Barnsley Metropolitan Borough Council, R (on the application of) v Secretary of State for Communities and Local Government & Ors

This case raises a short and not entirely easy point concerning the powers of a local authority compulsorily to acquire land within its area.

The local authority in this case, purporting to invoke the powers conferred by section 121 of the Local Government Act 1972 (‘the 1972 Act’) and section 2 of the Local Government Act 2000 (‘the 2000 Act’), made a compulsory purchase order (‘the CPO’) in respect of land within its area which was registered as a Village Green within the Commons Act 2006.

The Secretary of State took the view that these two statutory provisions, taken together, did not provide an enabling power for the compulsory acquisition of the land and, accordingly, declined to confirm the CPO which he regarded as invalid.

The local authority challenges that viewand permission to seek judicial review of the Secretary of State’s decision was granted on the papers by His Honour Judge Roger Kaye QC, in his role as a Deputy High Court Judge, on 24 November 2011.

This land the subject of the CPO is in Cudworth, Barnsley. It is described in sufficient detail for present purposes in the Statement of Reasons in support of the CPO to which I will refer between paragraphs 7 and 15 below. It is in effect largely a wedge of land between two properties set on the eastern boundary of a housing development in Barnsley which looks out to the east over what appears from the plans to be agricultural land. In the map attached to the CPO there is the wedge of land to which I have referred which bears a plot reference numbered 1 and there is a smaller, broadly rectangular area of land which adjoins it to the north at its eastern end which bears a plot reference numbered 2. As I understand it, Mr Alan Hardwick (the First Interested Party) owned the whole area at one stage (having acquired possessory title to it over the years), but then transferred the area numbered 2 to Mr and Mrs Rooney (the Second and Third Interested Parties), who are Irish Travellers, at some stage in the autumn of 2011. Mr and Mrs Rooney apparently moved onto the site in May 2009. There is a question about whether the transfer to them has been registered and still some questions about the precise ownership of the land. At all events, each made submissions of objection to the Secretary of State about the CPO, but none has played any part in the proceedings before me.

In his representations to the Secretary of State, Mr Hardwick, who retains the main wedge of the land, suggested that there was an ulterior motive on the part of the local authority in wanting to obtain ownership of the land because it, or part of it, would provide a convenient means of access to and egress from an Advanced Learning Centre then (in August 2010) in the process of construction. I am not in any position to evaluate that suggestion and it has formed no part of the argument before me.

It is not entirely clear when it was that Mr Hardwick was registered with possessory title to the land (although I was told that it was in the late 1980s), but the Statement of Reasons accompanying the CPO contained the following description of the background:

2.1

When Cadwell Close estate was developed in the 1980’s it was a requirement of the planning permission that the land should be set out as an area of public open space (POS) and it was the intention that the land should be conveyed to the Council. However a formal transfer was never concluded and the developer ceased trading, leaving the Land in an unkempt condition.

2.2

The Council tidied up the Land grassed it and provided a litter bin and made it available for use by the public as was the original intention. The Council has since continued to maintain the Land as POS until it became aware that it is in fact owned by a third party who had fenced the Land thus preventing public access.

2.3

The owner of the Land then entered into discussions with the Council for the sale of the Land to the Council for a nominal value in return for the Council granting him access over the Land, which was needed for the owner to have access to his adjoining land which he intended to develop. That adjoining land is designated for housing in the development plan but it cannot be satisfactorily accessed from its existing access off Intake Lane.

2.4

The offer of the sale of the Land to the Council was subject to planning permission being obtained for the proposed development of four dwellings on other land in his ownership, situate to the south of Intake Lane and to the north east of the Land. The permission also provided for the extension and re-shaping of the POS. However that was subsequently refused because the applicant could not at that time prove title to the land which he intended to offer up to extend the existing area of POS and so in the absence of satisfactory replacement provision the means of access over the POS represented a reduction in the size of the POS available. Furthermore the reduced useable area and use by vehicles was considered would undermine the enjoyment for open space users contrary to the provisions of the Unitary Development Plan (policies GS34 and GS35).

2.5

Local residents were concerned to preserve the continued public access to and use of the Land for local amenity and recreation purposes and made an application for the Land to be registered as a village green. Successful registration would preclude the use of the land for access purposes or for any other development.

2.6

The application was successful and the Land was registered as a village green by resolution of the Council’s Planning Regulatory Board on 13^th January 2009 following a public inquiry presided over by an independent inspector.

It is right to record that Mr Hardwick challenged a number of the propositions contained in those paragraphs in his letter to the Secretary of State (dated 27 August 2010) and took the local authority to task for not revealing that it had sought (he suggested) to become registered with possessory title to the land a few years previously.

At all events, there does seem to be something of a “history” to the land itself although not one that concerns this application directly.

