Property law reports

TOWN AND COUNTRY PLANNING: COMPULSORY PURCHASE ORDER

Restoration of canal - compulsory purchase of land - claimants withdrawing objections at inquiry - inspector recommending refusal of CPO as claimants' legal interests not sufficiently protected - secretary of state overruling inspector - secretary of state failing to reopen inquiry - whether secretary of state in breach of rule 17(4) of planning rules - whether claimants suffering substantial prejudice - application to quash CPO dismissed

Lomax and others v Secretary of State for Transport, Local Government and the Regions and another: Queen's Bench Division: Administrative Court:10 May 2002

Under section 266 of the Town and Country Planning Act 1990, the second defendant council made a compulsory purchase order (CPO), in respect of land, including an underpass beneath the M62 motorway, for the purpose of restoring the Rochdale Canal.

This underpass was regularly used by the claimants.

In particular, the second claimant's farmland, which was situated on both sides of the motorway, was primarily accessed by means of the underpass.

The claimants registered their concerns about the scheme at the public inquiry, which was held in 2000.

They did not oppose the restoration, but they sought to protect their interests in relation to the specified works.

During the course of the inquiry, the claimants reached an agreement with the second defendant council - Rochdale Borough Council - in this respect, and formally withdrew their objections to the scheme.

The inspector concluded, in his report, that the agreement was unsatisfactory because it involved the co-operation of third parties who were not represented at the inquiry, and provided no legal certainty that the claimants' interests would be protected in the manner they envisaged.

As a result, he recommended against confirmation of the CPO.

The secretary of state subsequently entered into a lengthy correspondence with the claimants and the council, eventually confirming the CPO without modification.

It was claimed that the secretary of state failed to comply with rule 17(4) of the Compulsory Purchase Rules 1990, in that he should have notified the claimants of his disagreement with the inspector's recommendation, thereby affording them the opportunity to make further representations.

It was claimed that, as a result, their interests were substantially prejudiced.

However, the defendants argued that, having withdrawn their objections at the original inquiry, the claimants were not 'persons aggrieved' for the purposes of section 23(2) of the Acquisition of Land Act 1981, and were not therefore in a position to challenge the decision of the secretary of state.

Martin Carter (instructed by Field Cunningham & Co, Manchester) for the claimants; Timothy Mould (instructed by the Treasury Solicitor) for the first defendant; Philip Kolvin (instructed by Sharpe Pritchard) for the second defendants, Rochdale Borough Council.Held: The claim was dismissed.

For rule 17(4) to be breached, the new material taken into account by the secretary of state had to have been a causative factor in his decision.

This was clearly the case, since the new material was examined at length in his decision letter.

Hence, there was a failure to comply with the relevant requirement of rule 17(4).

In order for the claimants to have suffered substantial prejudice, they needed only to show that the secretary of state's decision might have been different had rule 17(4) been complied with.

They failed to show this.

The claimants had engaged in extensive post-inquiry correspondence with the secretary of state, and he was therefore fully aware of their position.

This correspondence confirmed his understanding that satisfactory arrangements could be reached by the claimants and other landowners without impeding the progress of the canal restoration, which had been the claimants' original position at the inquiry.

Thus, although the secretary of state failed to comply with a relevant requirement, the interests of the claimants were not substantially prejudiced as a result.

TOWN AND COUNTRY PLANNING ACT: POLLUTION

Proposed new airport terminal - public inquiry - neighbouring kennel concerned about possible dust pollution during construction - inspector accepting that dust potentially harmful, but refusing to impose monitoring condition - whether inspector's decision perverse or irrational - section 288 of Town and Country Planning Act 1990 - claim dismissed

Willowslea Farm Kennels Ltd v Secretary of State for Transport, Local Government and the Regions and another: Queen's Bench Division: Administrative Court (Mr Justice Sullivan):10 May 2002

The claimant owned and operated a quarantine kennel situated close to the site of a proposed terminal at Heathrow airport.

It attended a public inquiry into the proposed terminal, which was held between 1995 and 1999.

Although the claimant did not object to the grant of planning permission, it expressed concern that the construction process would result in a heavy concentration of dust particulates.

Evidence was adduced regarding the projected incidence on the site of particulates PM10, but no corresponding evidence was provided regarding particulates PM2.5 and nitrogen dioxide (NO2), despite the parties' agreement that they could be injurious to the health of both humans and animals at the kennel.

Therefore, the claimant asked for a condition to be attached to the planning permission, whereby the level of pollution would be monitored and, in the event of a threshold level being exceeded, the construction work would be halted.

In 2001, the inspector published his decision letter and granted planning permission for the terminal and associated developments.

His decision letter noted that the probable release of these particulates was potentially harmful, but he failed to impose conditions for monitoring the levels.

The claimant maintained that the inspector had acted perversely or irrationally in agreeing with their analysis but in subsequently failing to recommend monitoring and the imposition of conditions.

It challenged his decision pursuant to section 288 of the Town and Country Planning Act 1990.

Anthony Dinkin QC and Robert Lewis (instructed by Peacock & Co) for the claimant; Richard Drabble QC and John Litton (instructed by the Treasury Solicitor) for the first defendant; Guy Roots QC and Reuben Taylor (instructed by CMS Cameron McKenna) for the second defendant, BAA plc.

Held: The claim was dismissed.

The size of the inquiry meant that the inspector's letter was extremely long and divided into detailed chapters.

Chapter 28 dealt with the environmental issues, which were complex, and it was important to appreciate the narrow focus of the challenge presented by the claimant in the overall scale of the inquiry.

Evidence adduced regarding particulates PM2.5 and NO2 was based upon studies conducted within the US, and was not specific to the site in question.

Planning guidelines in circular 11/95 called for precision and clarity when imposing threshold tests.

Since the inspector was not in possession of clear and precise evidence, it was impossible for him to impose appropriate monitoring levels and conditions despite recognising the need for them.

In such circumstances, the inspector's decision was neither irrational nor perverse.