ON APPEAL FROM THE HIGH COURT OF JUSTICE
HIS HONOUR JUDGE SYCAMORE
CLAIM NO 11203/2012
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
SIR DAVID KEENE
| (1) MARGATE TOWN CENTRE REGENERATION COMPANY LIMITED
|(2) DREAMLAND LEISURE CINEMA LIMITED
|(3) MARGATE RIDE LIMITED
|(4) DMS 3 LIMITED
|(5) MIDOS SERVICES LIMITED
|(6) MIDOS INVESTMENTS LIMITED
|(7) CHARLES TOBY HUNTER,
as trustee of the Hunter Family Settlement
|(8) EMMA LOUISE HUNTER,
as trustee of the Hunter Family Settlement
|- and -
|(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT & ANR
|(2) THANET DISTRICT COUNCIL
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Mr David Forsdick (instructed by Treasury Solicitors,) for the First Respondents
and Mr Martin Edwards (instructed by Trowers & Hamlins LLP) for the Second Respondent
Hearing date : 25 September 2013
Crown Copyright ©
Lord Justice Elias :
The site and Policy T8.
"1. Proposals that seek to extend, upgrade or improve the attractiveness of Dreamland as an amusement park will be permitted. Development that would lead to a reduction in the attractiveness, leisure or tourist potential will be resisted.
Exceptionally, development of a limited part of the site may be accepted as a part of a comprehensive scheme for the upgrading and improvement of the amusement park. The scheme will be required to demonstrate that the future viability of the amusement park can be assured and the Council will negotiate a legal agreement to ensure that the proposed development and the agreed investment in the amusement park are carried out in parallel.
2. In the event that evidence, in the form of an independent professional assessment, is submitted (and accepted by the Council) as demonstrating that it is not economically viable to operate an amusement park on the whole or majority of the site in the foreseeable future, then proposals for redevelopment may be accepted subject to:
i Proposals demonstrating that such redevelopment would sustainably contribute to the economic wellbeing and rejuvenation of Margate, and being supported by a business plan demonstrating that such proposals are economically viable;
ii The predominant use of the site being for leisure purposes. (An element of mixed residential would be appropriate but only of such a scale needed to support delivery of the comprehensive vision for the site);"
The relevant legal principles.
a) "A CPO 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 CPO sufficiently justify interfering with the human rights of those with an interest in the land affected": see para. 16 of Circular 06/2004. To similar effect are certain observations of Lord Denning MR in Prest v Secretary of State for Wales  266 EG 527.
b) A consequence of principle (a) is that "the draconian nature of the order will itself render it more vulnerable to successful challenge on Wednesbury/Ashbridge grounds unless sufficient reasons are adduced affirmatively to justify it on the merits": per Slade LJ in De Rothschild v Secretary of State for Transport (1988) 57 P. & C.R. 330.
c) The grounds of challenge under section 23 do not entitle the court to revisit the merits of the decision, only to see whether there is any legal or procedural error in the confirmation: see the observations of Sullivan J, as he was, in R (James Powell and Others) v Secretary of State for Communities and Local Government  EWHC 2051 (Admin) para.3.
d) When deciding whether or not to confirm an order, the Secretary of State must have regard to all material considerations and must not take into account immaterial considerations. But it is for the court to decide what are material considerations: see Tesco Stores v Secretary of State for the Environment  1 WLR 759 at 764 per Lord Keith of Kinkel.
e) The reasons for a decision must be intelligible and adequate. In determining whether those criteria are satisfied the decision letter must be read fairly as a whole, as if by a well-informed reader: South Buckinghamshire District Council v Porter (No.2)  1 WLR 1953 at 1964 per Lord Brown of Eaton-under-Heywood.
f) The Court should interfere only if the decision leaves a "genuine as opposed to a forensic doubt" as to what has been decided and why: Clarke Homes Limited v Secretary of State (1993) 66 P. & C.R.263, 271 per Sir Thomas Bingham M.R.
g) Where a decision maker has erred in law the decision should be quashed unless the court is satisfied that the decision maker would necessarily have made the same decision had the error not been made: see Simplex GE (Holdings) Ltd v Secretary of State for the Environment  3 PLR 25 at 42 per Staughton LJ.