As I have indicated, the land became registered as a Village Green. This occurred on 13 January 2009 following a Public Inquiry. Since then local residents apparently complained about unlawful incursions on and misuse of the land by various members of what I assume to be Mr and Mrs Rooney’s family. Indeed in January and February 2010 the Claimant sought and obtained an injunction under section 187B of the Town and Country Planning Act 1990 against the First Interested Party and the Second and Third Interested Parties in respect of adjoining land and part of the CPO land prohibiting use of that land for residential purposes. This overall background led to the decision of the Claimant to make the CPO.

Its Statement of Reasons described the land in this way:

“3.1

The Land comprises an area of approximately 2320 square metres of grass land, located to the east of Cadwell Close at Cudworth, having frontage onto the east side of Cadwell Close to the north of the junction of Cadwell Close with Mallory Way and being situate between the residential properties numbers 2 Cadwell Close and 5 Mallory Way and bounded on the north in part by no. 2 Cadwell Close and in part by grazing lands, on the east by agricultural lands and on the south by no. 5 Mallory Way. It also includes part of the eastern half width of Cadwell Close. The north eastern part of the Land (shown in the CPO as Plot reference 2) is currently in use as an unauthorised caravan park and for grazing.

3.2

Prior to the registration as a Village Green the Land was used for informal recreational purposes. It consisted mainly of a grassed surface which was cut regularly by the Council. It had a litter bin which was serviced by the Council, no. 2 sets of five-a-side type goal posts and palisade fencing. These facilities were removed at the request of the current owner shortly after he proved title to the land.”

Mr Hardwick again disputed some aspects of paragraph 3.2 in his letter to the Secretary of State, but those matters are not relevant for present purposes.

The Statement of Reasons set out the justification for making the CPO in accordance with paragraphs 35 and 36 of Part 1 of the Memorandum to and Appendix R of Circular 06/2004. The paragraphs to which it is necessary to refer are, firstly, as follows:

1.3

The Order had been made by the Council to authorise the compulsory purchase of the Land for the purposes of the performance of its functions in promoting the social and environmental well being of its area pursuant to section 2 of the [2000 Act] through the benefits to the local community and the amenity of the area in the vicinity of the land. (Emphasis added.)

1.4

The compulsory purchase of the Land is sought because the Council is of the view that the acquisition of the Land will enable the Council to secure the proper and effective control of the Land and in order to ensure its proper maintenance and continued availability for use as a public amenity area for the benefit and amenity of the public as is explained in this Statement of Reasons.

…

1.6

The CPO will enable the Council to have proper control of the Land and thus ensure it is maintained and available for use by the public as an amenity area for the benefit of the residents of the locality and such a facility is evidence of a compelling case for land acquisition on the public interest and as such the Order is in compliance with paragraph 17 of Circular 06/04.

The Statement at a later stage sought to explain the “Purpose of the Order and the Need to Use CPO Powers” in the following terms:

6.1

The Order has been made under Section 121 of the Local Government Act 1972 and the Acquisition of Land Act 1981 for the purposes of the Council performing its functions in promoting the social and environmental well being of its area pursuant to section 2 of the Local Government Act 2000. In determining the use of that power the Council has had regard to the objectives contained in its published Sustainable Communities Strategy (2008-2012 (Footnote: ¹)) and it is satisfied the use of the power will achieve the objectives of that Strategy, in particular Ambition 1, which aims to provide well utilised high quality green space within the Borough.

6.2

The purpose of seeking to acquire land compulsorily is to enable the Council to secure control of the Land in order to safeguard its character and ensure it remains available to the public for recreational purposes. There is a legitimate expectation within the Community that the Land should continue to be available for recreational purposes in particular given that it now has formal status as a Village Green.

6.3

Whilst the Land has been registered as a Village Green there is no positive obligation on the Landowner to maintain the Land to a specific standard other than to take reasonable steps to protect the risk of injury to those lawfully accessing the Land.

6.4

Whilst the Council can make a Scheme under the provisions of the Commons Act 1899 for the maintenance and regulation of the Land, the Owner has already indicated that if the Council were to promote such a scheme he would exercise his statutory right of opposition which would then frustrate its implementation.

6.5

Some of the activities which the owner has permitted to be carried out on the Land could possibly be prosecuted. However, that presents difficulties in identifying a recognisable defendant and establishing sufficient evidence to prove the offence beyond all reasonable doubt. In any event the sanctions imposed should such action be successful are limited and would likely not result in directly making the Land available for public use.

6.6

The Land was available for use for public recreation for some considerable time prior to its registration as a Village Green and the Council has maintained the Land at the public expense for a considerable time prior to its acquisition by the current owner.

6.7

The Council has made an offer to the Owner to purchase his interest in the Land by agreement but negotiations thus far have proved unsuccessful.

6.8

Making a Compulsory Purchase Order at this stage is in accordance with the guidance in ODPM Circular 06/04, and in particular paragraph 24. In the meantime, the Council will continue to seek to acquire the Land by negotiation.

