England and Wales High Court (Administrative Court) Decisions

1. These are two statutory appeals, consolidated by order of Dyson J. I need not set out the provisions which confer the appellants' entitlement to appeal to this court. It is, in effect, a statutory judicial review (see per Lord Denning in Ashbridge Investments Ltd v Minister of Housing & Local Government [1965] 1 WLR 1320 at 1326F. The principal challenge is to the confirmation by the Secretary of State for the Environment of the Stockton-on-Tees Borough Council (Town Centre, Stockton-on-Tees) Compulsory Purchase Order 1995 ("the CPO"). The remaining challenges concern the confirmation, variously by the Secretary of State for the Environment and the Secretary of State for Transport, of (a) the grant of listed building consent to demolish the Baptist Tabernacle at Wellington Street in Stockton-on-Tees, (b) the Stockton-on-Tees Borough Council (A1305 Allison Street/Nelson Terrace, Stockton-on-Tees) Side Roads Order 1995, (c) the Stockton-on-Tees Borough Council (A1305 Allison Street/Nelson Terrace, Stockton-on-Tees) Compulsory Purchase Order 1995; and also the making of the Stopping Up of Highways (County of Cleveland) Order 1995. These are all ancillary to the CPO. All the decisions were made by the Secretary of State for the Environment or the Secretary of State for Transport (the first two respondents before me) on 20th February 1997.

2. The CPO provides for the compulsory acquisition of land in the north western part of Stockton-on-Tees town centre. The land includes the site of the Co-operative Society building, where Kwik Save, one of the appellants before me, operates a discount supermarket. It also includes the Baptist Tabernacle, stated to be a building of national importance. In 1994 Chesterfield, the other appellant, acquired the Castlegate Shopping Centre, which is in the town centre but not part of the land the subject of the CPO. The ambit of all the orders made was crisply described in para 2 of what I may call the principal decision letter issued by the Secretaries of State as follows (there is a further decision letter from the Secretary of State for Transport dealing with the Side Roads Order and the Compulsory Purchase Order relating to the A1305 road):

3. The redevelopment scheme had something of a chequered history before the Stockton-on-Tees Borough Council resolved in January 1995 to make the CPO and associated orders so as to facilitate it. A detailed planning application had been submitted in March 1993, but before it could be determined the Baptist Tabernacle had been listed, and in addition it became apparent that there were other difficulties. So a revised scheme was submitted for planning approval in December 1993 which would have preserved the Tabernacle. However it was concluded that this scheme was "neither viable nor fundable" and a substitute application was submitted in May 1994 which involved the demolition of the Tabernacle. Outline permission was granted in September 1994. An application for listed building consent to demolish the Tabernacle was called in by the Secretary of State in October 1994.

4. The purpose of the redevelopment scheme was described by the Council, as recorded by the Inspector in para 34 of his report, as follows:

5. The potential funding, or economic viability, of the scheme is as I shall show at the centre of the challenge. It is proposed that there should be some public funding, effected through the government's "City Challenge" initiative under which central government funds may be made available to contribute towards projects aimed at the regeneration of city areas. I should read para 32 of the Inspector's Report:

6. The public inquiry, which followed the making of the Orders in 1995, was held on various dates in November and December 1995 and January and February 1996. The Inspector sat with an Assessor to advise him upon architectural matters. Kwik Save was a statutory, Chesterfield a non-statutory, objector. The Inspector presented his report in May 1996 to the Secretaries of State.

7. The CPO was made under the provisions of s.226(1)(a) of the Town and Country Planning Act 1990. S.226(1) provides:

8. I shall have to enter into some of the detail contained in the very full Inspector's Report, and must of course set out the relevant reasoning of the Secretaries of State in the decision letters. There being a good deal of material, I shall first select what is relevant to the principal issue which has been argued before me, which I may immediately identify. Counsel for the appellants submit that under s.226(1)(a) the Secretary of State may not authorize the compulsory acquisition of land unless he is satisfied, on the balance of probabilities, that the development (re-development or improvement) for which it is said to be required will actually take place; and in this case he was not so satisfied. It is said that this proposition is a function of the true construction of s.226(1)(a), and is also vouchsafed by authority which establishes that the common law offers special protection to persons threatened with compulsory acquisition of their land against their will.

9. Before the Inspector a substantial case was presented to the effect that the development scheme was not financially viable. In making this case, Chesterfield took the lead. But first I should record how the Council's case was put on the question of viability. At para 96 of his Report the Inspector said:

10. Then at para 103, still dealing with the Council's case:

11. I should include para 123, also part of the Council's case:

12. Chesterfield's submissions are in part recorded as follows. Para 216:

13. The Inspector's conclusions begin at para 481. Para 483:

14. Para 506 is of particular importance:

15. Accordingly the Inspector recommended that the CPO be confirmed. Before coming to the principal decision letter, which dealt with the CPO, I should say that in the course of the hearing I was shown other documents, which I need not set out. They include a written statement of reasons by the Council for making the order; the relevant passage is not, I think, materially different from the contents of para 34 of the Inspector's Report. They include also part of a confidential report to the Council form their advisers, Messrs Donaldsons (who were referred to by the Inspector). I understood Mr Straker QC for Chesterfield to submit that this assisted him to demonstrate that initially the Council itself had adopted, or may have adopted, the view that it was incumbent upon them to show that the development would probably take place. Whether that is so or not does not seem to me to matter. The question is whether the test which the appellants propose for the legality of the CPO's confirmation, namely that the Secretary of State must be satisfied that the development at issue will probably be carried out, is objectively correct. I was also taken to certain documents dealing with the figures which went to the issue of viability. But for the purpose of deciding whether the appellants' principal case is right it is unnecessary to go into the details of the evidence upon that important question, nor to go behind the Inspector's findings (paras 495, 499, 501 and 506 which I have set out) and the decision letter to which I will now come.

