Case No: CO/6009/04
Neutral Citation Number:  EWHC 890 (Admin)
IN THE HIGH COURT OF JUSTICE
Paul Brown (instructed by Richard Buxton, Solicitors) for the Claimant
Tim Mould (instructed by The Treasury Solicitor) for the First Defendant
Ian Dove QC and Satnam Choongh (instructed by Stoke on Trent City Council)
As Approved by the Court
Mr Justice Forbes:
1. Introduction. The Claimant, Mr Norris, is a resident of Tunstall, which is within the area of the Second Defendant, Stoke-on-Trent City Council (“the Council”). Mr Norris is opposed to plans for the construction of the Tunstall Northern By-pass (“the by-pass”), primarily on the ground of consequential loss of public open space. However, the Council has promoted the requisite compulsory purchase order for the by-pass that it proposes to construct. The relevant compulsory purchase order for the purposes of these proceedings is the City of Stoke-on-Trent Tunstall Northern By-pass Local Government Act Compulsory Purchase Order 1997 (“the Order”).
2. The Order, which was made by the Council in September 1997, proposed the acquisition of four areas of land, referred to as plots 6, 7, 8 and 9, as exchange land for the public open space that will be lost as a result of the construction of the by-pass. The Order has a long and complicated history to which it will be necessary to refer in considerable detail in due course. These proceedings are concerned with Mr Norris’ challenge to the decision of the First Defendant (“the Secretary of State”) contained in a letter dated 18th October 2004 (“the October 2004 decision”) to make the Order operative.
3. The Legal Framework and the nature of these proceedings. In the original Claim Form these proceedings are described as “A Claim under section 23 of the Acquisition of Land Act 1983 (sic) and/or a judicial review”. In purely procedural terms, it is clear that this matter has always proceeded as an application under section 23 of the Acquisition of Land Act 1981 (“the 1981 Act”) and not as an application for judicial review. It is common ground that it cannot be both and, from the very outset, the Council has always made it clear that its approach to these proceedings has been solely on the basis that it is an application under section 23 of the 1981 Act (a “section 23 application”) and not an application for judicial review.
4. So far as material, section 23 of the 1981 Act provides as follows:
“Grounds for application to High Court
23.- (1) 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 … he may make an application to the High Court.
(4) An application to the High Court under this section shall be made within six weeks -
(a) in the case of a compulsory purchase order to which the Statutory Orders (Special Procedure) Act 1945 applies … from the date on which the order becomes operative under that Act.”
5. It is common ground that Mr Norris is a “person aggrieved” by the Order and that the various complaints upon which his claim is founded are ones that can properly form the basis of a section 23 application. It is also common ground that Mr Norris issued these proceedings within the time limit prescribed by section 23(4). Accordingly, having regard to the Council’s approach to Mr Norris’ claim and to the claim’s procedural history, during the course of the hearing I indicated that I proposed to treat this claim as a section 23 application and not as an application for judicial review. None of the parties raised any objection to my proposal and it was accordingly agreed that I should proceed to deal with the matter as a section 23 application.
6. Section 19(1)(a) of the 1981 Act provides that a compulsory purchase order which authorises the purchase of open space land shall be subject to special parliamentary procedure, unless the Secretary of State is satisfied that there will be given in exchange for such land other land which is not less in area and which is equally advantageous to the public, and he certifies accordingly. Section 19(2) provides that, if the Secretary of State proposes to give a certificate under s 19(1), he has to give an opportunity for interested persons to make representations and objections. He may then hold a public local inquiry if he considers it expedient to do so and, after considering the representations, the objections and his inspector’s report, he may give the certificate.
7. The Factual Background. Once the Council published the Order in 1997, a number of objections to it were duly made. Mr Norris was one of the objectors (as was a Mr Edward: see below). As a result, a public local inquiry (“the Inquiry”), commencing on 28th April 1999, was held by an Inspector (“the Inspector”) duly appointed by the Secretary of State for the Environment, Transport and the Regions (then the relevant Secretary of State: hereafter I shall refer to the Secretary of State without distinguishing between the First Defendant and his predecessor). The Inspector concluded that the amount of open space exchange land contained in the order was adequate, but he also considered that it was not equally advantageous to the public. The Inspector therefore recommended that the Order should be confirmed, but that a certificate under section 19(1)(a) of the 1981 Act should not be issued.
8. It is necessary to describe in outline the area through which the by-pass is to run. The proposed line of the by-pass runs east/west and bisects a continuous sward of public open space running north/south. That area of open space is known as the Greenway.