6.9

Compulsory purchase will provide certainty in relation to future public access recreational use and proper maintenance of the Village Green. It is therefore considered that compulsory purchase is not only necessary but also justifiable in the public interest.

6.10

There is existing funding in the Council’s Neighbourhood Directorate’s maintenance budget to make appropriate provision based on previous expenditure for basic grass cutting the provision and servicing of litter bins, dog fouling bins, replacement goal posts and any fencing required. The Council has offered to maintain the Land at its expense but that offer has been rejected by the owner.

Under the sub-heading ‘Environmental and Social Benefits’ the Statement asserted as follows:

6.11

As already discussed the Land has for come considerable time provided a valuable space for recreational uses and the amenity of its locality. It is currently unavailable for the public to use safely and conveniently for those intended purposes.

6.12

The acquisition of the Land will enable the Council to make the Land available for use for its intended purpose as a Village Green for the benefit of the residents of the locality which is considered will improve both the environmental and social well being of the locality for both its residents and visitors and thus promote the ambitions of the Sustainable Community Strategy.

There followed a paragraph dealing with what are said to be the ‘Human Rights Considerations’ to which it is unnecessary to refer for present purposes.

That, therefore, represented the essential basis upon which the CPO was made and upon which the authorisation of the Secretary of State was sought in due course on 19 October 2010. As I have indicated, the Interested Parties made written representations to the Secretary of State, Mr Hardwick in August 2010 and Mr and Mrs Rooney in September 2010.

The CPO itself was called the ‘Metropolitan Borough of Barnsley (Cadwell Close, Cudworth) (Village Green) Compulsory Purchase Order 2010’ and was in the following terms:

The Barnsley Metropolitan Borough Council (in this order called “the acquiring authority”) makes the following order:-

1.

Subject to the provisions of this order, the acquiring authority is under Section 121 of the Local Government Act 1972 hereby authorised to purchase compulsorily the land described in paragraph 2 for the purpose of the Council performing its functions in promoting the social and environmental well being of its area pursuant to Section 2 of the Local Government Act 2000 by enabling the Council to secure the availability and the proper management of the Cadwell Close Village Green, Cudworth for the benefit of the residents of the locality.

2.

The land authorised to be purchased compulsorily under this Order is the land comprising an area of 2320 square metres situate and having frontage to the east of Cadwell Close, Cudworth, to the north of the junction of Cadwell Close with Mallory Way, situate between residential properties numbered 2 Cadwell Close and 5 Mallory Way, and bounded on the north in part by no. 2 Cadwell Close and in part by grazing lands, on the east by agricultural lands and on the south by property no. 5 Mallory Way and includes part of the eastern half width of Cadwell Close, which is delineated in red and shown coloured pink on a map prepared in duplicate, sealed with the common seal of the acquiring authority and marked “Map referred to in the Metropolitan Borough of Barnsley (Cadwell Close, Cudworth) (Village Green) Compulsory Purchase Order 2010”.

By letter dated 30 June 2011 (some 8 months after his authorisation was sought) the Secretary of State expressed the view referred to in paragraph 3 above. The reasons were articulated in the following way:

“Section 121 of the 1972 Act provides that a principal council may acquire land compulsorily for any purpose for which they are authorised to acquire land, except for where the acquisition is for the purposes specified in section 120(1)(b), which is the benefit, improvement or development of their area, or for any purpose for which the power of acquisition is by any enactment expressly limited to acquisition by agreement. The Secretary of State considers the objects specified in the well-being power are in similar terms to ‘benefit, improvement or development’ and this restriction therefore prevents the compulsory acquisition of land under this power. Section 3(1) of the Local Government Act 2000 states that the well-being power does not enable a local authority to do anything which they are unable to do by virtue of any prohibition, restriction or limitation on their powers which is contained in any enactment. On this basis, the Secretary of State therefore considers that Section 2 of the Local Government Act 2000 and Section 121 of the Local Government Act 1972 taken together do not provide an enabling power for the compulsory acquisition of land. The compulsory purchase order is therefore invalid.”

That sets out the essential battleground for the present application.

The relevant provisions of the 1972 Act are as follows:

120.

Acquisition of land by agreement by principal councils

(1)

For the purposes of -

(a)

any of their functions under this or any other enactment, or

(b)

the benefit, improvement or development of their area,

a principal council may acquire by agreement any land, whether situated inside or outside their area.

(2)

A principal council may acquire by agreement any land for any purpose for which they are authorised by this or any other enactment to acquire land, notwithstanding that the land is not immediately required for that purpose; and, until it is required for the purpose for which it was acquired, any land acquired under this subsection may be used for the purpose of any of the council’s functions ….

…

121.

Acquisition of land compulsorily by principal councils.

(1)

Subject to subsection (2) below, for any purpose for which they are authorised by this or any other public general Act to acquire land, a principal council may be authorised by the Minister concerned with that purpose to purchase compulsorily any land, whether situated inside or outside their area.

