Town and country planning: compulsory purchase

Council seeking to redevelop site - council making compulsory purchase order - claimant owning land involved in the order and objecting to order - secretary of state confirming order - whether land required to secure development - whether secretary of state applying wrong approach to use of compulsory purchase powers - claim dismissedSainsbury's Supermarkets Ltd v Secretary of State for the Environment, Transport and the Regions and another: Queen's Bench Division: Mr Justice Harrison: 11 April 2001The second defendant, the London Borough of Bexley (the council), sought to redevelop its town centre by incorporating policies promoting retail development into its draft unitary development plan.The Grassington Road site (the appeal site) was shown on the proposal map as being a suitable site for such development and the claimant (Sainsbury's) submitted a retail development scheme proposal.However, the council selected a rival scheme submitted by Safeway Stores Ltd and granted Safeway detailed planning permission.

The council then made a compulsory purchase order (CPO) pursuant to section 226(1)(a) of the Town and Country Planning Act 1990 in respect of the appeal site.

Sainsbury's had previously purchased plots of land at the appeal site that were subsequently included in the CPO land.Sainsbury's objected to the CPO and, at the same time, submitted a revised planning application for its proposed retail development at the site.

It appealed against the council's failure to determine that application within the requisite period (the planning appeal), and its appeal was recovered for determination by the secretary of state on the basis that it would be most effectively decided together with the CPO.The secretary of state concluded that planning permission should be granted for the Sainsbury's scheme and, having noted that Sainsbury's did not own all the land needed for their scheme he stated that: 'the council land constitutes the majority of the site ...

and is committed to Safeway Stores through a legal agreement'.

He agreed with the inspector that it was unclear how the council would proceed if the CPO were not confirmed.He said: 'although an alternative scheme now has planning permission, the approved (Safeway) scheme has advantages over the appeal (Sainsbury's) scheme'.He went on to conclude that the CPO land was required for the purposes stated in the order and that there was a compelling case in the public interest for the order.

He therefore confirmed the CPO.

Sainsbury's applied under section 23 of the Acquisition of Land Act 1981 to quash the secretary of state's decision.

While all parties accepted that the CPO land was suitable for the proposed development, the issue was whether the land was required to secure the development.Sainsbury's main contention was that compulsory purchase was not necessary because an acceptable scheme, involving its land, could be brought forward without the need for compulsory acquisition.Sainsbury's also claimed that the secretary of state had failed to adopt the correct legal approach relating to the use of compulsory purchase powers.The parties relied on R v Secretary of State for Transport, ex parte De Rothschild [1989]1 All ER 933, which established that the ordinary Wednesbury principles applied to compulsory purchase decisions.However, Sainsbury's submitted that there had been two significant legal developments since De Rothschild: (i) relying upon R v Ministry of Defence, ex parte Smith [1996] 1 All ER 257 and Chesterfield Properties Plc v Secretary of State for the Environment, Transport and the Regions (1997) 76 P & CR 117, it submitted that a more stringent Wednesbury standard applied where fundamental rights, such as the right to property, were at stake; and (ii) it relied upon the Human Rights Act 1998, which incorporated article 1 of the First Protocol of the European Convention on Human Rights and submitted that article 1 required a fair balance to be struck between the interests of the state and the right of the individual.

In order to satisfy that fair balance test, there had to be a reasonable relationship of proportionality between the means employed and the aim pursued.Sainsbury's accepted that if a CPO dependent scheme was superior, in planning terms, to the development that could be achieved without resorting to compulsory purchase powers, it was potentially capable of justifying interference with property rights.However, to evaluate whether such a fair balance had been struck, it was necessary to determine the degree of improvement of the CPO dependent scheme over the scheme that could be achieved without compulsory purchase powers, as well as the true extent of the interference with property rights.

Sainsbury's submitted that the secretary of state treated De Rothschild as providing a short, affirmative answer to justify the CPO without carrying out such a balancing approach.Held: The application was dismissed.1.

De Rothschild (supra) was the authority for the proposition that the use of compulsory purchase powers could be justifiable in order to achieve a better scheme of development in the public interest as opposed to an alternative scheme put forward by an objector which did not require compulsory acquisition.

The general proposition in De Rothschild was applicable to the instant case.


It was clear from his decision letter, that the secretary of state considered the Safeway scheme to be better than the Sainsbury's scheme.

He was entitled to rely upon De Rothschild in support of his approach that the use of compulsory purchase powers was justified in order to facilitate implementation of the scheme he considered to be the best.The refinement of the Wednesbury principles referred to in Chesterfield (supra) did not affect the decision in De Rothschild.3.

There was nothing materially different between the principles applied by the secretary of state in circular 14/94, whereby a CPO was not to be made unless there was 'a compelling case in the public interest', and the principles in article 1 of the First Protocol.

In the instant case, the secretary of state applied his policy under circular 14/94 and concluded that there was a compelling case in the public interest.He also considered the human rights of the objectors under article 1 and concluded that a fair balance had been struck between the rights of the individual and the public interest.

It was not necessary for him to set out in some formulated way the degree to which Safeway's scheme was better.

It was sufficient if the relevant conclusions could be determined from reading the decision letter as a whole.Gregory Stone QC and James Strachan (instructed by the solicitor to Bexley London Borough Council) appeared for the council; Christopher Lockhart-Mummery QC and Daniel Kolinsky (instructed by Denton Wilde Sapte) appeared for Sainsbury's Supermarkets Ltd; Timothy Mould (instructed by the Treasury Solicitor) appeared for the secretary of state for the Environment, Transport and the Regions; Richard Humphreys (instructed by Clifford Chance) appeared for Safeway.