England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Sitting at: Cardiff Civil Justice Centre 2 Park Street Cardiff CF10 1ET
		25 January 2011

Mr Justice Beatson:

1. The claimants, Mr and Mrs Boland, challenge the decisions of the Welsh Ministers dated 18 August 2010 to issue a notice confirming a full compulsory purchase order made by Bridgend County Council, the second defendant, to acquire land for the construction of a school at Heol Eglwys, Pen Y Fai, Bridgend, and associated drainage and highway issues. The application is made under Section 23(1) of the Acquisition of Land Act 1981. Section 23(1) provides:

"If any person aggrieved by a compulsory purchase order desires to question the validity thereof, or of any provision contained therein, on the ground that the authorisation of a compulsory purchase thereby granted is not empowered to be granted under this Act or any such enactment as is mentioned in section 1(1) of this Act, he may make an application to the High Court."

2. By Section 23(2), a person aggrieved by a compulsory purchase order who desires to question the validity thereof "on the ground that any relevant requirement has not been complied with in relation to the order or certificate" may apply to the High Court.
3. Section 24 of the 1981 Act deals with the powers of the court. By Section 24(1):

"…the court may by interim order suspend the operation of the compulsory purchase order or any provision contained therein, or of the certificate, either generally or in so far as it affects any property of the applicant, until the final determination of the proceedings."

4. By Section 24(2):

"If on the application the court is satisfied that—

(a) the authorisation granted by the compulsory purchase order is not empowered to be granted under this Act or any such enactment as is mentioned in section 1(1) of this Act, or

(b) the interests of the applicant have been substantially prejudiced by any relevant requirement (as defined in section 23(3) above) not having been complied with,

the court may quash the compulsory purchase order or any provision contained therein, or the certificate, either generally or in so far as it affects any property of the applicant."

Section 24(1) is concerned with the interim position and is not relevant in these proceedings.

5. The orders in this case that were confirmed by the Welsh Ministers are the Bridgend County Borough Council (Construction of Replacement School off Heol Eglwys, Pen Y Fai Bridgend) Compulsory Purchase Order 2005 ("the 2005 Order"); the Bridgend County Borough Council (Construction of Replacement School off Heol Eglwys, Pen Y Fai Bridgend) Supplementary Compulsory Purchase Order 2006 ("the 2006 Order"); a modified version of the 2006 Order made in respect of certain plots; and the Bridgend County Borough Council (Construction of Replacement School off Heol Eglwys, Pen Y Fai Bridgend) Compulsory Purchase Order 2009 ("the 2009 Order"). The purpose of the orders is to purchase land to provide for the rebuilding of Pen Y Fai Primary School on land adjacent to Heol Eglwys, Pen Y Fai and to provide for related highway improvements and drainage works.
6. The claimant's case is contained in the claim form, a letter to the court dated 26 November 2010 (which is a witness statement by Mr Boland and treated as such by the court) and a skeleton synopsis dated 22 January 2011 received by the court on the morning of the hearing. The claimant filed no evidence or documents other than the statement dated 26 November and did not prepare a bundle as required by the rules. Mrs Boland, at that stage, was the sole claimant. She had written to the court on 26 November giving her husband full authority to act on her behalf at the hearing today. As a result of that letter, in a letter dated 23 December from the court, a lawyer working in the Administrative Court office referred to paragraph 22 of the Practice Direction to Part 8 of the Civil Procedure Rules and advised that the claimant read them as a guide to procedures, and made a number of observations on Mr Boland's statement. These were that a hard copy had not been received; secondly, that a statement in a case such as this would normally give a lot of detail as to the facts of the case, sometimes in a chronology and would refer to and exhibit documentary evidence that a claimant wished to put before the court. The letter states:

"It is not my place, nor am I legally able, to tell you what documents should be before the court and what shouldn't but I would advise you to consider what documents you would wish to have before the Court;"

The letter also advised that action be taken quickly because time for filing evidence had already passed.