(2)

A council may not be authorised under subsection (1) above to purchase land compulsorily—

(a)

for the purpose specified in section 120(1)(b) above, or

(b)

for the purpose of any of their functions under the Local Authorities (Land) Act 1963, or

(c)

for any purpose in relation to which their power of acquisition is by any enactment expressly limited to acquisition by agreement ….

The relevant provisions of the 2000 Act are as follows:

2.

Promotion of well-being.

(1)

Every local authority are to have power to do anything which they consider is likely to achieve 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, and

(c)

the promotion or improvement of the environmental well-being of their area.

(2)

The power under subsection (1) may be exercised in relation to or for the benefit of—

(a)

the whole or any part of a local authority’s area, or

(b)

all or any persons resident or present in a local authority’s area.

(3)

In determining whether or how to exercise the power under subsection (1), a local authority must have regard to their strategy under section 4.

(4)

The power under subsection (1) includes power for a local authority to -

(a)

incur expenditure,

(b)

give financial assistance to any person,

(c)

enter into arrangements or agreements with any person,

(d)

co-operate with, or facilitate or co-ordinate the activities of, any person,

(e)

exercise on behalf of any person any functions of that person, and

(f)

provide staff, goods, services or accommodation to any person.

(5)

The power under subsection (1) includes power for a local authority to do anything in relation to, or for the benefit of, any person or area situated outside their area if they consider that it is likely to achieve any one or more of the objects in that subsection.

(6)

Nothing in subsection (4) or (5) affects the generality of the power under subsection (1).

3.

Limits on power to promote well-being.

(1)

The power under section 2(1) does not enable a local authority to do anything which they are unable to do by virtue of any prohibition, restriction or limitation on their powers which is contained in any enactment (whenever passed or made).

(2)

The power under section 2(1) does not enable a local authority to raise money (whether by precepts, borrowing or otherwise).

(3)

The Secretary of State may by order make provision preventing local authorities from doing, by virtue of section 2(1), anything which is specified, or is of a description specified, in the order ….

Section 226 of the Town and Country Planning Act 1990 is as follows:

Compulsory acquisition of land for development and other planning purposes

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

(a)

if the authority think that the acquisition will facilitate the carrying out of development, re-development or improvement on or in relation to the land … .

(1A) But a local authority must not exercise the power under paragraph (a) of subsection (1) unless they think that 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 of their area ….

Subsection (1A) was introduced into the 1990 Act by section 99 of the Planning and Compulsory Purchase Act 2004 with effect from 31 October 2004. The explanatory note says as follows:

“Section 99 amends the basis upon which a local authority may acquire land compulsorily for the carrying out of development, redevelopment or improvement. The authority will be able to acquire land if they think the carrying out of development, re-development or improvement is likely to be of economic, social or environmental benefit to their area. A local authority is defined by section 226(8) of the Town and Country Planning Act 1990 as a council of a county, county borough, district or London borough ….”

There is no doubt that the effect of section 121(2)(a) of the 1972 Act is to preclude a “principal council” (which the Claimant is for the purposes of the Act) from acquiring compulsorily any land, whether inside or outside its area, “[for] the purposes of … the benefit, improvement or development of their area ….”

Miss Lisa Busch, for the Claimant Council, in her Skeleton Argument submitted that, contrary to the view expressed by the Secretary of State, the Council sought to acquire the land, not for the immediate purpose referred to in section 120(1)(b) of the 1972 Act (“the benefit, improvement or development of their area” which is precluded by section 121(2)(a)), but rather for the purpose referred to in section 120(1)(a) (“any of their functions under … any other enactment”, namely, its functions under section 2 of the 2000 Act). To that extent, she contends, the provisions of section 121(2)(a) do not serve to prevent the Claimant from purchasing the Land compulsorily, with the authorisation of the Secretary of State.

Mr Stephen Whale, for the Secretary of State, responds by submitting that the Council did not make the CPO for the purpose referred to in section 120(1)(a) of the 1972 Act (a) because there is nothing on the face of the CPO to that effect and extraneous evidence is inadmissible in construing it absent true ambiguity (see R (Argos Ltd) v Birmingham City Council [2012] JPL 401) and (b) in any event, if it did make the CPO for the purpose referred to in section 120(1)(a), the CPO must be ultra vires because section 120(1)(a) affords a power to acquire land by agreement only.

That, as it seems to me, must be right. The more difficult issue, however, arises in connection with the suggestion that the CPO was made under section 121. There is no doubt that the CPO was expressed to have been made under section 121 and there is no ambiguity about that: to that extent it must be treated as having been made pursuant to the powers conferred by that statutory provision and no other provision. Under section 121(1) “a principal council may be authorised by the Minister … to purchase compulsorily any land, whether situated inside or outside their area” for any purpose “for which they are authorised by this or any other public general Act to acquire land” unless precluded from doing so by subsection (2). Miss Busch’s submission is that a council can acquire land for one or more of the “well being purposes” referred to in section 2(1) of the 2000 Act and, accordingly, any such purchase is “authorised by … [a] public general Act” and is not to be treated as being excluded by virtue of subsection (2)(a). If, as she submits is the case, the Claimant here did indeed, as it said it did in the CPO, acquire the land to promote “the social and environmental well being of its area … by enabling the Council to secure the availability and the proper management of the [Village Green] for the benefit of the residents of the locality”, it was doing something that was permitted under section 121(1) and was not prohibited by subsection (2).