9. The Greenway is used by the public for informal recreational purposes. One of the areas of exchange land (plot 6) is a long strip of land about 27 metres wide running north/south immediately adjoining and parallel to the western side of the Greenway, extending almost as far south as a proposed roundabout at the point where the by-pass will bisect the Greenway. Another area of exchange land (plot 7) is located to the east of the Greenway and is separated from it by existing housing, save for a connection by an existing strip of open space running adjacent to plot 7 through to the Greenway.
10. Plots 8 and 9 are located immediately to the south of the by-pass, west of the Greenway. An area known as “the marl hole” lies just north of the line of the by-pass, west of the Greenway and southwest of the southern end of plot 6. The area west of the Greenway is open land, known as the Clanway Farm site. Intruding into the Clanway farm site’s western boundary is some housing in the area of Sandyford. Clanway Farm site is a site where there has been previous mineral extraction and tipping, and where significant reclamation works will be required before any development of the site can take place.
11. Outline planning permission for a mainly housing-related development of the Clanway Farm site (“the Clanway Farm development”), consisting of some 500 houses, was granted to Redland Property Limited, (Redland) on 27 April 1998, the day before the Inquiry began. The outline planning permission was subject to an agreement made pursuant to section 106 of the Town and Country Planning Act 1990 (as amended: the “1990 Act”) between Redland and the Council.
12. The Clanway Farm development is dependant on the by-pass being constructed. Included amongst the plans submitted with the outline planning application was a plan showing a proposed area of 5.4 hectares of public open space lying immediately to the east of, and slightly wrapped around, the Sandyford housing area. It was proposed that the open area lying between the eastern boundary of the 5.4 hectares and the western boundary of plot 6 should form part of the development permitted by the outline permission so that there would be housing between plot 6 and the area of 5.4 hectares of open space to the west.
13. The Inspector was, of course, restricted to consideration of the adequacy of the open space exchange land proposed in the Order, namely plots 6, 7, 8 and 9. In his report, dated 8 August 1998, the Inspector concluded at paragraph 146 that the quantity of exchange land proposed would not be less in area than the order public open space land which would be lost.
14. However, in paragraph 149 of his report the Inspector stated:
"The advantage of the order land, in itself, for the purposes of public recreation appears to me to lie in the fact that it consists of maturing trees interspersed with glades and threaded with footpaths, generally on the north and east flanks of the Clanway Stadium, together with an intermediate length of the pleasantly landscaped, and also maturing, Greenway and Scotia valley including a substantial pond. I accept the view of the Council that the order land is only a small part of the total of public open space in this vicinity, but its shape and its position give it a disproportionately large influence in relation to the use of the much larger remainder. The order land, in my view, forms a central node in this substantial and continuous area of public open space, enabling convenient, unpolluted and safe enjoyment of its various parts and resources by a variety of routes and in a variety of ways depending upon such things as inclination, personal mobility and the weather. Without this order land, movement on foot from one part of the remaining public open space to another would be constrained, for people with children, dogs, impaired mobility or other disability, by the need to cross one or more roads or to undertake the horizontal and, for some routes vertical diversion necessary for use of the underpass, and the severed land north west of the Greenway roundabout would apparently serve little more than a visual function. There is consequently at present a synergistic effect which arises from the continuity of the public open space due to the presence of the order land, without which the remaining public open space would become a series of separated pockets. Because of this continuity the various parts of the public open space land which would remain are presently enabled to interact to produce a greater public advantage for recreation than would be possible if they were separate. The bestowing of this synergistic benefit, through which the connected whole is made more valuable than the sum of its parts considered separately, appears to me to form part of the advantage that the order land possesses. This advantage is separate from, and additional to, the recreational usefulness of the order land considered by itself, and in my view it is very substantial. As regards future changes, I am not aware of any probable future circumstances that would detract from the advantage of the order land."
15. The Inspector came back to the “synergy effect” of the continuity of the existing public open space in paragraphs 155 and 156 of his report, in which he stated:
"155. These calculations of discounted value above are, of course, largely subjective and should not be regarded as representing a precise numerical comparison. It seems to me that the proper conclusion to draw from them is that in terms of advantage, and disregarding the synergy effect, the exchanged land shows no balance of advantage over the order land. However, I consider that the synergy effect should not be disregarded, and taking into account from this point of view the spatial and functional continuity provided by the order land, and having due regard to the prospects of future improvement of the exchange land, I am far from satisfied that the exchange land would provide, at the time of exchange, overall equality of advantage compared with the lost order land. I therefore conclude that the proposed Certificate under s 19(1)(a) of the Acquisition of Land Act 1981 should not be issued.
