Challenge to CPO dismissed

The High Court has dismissed a statutory challenge to a compulsory purchase order. George Mackenzie looks at the judge’s approach.

In Kuznetsov and Braginzuk LLC v Secretary of State for CLG and Camden LBC [2017] EWHC 2713 (Admin) Mr Justice Dove has dismissed three joined claims seeking to challenge the Secretary of State’s confirmation of the London Borough of Camden (Bacton Low Rise) Compulsory Purchase Order 2015 and the acquiring authority’s making of a General Vesting Declaration pursuant to the CPO. The CPO enabled the acquiring authority, Camden LBC, to compulsorily acquire the interests in one flat on a 1960s estate which had been earmarked for regeneration since 2011.

By the time that the CPO was confirmed Camden had already acquired all the interests in the other 98 flats in the estate and had commenced the wider regeneration of the area which includes the Estate as well as surrounding land. The first claimant was the leaseholder of the flat and the second claimant alleged that they had a commercial tenancy in respect of it. The Secretary of State had confirmed the CPO following a public inquiry held in September 2016.

The claims (two s. 23 statutory challenges in respect of the CPO and one judicial review in respect of the GVD) were rejected on all grounds. Of particular interest is the court’s approach to the following matters:

• Procedural fairness. The first claimant made a number of allegations of procedural unfairness flowing from the Inspector’s conduct of the Inquiry including restricting the admission of late evidence, failing to notify the claimants of the inquiry dates, refusing an application for disclosure, refusing an application to adjourn the inquiry, and restricting the length of time for cross-examination. All of the allegations were rejected.
• Bias and apparent bias. The first claimant alleged that the Inspector’s conduct of the inquiry demonstrated that the Inspector was biased against him and relied on the Inspector’s private e-mails which described the claimant’s cross-examination as “time wasting” and “laughable” and said that his participation in the Inquiry was “very unfortunate”. The court found that these matters, when seen in context, did not amount to bias.
• Failure to subject the CPO to SPP. The Court rejected the proposition that the CPO should have been subject to Special Parliamentary Procedure on the basis that it authorised the compulsory purchase of “open space” within s. 19 of ALA 1981.
• Unlawful assessment of the benefit of the CPO. The Court rejected the proposition that the Inspector and the Secretary of State were disabled from having regard to the benefits that would flow from the wider regeneration scheme that the CPO would enable and were only entitled to have regard to the benefit of the compulsory acquisition of the Order Land itself, namely the single flat.
• Failure to serve statutory notices regarding the CPO. The Court accepted that there had been several procedural irregularities preceding the confirmation of the CPO (i.e. the failure to have served notices of making the CPO on the second claimant’s registered address in Moscow and failing to publish notices in a local newspaper for 2 consecutive weeks) but found that they had not caused substantial prejudice and did not therefore justify any relief.

The case is also of interest because in a separate judgment on 7 November 2017 (which will be made available here when it is published) Mr Justice Dove held that once the High Court has determined a s. 23 claim, it no longer has the power to make an order under s. 24(1) of ALA 1981 suspending the operation of the CPO by interim order. Although the High Court can make such an order before it has made a determination on a s. 23 application, once such a determination has been made, a s. 24(1) order can only be made by the Court of Appeal pursuant to s. 15(3) of the Senior Courts Act 1981.

George Mackenzie is a barrister at Francis Taylor Building. He acted for the successful defendant, the Secretary of State for Communities and Local Government, and was instructed by the Government Legal Department.