She submits that there is a distinction between acquiring land compulsorily for the purposes of the “benefit, improvement or development of” the area (precluded by section 121(2)(a) of the 1972 Act) and for the purposes of “the social and environmental well being” of the area (permitted by section 2(1) of the 2000 Act). That distinction is brought into relief, she submits, by section 226(1) and (1A) of the 1990 Act which draw a line between a case in which the authority “think that the acquisition will facilitate the carrying out of development, re-development or improvement on or in relation to the land” which they propose to acquire and that in which such “development, re-development or improvement is [also] likely to contribute to the achievement of any one or more of” the well-being objectives, the word “also” being in effect a substitute for the word “But” at the beginning of subsection (1A). In consequence of the phraseology of these provisions she submits that it does not follow from the fact that an acquisition of land would, in the view of an authority, facilitate the carrying out of, for example, an improvement to the land, that the same acquisition would necessarily contribute to the promotion of any one or more of the well-being purposes.

I will refer to Mr Whale’s answer to these points later.

As to the “well being purposes” referred to in section 2(1) of the 2000 Act, Miss Busch submits that the powers conferred in support of such purposes are wide and were intended by Parliament to be wide. She draws attention to the statutory guidance promulgated pursuant to the powers conferred in subsections (5) and (6) of section 3 of the Act, subsection (5) of which provides that a local authority “must have regard” to any such guidance before exercising any power under section 2(1). The provisions of the guidance to which she draws attention are as follows:

1.

Part I of the Local Government Act 2000 creates a new discretionary power for principal local authorities in England and Wales to do anything they consider likely to promote or improve the economic, social or environmental well-being of their area. The power came into force on 18 October 2000.

2.

The introduction of this new power forms an important part of the Government's wider approach to the modernisation of local government. This approach is designed to ensure that:

•

councils are empowered to lead their communities;

•

councils' political decision-making processes are efficient, transparent and accountable;

•

there is continuous improvement in the efficiency and quality of the services for which councils are responsible;

•

councils actively involve and engage local people in local decisions; and

•

councils have the powers they need to ensure that they can promote and improve the well-being of their areas and contribute to sustainable development.

…

6.

The Government's purpose in introducing the well-being power is to reverse that traditionally cautious approach, and to encourage innovation and closer joint working between local authorities and their partners to improve communities' quality of life. The purpose of this guidance is therefore to acquaint local authorities with the breadth of the new power, and to encourage innovative and imaginative use of it. In particular, each local authority will want to consider how the power can promote the sustainable development of its area by delivering the actions and improvements identified in its community strategy, which could include tackling social exclusion, reducing health inequalities, promoting neighbourhood renewal and improving local environmental quality. Authorities will also wish to consider how the new power can help them to contribute locally to shared national priorities, such as action to combat climate change and encourage the conservation of biodiversity, and to contribute to shared priorities within other plans such as Health Improvement Programmes.

7.

The new power is wide-ranging, and enables local authorities to improve the quality of life, opportunity, and health of their local communities. Further information is set out in chapter 2. Specific examples of the kind of action that can be taken are set out in section 2(4) of the Act. These include incurring expenditure, providing staff, goods or services to any person, entering into partnership arrangements and carrying out the functions of other bodies. This list is for illustrative purposes only, and does not in any way limit how local authorities can use the new power.

…

9.

There are two specific limitations on the well-being power, which are set out in section 3 of the Act. The power does not have any spending limits attached to it, but cannot be used to raise money. Neither can it be used to circumvent prohibitions, restrictions or limitations contained on the face of legislation. The Secretary of State also has a reserve power under section 3 to prevent local authorities from exercising the power to take specific actions. Chapter 3 of this guidance provides more information on these restrictions.

10.

The breadth of the power is such that councils can regard it as a 'power of first resort'. Rather than searching for a specific power elsewhere in statute in order to take a particular action, councils can instead look to the well-being power in the first instance and ask themselves:

•

Is the proposed action likely to promote or improve the well-being in our area? …

•

Is the primary purpose of the action to raise money? …

•

Is it explicitly prohibited on the face of other legislation?

•

Are there any explicit limitations and restrictions on the face of other legislation? … If the answer to the first question is 'Yes' and to the next two questions 'No', then a council can proceed with the proposed action, subject to the answer to the fourth question, i.e. any restrictions or limitations that may apply by virtue of being spelt out on the face of other legislation.

