Sole v Secretary of State for Trade and Industry & Ors  EWHC 1527 (Admin) (30 May 2007)
This recent decision of the England and Wales High Court concerned an application for judicial review of a compulsory acquisition order (‘CPO’) made by the London Development Authority, and confirmed by the Secretary of State for Trade and Industry, for the purpose of development for the London Olympics and a further development, known as The Legacy.
Background to the Application
Planning permissions were granted in October 2004 for the proposed Olympic and Legacy developments which included the condition that the development would not be commenced until a residential relocation strategy had been approved by local planning authorities. However, while a draft relocation strategy was submitted to the planning authorities, as a result of the revision of the Olympic and Legacy Master Plans, the London Development Agency decided that it would submit a fresh application for planning permission and so the draft relocation strategy was not approved.
Subsequently, a CPO inquiry, to which the claimant was an objector, was undertaken by an Investigator of the Secretary of State. Residents raised a wide range of issues, including in relation to relocation, and claimed that the CPO should not be confirmed due to the London Development Authority's failure to provide an effective relocation strategy. The Inspector's report rejected the residents' objections and recommended that the CPO be confirmed. The Secretary of State accepted the Inspector's conclusions and recommendation, adopting the reasons given by the Inspector.
The Claimant's Case
The claim was brought under s 23 of the Acquisition of Land Act 1981 (UK) which provides that any person aggrieved by a CPO may apply to the High Court to question its validity on the ground that authorisation of the CPO was not empowered by the Act or that a relevant requirement was not complied with in relation to the order. The Claimant sought to quash the CPO insofar as it related to the Clays Lane Estate, where the Claimant lived, so that the Secretary of State might consider using his power under s 13C of the Act to defer confirmation of the CPO until an appropriate relocation strategy had been approved. The Claimant raised two main grounds of challenge:
- that the Secretary of State, through his Inspector, misdirected himself in relation to the 2004 planning permission; and
- that he erred in law in not reaching a proportionate decision in relation to the interference with the
Claimant's right to private life, family, home and correspondence provided by art 8(1) of the European Convention on Human Rights as incorporated by the Human Rights Act 1998.
The Court found that the first ground of challenge was unsubstantiated, as the Inspector had understood and given proper consideration to the 2004 planning permission.
In respect of the second ground, the Court gave substantial consideration to whether the Inspector's and the Secretary of State's decision making processes were justified and proportionate, in light of the certain interference with the claimant's art 8(1) rights.
Article 8(2) of the ECHR provides that an interference with the right to private life by a public authority is justified and proportionate if that interference is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others.
The Court summarised the Secretary of State's conclusions (as reached by the Inspector) that, in light of the totality of the evidence, the clear case for regeneration, the widespread public benefits and the economic benefits to the country that would flow, together with the absence of any alternative means of achieving those benefits, the London Development Authority's proposals were a proportionate interference with the art 8 rights of the affected residents.
The Court itself then concluded that while the interference with the claimant's art 8 rights was substantial, the importance of the Olympics and Legacy project, its economic and other benefits, and the urgency of its timing, made the case for compulsory acquisition overwhelming and the interference with the claimant's art 8 rights justified and proportionate.
Implications for the Victorian Charter
In a Victorian context, this decision has relevance to environment and planning law, and also to the scope and application of s 7 of the Charter concerning permissible limitations on human rights, and s 13 concerning the right to privacy, family and the home.
The decision is available at http://www.bailii.org/ew/cases/EWHC/Admin/2007/1527.html. Rachel Nicolson is a Senior Associate in the Allens Arthur Robinson Corporate Responsibility Group