16. For present purposes it is enough merely to set out para 20 of the principal decision letter in its entirety:

17. I reject these arguments. Of course the Secretary of State may only deploy the power to confirm an order for the purpose for which the subsection conferred it. There is much authority to that effect, but with respect it seems to me no more than an exemplification of the general rule that discretionary powers must be used to promote the policy and objects of the enabling statute: Padfield [1968] AC 997 . I accept also, for it is plain, that the purpose for which the Secretary of State may confirm a compulsory purchase order is to promote the prospective development to which it relates. As it seems to me, however, there is nothing in the words of s.226(1)(a) to impose what would amount to a requirement of precedent fact before the Secretary of State may authorize the order. I conceive that had Parliament intended that the Secretary of State's power should only arise if he were satisfied on the balance of probability that the development would be carried out, it would have so provided in clear terms. No such condition upon his power can be derived from the words "required in order to secure the carrying out of development" which must, as Mr Holgate submitted, be read as a whole. They express the purpose for which the land is required; they do not stipulate that in consequence of its acquisition the purpose will, or probably will, be fulfilled or that the Secretary of State must judge that that will be so. As a matter of ordinary language the proposition that something is required in order to secure a particular result carries no implication that the result will actually be secured, whether as a matter of probability or otherwise.

18. I was referred to certain predecessor legislation, notably s.112 of the Town and Country Planning Act 1971 and s.15 of the Community Land Act 1975. None of these provisions tends, in my judgment, to offer any refutation of my conclusion upon the issue of statutory construction.

19. I am confirmed in that conclusion by a number of considerations. First there is the decision of the Court of Appeal in Sharkey 63 PCR 332 . That concerned the predecessor of s.226(1)(b) in the Town & Country Planning Act 1971. The focus of the case was the meaning of the word "required" in the subsection. McCowan LJ said at 340:

20. Earlier, at 338, the learned Lord Justice indicated that the word "required" must have the same meaning in (b) as in (a). While this case was not concerned with the words "in order to secure the carrying out of development...." in s.226(1)(a), the court's approach to the meaning of "required" seems to me with respect to underline the thrust of the subsection as a whole, which is that a judgment has to be made as to the need for the compulsory purchase order in all the circumstances of the case; and this cuts across the grain of the appellants' position, which would import into the statutory provision a fact-finding exercise to be conducted according to the civil standard of proof for all the world as if the statute were concerned with a lis inter partes . And this brings me to the second consideration tending to confirm my view that the appellants' argument is misconceived: generally speaking the adversarial concept of onus of proof has no place in the proper application of such provisions as s.226(1)(a). Mr Holgate QC for the Secretaries of State so submitted in the Addendum to his skeleton argument, and for 3 reasons: "(a) there is no lis inter partes , (b) there is a public interest in the subject matter and (c) there are a multitude of different, and potentially competing factors to be weighed". He referred to the well known decision of their Lordships' House in Bushell [1981] AC 75 , which was concerned not with a planning compulsory purchase order but with draft schemes for the construction of motorways and connecting roads. However I apprehend that the observations of Lord Diplock, on which Mr Holgate relied, are of equal application here:

21. Mr Holgate submitted that if the concept of onus of proof is inappropriate in the present context, then the concept of the standard of proof is inappropriate as well. This seems to me to be right. S.226(1)(a) does not at any stage involve the distinct idea of proof of facts to an identified, specific, legal standard upon the adversarial model.

22. The third consideration which I would pray in aid is a practical one. In a case where a scheme will not go ahead without the injection of public funds, its economic viability is likely to be - perhaps bound to be - no better than marginal. I have already set out para 96 of the Inspector's Report. The level at which public funds are injected, while obviously allowing some profit margin to private investors who shoulder the balance of the estimated cost, will not be set at a level which might allow the possibility of excess private profit; so that there will be little "slack" in the cost assessment upon which a decision to contribute public funds will be made. Now, it is plainly no part of my proper task to judge the policies under which, or the circumstances in which, public money might be made available to support a scheme such as that for the regeneration of Stockton town centre. But no one challenges the proposition that it would not be pitched at a level which might allow a perceived excess profit for the private sector. It seems to me to follow, as Mr Holgate submitted, that the likelihood is that in cases such as this the economic viability of the scheme in question will be marginal. But if that is right, the appellants' argument means that in such cases a compulsory purchase order will generally be unlawful. I cannot think that that is right. I recognize, of course, that contingent factual circumstances such as I have just described are not necessarily a secure aid to statutory construction. But it seems to me impossible to suppose that s.226(1)(a) ought to be interpreted in such a way as systematically, or at least very often and perhaps usually, to rule out the possibility of a compulsory purchase order being made in circumstances where (a) public funds are necessary if the development is to go ahead at all, and (b) the allocation of those funds is made, responsibly, on a strict basis.