With that brief summary I turn to consider the two grounds of appeal.
Ground 1: the issue of viability.
"the potential financial viability of the scheme for which the land is being acquired. A general indication of funding intentions, and of any commitments from third parties, will usually suffice to reassure the Secretary of State that there is a reasonable prospect that the scheme will proceed."
"193. The objectors maintain that the HAP would not be commercially successful and would be likely to fail [150, 151]. It is, however, quite clear from the evidence that the TDC/DT approach to the HAP development has been anything but rash. His role as the Chairman of Dreamland Trust aside, Mr Laister is a successful professional and businessman. Despite the objectors' attempts to portray him as a man blinded by enthusiasm [101, 111], it was clear from his composure under cross examination and from his evidence that he and the DT Board had, throughout, been cautious and objective in their approach to the project. Having commissioned a Business Plan from a leading specialist consultancy firm, they decided that its conclusions were achievable but optimistic and commissioned a second Business Plan, which took a more cautious approach (35].
194. Much time at the Inquiry was taken up with discussions about the merits of the Business Plan. Business planning is essentially a matter of judgement rather than science [52-54, 113-115]. The selection of data on which they are based and assumptions made about that data rely on experience and judgement. In all, three separate Business Plans have been produced for the HAP, each prepared by a firm with specialist knowledge of the industry, Notwithstanding the dispute as to which of them should be preferred , all three conclude that an amusement park on the Dreamland site would be viable . Moreover, the difference between the two latest Plans is small and depends on the selection of particular rides . As the Council points out that is also a matter of professional judgement .
195. The Business Plan has been independently assessed by the Council, prior to its decision to become associated with the Dreamland Trust's proposals, and again by central government, the Princes Trust and the HLF . While there can be no guarantee that any Business Plan will prove to be a wholly accurate predictor of future events the TDC/DT Business Plan has been subjected to intensive independent scrutiny and there is no reason to doubt its robustness. In short, the evidence suggests that there is no reason to doubt the viability of the HAP proposals."
Might the regeneration have been achieved without a CPO?
"184. The objectors have offered to transfer to the Council all the land needed for the HAP for £1 . This offer was, however, made in the context of earlier discussions and was dependent on the Council agreeing to development on the rest of the land . It was clear from the evidence at the Inquiry that the objectors' position on this had not changed.
185. The objectors argue that the Order, if confirmed, should be modified so as to exclude two areas of land (Areas 5 and 6) that did not form part of the HAP proposals [104, 105] and the leasehold of part of the cinema .
186. Under the Council's proposals areas 5 and 6 (a car park and vacant respectively) would be used as a 250 space car park for the HAP, with the remainder providing space for overflow parking and special events  that would complement the activities in the HAP. The objectors' argument is that, apart from the 250 parking spaces – which could be provided without the need to acquire the land – these areas are not needed for the HAP and should be excluded from the Order 156-159].
187. It is necessary, however, to distinguish between the grant aided works that form the HAP scheme and the heritage amusement park referred to in the Order. The use of the same phrase in different contexts is potentially confusing but it is clear from the wording of the Order tht it relates to the whole Dreamland site and that it refers to a heritage amusement park on that site, as envisaged by Policy T8, and not simply to the HAP, which would contribute only partly to the regeneration of the whole site that is sought [28, 157].
188. Apart from retaining the existing car park, the objectors have not suggested how, if Areas 5 and 6 were to be excluded from the Order, they could be developed in a way that complied with Policy T8 . The argument that Policy T8 would be "spent" following completion of the HAP scheme, freeing the land for other forms of development, [28, 160] is not a good one. The Policy seeks the restoration of the amusement park on the whole of the site and would not become redundant simply because the HAP had been created on part of it.
189. The exclusion of Areas 5 and 6 would, therefore, restrict the regenerative effect of the proposed development, impede the implementation of Policy T8 and would be likely to result in the continued disuse of Area 6."
Sir David Keene:
Lord Justice Goldring: