QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN (ON THE APPLICATION OF SAINSBURY'S SUPERMARKETS LTD)
|- and -
|WOLVERHAMPTON CITY COUNCIL
|- and -
|TESCO STORES LIMITED
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A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Neil King QC and Guy Williams (instructed by Wolverhampton City Council) for the Defendant
Christopher Katkowski QC and Scott Lyness (instructed by Tesco Stores) for the Interested Party
Hearing dates: 20th and 21st January 2009
Crown Copyright ©
Mr Justice ELIAS:
"… both schemes would bring appreciable planning benefits and would promote and improve the economic, social and environmental well-being of the City."
"…[the] development of the RHS site in accordance with the Council's aspirations is unlikely to take place for the foreseeable future unless Tesco's current proposals, which do meet those aspirations, are brought forward through a cross-subsidy from the development of the Raglan Street site."
"the Tesco scheme enjoys a decisive advantage in that it will enable the development of RHS to be brought forward in the manner that is consistent with the Council's planning objectives for that site. Making a CPO for the Tesco scheme will therefore result in a significantly greater contribution to the economic, social and environmental well-being of the Council's area than would making a CPO for the Sainsbury's scheme. On this basis and subject to the satisfactory resolution of the matters identified in the recommendations set out in the beginning of the report, there is a compelling case in the public interest to make a CPO to enable the Tesco's scheme to proceed."
The decision of Cabinet made on the 30th January 2008 was to adopt this recommendation. The formal terms of the resolution were as follows:
"That approval in principle to be given to the making of a compulsory purchase order [for the RSS site]to facilitate the carrying out of :
(i) a mixed use development [on the RSS site]; and
(ii) a mixed use retail, office and residential development of the Royal Hospital site,
subject to Tesco producing satisfactory evidence of a commitment to the carrying out of the development referred to at (ii) before consideration is given to a resolution to authorise the making of the CPO."
The Statutory Background
"(1) A local authority to whom this section applies shall, on being authorised to do so by the Secretary of State, have 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; or
(b) [which] is required for a purpose which it is necessary to achieve in the interests of the proper planning of an area in which the land is situated.
(1A) But a local authority must not exercise the power under paragraph (a) of sub-section (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."
I make certain observations about these provisions. First, the proposed development, redevelopment or improvement must be "on or in relation to" the land. Second, reference to "the land" plainly must be the land subject to the compulsory purchase order, a point confirmed by Laws J (as he was) in Chesterfield Properties PLC v Secretary of State for the Environment76 P&CR 117, 125. Third, subsection (1A) is a limitation on the power conferred by section 226(1)(a); it does not extend that power in any way. (In practice, however, it is unlikely to provide any real limitation since it is almost inconceivable that a proposed development will not have at least some of the benefits identified in that provision.) Fourth, it is the proposed development, re-development or improvement that must achieve, or at least contribute to the achievement of, at least one of the well-being benefits referred to in subsection (1A). These benefits may, however, extend beyond the area of the site itself and typically will do so. For example, creation of employment opportunities resulting from a commercial development will frequently benefit persons living away from the site but in other parts of the area falling under the local authority's jurisdiction.
The current guidance in relation to the section 226 powers is found in Appendix A to Circular 06/04. Paragraph 6, headed "The well-being power", reflects subsection (1A) and in part states:
"The benefit to be derived from exercising the power is…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."
The Grounds of Appeal.
Misconstruction of section 226.
"Subject to clause 52 the Seller (in its capacity as landowner only) will (at the buyer's cost and expense) use all reasonable endeavours including facilitating the use of powers contained within sections 226 and 237 of the Planning Act to assist with acquiring all interests in the Site required to enable the Development to be built out and brought into use."
The response of the Council and Tesco.
I would make a number of preliminary observations before addressing the substance of the arguments.
1) It was resolved to give Tesco outline planning permission for the RSS site without any consideration at all of the RHS site. (Tesco had in fact sought to link them, but were told that this was not possible.)
- I accept that section 226 makes it plain that the exercise of CPO powers under that section must be to facilitate the development on the land to be acquired i.e. in this case the RSS development. (The section stipulates that the development may be on or in relation to the land, but it is not contended in this case that the development is in relation to the land.)
- It follows that if the purpose of the CPO is to facilitate the development of some land other than the development on the land to be acquired, then the conditions of section 226 would not be met and the exercise of power would be unlawful. I therefore accept the claimant's submission that it is unlawful to acquire site A in order to develop site B. The only lawful purpose must be to facilitate the development of site A.
- It is common ground that the report to the Cabinet makes it plain that Tesco's development proposal for the RSS site has considerable planning merits even shorn of the RHS well-being benefits. It would plainly facilitate that development to exercise the CPO powers so as to enable Tesco to be in possession of all the land. That development of the RSS site would contribute to the benefits identified in section 226(1A). It follows that the terms of section 226 would then be satisfied.
- In my judgment that would be so even if Tesco has given an undertaking –whether by way of a section 106 agreement or in some other lawful way- to develop some or all of the RHS site before developing the RSS site. In other words, there is no intrinsic reason why the purpose of exercising the CPO power should not be to facilitate the RSS development, even although a benefit of exercising that power is also the facilitation of the RHS development.
- However, I would accept that if the Council would not have considered that the conditions for making the CPO at site A were met unless the benefits at site B were taken into account, that would be an unlawful exercise of the section 226 power. It is a condition precedent to the lawful exercise of that power that the authority is satisfied that the CPO will facilitate the development at site A irrespective of the site B benefits.
I will first deal with the substantive issue and then the formal issue.
The substantive issue.
The formal issue.
The predetermination challenge.