawful for a public authority to act in a way which is incompatible with a convention right. Of particular relevance in the context of this case are Article 8 (Right to respect for private and family life) and Article 1 of the First Protocol to the Convention (Entitlement to peaceful enjoyment of possessions).

Rule 19 of the Compulsory Purchase by Non Ministerial Acquiring Authorities (Inquiries Procedure) Rules 1990, requires the Secretary of State to give reasons for her decision to confirm a compulsory purchase order.

The Secretary of State has set out, most recently in ODPM Circular 06/2004, her policy on how she will approach the confirmation of compulsory purchase orders. That document comprises a memorandum and a number of appendices. In the memorandum there are various subject headings. Under the heading “Justification for making a compulsory purchase order” paragraph 17 provides as follows:

“A compulsory purchase order should only be made where there is a compelling case in the public interest. An acquiring authority should be sure that the purposes for which it is making a compulsory purchase order sufficiently justify interfering with the human rights of those with an interest in land affected. Regard should be had in particular to provisions of Article 1 of the first protocol to the European Convention on Human Rights and, in the case of a dwelling, Article 8 of the Convention.

18.

The confirming minister has to be able to take a balanced view between the intentions of the acquiring authority and the concerns of those whose interest in land it is proposed to acquire compulsorily. The more comprehensive the justification which the acquiring authority can present, the stronger its case is likely to be. But each case has to be considered on its own merits…”

The memorandum also contains paragraphs concerning resource implications of the proposed scheme and whether there are any anticipated impediments to implementation (paragraphs 20-23).

Appendix A deals specifically with orders under section 226 of the TCPA. Paragraph 2 states that the powers given by that section are:

“Intended to provide a positive tool to help acquiring authorities with planning powers to assemble land where this is necessary to implement the proposals in their community strategies and local development documents. These powers are expressed in wide terms and can therefore be used by such authorities to assemble land for re-generation.”

Paragraphs 6 – 11 deals with the “well being power”. It includes, in paragraph 7, a reference to other statutory guidance issued by ODPM in 2001 to which I return below.

Paragraph 11 contains, amongst other things, the following:

“The re-creation of sustainable communities through better balanced housing markets is one regeneration objective for which the section 226(1)(a) power might be appropriate. For example it is likely to be more appropriate than a Housing Act power if the need to acquire and demolish dwellings were to arise as a result of an over supply of a particular house type and/or housing tenure in a particular locality…(it) may involve acquiring land to secure a change in land use, say, from residential to commercial/industrial or to ensure that new housing is located in a more suitable environment than that which it would replace. In urban areas experiencing market renewal problems, the outcome may be fewer homes in total.”

Paragraphs 12 to 15 of Appendix A concern “planning matters.” This segment includes the following paragraphs:

“12.

Any programme of land assembly needs to be set within a clear strategic framework, and this will be particularly important when demonstrating the justification for acquiring land compulsorily under section 226(1)(a) powers as a means of furthering the well being of the wider area. Such a framework will need to be founded on an appropriate evidence base and to have been subjected to consultation processes including with those whose property is directly affected…

14.Where the local plan is out of date and local development documents are still in preparation, it may well be appropriate to take account of more detailed proposals being prepared on a non statutory basis with the intention that they will be incorporated into the local development framework at an appropriate time….Where such proposals are being used to provide additional justification and support for a particular order, there should be clear evidence that all those who might have objections to the underlying proposals in the supporting non statutory plan have had an opportunity to have them taken into account by the body promoting that plan, whether or not that is the authority making the order.”

Under the heading “Confirmation” paragraph 16 of Appendix A provides amongst other things as follows:

“Any decision about whether to confirm an order made under section 226(1)(a) of the 1990 Act will be made on its own merits, but the factors which the Secretary of State can be expected to consider include:

(i)

whether the purpose for which the land is being acquired fits in with the adopted planning framework for the area or, where no such up to date framework exists, with the core strategy and any relevant area action plans in the process of preparation in full consultation with the community;

(ii)

the extent to which the proposed purpose will contribute to the achievement of the promotion or improvement of the economic, social or environmental well being of the area;

(iii)

the potential financial viability of the scheme for which the land is being acquired…the greater the uncertainty about the financial viability of the scheme, however, the more compelling the other grounds for undertaking the compulsory purchase will need to be…

(iv)

whether the purpose for which the acquiring authority is proposing to acquire the land could be achieved by any other means.”