7. The evidence on behalf of the defendants is a statement by the second defendant's principal solicitor, Mr Brett Davies, dated 10 January 2011.
8. It is common ground that the existing primary school is inadequate in size and in poor condition. The school's facilities include six mobile classrooms, the majority of which are in poor and deteriorating condition. On 19 May 2004 the second defendant authorised what became the 2005 Compulsory Purchase Order. There is no issue between the parties and no objection was made to the proposal to build a new school somewhere on the ground that the existing school is adequate and does not need replacing.
9. The 2005 Compulsory Purchase Order was confirmed on 30 September 2005. On 28 February 2006 the second defendant made a supplementary compulsory purchase order, the 2005 Order, to provide all drainage works and temporary access to certain land and for highway improvements.
10. There were objections. Those by the claimants were mainly because they considered there was a more suitable site which they were prepared to make available to the Council. However, the claimants' objections, as summarised in paragraphs 17 to 22 of the Inspector's first report, dated 18 December 2006, also refer to dangers from the highway, from farm traffic and drainage problems. The inquiry was held on 12 and 13 September 2006 with a site visit made on the second of those days. The Inspector, Mr Wylde, confirmed the two compulsory purchase orders in the decision to which I have referred, ie that dated 18 December 2006.
11. Mr Boland's statement dated 26 November inter alia states:

"From the time of the first CPO enquiry, the Barrister acting for the Local Authority was asking the inspector to adjust and change their various mistakes. Likewise the Inspector was assisting the Authority in pointing out their various mistakes which left me very dissatisfied as they kept 'moving the goalpost'."

At the hearing before me Mr Boland stated that the points he wished to make were deferred.

12. The Welsh Ministers accepted the recommendations of the Inspector in part, but on 29 March 2007 required further evidence in relation to the drainage proposal and order about that, and to justify the provision of access to three of the plots during construction and otherwise. In the light of the evidence provided and the Welsh Ministers' view of it, on 5 December 2007 they decided to re-open the inquiry.
13. The new inquiry was to take place on 29 April 2008. However, it was adjourned after the Planning Inspectorate learned from the claimant of the 2001 decision in British Waterways Board and Severn Trent Water [2001] 3 All ER 673 which, broadly speaking, held that a right to lay and maintain drainage pipes did not carry with it the right to discharge from those pipes into a waterway. At the hearing Mr Boland informed me that he learned of this case from a friend who is a barrister and he notified the authorities about it. That decision meant that the 2006 Compulsory Purchase Order required amendment. A further compulsory purchase order was made on 6 February 2009 providing for the right to discharge water carried in the drainage pipes into a natural watercourse on the claimant's land, a field used for potato growing.
14. The inquiry was rescheduled for 7 and 8 July 2009 but, at the beginning of June, these dates were cancelled by the Planning Inspectorate as a result of an application by Mr Boland, who was then seriously ill and had to go into hospital for a an operation. The inquiry was adjourned to 2 and 3 February 2010. On that occasion the Inspector was again Mr Wylde. Mr Boland was present; he gave evidence and asked questions of the second defendant's witnesses as he had done at the first inquiry. Mr Wylde promulgated his report on 3 March 2010. He recommended that the 2006 Supplementary Order be confirmed in respect of plots 3 to 7 inclusive with modifications as showing on a specified plan with a drawing number FE0059101/900revB and that the Supplementary Order not be confirmed in respect of plots 1 and 2. He also recommended that the 2009 Supplementary Order be confirmed with modification as shown on an amended plan identified by a document number.
15. The conclusion section of the report states that the principle of the siting of the school and the improvement to access were dealt with in the first report. That inter alia states at paragraph 44 that the Council had taken into account as a factor that the location of the site with a main access adjoining Heol Eglwys was on a steep hill. It also stated that the proposed road improvements were intended to provide reasonable visibility at the junction and that that the Inspector was satisfied that they would provide such visibility, and that the provision of reasonable footways on both sides of the road together with the traffic management measures would provide much improved safety for pedestrians approaching the school. The Inspector stated at paragraph 45 that the potential conflict of the school access with any farm traffic using the access track would be ameliorated by the improvements to the junction including the reasonable footways.
16. As to the alternative site, the Inspector stated at paragraph 46 that it was also on the opposite side of the road to where most of the pupils lived and would not be significantly closer for the majority of pupils. The Inspector also said:

"However, this alternative site was the subject of a planning application which was refused and dismissed on appeal as recently as October 2005. That application was an application for a school."