23. I am also assisted by the decisions at first instance of Rose J (as he then was) in Royal Life Insurance [1992] 2 EGLR 23 and Glidewell J (as he then was) in Green [1985] JPL 119 . Both were compulsory purchase cases. In Royal Life , the Inspector concluded that viability had not been demonstrated, although the Development Corporation which proposed the order must have been satisfied of it. He said: ".... I see no reason to doubt that the Framework proposals are soundly based and will lead to regeneration of the Order Lands. The only caveat I find it necessary to make is in respect of financial viability." Rose J said (26B-D):

24. These authorities seem to me to hold, at least by implication, that there are circumstances in which the Secretary of State might lawfully confirm a compulsory purchase order even though he cannot conclude that the related development would, or would probably, go ahead: if economic viability is, as seems common sense, a sine qua non of the eventual execution of the development, then so far as there are situations in which the Secretary of State need not arrive at a judgment about viability, they demonstrate that it is not a condition precedent of his power to confirm a compulsory purchase order that he must be satisfied that the development will be carried out.

25. For all these reasons, I conclude that the appellants' argument based purely upon the construction of the statute fails.

26. At 211-212 Watkins LJ said this:

27. At 337 Slade LJ summarised his conclusions as to the applicable

28. Counsel for the appellants cited other texts, including Willis J's decision in Meravale Builders 36 PCR 87 , which with respect I need not set out. On the authorities, as I have indicated, the appellants submitted that the force of landowners' rights - a constitutional right - is recognised by the common law as only defeasible by a compulsory purchase order if a substantial justification is shown; and in a case like the present there can be no such justification unless (at least) the Secretary of State reasonably concludes that the development will go ahead. Counsel for the respondents, founding principally on the Court of Appeal's reasoning in De Rothschild , submitted that the relevant legal test is Wednesbury pure and simple.

29. In the course of argument I suggested to counsel that recent high authority shows that where what may be called a fundamental or constitutional right is threatened by an administrative decision of the state, the court on judicial review will require the public decision-maker to demonstrate that there existed substantial public interest grounds for his interference with the right. I had in mind in particular Lord Bridge's speeches in Bugdaycay [1987] AC 514 at 531G and in Brind [1991] 1 AC 696 at 748F-749B, and the judgment of Sir Thomas Bingham MR, as he then was, in Ex p. Smith [1996] 1 AER 257 at 262. As is well known the first dealt with refugees, the second with free expression, and the third with the position of homosexuals in the armed forces: all very far distant from compulsory purchase. I should say at once that the text of these cases was not looked into at the hearing before me; nor was the Strasbourg jurisprudence upon Art.1 of the First Protocol to the European Convention on Human Rights, to which some reference was also made. But in light of the decision which I have reached, there is no injustice to the respondents in that not having been done.

30. This submission is in my judgment an accurate distillation of the principles laid down by the House of Lords in Bugdaycay v Secretary of State for the Home Dept [1987] AC 514 and Brind v Secretary of State for the Home Dept [1991] 1 AC 696."

31. To some ears it may sound a little eccentric to describe, for example, Kwik Save's ownership of their shop in Stockton as a human right; but it is enough that ownership of land is recognised as a constitutional right, as Lord Denning said it was. The identification of any right as "constitutional", however, means nothing in the absence of a written constitution unless it is defined by reference to some particular protection which the law affords it. The common law affords such protection by adopting, within Wednesbury, a variable standard of review. There is no question of the court exceeding the principle of reasonableness. It means only that reasonableness itself requires in such cases that in ordering the priorities which will drive his decision, the decision-maker must give a high place to the right in question. He cannot treat it merely as something to be taken into account, akin to any other relevant consideration; he must recognise it as a value to be kept, unless in his judgment there is a greater value that justifies its loss. In many arenas of public discretion, the force to be given to all and any factors which the decision-maker must confront is neutral in the eye of the law; he may make of each what he will, and the law will not interfere because the weight he attributes to any of them is for him and not the court. But where a constitutional right is involved, the law presumes it to carry substantial force. Only another interest, a public interest, of greater force may override it. The decision-maker is, of course, the first judge of the question whether in the particular case there exists such an interest which should prevail.

32. All this I believe to be consistent with recent authority; but in particular for present purposes, it is consistent with De Rothschild . In Prest Lord Denning stated, as I have said, that it is "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". With very great deference I think a person's ownership of his land is indeed a constitutional right; and in that case, the court's approach to the state's compulsory taking of it will be in accordance with the refinement of the Wednesbury principles which I have just explained. This seems to me to be in entire conformity with these two important passages from the judgment of Slade LJ in De Rothschild which I have already cited:

33. In summary, the position is that while the Wednesbury principle is the avenue for this court's approach to a judicial review of the Secretary of State's confirmation of a compulsory purchase order, it must in accordance with that principle be demonstrated that in confirming it he has concluded that there exists a substantial public interest or interests outweighing the landowner's rights. The Secretary of State is the first judge whether the public interest "decisively demands" acquisition. If he has concluded that it does, he is only to be reviewed if in the circumstances that is an irrational conclusion.