The claimants have interests in parcels of land to which the CPO applies. The land is sought to be acquired for the purposes of carrying into effect a proposal to establish a City Academy on a site adjacent to Darwen town centre. The arrangements envisaged are that the Borough Council will secure a vacant cleared site upon which the Academy will be built. The capital for the construction of the Academy is to be provided jointly by central government (the DfES) and a sponsor who has agreed to provide £2 million. The site will be leased by the Council to a trust established to run the Academy on a long lease at a peppercorn rent. The funding for the acquisition by the Council of the buildings the subject of the CPOs and their demolition to provide a cleared site has been provided to the Council pursuant to a “Market Restructuring (Implementation) Agreement” the parties to which are the Secretary of State and a number of local authorities in East Lancashire, including the Borough Council. The establishment of the City Academy will necessarily involve the closure of Darwen Moorlands High School.

The grounds upon which the section 23 application was launched were two fold. First, that the Secretary of State failed to apply her own policy by failing to have sufficient regard to the fact that there was insufficiency of consultation on the proposal underlying the compulsory purchase order to locate the City Academy on the site to which the CPO applied. Second, that she failed to identify sufficiently her reasoning for concluding that confirming the CPO would not constitute a breach of the human rights of the applicants, particularly pursuant to Article 8 and Article 1 of the First Protocol.

Shortly before the hearing of the application the applicants sought to add three further discrete grounds. First, that the Secretary of State misdirected herself on the issue of financial viability by erroneously accepting that funding for the acquisition and demolition of the houses in question could be provided pursuant to the housing market restructuring implementation agreement (“the Funding Point).

Second, that the Secretary of State failed to have regard to the need for the scheme to satisfy the requirements of “best value”.

Third, that the Secretary of State acted unlawfully in failing to take into account a plan which was produced to her after the Inspector’s report which demonstrated that a City Academy could be accommodated on the site of the existing Darwen Moorlands High School.

The Secretary of State and the local authority both objected to the addition of the three new grounds at a very late stage in the proceedings and long after the expiration of the 6 week time limit for making an application under section 23. Nonetheless, they agreed that I should hear argument on them without first deciding whether to allow the amendments.

The Inspector’s report runs to 69 pages, of which 61 comprise text. It is structured - dealing with matters under various headings. Paragraphs 10 and 11 set out certain background matters. First, that a CPO (No 2) was made and confirmed without objection on 12 October 2006 for the purpose of facilitating the carrying out of the City Academy development on this site. That order related to commercial premises and open land. A High Court challenge had been made to that CPO but failed in January 2007. Second, that another CPO was made, under the Housing Act 1985, relating to land and dwellings within an area similar to the current CPO. That order was primarily concerned with the fitness of the houses in the order lands and whether there was a compelling case for intervention on housing market renewal grounds. An inspector, after an inquiry, did not consider clearance and redevelopment to be the most satisfactory course of action for dealing with the condition of those houses. The Secretary of State agreed and that CPO was, in August 2006, not confirmed. Third, that the Borough Council had continued to demolish houses which it owned on the Redearth site. This is the subject of the judicial review, number 6942/2006. In the course of that judicial review, on 9 November 2006, the claimant obtained interim relief prohibiting continuation of the works of demolition.

At paragraphs 15 to 91, the Inspector summarised the case put forward by the Borough Council under a number of headings. The scheme was described (para 26 to 32). The Council’s submissions on Circular 06/2004(paras 38 to 86) were set out on, respectively: compatibility with the development plan and other material policies; contribution to the achievement of well being; viability and funding; alternatives; obstacles to implementation; and whether there was a compelling case in the public interest.

The Inspector then recorded submissions supporting the Council: by one supporter appearing at the inquiry; and a number of written representations by interested persons (paras 92 to 96).

The Inspector set out in summary form the objections to the CPO (paras 97 to 209). She dealt with each objector individually and, in relation to the main objectors, under various headings. In particular, in respect of one objector, Ms J. Wood, she recorded, at paragraph 118, a concern that as the scheme did not contain an element of housing, it would be a breach of the funding agreement for funds to be provided for that purpose so that the use of HMR funds would be unlawful. Under the heading “Alternative”, at paragraph 124, there was a suggestion that the costings attributable to the City Academy, whilst they may suggest best value to the LEA, did not necessarily represent “best value” in terms in cost to the public purse (paragraph 124).

In relation to the planning process, that objector had pointed out, (para 127), that the Academy was not part of the strategic framework for the regeneration of the town centre, was not referred to in any document, apart from the draft Masterplan and, in that latter document, although mentioned, was stated to be outside the town centre boundary to which the Masterplan related.