The Inspector stated that there had been no material change in circumstances since the appeal decision and he saw no prospect of permission being granted on that alternative site because to do so would breach the Unitary Development Plan's Green Wedge policies. Accordingly, despite the advantages of the site that he referred to, that is, an access with proper visibility splays, footways on both sides of the main road and space on site for parking parents' cars, he did not consider it to be a practical alternative. The Inspector also stated at paragraph at paragraph 49 that he did not consider the construction of the new school would result in the land remaining in the ownership of the claimants being unusable.

17. In his second report, dated 3 March 2010, following the second inquiry, the Inspector revisited the issue of the alternative site which the claimants had proposed. He summarised the objections in paragraph 31, stating that Mr Boland at the inquiry had repeated his earlier criticism of the proposal to retain the school on its present site. The paragraph continued:

"The access was extremely dangerous with narrow pavements and on a steep hill. There would be dangers and disruption to the children during the construction period of the new school as a result of the contractors' traffic, noise, dust, fumes etc. The alternative site he suggested (Doc 15) gave the opportunity of a more suitable school site with good, safe and convenient access. It also gave the opportunity for the provision of recreational facilities at no cost to the Council."

Paragraph 31 also states that Mr Boland had said that he was being pressed by housing developers to release the land for affordable housing which would not offer the same benefits to the community.

18. As to the alternative site, in the conclusion section of the report in paragraph 38, the Inspector observes:

"The only new evidence in this respect is Mr Boland's plan showing an alternative site together with recreational facilities (Doc 15). That plan is a variation on the one produced at the last inquiry. That site is not allocated for development in the UDP and there has been no significant change in the planning policy background since previous proposals in the green wedge were refused by the Council and appeals dismissed (23). I do not consider that this alternative gives any grounds to reconsider the principle of re-building the school on the present site."

19. As far as drainage is concerned, the conclusions state at paragraphs 39 and 40 that the Council had significantly reduced the effects on Mr Boland's land by locating the attenuation tank in the school site. It is stated that "Full and careful consideration has been given to the possible alternative ways of dealing with the surface water flow from the attenuation tank" and that while it might have been physically possible to drain the site towards Heol Eglwys, the constraints mean that any alternative in that direction "would cost considerably more money". It is also stated that there could be delays in obtaining the necessary rights over private land affected by those alternative routes and the uncertain costs of avoiding existing services in the highways and the inevitable costs of traffic congestion and delay.
20. So far as the watercourse into which the surface drain is to discharge which was not confirmed at the previous inquiry, the Inspector states:

"On this occasion I had no difficulty in finding the watercourse where it passes under the public footpath in a pipe on the day before the inquiry. It is a clearly defined and existing watercourse which physically is suitable to receive the proposed discharge. From the evidence before me I have no doubt that the capacity of the watercourse and the pipe under the driveway at the bottom of the field are sufficient that flooding of the field is most unlikely to occur (27 & 33). In the most extreme storm situations, which might fill the attenuation tank, the surface water would do no more than flow overland as it appears to now. The new drain would probably result in some improvement to existing flooding by capturing some of the current run off from the existing school site which appears to flow down the footpath and into the development below the site."

21. Paragraph 41 deals with pollution and states that the evidence given in support of the proposals by a Dr Allen was effectively unchallenged and showed clearly "that there should be no significant pollution of Mrs Boland's land or the watercourse as a result of the discharge of the surface water (27)."
22. After considering the access track and the proposals and concluding that the proposals appeared a sensible way of restoring access to the farm fields served off the track, the Inspector stated that given the state of the access track and the land he doubted that there is likely to be any significant traffic conflict between agricultural traffic, school traffic and contractors' traffic in the near future. He also concluded that the acquisition of plots 1 to 6 was necessary for the completion of the school project and that the acquisition of plot 7 was necessary for the project to enable an adequate width of access track to be maintained. His overall conclusion was:

"…there is a compelling case in the public interest for the acquisition of Plots 3-7 inclusive in the 2006 Supplementary Order and Plots 1, 2 and 5b in the 2009 Supplementary Order."