34. However in my judgment these considerations, as I have attempted to outline them, are of no assistance to the appellants in the present case. The requirement that the Secretary of State find a substantial public interest if he is to justify a compulsory purchase order does not imply that he must conclude on the facts that the related development will probably take place. There is no basis upon which I can hold that such a conclusion is a sine que non for the existence of such a public interest. There may very readily be cases where the Secretary of State concludes (a) that the public interest decisively requires the development to go ahead; (b) that it is less likely, or much less likely, to go ahead without a compulsory purchase order; (c) but that even if the order is made he cannot conclude that it will probably go ahead. I think this is such a case. The development in question here has the benefit of planning permission. It is entirely plain, not least from para 20 of the principal decision letter, that the Secretary of State accepted the substantial merits case put forward in respect of the development scheme ("the last chance to revive the retail economy of Stockton town centre..."). Accordingly, upon the principal issue in the case the appellants cannot succeed unless they can fault this acceptance by the Secretary of State; and indeed it was submitted that his conclusion in this respect was legally unsustainable. I turn at once to address the argument on that issue.

35. In consequence Mr Straker submits that the conclusion in the principal decision letter to the effect that the overall merits case for the CPO was accepted cannot stand; there is at least the possibility that it proceeded on the footing that an inadmissible burden was cast on the objectors to justify their objections. I can deal with this argument shortly. I do not consider that the Inspector got the wrong end of the stick in the first place. The sentence in para 506 is responding to Chesterfield's case. It is plain from the balance of the report (Mr Holgate' skeleton argument refers, appropriately, to paras 485-492) that he was looking at the merits of the scheme on a proper inquisitorial basis. Those sentences in para 20 of the principal decision letter to which I have just referred were included, no doubt, out of caution. The Secretary of State for Transport offered, perhaps, a hostage to fortune in not including something similar. But in the result that is neither here nor there. There is no question in this case of the Inspector, or the Secretaries of State, having approached their task on a systematically misconceived basis.

36. In the result, I am against the appellants upon all aspects of their principal case.

37. I can deal with this shortly. From the way it is put in paras 28 and 29 of Mr Straker's skeleton argument, it is not, I think, entirely clear that the point is taken as a free-standing argument independent of the appellants' principal case. The complaint is that although the issue of viability "was recognized as a principal issue for resolution" it was not - at least not clearly - resolved. As I have shown, the Inspector concluded that the scheme's financial viability was marginal (Inspector's Report para 506). The appellants' principal argument, of course, would have meant that such a conclusion should have produced the result that the CPO be not confirmed; and I have rejected that. Mr Straker (para 29) complains that the Secretary of State, rather than determine the viability issue fair and square, justified the CPO on a basis "other than that pursued by the promoting authority"; but that is the subject of complaint in the next argument with which I will deal very shortly. If there is a separate issue here, it is I think encapsulated in the proposition advanced by both appellants that the Secretary of State has not made it clear whether he accepted the Inspector's view as to viability. If so, it is in my judgment a bad point. Any sensible reading of para 20 of the principal decision letter will demonstrate that the Secretary of State essentially accepted the Inspector's conclusions as to the marginal nature of the scheme's viability. That being so, there is nothing in this point save as another emplacement from which to barrage the conclusion that the CPO is lawful notwithstanding its marginal viability; a conclusion which I have rejected.

38. Mr Straker advanced a further argument, which was that on the evidence the Secretary of State had confirmed the CPO for an illegitimate purpose. He said that para 20 of the principal decision letter shows that the purpose of confirming the CPO was to secure the provision of funds by bringing the scheme to the market "with the benefit of confirmed orders". I think with respect to counsel that this also is a bad argument. It is obvious that the Secretary of State confirmed the CPO because he though that the scheme should go ahead in the public interest. The chances of it doing so would be enhanced by confirmed orders. But his purpose was not merely to provide such enhancement; his purpose was the fulfilment of the scheme itself to which the CPO was a step on the way.

39. I should notice at this point a related argument put forward by Mr Straker. At the outset of his submissions he was at pains to emphasize that there exist differences between what is now proposed by way of carrying forward the development, and the details of the scheme as they were presented before the inquiry. I understand that that is indeed the case (I need not enter into the detail), though the aim of breathing new life into Stockton's retail town centre has been a constant throughout. I understood Mr Straker to submit that changes in what was proposed cast light on the question whether the CPO can be regarded as having been confirmed by the Secretary of State for the purpose for which it was sought. But that too would be a bad point. It is plain that the CPO here was not tied to the specifics of a particular scheme. The CPO itself cited its purposes as being to secure "the carrying out of development, redevelopment or improvement: by means of a comprehensive redevelopment of part of Stockton-on-Tees town centre to include provision of new retail floorspace....", and other details were given. I accept Mr Holgate's submission that these proceedings cannot properly be treated as a vehicle for complaining that the council may use the CPO for a collateral purpose which has emerged since the confirmation; but, in fact, I do not see that any such collateral purpose has emerged.