At paragraph 131 Ms Wood’s objection to the lack of public consultation was recorded. Her complaint was that there was no meaningful consultation about the choice of sponsor or siting an Academy on the Redearth site. Such consultation as there had been was, she said, meaningless.

In respect of the HRA she recorded Ms Wood’s objection (paragraphs 135 to 137) by reference to Article 8 and Article 6 (in relation to the inquiry process).

The Inspector recorded the response of the Borough Council to these objections (paragraphs 139 to 151). At paragraph 144 it contended, in relation to the funding issue, that the fact that land, once cleared, was to be used for non housing purposes did not prevent funding being lawfully provided under the agreement. The Inspector noted that confirmation had been obtained from the umbrella organisation providing the funding that there was no requirement to repay money if the Redearth site were developed for the Academy.

In relation to the consultation issue, at paragraph 147 the Inspector noted that outline planning permission had been given for the Academy on that site by the Council in December 2005, and reserved matters approval given in October 2006. In that regard those applications were advertised, notifications given, and consultations undertaken in accordance with statutory procedures. The outline planning permission had not been called in for consideration by the Secretary of State nor had the permission or reserved matters approval been challenged.

Other objectors raised concerns under the Human Rights Act: Mr Sciamberella (paragraph 167), Mrs McCumskay (paragraph 172), Mr Neal (paragraph 175).

The Inspector set out her conclusions between paragraphs 210 and 273. They were structured. At paragraph 215 she described the complaints of a number of present and former residents of the hardships they had undergone in respect of rights under Article 8 and Article 1 of the First Protocol.

At paragraph 218 she recorded that there was little objection to the principle of an Academy to serve Darwen and its area even by those who spoke against the particular project at the particular site.

At paragraphs 221 to 233 she dealt with a number of procedural and legal issues. At paragraphs 227 to 230 under the subheading “consultation and negotiation”, she said as follows:

“227.

Concerns about the lack of meaningful consultation about the future of the red earth land were very strongly put in both the written and oral submissions. There was a general consensus that the local community had been kept in the dark about the council’s true intentions for the site. There was a perception that by the time the council did undertake consultation they had already made up their mind that the site was to be the location for the new Academy. The HCPO Inspector commented that consultation on the housing clearance proposals had been less than satisfactory. From the evidence I have received it is difficult to reach a different conclusion in relation to the use of the Redearth site for the Academy… .

228.

It seems to me that the council decided that it wanted an Academy in Darwen in early 2004. Exactly when the decision was made to put it on the Redearth site is unclear but it appears as if a town centre site was being favoured quite early on. From what I have been told I cannot see that there was much in the way of meaningful consultation. Local people do not seem to have been asked for their views on the proposal until the outline planning application was made in 2005. By this time, though, the principle of an Academy at Redearth had been decided. In the circumstances it is hardly surprising that some people feel that the council acted in a high handed way and cared little for the opinion of the local community. Whilst this is far from satisfactory, it is of considerable importance that there exists a valid planning permission for the site. There is no specific requirement to consult on the CPO itself and the failure of the council in this regard, whilst regrettable, is not fatal to its confirmation.

229.

Whilst I can understand that many objectors believe that the council is “using the system” to get their way it is important to make clear that they have done nothing improper in this respect. There was the misapprehension that the Secretary of State in her decision on the HCPO came to the conclusion that the use of the land for an educational Academy was inappropriate on road safety grounds, that the houses had heritage value and should be refurbished, that the order making process had not been fair and open and that the human rights of residents would be seriously affected. However, this is a misreading of the text as paragraph 3 merely summarises main objections identified by the HCPO Inspector at the start of the report. As I have already said, there was no consideration of the Academy or any other redevelopment proposal under the HCPO.

230.

Circular 06/2004 encourages negotiation in parallel with the formal CPO procedures. It would appear that this has been going on and that the council have acquired the majority of properties by agreement. I note the criticism from objectors that people had been worn down by the process and had little option but to reach a settlement. However, negotiation is integral to the CPO process itself and there is no obligation on a landowner holder to accept an offer….”

At paragraphs 235 to 240 the Inspector set out her conclusions in respect of “the adopted planning framework”. In particular at paragraphs 236, 238, 239 she accurately describes the planning policy background and notes, as she did at other parts of the report, the fact that the Redearth site was outside the boundary of the town centre.