23. On 15 July 2010, in a letter from Ms Sylvia Lindoe, then head of the Schools Management and Effectiveness Division of the Welsh Assembly Government, the Welsh Ministers confirmed the compulsory purchase orders. They published notice of them on 18 August. Notices were contained in the Glamorgan Gazette on 19 and 26 August. Mr Davies' evidence is that all the orders were dealt with in one notice because the Council considered that the number and different dates of the confirmation of the orders which dealt with about 17 plots of land and the fact that the orders were confirmed on different dates could be very confusing for the readers of a notice. He states that he considered putting all the orders in one notice "would enable those viewing the notice to appreciate that it all related to the same scheme."
24. After reciting the functions and the transfer of functions from the National Assembly for Wales to the Welsh Ministers by the Government of Wales Act 2006 and the Transfer of Functions Order, Ms Lindoe's letter of 15 July states:

"Consideration has been given to the statement that the local authority had not followed correct procedures (paragraphs 1-5 of the Inspector's report). It is clear from the documents submitted by the local authority that although the timing of assembling the land within the Orders has been drawn out by the use of the Supplementary Orders, it is clear that the objectors to the Orders have been afforded the opportunity to present their case and have the issues they raised considered. Statutory notifications have been given in accordance with legislation, and there is no evidence that any party has been prejudiced."

The letter also stated that the Minister for Children, Education and Lifelong Learning considered the request to confirm the order and that Ms Lindoe is directed by the Minister to say that after such careful consideration of the orders the Inspector's report and inquiry documents, "he agrees with the Inspector's conclusions and the reasoning employed by the Inspector in reaching them. He accepts the Inspector's recommendations and confirms the orders…".

25. These proceedings were, as I have stated, instituted on 29 August and on 26 November, as I have also stated, Mrs Boland authorised her husband to act on her behalf at the hearing. Mr Boland, in his statement, set out the objections to the compulsory purchase order and also stated that:

"Being landowners and farmers we have suffered contempt and have been ignored by the Authority on numerous occasions which I feel has contributed to my ill health and I therefore ask the Judge to the Court if he would adjourn the trial hearing of the 25th January 2011 enabling me to regain my health so I can attend his Court in defence of the CPO for my family."

26. In the second half of November and until 9 December there were settlement negotiations between the parties. The second defendant maintains that a compromise was reached which binds the claimant. The position of the claimant's then solicitors, Thomas Simon Solicitors, in a letter dated 9 December, was that there had been no agreement but there was an offer to make an agreement on conditions set out in that letter.
27. It has not been necessary to resolve the conflict on this. Mr Stephenson's written submissions relied on an exchange of emails between Mr Davies of the second defendant and Mr Hoccom of Thomas Simon Solicitors on 1 and 2 December. Mr Davies had asked the Welsh Assembly Government for its agreement to accept an offer by the claimants to withdraw the proceedings on the basis that each party would pay for its own costs and his email to Mr Hoccom dated 1 December states that he had heard from the relevant official at the Welsh Assembly Government that it was prepared to accept this. Mr Davies asked Mr Hoccom to draft a form of consent order to reflect the above and send copies to the Welsh Assembly Government and himself. Mr Hoccom replied in an email dated 2 December stating:

"Thank you for this. I have a meeting this morning that may take up most of the day, but will endeavour to get a Consent Order prepared as soon as possible. Thank you for your assistance."

There then appears to have been a silence until 9 December when, as I state, there was no consent order but an instruction that "Our client now wishes to make her offer of settlement subject to the following conditions".