40. On 12th June 1996, Chesterfield's solicitors wrote to the Secretary of State asking that the inquiry be re-opened. They had not by this stage seen the Inspector's report (though it had in fact been completed). I may deal with Chesterfield's submission that the Inquiry should have been re-opened, and that I should interfere with the decision not to re-open it, by reference to counsel's skeleton argument. Para 32 of Mr Straker's argument states:

41. The first of these points consists I think in the proposition that, as was stated in a subsequent letter of 27th August 1996, "the scheme apparently now being proposed is not that which the Inspector was required to consider." This is misconceived. No changes in what was proposed alter the fundamental purpose of the scheme, as I have said. The second point concerns a document (the PIEDA report) which on the evidence was not taken into account by the Secretary of State. The third point has no basis; the Secretary of State confirmed the CPO because he was convinced of the need to offer a substantial opportunity for the re-vitalization of the town centre, and this had been the case made all along.

42. The request to re-open the Inquiry was dealt with in the principal decision letter in paras 8-10. Para 9:

43. This decision could only be faulted on conventional Wednesbury grounds. In my judgment, no such grounds exist.

44. Mr Dinkin for Kwik Save advanced certain free-standing submissions. He says that the Secretary of State in confirming the CPO failed to have regard to an important planning consideration, namely the extinction of his clients' discount retail food store business, which would happen if the scheme went ahead. Alternatively if the Secretary of State relied on a conclusion drawn by the Inspector that a discount foodstore would or might be established if the scheme went ahead, that was a finding not open to the Inspector (nor the Secretary of State) on the evidence. In either event, I understand Mr Dinkin to say that the Secretary of State has given no legally sufficient reasons, in the principal decision letter, for his treatment of Kwik Save's specific objections.

45. To measure these arguments I must return to the Inspector's report. At para 167 he records Kwik Save's case to the effect "if the orders were to be confirmed, the business would be extinguished." At para 154, in his account of the Borough Council's case, the Inspector had said:

46. Returning to Kwik Save's case, the Inspector said at 168:

47. The fact that there have been negotiations with the Council is irrelevant. Those negotiations were conducted without prejudice and the developer withdrew at the last moment..."

48. The Inspector's findings of fact, at para 480, include these sub-paragraphs:

49. The Inspector's conclusions as to the objections put forward by Kwik Save start at para 507:

50. In the principal decision letter the Secretary of State said at para 23:

51. The letter of 16th July 1996, referred to in para 23 of the decision letter, was from Kwik Save's solicitors. It was written after receipt of the Inspector's report, and enclosed detailed further representations. Those emphasized the important need served by the existing store and the absence of any advantages, as it was put, either to Kwik Save or their customers in a new store. They placed reliance on the conclusions of the Local Plan Inspector, also referred to in para 23 of the principal decision letter.

52. It seems to me wholly unreal to suppose that the Secretary of State may not have had in mind the plain fact that Kwik Save's store would close if the CPO was confirmed and the scheme went ahead, or that he may not have taken account of it. The real point on this part of the case, in my judgment, consists in Mr Dinkin's submission that there was not evidence before the Inspector justifying a conclusion that the provision in the scheme for a modern foodstore would or might be taken up by a discounter; and his associated submissions (a) that the Inspector's formulation in para 512 ("could well be occupied by a discounter") did not anyway amount to a clear finding of fact that a discount foodstore would be established, and (b) that on this issue there was a want of proper reasons in the decision letter.

53. I may deal at once with the reasons point. It seems to me plain that the Secretary of State was accepting the Inspector's conclusions in para 512 and 513. Those conclusions were, I think, a premise of the reasoning in para 24 of the decision letter. That being so, I do not consider that any argument based on want of sufficient reasons remains. The Inspector was not obliged, in formulating the principal issues in para 508, to include the consequences of the prospective extinction of Kwik Save's business; his duty was to address the substantial points raised before him, and it is clear not least from paras 512 and 513 that he confronted Kwik Save's case relating to the loss of their supermarket. Whether his treatment of that case is to be faulted by virtue of any of Mr Dinkin's other arguments is of course a different question. Given all these considerations, there is no sustainable challenge to the relevant passages in the principal decision letter on reasons grounds.

54. Nor do I consider that the Inspector's use of the expression "could well be occupied by a discounter" assists Mr Dinkin. Taken with the reference in para 513 to "the fact that with the provision of a foodstore within the SHD scheme, the shopping public is unlikely to be disadvantaged" it is clear in my view that the Inspector was arriving at a judgment to the effect that (assuming the scheme went ahead at all) the likelihood was that such a store would be established.

55. As to the existence or otherwise of evidence on the point, I should draw attention in summary to the following material. First, Kwik Save had accepted "that a new, purpose-built foodstore would attract more shoppers and benefit from an increased turnover" (Inspector's report para 145). There had been some expression of interest from operators other than Kwik Save (para 154), though it is true (as Kwik Save submitted, para 181) that three discounters who might have been candidates, Lidl, Netto and Aldi were for one reason or another not interested in taking up the provision. It was agreed on all hands that as things stood, Kwik Save was the only supermarket in the town centre, with a turnover accounting for 30% of the total convenience expenditure (para 178).