At paragraphs 241 to 253 she set out her conclusions in relation to “well being” and did so under the headings “Social Wellbeing”, “Economic Wellbeing”, and “Environmental Wellbeing”. At paragraphs 244 to 247 under the heading “Social Wellbeing” she recorded her conclusions on the very clear educational advantages of an Academy as opposed to the existing Darwen Moorlands High School as well as the advantages of the Redearth site as opposed to the Moorlands site.

She also dealt with that aspect of the matter under the heading “Alternative Means” at paragraphs 254 to 259. At paragraphs 257 to 259 she considered the specific alternative of Moorlands as being the site favoured by nearly all objectors. In so doing she did not accept the arguments of the Borough Council that, in relation to the Moorlands site, there would necessarily be insurmountable planning difficulties. She accepted that the Moorlands site had some advantages. However, at paragraph 258 she accepted the Council’s objections to that site on grounds of practicability, whilst redevelopment was taking place, and on location, as the Redearth site was accessible to the central area which the Academy would seek to serve. This fed into the view that the siting of the Academy adjacent to the town centre would contribute towards the town centre regeneration - the arguments for and against which she had noted in the earlier parts of the report.

At paragraphs 260 to 264 she considered “viability and the likelihood of implementation”. In particular she addressed the question of funding and whether the Housing Market Restructuring money would be available for the acquisition and clearance of the order lands by the Council. She gave her reasons for accepting the construction of the agreement put forward by the Borough Council such that funding would be available and she noted that her view was reinforced by the fact that the party carrying this agreement into effect would not seek to claw back the HMR funding even though the land thus cleared would not be used for any element of housing.

At paragraphs 269 to 273 she dealt with the human rights issues. She noted at 269 the assertion that the CPO would interfere with Article 1 of the First Protocol and Article 8 (Human Rights) as well as Article 6 (Rights). She noted that the test was whether there was a compelling case in the public interest for the acquisition to go ahead. At paragraph 272 she summarised her conclusions which she had identified earlier in this part of the report namely:

“That there was planning permission for the development in question, that the scheme would fit with the planning framework for the area, would contribute to the achievement of the promotion of the well being of the area, would be financially viable, and could not be achieved by any other means. The only alternative option Moorlands was not a reasonable alternative.”

She concluded in paragraph 273 as follows:

“The loss of a home and community is a very serious matter but in terms of financial loss there are statutory provisions for compensation which are designed to ensure that no one is in a worse off position as a result of the compulsory acquisition process if agreement cannot be reached. Taking all of the above matters into account I consider that there is a compelling case in the public interest and that the CPO is a proportionate interference with the human rights of those with interests in the order lands and otherwise affected.”

Accordingly, her recommendations included that the CPO be confirmed without modification.

The Secretary of State’s letter of 3 October 2007, at paragraph 7, records her consideration of the Inspector’s report and submissions made by the parties as follows:

“She agrees with the Inspector’s conclusions. She agrees with the Inspector that based on the evidence before her the CPO has been properly made. The Secretary of State notes concerns around consultation and negotiation and agrees with the Inspector that consultation on the CPO was not a specific requirement and that there is evidence of negotiation with the local residents as the council has acquired the majority of properties by the agreement (IR 228-230). She notes the Inspector’s comments and conclusions on the economic, environmental and social well being of the proposed development and agrees with her conclusions that the Academy’s is likely to contribute to well being in the area (IR 244-253). The Secretary of State notes that outline planning permission for the scheme has been granted and that there are no planning obstacles to implementing the proposed scheme (IR 260). She agrees with the Inspector’s conclusions that this scheme would fit with the planning framework of the area; would contribute to the achievement of the promotion of the well being of the area and that it would be financially viable and that it cannot be achieved by any other means. With regard to the alternative provision she agrees with the Inspector’s view that the Moorlands site is not a viable option because of delay and uncertainty it would lead to and would not offer the regeneration benefits of the town centre site. She therefore agrees with the Inspector’s consideration that there is a compelling case in the public interest and that the CPO is a proportionate interference with the human rights of those with interests in the order lands and otherwise affected (IR 272 and 273).”

The Secretary of State underscored her decision in respect of human rights in the following paragraph:

“8.