28. As a result of the letter from Mrs Boland to the Administrative Court and notice given to the court on 16 December that she intended to act in person, the court letter (to which I have referred) dated 23 December as well as dealing with the position of a litigant in person dealt with the question of representation. The letter stated that Mr Boland could not represent her at the hearing because he was not a qualified barrister or a solicitor or a party to the proceedings. The letter stated that in order for him to make representations he "may wish to apply to be added as a second claimant" and referred to the form in which such an application should be made and to the fee. It also referred to an application for an adjournment because, as I have stated, Mr Boland had, in the passage I have quoted, raised this possibility. The reply from the court stated that an application for an adjournment must also be made on the appropriate form and accompanied by a fee or an application for fee remission but both applications could be included in a single form incurring only a single fee. It was as an alternative to that that the writer suggested that Mr Boland could assist Mrs Boland as a McKenzie Friend in the way, in fact, in which Mr and Mrs Boland's daughter has assisted them at the hearing today.
29. On 11 January Mr Boland applied to be joined as a second claimant but did not apply for an adjournment. His application to be joined was not opposed, or at least was not opposed provided it did not lead to an adjournment. In the light of the previous correspondence and the submissions made on behalf of the defendants in relation to the application to add Mr Boland as an additional claimant, the observations accompanying the order I made noted that a late application for an adjournment might, whatever the outcome, carry a costs implication. It was only on 19 January, last Wednesday, that Mr Boland applied for the hearing to be adjourned on the ground that he had a hospital appointment on 25 January. The application did not explain the nature of the appointment, although it no doubt related to his recent serious ill health, nor why the appointment could not be re-arranged, nor why he had not applied for an adjournment as envisaged at the same time as applying to be joined as a claimant. Moreover, the hospital's letter to him with the appointment is dated 23 December. It would thus appear that he had known of the appointment for some time before applying to be joined as a second claimant. There was no explanation of any of this and in those circumstances his application to adjourn, which was opposed by the defendants, was refused.
30. Having set out the background I now turn to a discussion of the issues in this case. The basis upon which decisions letters such as those of the Welsh Ministers in this case can be challenged by a statutory application to quash is well established in previous court decisions both in the Administrative Court, the Court of Appeal and the House of Lords. The principles can be summarised in the way that Forbes J did in Seven Properties v Secretary of State [1981] 42 P & CR 26 which is set out at paragraph 22 of the skeleton argument of Mr Lewis on behalf of the Welsh Ministers. First, the Welsh Ministers must not act perversely. This means they must not act in a way which the court considers no reasonable person in the position of the Welsh Ministers properly directing himself on the relevant material could have done and reached the conclusion that he did reach. If the court considers that the decision-maker has acted this way, the decision may be overturned.
31. This is a reformulation of the principle originally enshrined in the judgment of Lord Greene MR in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 and often known as "Wednesbury-unreasonableness". More recently, Lord Diplock, in the case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, reformulated the description of this head of review as "irrationality". That phrase has the advantage of bringing out the fact that what is required is more than a disagreement on the merits and has to be something so outrageous that it defies common sense and that no rational person could have reached it. But that phrase carries the disadvantage that a finding that a public authority has acted irrationally has sometimes been thought to carry connotations which, with a human being, would relate to mental stability. The courts have made it clear that irrationality has nothing to do with that but it is important to bring out the fact that a test of perversity, Wednesbury-unreasonableness or irrationality sets a high threshold for a claimant.
32. Secondly, Forbes J referred to the well-known ground upon which discretionary decisions can be challenged. The Secretary of State – or, in the present context, the Welsh Ministers – must not take into account irrelevant material or fail to take into account material which is relevant and must not act for an unlawful purpose.
33. Thirdly, in exercising their powers the Welsh Ministers must not depart from the principles of natural justice, that is, they must not be biased in the sense of having a disqualifying personal interest or otherwise being in a position in which a reasonable observer objectively would consider that they cannot fairly adjudicate on the proposal, and also that they must afford the person subject to their decision a fair opportunity to put his or her case. In the context of compulsory purchase orders the latter is provided by the process of inquiry by an inspector. As far as the first limb of the rule is concerned in this case it is the second defendant whose project this is but it is the first defendant – a different organ of government – which confirms or does not confirm it.
34. The Welsh Ministers must give reasons for their decisions and those reasons must be proper and adequate and deal with the substantial points that have been raised.
35. The final head upon which a decision may be challenged is where, if the Welsh Ministers differ from the Inspector on a finding of fact or take into account any new evidence or issue of fact not canvassed in the inquiry, they must notify the parties if that involved disagreeing with the Inspector's recommendation and give the parties the opportunity of making further representations. Failure to do that can lead to a successful challenge. In the present case the decision to re-open the inquiry followed such a disagreement.
36. Broadly there are two grounds upon which the Welsh Ministers' decision is challenged. I have summarised the claimants' objections to the proposal and their objections to the proposal effectively are reiterated in the grounds which they bring in their claim form. It is stated that:

"The CPOs that relate to the CRS have been confirmed pursuant to recommendations of an Inspector and decisions made by or on behalf of the Minister that were unreasonable having regard in particular to the severe road and construction site safety implications and the potential availability of a more suitable and safer location, with potential for further expansion of the school."