56. As it seems to me, the Inspector was entitled to conclude that the demise of the Kwik Save outlet would leave an obvious gap in demand which market forces would be likely to fill. For all I know one possibility may be Kwik Save itself. While there was evidence that negotiations involving Kwik Save had been broken off, and Kwik Save made it abundantly clear that they had no desire to move from their existing store which they emphatically wish to retain, it is also the case that the existing store has about the same retail floorspace as is contemplated for the new outlet in the scheme, and I do not understand Kwik Save to say that if they are faced with the fait accompli of the CPO, and the scheme goes ahead, they would not hereafter consider throwing their hat in the ring. However, very obviously it is not for me to speculate, and of course I make no findings of any kind as to what may or may not happen. I was referred in the course of argument to some of the material put before the Inspector, both by Kwik Save and by the Council. I need not set any of it out, save to note (as appears from Mr Oldershaw's third affidavit) that an expert witness from the firm of Donaldsons gave evidence, I think in fairly general terms, that he had been in contact with a number of retailers who had expressed interest in taking space in the town centre, but it was not to be expected that anything more would be likely to be forthcoming given the preliminary stage of negotiations.

57. The Inspector had to form a view about something which by definition would only happen in the future if it happened at all. On the whole of the material before him, I entertain no doubt but that he was entitled to conclude that the need for a food supermarket would likely be met. Here too it is important to bear in mind that his task was not in the nature of a fact-finding exercise to be conducted according to rules relating to burden and standard of proof. It required him to make a planning judgment; and while I certainly accept that he had to make it on the evidence, I consider that the conclusion he reached was as a matter of law open to him on the material he had.

58. In the circumstances I need not consider certain other points canvassed before me. They included questions such as whether if the confirmation of the CPO were invalid all the other orders must necessarily fall, and whether there might be circumstances (as was submitted by Mr Steel QC for the Council) in which it would be right to refuse relief as a matter of discretion.

59. For all the reasons I have given, these appeals are not made good and will be dismissed.

60. MR JUSTICE LAWS: For the reasons given in the draft judgment handed down, which I hope counsel had in good time yesterday, these applications are dismissed.

61. MR KEEN: My Lord, in the light of the judgment, I have two applications to make. My Lord, I appear for the first and second Respondents. The first application is that the costs of the first and second Respondents should be the costs of the first Respondents in both proceedings. The second application is that there be an abridgement of time for lodging a Notice of Appeal in this matter, because it is clearly an urgent project.

62. MR JUSTICE LAWS: You won the case. If I have it the right way around, you are for the Respondents, are you not?

63. MR KEEN: My Lord, yes, that is right, but no leave is required.

64. MR JUSTICE LAWS: Might it not be faintly prudent to see whether Mr Straker has any intention of appealing? I would have thought that you are entitled to your costs as the Secretary of State against both Applicants in the two cases but what about Mr Steel's position?

65. MR STEEL QC: My Lord, may I seek an Order for costs, as well, in this particular matter? Obviously, in this particular case there were further affidavits which were put forward on behalf of the third Respondents, that is the Stockton-on-Tees Borough Council. These were separate and entirely different matters to those which were dealt with by the Secretary of State for the Environment. For example, there was a point concerning the post-inquiry, not correspondence, but changes to the scheme where there was substantial consideration of that prior to the court hearing. It was not, effectively, abandoned, even though not argued or pushed at the top of the list, at the hearing itself. Therefore, in those circumstances, the extent to which it appeared in the Notice of Motion and also in the skeleton arguments had to be dealt with. That is the first point in terms of Chesterfield.

66. In the terms of both Chesterfield and Kwik Save (they are the points concerning the valuation matters) again were not abandoned and Mr Black's affidavit on those particular points and Mr Oldershaw's affidavit on those particular points, where there could have been, had they been put, again, more fully during the course of the hearing, a substantial amount of discussion as to what was the basis of the valuation of the actual inquiry.

67. MR JUSTICE LAWS: But the Secretary of State would have been able to deal with those points.

68. MR STEEL QC: My Lord, I would say, first of all, in terms of the

69. The second matters, in terms of the valuation consideration, again were within our own knowledge, going back to the way in which it was argued at the hearing itself. There was always this point as to the extent to which one of the matters was put forward and one of the matters which was not put forward at the hearing, and the extent to which a valuation approach was taken. As it turned out at the hearing, the two pages (if you will remember, the Schedule) were looked at very fleetingly, indeed. However, if one starts to go behind those matters at all, one would have to go back towards the way in which both parties approached the valuation considerations.

70. MR JUSTICE LAWS: I am not sure how much is in the real world that that would be a necessary exercise on an appeal in law only.

71. MR STEEL QC: My Lord, all I can say, in respect of that particular point, is that the extent to which it was put forward in the Notice of Motion should respectively be the governing point and not the extent to which it was likely to succeed. If I may respectfully say, clearly, in the light of the way the other matters were put, it was put very much at the bottom of the list and, therefore, it was not a matter which could have been explored in terms of my being able to say now the way in which it would have been put had it been put. It is much more a question of it being there and having to be dealt with.