The Secretary of State has also carefully considered whether the purposes for which the compulsory purchase order was made sufficiently justify interfering with the human rights of the objectors and she is satisfied that such interference is justified since, for the reason given above, she is satisfied that there is a compelling need in the public interest for the land, the subject of the compulsory purchase order, to be compulsorily acquired. In particular she has considered the provisions of Article 8 and Article 1 of the first protocol to the European Convention on Human Rights. She agrees with the Inspector’s conclusion that taking all matters into account there is a compelling case in the public interest and that the CPO is a proportionate interference with the human rights of those with interests in the order lands and otherwise affected (IR 273). In this respect the Secretary of State is satisfied that in confirming the compulsory purchase order, a fair balance has been struck between the use of compulsory purchase powers, the relevant order and the rights of the objector.”

Accordingly, the Secretary of State decided to accept the Inspector’s recommendation and to confirm the CPO without modification.

The claimants case in this respect is that the Secretary of State erred in failing properly to have regard to her own policy on consultation. Reliance is placed on the conclusions of the Inspector in paragraph 228 of the report that the decision to have an Academy on a town centre site was being favoured early on in the process, that there was not much in the way of meaningful consultation and that local people were not asked for their views on the proposal until the outline planning application was made in 2005, by which time the principle of having the Academy sited at Redearth had been decided. Her conclusion was that this was far from satisfactory. It is contended that the conclusion of Inspector that, given a valid planning permission for the site, and no specific requirement to consult on the CPO itself, the failure of the Council in respect of consultation, whilst regrettable, was not fatal to its confirmation was erroneous and failed to give proper effect to the Circular.

It is said that this erroneous approach was evidenced by, or resulted from, the Inspector purporting to deal with this issue under the heading “procedural and legal issues” rather than as an issue which went to a consideration of whether or not a compelling case in the public interest had been established. It is said that this failure to treat the inadequacy of consultation as going to the substance rather than procedure prevented the Inspector, and the Secretary of State, having regard to relevant considerations. Those are said to include: it had never been shown that a document setting out the educational case for the Academy had been prepared by the Council and subject to scrutiny; any such educational case ought to have been reviewed in the light of the improved performance of the existing Moorlands high school; the lack of consultation prejudiced the consideration of alternative sites; and the burden of the scrutiny of the substance of the underlying scheme was only considered at the public inquiry giving rise to possible omissions such as the plan of the Moorlands site which had to be placed before the Secretary of State at the last minute.

It is said that the Secretary of State, in her decision letter, mirrored the same erroneous approach of the Inspector.

In addition, it is contended that she only had specific regard to the absence of any explicit obligation to consult before making a CPO. In my judgment this latter point stems from an erroneous reading of the Secretary of State’s letter. Paragraph 7 of the letter, if read as a whole, evidences that the Secretary of State also had in mind the fact that outline planning permission for the scheme had been granted. I do not accept this point.

The Secretary of State’s case on the main consultation issue is put on the following bases. First, the specific obligations to have regard to matters of consultation in Appendix A are all related to the question whether the proposal underlying the CPO had strategic and planning framework support which, after a detailed consideration of all the relevant planning documents, she was entitled to conclude that it did. Second, the initial absence of proper consultation on the decision in principle to site the Academy on the Redearth site was a matter of which the Secretary of State was aware. She was obliged to have regard to it and she did. However, the fact that outline planning permission had been obtained for the siting of the Academy on the Redearth site was a matter to which the Secretary of State was also entitled to have regard. That permission was subject to a procedure which involved consultation and was not the subject of criticism. Third, the Secretary of State and the Inspector were correct in their assertion that the CPO procedure itself did not require consultation. Fourth, the inadequacy of the initial consultation, whilst a relevant factor, was not determinative of the matter. Thus there was no error in saying that it was not fatal in itself. Fifth, the inadequacy of the initial consultation process, in reality, concerned the decision to site the Academy at the Redearth site rather than an alternative site such as Moorlands High. That matter was gone into extensively at the Inspector’s inquiry and was the subject of the fullest and most detailed consideration by the Inspector. Thus, the Inspector’s view that there was no viable alternative to the Redearth site constituted a proper consideration of a matter explicitly provided for by Appendix A 16(i). Any deficiency there may have been in the initial consultation process was fully compensated for by the extensive treatment of that issue. The Borough Council adopts those arguments.

In my judgment the contentions of the Secretary of State and Borough Council are correct. The question for the Secretary of State was whether she was satisfied that there was a compelling case in the public interest for the CPO to be made. The fact that, at an initial stage, a decision in principle had been taken without adequate consultation was a relevant factor for her to consider in forming that judgment. However, she was also bound to have regard to all other relevant matters including the fact that outline planning permission had been obtained after a proper procedure and, most importantly, the fact that all of the arguments of those who objected to the making of the CPO based on their objection to the underlying scheme were properly canvassed at the inquiry and considered by her. In those circumstances, in my judgment, it cannot be said that the Secretary of State failed to have regard to her own policy, as identified in paragraphs 12, 14, or 16(i) of Appendix A of the Circular or otherwise. Accordingly this ground for the application is not made out.