37. The claim form also states that the notice given by the Council of the Welsh Ministers' decision to confirm the orders as required by Section 15 of the 1981 Act was ineffective because it related to more than one compulsory purchase order; its title referred to three orders but the body of the notice referred to four; the title did not refer to all the enactments on which the orders were purportedly based; it misnamed one or more of the orders; it failed to annex the map or maps to which it refers as part of the description of the land; it is not entirely in the prescribed form and is confusing; it has not been signed; and it may not have been published. It is clear from the evidence put before me on behalf of the second defendant that the last of these is unfounded. However, in short the ground of challenge is that the notice given was defective.
38. As far as the unreasonableness ground is concerned, Mr Boland in his oral submissions made the following points. The fragmented way in which the compulsory purchase orders were made was unsatisfactory and unlawful. Mr Stephenson, who appeared on behalf of the Council at the inquiry and appears today, asked the Inspector to amend bits and pieces of the orders and the Inspector at the first inquiry pointed out the mistakes and the need for adjustments.
39. Secondly, Mr Boland elaborated on the safety aspects which he considers make the decision to confirm these orders unreasonable. The track is a steep one; there is no possibility of an adequate pathway on both sides; there have been many accidents on the road; and there will be a conflict between the needs of agricultural traffic at the entrance and the needs of the school children. He also submitted that insufficient account was taken of the pollution that was consequent on the heavy traffic involving vehicles changing gear as they went up a steep narrow road and the failure to consider an alternative road although one was offered. He also relied on the existence of the alternative site and submitted that with regard to the objection that the use of that alternative site. He fell outside the policies in the unified development plan, so does the use in respect of the land which is the subject of the compulsory purchase orders. As far as the drainage aspect is concerned, he submitted that the conclusion was unreasonable because first the defendants had come up with a system which they could not in the light of the Waterboard case deliver. Secondly, because the proposal to run the water off into the claimant's potato field would produce floods and the second defendant had unreasonably refused to consider having the run-off either to a culvert under the drive or to a brook further away because of the costs involved.
40. As to the perversity, Wednesbury-unreasonableness or irrationality ground, in the light of the content of the Inspector's reports and the Welsh Ministers' letter to which I have referred, this ground is utterly unarguable. It is clear that Mr and Mrs Boland have strong objections to the use of the land which is the subject of the compulsory purchase orders and to the way that they and the farm that they own and have run for many years has been treated by the planning authorities. However, Mr Boland's submissions on their behalf, although made fluently, engaged with the merits of the proposal and largely consisted of appeals to what Mr Boland described as "common sense". This was notwithstanding such input as he had had from lawyers at various times in the early stages of this dispute and being reminded of the wording of Section 23 by me at the outset of his submissions. As Mr Lewis observed, the way the claim was advanced was based on a misunderstanding or a mistaken view of the review function of the court. This court is not here to make decisions on matter entrusted to elected bodies by Parliament. This court is here only to rule on the legality of such decisions. That is why the grounds of review do not include a difference as to the merits.
41. As far as the Inspector's report and the Welsh Ministers' letter is concerned, the Inspector gave detailed reasons in both the decisions as to why the site preferred by the claimants was not a viable alternative. Attempts to obtain planning permission for a replacement school on that site had been unsuccessful, including a lack of success on appeal to an independent inspector. Although the Inspector accepted that the alternative site had certain advantages, he stated that those had to be considered in the context of there being no prospect of a permission being granted on the alternative site in breach of the UDP Green Wedge policies.
42. Secondly, in recommending the orders to purchase the site be confirmed, the Inspector concluded that the proposed road improvements at the site would provide reasonable visibility in both directions and benefit and possibly reduce traffic delays and conflicts at the junction. There may be legitimate differences of view as to the planning merits of this decision but Parliament has entrusted that decision to the Welsh Ministers acting through an independent inspector after an inquiry which is a quasi-judicial process at which all the objections can be considered.
43. This is a long way from the example given by Lord Greene MR in Associated Provincial Picture Houses v Wednesbury Corporation of what might amount to a perverse, Wednesbury-unreasonable or irrational decision, that is: when faced with the need to save money by cutting numbers of staff deciding to sack all red-haired members of staff.
44. As far as the statement of 26 November is concerned, this in part contains evidence that post-dates the inquiry. Much of the contents of that statement and of the skeleton synopsis is irrelevant. This is because, for example, it deals with the position of the claimants as "hands on registered farmers", acts of vandalism against the farm, and the inability of the Council to control the vandals. These are undoubtedly matters of concern to the claimant. The court understands that, but they are not relevant to the present proceedings.
45. The rest of the materials in the statement of 26 November are largely a re-statement of the arguments that were rejected by the Inspector. They are an attempt to re-open the merits of an issue which was for the judgment of the Inspector and the Welsh Ministers.
46. I have anxiously scrutinised the grounds because they are advanced today by an unqualified claimant on behalf of himself and his wife. I do not know whether there was assistance in framing them as there had been assistance in framing them in the Part 8 claim form. That form was signed by a solicitor from Thomas Simon. The Wednesbury-unreasonableness ground is, as I have stated, utterly without merit.
47. I turn to the second ground; the defects in the notice. By Section 23 the challenge must be to the validity of an order. As the notices are requirements they are potentially within Section 23(2), but Section 24 only gives power to quash the order. In any event, the complaints made about the notices are unfounded. There is no requirement that there be one notice for a single compulsory purchase order or a prohibition on having a single notice for several compulsory purchase orders. The minor drafting errors in the notices are unfortunate but they do not impact on this validity. It is important to note that, even if there were defects in the notices, the claimants were able to make objections, they did make objections, and subsequently participated in two inquiries. They have not shown that the authorisation granted is one that is not empowered to be granted, ie they have not satisfied the requirements of Section 24(2)(a) permitting the court to quash the order. They have also not satisfied the requirements of Section 24(2)(b) of the order which requires their interests to have been substantially prejudiced by any requirement not having been complied with.
48. Finally, Mr Boland invited me, if I did not quash the order, to adjourn the matter to enable an environmental study (see page three of his skeleton synopsis). He asked me to delay making a decision until the Environmental Health Agency has had the opportunity to investigate all matters as these young and future generation children are most important. Insofar as this was a request for me to make some sort of conditional order, Section 24(2) gives me no power to do that, only to quash or not to quash. While I would have had power for good cause to adjourn a hearing and thus defer making a decision, I do not consider that the validity of the order would be affected by any environmental study. The question of the pollution concerns was a matter of dispute at the hearing. Mr Boland states that he raised all of this and there are, as in the passage from which I have quoted, references to smoke and fumes etc in the Inspector's report. Mr Lewis submitted that no evidence was led by the claimant at the inquiry about pollution and that the issue was a matter of planning and development control, not a compulsory purchase issue, and that it was one which should have been canvassed at the UDP inquiry which established in principle that this site was an acceptable site for the re-development of a school. I do not consider that this factor is one which should lead to an adjournment because the outcome could not affect the legality of the orders, given the way the matter had been handled at the inquiry and before the Welsh Ministers. In any event, the emphasis on this point was introduced into this case at far too late a stage.
49. For these reasons, notwithstanding Mr Boland's fluent and deep-felt advocacy, this application is dismissed.