11.

In determining how to use the new power, an authority will need to have regard to this statutory guidance. It must also have regard to its community strategy, which it has a duty to prepare under section 4 of the Act. This requirement is not intended to limit the scope of the well-being power, nor to encourage a 'checklist' approach to its use; it is rather intended to encourage local authorities to consider the effect that any particular use of the power will have on the achievement of the goals and objectives contained in their community strategy…. Local authorities do not have to wait until their community strategies are in place before being able to exercise the power.

…

14.

It is obviously not possible at this stage to envisage every way in which authorities might choose to exercise the power. A power that encourages innovation has an inherent potential to be used in new and unforeseen ways. There are a number of restrictions which Parliament has laid down over the years in legislation in order to limit the scope of specific functional powers granted to local authorities. However, the piecemeal accretion of restrictions, regulations and limitations is now placing unhelpful restraints on local authorities' effectiveness. Also, over time, as modernised authorities begin to use the well-being power to develop innovative approaches to service delivery, it is likely that other restrictions will be identified as being unnecessarily obstructive, preventing sensible initiatives to promote community well-being or secure best value.

She contends that, as a 'power of first resort', there was nothing wrong in principle with the Claimant seeking to rely on section 2 of the 2000 Act and that it is plain from terms of the CPO that the Claimant sought to purchase the land, not for the “benefit, development or improvement” of its area, or at least not solely for that purpose, but because it considered that its acquisition would contribute to the “social and environmental well being” of its area pursuant to section 2. She submits that approaching matters in this way did not violate section 3 of the 2000 Act which prevents such an approach if it evades “any prohibition, restriction or limitation” on the local authority’s powers “contained in any enactment (whenever passed or made)”. It is not a section, she contends, that was engaged at all in the circumstances. She says that there is nothing in the Guidance, Circular 06/2004 or any previous authority that prohibits such an approach.

In response Mr Whale submits that there is nothing in the Guidance or the Explanatory Memorandum accompanying the 2000 Act that positively supports the proposition that reliance on section 2 of the 2000 Act may be placed for the purposes of compulsory purchase (there being no reference at all to compulsory purchase in the Guidance or the Explanatory Memorandum) and that it runs counter to the well-established legal principle that the “draconian” measure of compulsory purchase should be confined to those situations that are clearly and expressed provided for by statute.

He submits that compulsory acquisition by public authorities for public purposes is and always has been entirely a creature of statute and that the courts have been astute to impose a strict construction on statutes expropriating private property. There is, he submits, a presumption of statutory interpretation against an intention to interfere with vested property rights and that where a statute is capable of more than one construction, that construction will be chosen which interferes least with private property rights. He relies upon Regina (Sainsbury's Supermarkets Ltd) v Wolverhampton City Council [2011] 1 AC 437 for the most recent authoritative articulation of these principles. At paragraphs 9-11 Lord Collins of Mapesbury JSC said this:

“9.

Compulsory acquisition by public authorities for public purposes has always been in this country entirely a creature of statute: Rugby Joint Water Board v Shaw-Fox [1973] AC 202, 214. The courts have been astute to impose a strict construction on statutes expropriating private property, and to ensure that rights of compulsory acquisition granted for a specified purpose may not be used for a different or collateral purpose: see Taggart, “Expropriation, Public Purpose and the Constitution”, in The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade, (1998) ed Forsyth & Hare, p 91.

10.

In Prest v Secretary of State for Wales (1982) 81 LGR 193, 198 Lord Denning MR said:

“I regard it as a principle of our constitutional law that no citizen is to be deprived of his land by any public authority against his will, unless it is expressly authorised by Parliament and the public interest decisively so demands …”

and Watkins LJ said, at pp 211–212:

“The taking of a person's land against his will is a serious invasion of his proprietary rights. The use of statutory authority for the destruction of those rights requires to be most carefully scrutinised. The courts must be vigilant to see to it that that authority is not abused. It must not be used unless it is clear that the Secretary of State has allowed those rights to be violated by a decision based upon the right legal principles, adequate evidence and proper consideration of the factor which sways his mind into confirmation of the order sought.”

11.

Recently, in the High Court of Australia, French CJ said in R & R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12, paras 40, 42, 43:

40.

Private property rights, although subject to compulsory acquisition by statute, have long been hedged about by the common law with protections. These protections are not absolute but take the form of interpretative approaches where statutes are said to affect such rights.

…

42.

The attribution by Blackstone, of caution to the legislature in exercising its power over private property, is reflected in what has been called a presumption, in the interpretation of statutes, against an intention to interfere with vested property rights …

43.

The terminology of ‘presumption’ is linked to that of ‘legislative intention’. As a practical matter it means that, where a statute is capable of more than one construction, that construction will be chosen which interferes least with private property rights.”