The claimant’s case in this respect is put on two bases. First, the Inspector failed to make any findings of fact as to the nature and extent of the interference with the convention rights which would be occasioned if the CPO were to be confirmed. Second, the Inspector misdirected herself as to the benefits which would flow from the scheme in that she gave weight to the fact that the Academy was considered to be an important element in the regeneration strategy of the town centre notwithstanding the fact that the Academy is located outside the area of the town centre for that purpose. It is said that the Secretary of State in her decision letter fell into the same errors.

The Secretary of State contends that the Inspector did identify sufficiently the nature and extent of the interference to human rights which would be caused by confirmation of the CPO. She refers to paragraph 215 in the Inspector’s report as well as paragraph 273 where she identifies the loss of a home and community as constituting very serious matters in the context of considering interference with human rights. She says that it is now well established that the test to be applied in considering whether to approve the CPO namely whether there is a compelling case in the public interest for it to be made in effect satisfies the balancing exercise required when considering whether interference with human rights under Article 8 and/or Article 1 of the first protocol is lawful and does not constitute a breach of the convention (Tesco Stores Ltd v Secretary of State and Wycombe District Council2000 P&CR 42, BexleyLBC v Secretary of State 2001 EWHC Admin 323, R (Clays Lanes Housing Cooperative) v Housing Corporation 2004 EWCA Civ 1658, Hall v First Secretary of State 2007 EWCA Civ 612). Furthermore, the Secretary of State contends that there is no requirement upon a decision maker such as the Secretary of State to consider each case individually once the view has properly been taken on the basis of a compelling case in the public interest that all the land had to be acquired in order to enable a scheme to be put into effect (see Alliance Spring Co Ltd and others v First Secretary of State 2005 EWHC 18 (Admin) at paragraph 21).

The Borough Council made similar submissions.

As for the second argument both the Secretary of State and the Borough Council point out that the Council’s case for town centre regeneration being facilitated by the Academy being sited at the Redearth site did not turn on it being located within the town centre strategy area but depended upon the regenetory effects on the town of the Academy being sited just outside the town centre. The Inspector was well aware that the location of the proposed Academy was just outside the town centre as she so described it at a number of points in her report (paragraphs 46, 85, 127, 236 and 239). Indeed at paragraphs 250 and 251, in considering economic well being, she considered in some detail the contrary arguments on the economic effect of students from the Academy being present within the town centre at various times of the day and, at paragraph 258, she placed great emphasis upon the siting of the Academy close to the town centre as being the most important argument against siting the Academy at the more remote Moorlands High site.

In my judgment, the Secretary of State and Borough Council are correct in their submissions. It is clear from the Inspector’s report that she was well aware of the nature and extent and seriousness of the potential interference with various human rights relied upon by the objectors. She accepted them and did not in any way under-evaluate them. That much is plain from the terms of the report, paragraphs 215 and 273. She correctly identified the human rights involved and the proper approach to be taken in considering whether the making of the CPO would constitute a breach of them (paragraph 269) and she applied that approach (paragraph 273). This approach was mirrored by the Secretary of State in her decision letter. In my judgment there is nothing in the human right point. The Inspector’s report identifies the nature of the right, and the proper approach. The conclusion to which she came was one to which she was entitled to come. In consideration of the benefits to be obtained by making the CPO so as to facilitate the scheme she did not misdirect herself. She was well aware of the site of the Academy outside, but adjacent to, the town centre regeneration area and she did have specific regard to the counterveiling arguments on the economic impact of siting the Academy there as opposed to the more remote Moorlands High site. This ground of the application does not succeed.

This was an issue which was raised at the Inspector’s inquiry. She dealt with it under the heading “viability and the likelihood of implementation” at paragraph 262.

The point essentially amounts to this. One of the elements in the funding package for implementation of the scheme was the cost to the Council of acquiring and clearing the site. Monies had already been provided pursuant to the market restructuring implementation agreement. This was at a time when a CPO was being pursued pursuant to the Housing Act but which was not ultimately approved. The point raised is that as the site was not to be used either in whole or in part for housing any payment pursuant to the agreement would be outside its scope and unlawful.