72. My Lord, may I go on to Kwik Save, which is a separate point entirely? The Kwik Save point arises from the no-evidence point of view. If you will remember, they were saying that there was no evidence before the inquiry with respect to the taking of land. That required, again, the understanding of what happened at the inquiry and also not just purely the affidavit evidence before us, because the way in which the arguments were put were much broadly based, going back to what was understood at the inquiry and Ms Worsely's affidavits and then further affidavits coming in all from our side (that is to say the third Respondents) in terms of the extent to which those matters arose at the inquiry or did not, and they were not purely within the purview or knowledge of the Secretary of State.

73. Going on to the Bolton case, which gives some consideration as to the propositions, I would say ----

74. MR JUSTICE LAWS: I am sorry, could you just wait a minute, please? (Pause.)

75. MR JUSTICE LAWS: I have heard of it, but I have not seen it for a bit.

76. MR STEEL QC: I am very grateful to Mr Straker for having one on the Associate's table.

77. MR JUSTICE LAWS: I was going to ask you about the learning on this subject. When I was at the Bar I rather remember that the general approach was that you only ordered two sets of costs exceptionally. It may be that is not right now.

78. MR STEEL QC: My Lord, if I may put it this way: the way in which it was considered and reported is now, as per the House of Lords' judgment and the speech of Lord Lloyd of Berwick.

79. MR JUSTICE LAWS: Is this is a case that went on to the House of Lords just on a question of costs?

80. MR STEEL QC: My Lord, no. It is reported separately on costs. It was dealt with entirely as one matter, and then this particular matter became a Practice Note, effectively.

81. MR JUSTICE LAWS: Where should I be looking?

82. MR STEEL QC: I am grateful, my Lord. You will see that on the third page (1178) that the matter is dealt with from (F) onwards:

83. MR JUSTICE LAWS: I suppose it is an analogy, yes.

84. MR STEEL QC: Yes, it is by analogy:

85. MR JUSTICE LAWS: We do not need the rest?

86. MR JUSTICE LAWS: So you say, in this case, that as regard the matters you referred to (valuation, the Kwik Save separate points and the evidence that came in and so on) they were separate issues? I am not sure that you are really in a position to say that they were not or might not have been covered by counsel for the Secretary of State, who could, of course, get affidavits from your clients.

87. MR STEEL QC: My Lord, the point is that it was always left to us to deal with those particular matters and, secondly, in terms of the way in which they would have been developed, we could not anticipate how they would have been developed.

88. May I go back to that as being a determining consideration, in my respectful submission?

89. MR JUSTICE LAWS: Yes, you have made that very clear.

90. MR STEEL QC: May I come back on the second point in due course. The second matter is in respect of abridgement.

91. MR JUSTICE LAWS: Yes, we will deal with that.

92. Mr Straker, are you for Kwik Save as well today?

93. MR JUSTICE LAWS: Are they not here?

94. MR STRAKER QC: My Lord, Kwik Save are here and they are represented by my learned friend, Mr Robin Lewis.

95. My Lord, as far as Chesterfield are concerned, in respect of the Secretary of State, I say nothing on the question of costs.

96. As to the Stockton position, plainly proposition (2) of the speech is the applicable proposition, and I would respectfully say that the situation is one whereby this was not a case where he could show that there was likely to be a separate issue on which he was entitled to be heard, that is to say -- likely, I interpolate the word -- an issue not to be covered by counsel for the Secretary of State. If one looks at the Notice of Motion, the position was plainly there that all those matters were capable of being covered by the Secretary of State, and it ought not to be the position that Chesterfield should have been at any further risk in terms of costs from Stockton volunteering, so to speak, to appear at the hearing before your Lordship. That is the principal point I would make before your Lordship.

97. My Lord, the way alternative to that, if your Lordship is disposed to grant anything to Stockton, is that your Lordship can, of course, limit that to the affidavit which they put in rather than covering the attendance at the hearing. I make that by way of alternative, the principal point being as given.

98. MR JUSTICE LAWS: What about Kwik Save?

99. MR LEWIS: My Lord, with respect to the Secretary of State's costs, again Kwik Save says nothing. With respect to the costs of Stockton-on-Tees, my Lord, I respectfully adopt what

100. Mr Straker has said.

101. MR JUSTICE LAWS: Do you want to say anything else, Mr Steel, on costs?

102. MR STEEL QC: My Lord, only with respect to just "affidavits", as it were, and being confined to that. That still, in fact, does not deal with the point as to those matters remaining in the Notice of Motion and the point I made earlier in respect of developing those arguments.

103. MR JUSTICE LAWS: I am only going to order one set of costs here; that is not to say that Mr Steel was not wholly entitled to be here, of course, on behalf of the authority. However, this is not a case where issues arose that were in any clear way outside the purview of arguments and evidence which could have been obtained and produced by the Secretary of State.

104. Accordingly, there will be an Order for the costs of the Secretary of State against both Applicants.

105. You do not need leave to appeal, Mr Straker, so it is in a sense none of my business whether you appeal or not. But your opponents obviously want to see to it that you get on fast, if you do, so I do not know whether it is proper for me to make any direction or not. What do you say?