Mr Whale also placed some reliance upon the principles enunciated in the decision of the Court of Appeal in Risk Management Partners Ltd v Brent LBC [2009] EWCA Civ 490. The case did not involve compulsory purchase, but an insurance arrangement entered into by a local authority aimed at the saving of costs which involved the local authority insuring other authorities and assuming the risks thus incurred which the local authority claimed had been entered into under the authority conferred by section 2(1) of the 2000 Act. The issue was essentially the interpretation of that section. I do not think it necessary to go into detail about the complexities of the arrangement entered into, but there seem to be two points of potential importance to be drawn from the judgments for the purposes of the present case:

I will refer only to two paragraphs from the judgment of Pill LJ (with which Moore-Bick and Hughes LJJ agreed in separate judgments) that seem to me to bear generally on this approach:

“116.

Missing from the detailed explanatory note and guidance, and conspicuously so in my judgment, is any reference to projects anything like the present; an insurance arrangement aimed at cost saving which involves the local authority insuring other authorities and assuming the risks thereby incurred. Detailed consideration is given in the guidance to the permitted exercise of the section 2 power in a financial context, for example, to the relevance of receiving income by the authority (paragraph 67 of guidance) and to setting up a company (paragraphs 42 and 70) but nothing like the [present] arrangement is mentioned. There is no reference to proposed cost saving projects or to enterprises such as a mutual insurance company. Had it been intended to apply to an arrangement such as the disputed arrangement, I would have expected the power now claimed to have been conferred either specifically or by the use of an expression other than and more directed to the subject matter than the expression "promote the well-being".

117.

Clearly, section 2 of the 2000 Act was intended to create a general power and thus, in appropriate circumstances, to limit the need to rely on section 111 of the 1972 Act and the somewhat technical arguments which have arisen on that section. However in analysing the breadth of the power conferred the approach adopted to the construction of statutory powers in such cases as Hazell and Waltham Forest retains in my view a relevance. Powers which have been held not to be incidental to functions of the authority, such as giving guarantees to companies, do not readily obtain sanction by the use of a general expression, the wording of which does not easily bear upon such activities. In this statutory context, I do not consider that Parliament was giving a carte blanche to make arrangements, subject only to section 3 of the 2000 Act and to the identification of some advantage, or potential advantage, to the local authority's financial position.”

Mr Whale’s argument is that if something of the nature of the complex insurance arrangement in that case required some clear support in the guidance or the memorandum before the Act could be said to have conferred the power to enter into it, the same must apply a fortiori to the serious step of acquiring privately-owned land compulsorily.

His answer to Miss Busch’s argument, which was based at least to a degree on section 226(1A) of the 1990 Act (see paragraph 29 above), is that it is impermissible to derive support for the distinction she seeks to make between what is prohibited from compulsory purchase by section 121(2)(a) of the 1972 Act and what is arguably permitted by section 2(1) of the 2000 Act in a statutory provision passed four years after the 2000 Act and many years after the 1972 Act in the context of an entirely different statutory code constituted by the planning law. Her answer to that is at Section 3 (which refers to “any enactment … whenever passed made”) requires a focus upon the whole statutory framework, whenever its constituent elements were passed.

Before I indicate my conclusions on these various arguments, I should refer briefly to ODPM Circular 06/2004 entitled ‘Compulsory Purchase and the Crichel Down Rules’. It provides “updated and revised guidance to acquiring authorities in England on the use of compulsory purchase powers”. It was promulgated on the same day as the Planning and Compulsory Purchase Act 2004 was implemented (or, at least, substantially implemented).

Miss Busch drew my attention to two provisions in the Appendix A:

“2.

The powers in section 226 as amended by section 99 of the Planning and Compulsory Purchase Act 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 regeneration and other schemes where the range of activities or purposes proposed mean that no other single specific compulsory purchase power would be appropriate. However, these powers should not otherwise be used in place of other more appropriate enabling powers, and the statement of reasons should make clear the justification for using the Planning Act powers. In particular, the First Secretary of State (‘the Secretary of State’ in this Appendix) may refuse to confirm and order if he considers that this general power is or is to be used in a way intended to frustrate or overturn the intention of Parliament by attempting to acquire land for a purpose which had been explicitly excluded from a specific power.

…

6.

The wide power in section 226(1)(a) is subject to subsection (1A) of section 226. This provides that the acquiring authority must not exercise the power unless they think that the proposed development, redevelopment or improvement is likely to contribute to achieving the promotion or improvement of the economic, social or environmental well-being of the area for which the acquiring authority has administrative responsibility. The amended power in section 226(1)(a) will assist those authorities to whom the provisions of section 2 of the Local Government Act 2000 apply to fulfil their duties under that section to promote the economic, social and environmental wellbeing of their area. Acquiring authorities who do not have powers under the Local Government Act 2000 can also make use of section 226(1)(a). They will also need to be able to show that the purpose for which the land is being acquired will contribute to the well-being of the area for which they are responsible. The benefit to be derived from exercising the power is also not restricted to the area subject to the compulsory purchase order, as the concept is applied to the well-being of the whole (or any part) of the acquiring authority’s area.”