The preamble to the agreement provides amongst other things as follows:

“The First Secretary of State and the office wish to deliver thriving inclusive and sustainable communities in all regions, are committed to achieving balance between housing availability and demand in all English regions, and in particular, to addressing the problems of low demand for and abandonment of housing in the North and Midlands;

The office has for these purposes initiated the creation of partnerships of local authorities and other stakeholders (pathfinders) to carry out the regeneration and development of the pathfinder area with specific reference to the problems of low demand for and abandonment of housing, and the offices confirmed the establishment of the pathfinder.”

Clause 4.2 of the agreement concerns targets and future aspirations and refers to in schedule 4 which identifies, amongst other things, targets for homes wholly demolished both in respect of private and social housing.

Clause 8 concerns expenditure. Clause 8.1 is headed Eligible Expenditure and provides:

“Eligible expenditure shall consist of payments made by any of the participating authorities during the agreement term towards implementing the capital scheme which are made in the following categories:

(i)

Physical implementation consisting of:

(1)

In relation to land its acquisition, reclamation, improvement, or refurbishment for the purpose of redevelopment for residential or mixed use;

(2)

In relation to buildings intended for residential or mixed use, their acquisition, demolition, conversion, or improvement;…”

The capital scheme is defined in a definition and interpretation clause as meaning:

“The documents submitted to the office and listed in Schedule 3 to this agreement as updated from time to time in accordance with Clause 25.”

Schedule 3 sets out “a prospectus” and lists a series of documents which are very general in nature and plainly include matters going far beyond housing concerns.

This point turned on the construction of Clause 8.1i.1 in comparison with Clause 8.1.i.2. The former concerned the acquisition of land, its reclamation improvement or refurbishment, for a purpose namely: redevelopment for residential or mixed use. The latter provides for the acquisition of buildings and their demolition, conversion, or improvement. Buildings are described as “intended for residential or mixed use”. The Inspector concluded, correctly in my judgment, that the word “intended “ must refer to the buildings already in existence which are acquired and which are either demolished, converted or improved. Thus, expenditure on buildings is limited to those buildings which were intended for residential or mixed use. That would include buildings currently used for such purposes or buildings which at one stage had been but had ceased to be so used. That would be consistent with the preamble to the agreement. The Inspector concluded that expenditure pursuant to Clause 8 would be eligible if it were for the purpose of acquisition and demolition of houses or abandoned houses. There was no further requirement that the land thus cleared should be used for residential or mixed use. In my judgment that was a correct interpretation of the words of the clause. Furthermore, such interpretation chimes with the preamble to the scheme and the provisions for targets for housing demolition. It is also consistent with paragraph 11 of Appendix A to the Circular.

The Inspector had to determine whether this scheme was “financially viable”. She was assisted by the provider of the funds under the agreement informing her that it would not seek to claw back the funding already made merely because the site, when cleared, would be used for purposes other than residential or mixed use. Thus, not only was the payment apparently in accordance with the provisions of the agreement, but the parties to the agreement were agreed that the money should be paid and money already paid should not be reimbursed. In my judgment the Inspector was entitled to conclude that the scheme was financially viable having formed that view and having obtained that indication and did not err in drawing that conclusion. It therefore follows that the Secretary of State was similarly entitled to conclude that the scheme would be financially viable. This ground of challenge therefore fails.

By reason of the fact that it was a matter canvassed extensively before the Inspector I give leave to the claimants to amend their claim to include this argument though, in the event, I have rejected it.

“Best value”

This was not an issue raised at the inquiry in this form. The foundation of the argument is that it is said that the Inspector failed to have regard to the fact that the scheme would need to satisfy the requirements of best value and made no inquiry into that issue. In my judgment this, entirely new, point is one which should not be raised at the last minute by way of amendment as it has been. I therefore do not give leave to amend to include it.

However, I also consider its merits. Section 226(1A) obliges the local authority to exercise its power under the section only if it thinks the development is likely to contribute to the achievement of economic social or environmental well being. Paragraphs 6 to 11 of Append A of the Circular concern the well being power. The Local Authority’s duty to promote the economic, social and environmental well being of their area is primarily contained in section 2 of the Local Government Act 2000. Paragraph 7 of Appendix A indicates that the acquiring authority may find it helpful to have regard to the statutory guidance issued by ODPM in 2001 concerning the interpretation of that Local Government Act 2000 power. That guidance in paragraph 13 states:

“As with all other functions, it will be subject to the general duty of best value. ”

It refers the reader to the footnote which reads:

“The duty of best value is set out in section 3(1) of the Local Government Act 1999.”