MR STEPHENSON: I wonder if your Lordship would permit me just to mention two points. Towards the beginning of your Lordship's judgment your Lordship mentioned that Mr Wylde, after the inquiry, confirmed the two CPOs whereas in fact of course Mr Wylde simply recommended confirmation of them in part. The second point towards the end of your Lordship's judgment, dealing with the alleged defects in the notice, your Lordship said even if there were defects in the notices Mr and Mrs Boland did make objections and did participate in two inquiries. Of course the publication of notices came after the inquiry and I have no doubt that what your Lordship meant to say was something along the lines of "even if there were defects in the notices ---

MR JUSTICE BEATSON: He did not suffer prejudice.

MR STEPHENSON: That is right. They did know of the orders and they were able to challenge them prior to this hearing.

MR JUSTICE BEATSON: I thought that I had said that.

MR STEPHENSON: That was just to clarify that, my Lord; I am sorry about that.

MR JUSTICE BEATSON: That is quite all right. Mr Boland, I am sorry that I have not been able to give you what you wanted.

MR BOLAND: That is all right, Sir. Thank you for your indulgence on this matter. I realise your hands are tied.

MR JUSTICE BEATSON: You say that, Mr Boland, but let me just say this to you. My hands may be tied by the law because it would be a terrible thing in this country if a judge could do what he or she felt like doing, so one does what the law says and the law is very clear.