Mr Whale drew my attention to Appendix F and, in particular, the following paragraphs:

“1.

Some of the powers in legislation for local authorities to acquire land by agreement for a specific purpose do not include an accompanying power of compulsory purchase. The general power of compulsory purchase at section 121 of the Local Government Act 1972 can (subject to certain constraints) be used by local authorities in conjunction with such powers to acquire land compulsorily for the stated purpose. It may also be used where land is required for more than one function and no precise boundaries between uses are defined.

2.

Section 121 can also be used to achieve compulsory purchase in conjunction with section 120 of the 1972 Act. Section 120 provides a general power for a principal council to acquire land by agreement for a statutory function in respect of which there is no specific land acquisition power (see examples at paragraph 9 below), or where land is intended to be used for more than one function.

…

10.

Other powers which do not include a land acquisition power (see paragraph 2) but which can be used in conjunction with sections 120 and 121 of the 1972 Act to achieve compulsory purchase include the following:

(i)

public conveniences – section 187, Public Health Act 1936;

(ii)

cemeteries and crematoria – section 214 of the 1972 Act …;

(iii)

recreational facilities – section 19, Local Government (Miscellaneous Provisions) Act 1976 … ;

(iv)

refuse disposal sites – section 51, Environmental Protection Act 1990; and

(v)

land drainage – section 62(2), Land Drainage Act 1991.”

It is, of course, correct, as Miss Busch observed, that the list in paragraph 10 of Appendix F was not expressed to be an exhaustive list, but Mr Whale submits that it is of relevance that there is no reference to section 2 of the 2000 Act as being capable of being used in conjunction with section 121.

The inter-relation between the various statutory provisions about which there has been debate in this case is not that easy to unravel. Both counsel, each of whom has considerable experience in this area, presented their submissions with a degree of circumspection and caution. The extent to which the (obviously) wide powers conferred upon local authorities in the 2000 Act has impacted on the normally restrictive approach to the use of compulsory purchase powers seems, on the material put before me, to be relatively uncharted territory. That it is uncharted territory some 12 years or so after the passing of the Act leads me to infer that section 2 has not been used regularly in controversial areas. The only case referred to me in which section 2 of the 2000 Act was considered in any depth was the Risk Management case (see paragraphs 35 and 36 above) where that section was used for a purpose that Stanley Burnton J, as he then was, and the Court of Appeal subsequently, considered to be outside its scope. No case has been drawn to my attention in which it has been used in support of the compulsory acquisition of land.

It is, of course, the case that section 226(1A) of the 1990 Act has permitted the compulsory purchase of land for planning purposes if one or other of the well being objectives are also satisfied, but that is a somewhat different context from the acquisition of land purely for one or more of the well-being objectives set out in section 2 of the 2000 Act. Whilst the arguments before me did not descend to consideration of factual scenarios other than that which exists in the present case, it would not be difficult to envisage situations in which, if a local authority was truly empowered to acquire land compulsorily for the “economic, social or environmental well being” of the local area, some quite radical and startling acquisitions might be sought to be justified. That seems to me not to have been the likely Parliamentary intention behind passing the Act and my inclination is to the view (supported by the court’s normally strict view of the use of compulsory purchase powers: see paragraph 34 above) that the 2000 Act was passed with a clear appreciation that sections 120 and 121 of the 1972 Act remained in force with full effect and that section 2 of the 2000 Act was not intended to alter the situation in which land could not be acquired compulsorily by a local authority simply for the “benefit, improvement or development” of the local area. That can be achieved only by agreement.

To that extent, it seems to me that the Secretary of State was right to say that the CPO in this case would not be justified on the basis of a combined use of section 2 and section 121. Section 121 could not apply because of the prohibition of its use in the above circumstances by subsection 2(a).

I am fortified in this conclusion by the fact that there is no express reference in any of the guidance relating to the 2000 Act to the use of that Act in the kind of way sought to be used in this case. I recognise that it could well be said that this was just the sort of imaginative use of the new powers that Parliament had in mind. However, depriving a landowner of land that belongs to him, no matter how popular it may be with other local people, is not something the law permits lightly and I would need to be persuaded that it was truly Parliament’s intention that something like this could be achieved before characterising the Secretary of State’s view in this case as wrong in law.

As I have said, the arguments of law are not entirely straightforward in this case, but I consider that the Secretary of State’s analysis was essentially correct and that he was correct not to confirm the CPO.

It has been said during the course of argument that had the local authority proceeded under section 226 of the 1990 Act then the CPO might have been lawful. Since that is not the issue before me, I express no view about it.

Given my conclusion on the main issue in the case, it is not necessary to express any view on the other issues that have been raised.

For the reasons I have given, this application must be dismissed.

I am grateful to Miss Busch and Mr Whale for their well-balanced and well-argued submissions.