106. MR STRAKER QC: My Lord, I say two things, if I may. First, no decision has yet been made as to whether or not there will be an appeal. That remains for consideration. Your Lordship's judgment obviously repays careful consideration. Secondly, my Lord, the power is available to your Lordship pursuant to the rules to abridge the time, but to abridge the time for service of the Notice of Appeal. It may sensibly be asked what particular purpose that, in fact, would serve, because, say your Lordship were to abridge the time from 28 days to 14 days, it does not follow from that -- indeed, it is probably unlikely that it has any bearing at all on when the case is actually heard in the Court of Appeal which is critical matter, and the Court of Appeal, having regard to their lists and the pressures on their time, will have to determine when it is heard and the degree of expedition which is given to it.

107. MR JUSTICE LAWS: The real point, I think, is I very plainly cannot order that the Court of Appeal expedite any appeal that you or Kwik Save bring.

108. MR STRAKER QC: That is so, so I would respectfully say that it is not a sensible course for your Lordship to abridge the period of time. Plainly, if an appeal is going to be made it would then be subject to the Court of Appeal and what the Court of Appeal do as far as expedition is concerned.

109. MR JUSTICE LAWS: Yes. I do not think I need go to Kwik Save just at the moment. Do counsel for the Secretary of State or the authority want to say anything else about this?

110. MR KEEN: My Lord, we do. Perhaps, Mr Steel should go first.

111. MR STEEL QC: My Lord, it just that this particular matter arose when seeking expedition before Dyson J. It was a semi-opposed hearing, if I can call it that, where my learned friends turned up to be helpful to the court, even though they did not actively oppose it, which, I think, is the best way of putting it. Therefore, there were three leading counsel before Dyson J who clearly came to the conclusion that this was a matter properly subject to expedition in this part of the jurisdiction.

112. The point which I put forward is this, that the end date, which is clearly set out in the affidavit evidence on behalf of the Secretary of State and also that of Mr Oldershaw of March 1988 is a crucial one. My Lord, cannot, of course, have any power whatsoever. It is up to the Registrar of the Court of Appeal and also the Court of Appeal itself to deal with the date on when the matter was held before the Court of Appeal.

113. MR STEEL QC: However, there is clearly the time which is of importance in every single week before then, in terms of being able to hear the matter and also being able to go before the Registrar in being able to seek a date, because these matters obviously take their turn as to who gets there first.

114. MR JUSTICE LAWS: He has 28 days to appeal under rules as they are, yes.

115. MR STEEL QC: May I go to the rules and see what it says? It is dealt with in one paragraph. It is not exactly extenso in terms of the matter we have to deal with. It is Ord. 59, r.15, which is to be found in Volume 2, 1997 Edition of the White Book.

116. MR STEEL QC: It is Volume 1, page 1033. One sees there that the power is there. May I go to the paragraph 59/15/1 and merely ask that my Lord reads that?

117. MR JUSTICE LAWS: That just gives the power to extend or abridge, yes.

118. MR STEEL QC: Yes, but it goes further. It says:

119. My Lordship is in a position to come his own conclusion on that particular point, having regard to the affidavit evidence before him and also Dyson J.

120. MR JUSTICE LAWS: The reality here, Mr Steel, is that the vacation starts in a week's time. Whether you get your Notice of Appeal at the end of the second or at the end of the third week of the vacation is simply going to have no effect at all on when this appeal will be heard, if there is an appeal.

121. MR STEEL QC: My Lord, so be it. However, I believe that is not necessarily, with respect, the case, because there may be other appeals which come in first, and, furthermore, when it comes to this, it is an indication to the Court of Appeal clearly that this is a very urgent matter in terms of those matters which are before my Lord.

122. MR JUSTICE LAWS: They decide for themselves how urgent it is, and hear any submissions to that effect.

123. Mr Keen, do you want to add anything?

124. MR KEEN: My Lord, I adopt the submissions of Mr Steel and simply emphasis the urgency on the public funding aspect which, of course, comes to a closing in March 1998.

125. MR JUSTICE LAWS: I have not the slightest doubt that this is a very urgent matter and if appeals are launched by these Applicants no doubt representations to that effect will strenuously be made to the Court of Appeal, but I do not think that it is a case for me to exercise a power to abridge time, not least since there has not yet been any decision whether to appeal at all.

126. As is plain, the handed down judgment is a draft and in the ordinary way there will, of course, be corrected transcripts in due course. On the understanding that it is only a draft, there are further copies available here for anyone who takes an interest in the matter.

127. MR STRAKER QC: My Lord, I wonder if I may make a pedantic point?

128. MR JUSTICE LAWS: It depends how amusing it is.

129. MR STRAKER QC: Your Lordship has in the heading described the Applicants as Applicants, which, indeed, what they are. They are Applicants and the statutory language is that these are applications rather than appeals.

130. MR JUSTICE LAWS: I have called them Applicants throughout the judgment?

131. MR STRAKER QC: My Lord, your Lordship has.

132. MR JUSTICE LAWS: That is not pedantry, Mr Straker. That is a solecism of the gravest nature. If I remember, which I hope I shall, I will correct it. Perhaps the Shorthand Writer can note that for "Appellants", read "Applicants" throughout the judgment.