MR BOLAND: I think I am entitled to sum the situation up. Obviously I am disappointed but I do thank you for your time and your patience and your understanding of it. It is something we feel very strongly about and it is just as well that we have the opportunity of taking this to the European Court. That is no reflection on you. Whatever it costs and whatever we have to do for the sake of ---

MR JUSTICE BEATSON: If you are going to take it elsewhere I am going to give you a piece of advice. I think you should not act as your own lawyer.

MR BOLAND: The thing is, we are farming people.

MR JUSTICE BEATSON: If I had a piece of land and I was a lawyer I would not try and farm it. As the letter from the office said, it is for you to decide how you do it.

MR BOLAND: You have to bear in mind that we stand by farming people and have had this imposition put on us and all we have done is fought for our rights plus the rights of those children who ---

MR JUSTICE BEATSON: I understand that but I do not really want to go into all of that.

MR BOLAND: Thank you once again.

MR JUSTICE BEATSON: Mr Lewis?

MR LEWIS: There is an application for costs on behalf of the Welsh Ministers. Can I check that your Lordship has a copy of the schedule? A copy has been served on Mr Boland. There is an additional schedule of work at the back of that document.

MR JUSTICE BEATSON: Yes, I have that.

MR LEWIS: Clearly in the light of the finding that the ground of challenge, certainly so far as it related to what the Welsh Ministers needed to address, was in my Lord's words "utterly without merit", I say the costs decision should follow the Rules.

MR STEPHENSON: My Lord, I also have an application for costs. Your Lordship has my schedule; Mr Boland has had this and made mention of it.

MR JUSTICE BEATSON: I have not done a statutory challenge like this for some time; what is the position about costs?

MR STEPHENSON: This is not a judicial review so we as second defendants are not simply interested parties. The orders were our orders confirmed by the Welsh Ministers in this particular case but we are second defendants, named as such, and therefore the usual rule about two sets of costs in judicial review does not apply to ordinary civil litigation under statutory powers. The second thing is that of course the Welsh Ministers quite properly left half of the challenge to be dealt with by us and we did, and there is a certain cross-fertilisation, as it were, but only a minor amount of cross-fertilisation; we dealt with half of this appeal substantively.

MR JUSTICE BEATSON: You dealt with one ground; there were two grounds.

MR STEPHENSON: That is what I meant, half. Whether it is precisely half I do not know but there it is.

MR JUSTICE BEATSON: If we asked my learned clerk to measure out how much time we have spent on the one and the other, but your point is made.

MR STEPHENSON: Thank you.

MR BOLAND: I would ask you, Sir, to consider a deferment of costs due to my emotions and my feeling about this. We are going to be on this case and certainly, I will be very honest with you, we have looked at the costs and they are excessive. We would like the court to judge the value, the true value; I cannot remember what the words are exactly.

MR JUSTICE BEATSON: Can I try and help you. There are several things here. First of all there is the issue of liability to pay costs in principle; then there is the amount of the costs; then there is how we determine the amount of the costs. For a one-day case like this the standard practice is for the parties to submit statements of cost like this and for the court summarily to assess it. Summary assessment is a crude and rough process. The judge looks at it; he looks at it and compares it with other cases, but it is rough. There is a method called a detailed assessment of costs. The trouble with a detailed assessment of costs is that a cost judge does it and it costs money. In principle your opponents are entitled to costs. As far as the quantum of the costs is concerned, because you are a litigant in person I am going to give you seven days to make written representations about the amount. That will enable you to take such advice as you can. You will send any representations to me at the court, copying it to the defendants. They will have another seven days to respond and I will then determine the amount. That is my suggestion to you, but if you wish to insist on a detailed assessment then you can go for that but I can tell you it will cost a lot of money and you will end up paying for the costs of the detailed assessment.

MR BOLAND: We accept the point you made in us coming back to you within seven days and the seven days following. I have to finally say that we are here purely on defence and principle of safety and I think that has to be a consideration by the court. Thank you very much.

MR JUSTICE BEATSON: I have understood that. Mr Lewis, can you draw up an order and send it to my clerk? The provision is that the application is dismissed; the first and second defendants are to have their costs. The claimant is given seven days from today to make written submissions about the amount of the costs in these orders and then you and Mr Stephenson will have a further seven days to respond to those and I will then make a determination on the paper and an order will go out and be sent to you in the ordinary way.

MR LEWIS: I am grateful, my Lord.

MR JUSTICE BEATSON: Thank you.