That section imposes a duty on certain local authorities. It does not impose any duty at all on the Secretary of State or an Inspector acting on behalf of the Secretary of State.

Furthermore, in the Academy scheme, the only role of the Borough Council was to supply a cleared site upon which the Academy would be built by the trust funded from other sources. The Borough Council had to obtain funding, pursuant to the agreement already referred to, to purchase the houses and demolish them and had to dispose of the cleared land to the Academy trust on a long lease at peppercorn rent. Thus, the general duty of “best value” did not arise because the Borough Council was not expending any of its own money. There might, however, have arisen a specific duty to obtain best value in respect of disposal of the land. Section 123(2) of the Local Government Act 1972 provides that:

“Except with the consent of the Secretary of State, a council shall not dispose of land under this section, otherwise than by way of a short tenancy, for a consideration less than the best that can reasonably be obtained .”

However, paragraph 10 of Schedule 35A of the Education Act 1996, provides:

“(2)

Section 123(2) of the Local Government Act 1972…does not apply to a person for the purposes of an Academy.”

Thus, there is no obligation in this context upon the Borough Council to obtain best value in respect of the disposal of the cleared site to the Academy trustees for the purposes of the Academy.

In my judgment there is nothing in the best value point. The Secretary of State, whose decision is impugned, has no such duty upon her. Her duty is to consider whether there is a compelling case in the public interest having regard to the criterion of well being. The only meaningful transaction involving the Borough Council in this case which might conceivably have attracted the concept of “best value” is one which is specifically excluded from specific best value provisions. It is, therefore, no great wonder that the issue never arose at the Inquiry in this form as it is irrelevant and of no merit.

This is a point which was not raised at the Inquiry nor could it be. It concerned a document which the Borough Council did not then have namely a site plan of the Moorlands site showing how the Academy could be accommodated there. It was discovered after the inquiry had concluded and was sent by one of the objector’s solicitors along with other representations to the Secretary on 11 July and 6 August 2007. The Secretary of State dealt with it in her letter at paragraph 6 in the following terms:

“The issues raised have been carefully considered. The Secretary of State has decided not to take this information into account because it raises no new issues that have not been covered in this Inspector’s report and which persuades her to differ from the Inspector’s conclusions and reasoning.”

It is said that the Secretary of State has erroneously refused to take this new material into account. It is said that it is important new information which touches on the question which the Secretary of State had to consider, whether there was a compelling case in the public interest for a CPO, where there are, in the claimants contention, alternative means whereby the public benefit could be obtained without resorting to the CPO. The claimants focus on the words of the Secretary of State that she has “decided not to take this information into account”. Had that been all she said then there might have been some merit in this point. It is, however, clear from this paragraph as a whole that the Secretary of State has carefully considered this new material and has decided not to take it into account because, having considered it, her view is that it raises no new issues not covered by the Inspector which persuade her to differ from the Inspector’s conclusions. Thus, far from disregarding the information it is clear that the Secretary of State has considered how it fits in with the issues raised before the Inspector and has considered how it affects her conclusion to adopt the Inspector’s conclusions. In my judgment there is nothing more that the Secretary of State can be asked to do having received new information.

Furthermore, it is clear from the Inspector’s report, at paragraph 257, that she did not accept the argument of the Borough Council that the Moorlands site did not provide a viable alternative per se. On the contrary, she pointed out that the site itself had some advantages in that there was a plentiful supply of land which could be used for recreation and sports facilities and that any perceived constraints because of the proximity of the green belt and protected open space designation would not, in her judgment, have proved insurmountable. Rather, in concluding that there was no viable alternative she focussed on other issues which she summarised in paragraphs 258 and 259. Thus, the plan sent to the Secretary of State after the Inspector’s report did not go to an issue where the Inspector had made a decision contrary to the objectors’ case. That document merely provided further support for their position on an issue which the Inspector had already decided in their favour. Accordingly, it did not affect the balance of factors on which the Inspector had decided that there was no reasonable alternative option other than to proceed on the proposed site and to make the CPO to facilitate that end.

In my judgment therefore this point has no merit and I reject it.

For the reasons set out above I dismiss the Section 23 application.

It follows that, in claim number CO6942/2006, I shall grant the Borough Council the orders which it seeks, lifting the stay imposed by this Court on 9 November 2006, discharging the undertaking given on that occasion, and dismissing the claim for judicial review.