Traders win Court of Appeal battle over Shepherd's Bush Market regeneration

The Court of Appeal has upheld a challenge brought by traders against a High Court ruling that the decision by former Communities Secretary Eric Pickles to confirm a compulsory purchase order for Shepherd’s Bush Market was lawful.

In confirming the CPO made by Hammersmith & Fulham Council for the redevelopment, Pickles had gone against the recommendation of the independent planning inspector.

The CPO was intended to facilitate the regeneration of the market, which has been going since 1914 and was said by the Court of Appeal to be “in need of serious upgrading”.

The inspector, Ava Wood, had concluded that the proposed development did not provide sufficient safeguards for the traders.

A legal challenge to Pickles’ decision – led by James Horada, chair of the Shepherd’s Bush Market Tenants’ Association – was dismissed by Mr Justice Dove in the High Court.

Upholding the CPO, Mr Justice Dove rejected the clamants’ arguments that the Secretary of State had erred in law in concluding (contrary to the inspector) that sufficient safeguards were in place to ensure that the regenerated market would continue to contain a diverse range of independent retailers.

In Horada & Ors v Secretary of State for Communities and Local Government & Ors [2016] EWCA Civ 169 the Court of Appeal last week overturned Mr Justice Dove’s ruling on the basis that Pickles had failed to give reasons for his decision.

Lord Justice Lewison said: “In short, although it is clear that the Secretary of State disagreed with the inspector's view that the guarantees and safeguards were inadequate he does not explain why he came to that conclusion. I do not consider that requiring a fuller explanation of his reasoning either amounts to requiring reasons for reasons, or that it requires a paragraph by paragraph rebuttal of the inspector's views.

“But it does require the Secretary of State to explain why he disagreed with the inspector, beyond merely stating his conclusion that he did. The two critical sentences in the decision letter are, in my judgment, little more than ‘bald assertions’. The Secretary of State may have had perfectly good reasons for concluding that the guarantees and safeguards were adequate. The problem is that we do not know what they were. In those circumstances I consider that the traders have been substantially prejudiced by a failure to comply with a relevant requirement.”

Lord Thomas, the Lord Chief Justice, also made “a short observation to underline how important it is that reasons for decisions should be explained in terms the citizen affected can understand”.

He said: “Although the citizen can be taken to know the factual background and in this sense be well informed, the citizen affected by a decision is entitled to an explanation of the reasons in plain English which the citizen can understand.

“It is very easy for any expert, whether the person be a lawyer or other professional, to speak in terms that are familiar to other experts in the field. That is, however, not a permissible approach when explaining the reasons for a decision to others, however well informed those others may be in the sense I have described. Experts must therefore guard against speaking in terms which can only be understood through the intermediary of a lawyer or other professional.”

In this case, the Lord Chief Justice said, it was particularly important that a proper and easy to understand explanation be given by the Secretary of State for rejecting the Inspector's recommendation.

“The livelihoods of the traders are put at risk by the proposed development. The Inspector has given her reasons on a matter of vital concern to the traders in a way that could readily be understood by them. The Secretary of State must explain his decision in the same readily understandable way,” Lord Thomas said.

Lord Justice Lewison said it had been agreed at the hearing of the appeal that the question of the appropriate form of relief would be decided later.

Richard Stein, partner from the Human Rights Department at Leigh Day solicitors, said: “We are delighted that the Court of Appeal judges have agreed with the market traders and confirmed the concerns put forward by the planning inspector who came to the clear conclusion, following a public inquiry into the development, that the proposals would not protect the diversity represented by the current traders and shopkeepers and therefore recommended the CPO be rejected.

“Despite this Mr Pickles chose to ignore this recommendation, apparently without any reason at all, and gave it the go ahead. We have maintained all along that this decision was unlawful and unfair for both the market traders and the residents of Hammersmith & Fulham and we are therefore extremely pleased with this decision.”