High Court rules against council over bid to compulsorily acquire village green

A local authority’s attempt to compulsorily acquire a village green has failed after a High Court judge last week ruled that the council could not rely on the powers it sought to use for the purchase.

The case of Barnsley Metropolitan Borough Council, R (on the application of) v Secretary of State for Communities and Local Government & Ors [2012] EWHC 1366 involved land in Cudworth, Barnsley that was registered within the Commons Act 2006 on 13 January 2009 after a public inquiry.

Local residents subsequently complained about unlawful incursions on and misuse of the land.

Barnsley sought to invoke the powers conferred by s. 121 of the Local Government Act 1972 and s. 2 of the Local Government Act 2000 and make a compulsory purchase order (CPO) of the land.

In the council’s view, compulsory acquisition would enable it to secure the proper and effective control of the land and was needed to ensure its proper maintenance and continued availability for use as a public amenity area.

However, the Secretary of State for Communities and Local Government took the view that the two statutory provisions, taken together, did not provide an enabling power for the compulsory acquisition of the land and therefore declined to confirm the CPO, which he regarded as invalid.

The local authority challenged the Secretary of State’s decision through judicial review.

In the High Court Mr Justice Foskett said the case raised a “short and not entirely easy point” concerning the powers of a local authority compulsorily to acquire land within its area.

“The extent to which the (obviously) wide powers conferred upon local authorities in the 2000 Act has impacted on the normally restrictive approach to the use of compulsory purchase powers seems, on the material put before me, to be relatively uncharted territory,” he added.

The judge dismissed the council’s claim. He said: “My inclination is to the view (supported by the court's normally strict view of the use of compulsory purchase powers…) that the 2000 Act was passed with a clear appreciation that sections 120 and 121 of the 1972 Act remained in force with full effect and that section 2 of the 2000 Act was not intended to alter the situation in which land could not be acquired compulsorily by a local authority simply for the ‘benefit, improvement or development’ of the local area. That can be achieved only by agreement.”

Mr Justice Foskett concluded that the Secretary of State was right to say that the CPO in this case would not be justified on the basis of a combined use of s. 2 and s. 121. He added that s. 121 could not apply because of the prohibition of its use in the circumstances by subsection 2(a).

“I am fortified in this conclusion by the fact that there is no express reference in any of the guidance relating to the 2000 Act to the use of that Act in the kind of way sought to be used in this case,” he said.

The judge continued: “I recognise that it could well be said that this was just the sort of imaginative use of the new powers that Parliament had in mind. However, depriving a landowner of land that belongs to him, no matter how popular it may be with other local people, is not something the law permits lightly and I would need to be persuaded that it was truly Parliament's intention that something like this could be achieved before characterising the Secretary of State's view in this case as wrong in law.”

Barnsley is understood to have decided not to seek to appeal.

Philip Hoult