156. In order for the Council to overcome this deficiency I consider that it would be necessary for it both to add substantially to the exchange land and to present a detailed and satisfactory scheme for landscaping it. There is no obvious best location for such additional land, but as the most useful approach would in my view include building up the mass of uninterrupted public open space the area of the marl hole to the west of the southern end of plot 6 might be worth consideration."
16. It was for those reasons that, as already indicated, the Inspector recommended that the order should be confirmed but that a certificate under s 19 of the 1981 Act should not be issued.
17. Following receipt of the Inspector’s report, the Secretary of State, by letter dated 1st December 1998, invited the Council’s comments on the Inspector’s conclusion relating to the section 19 certificate. In its reply of 18th December 1998, the Council referred to the extra area of 5.4 hectares of public open space that would be provided in the Clanway Farm development. The Council’s letter was copied to the objectors, who duly sent their observations on it to the Secretary of State. By letter of 13 April 1999 the Secretary of State concluded that, because of the characteristics and benefits currently offered by the order land, including the synergy effect described by the Inspector in paragraph 149 of his report, the exchange land proposed would not be equally advantageous to the public. He stated that the additional area of 5.4 hectares of open space to be provided on the Clanway Farm site referred to by the Council was not part of the exchange land before him and that he had taken no account of it. He, therefore, decided to accept the Inspector’s recommendation that the order should be confirmed but that the proposed section 19 certificate should not be issued.
18. As a result, the Order became subject to special parliamentary procedure pursuant to the Statutory Orders (Special Procedures) Act 1945 (“the 1945 Act”). That meant that the order had to be laid before Parliament and, if Petitions were presented against the Order, there had to be a hearing before a Joint Committee of the House of Commons and the House of Lords (“the Joint Committee”).
19. Some 21 Petitions of General Objection were presented against the Order, including a Petition by the claimant, and a hearing took place before a Joint Committee over a period of eight days, commencing on 29 November 1999, at which the parties had the opportunity of giving evidence and cross-examining witnesses. The Joint Committee also paid a visit to the site.
20. On 15 December 1999 the Joint Committee issued a Special Report (“the Special Report”). As stated in the report, Joint Committees on Special Procedure Orders are a rare occurrence and Special Reports are even rarer. The Joint Committee explained that it had made a Special Report to draw the attention of both Houses of Parliament to a number of issues of concern to the Joint Committee.
21. In its Special Report, the Joint Committee stated that it had decided to concentrate on the issue of exchange land and remarked that, as no amendments had been sought in a Petition of Amendment, the Joint Committee’s two amendments to the Order related to the Petitions of General Objection that had complained about the disadvantageous nature of the exchanged land. Paragraph 18 of the Special Report is in bold type and it is important. It states:
"Our main amendment relates to the Clanway Farm site, north of the proposed Greenway roundabout. In making this amendment we had in mind paras 155 and 156 of the Inspector’s report, which we endorse in their entirety."
22. In paragraph 19 of the Special Report, the Joint Committee noted that the Inspector had referred in his report to the fact that plot 6, running north/south on the immediate west of the Greenway, was proposed to be added to the Greenway as public open space exchange land. The Joint Committee then set out in extenso paragraphs 155 and 156 of the Inspector’s report, followed by the words “We agree”.
23. The Joint Committee then dealt with whether the public inquiry had been properly carried out and with the issue of access for people with disabilities. When dealing with recreational needs, the Joint Committee urged the Council to bear in mind the need for uninterrupted open space, accessible to all, including people with disabilities and pushchairs, where people can simply let off steam. Under the heading “Conclusion”, the Joint Committee stated at paragraph 32 of the Special Report:
"The amendments we have made to the City of Stoke-on-Trent Tunstall Northern By-Pass Local Government Act Compulsory Purchase Order 1997 are intended to ensure that the residents of the City of Stoke-on-Trent continue to enjoy access to adequate public open space. Provided this is so, we hope that all the parties will agree that the time and effort they have spent during this Special Parliamentary Procedure will have been worthwhile."
24. The main amendment made by the Joint Committee was to insert a new Article 3A into the Order, which provided as follows:
"This order shall come into operation on a date to be determined by the Secretary of State for Transport Environment, and the Regions not being earlier than the date on which he is satisfied that, in addition to the exchange land, not less than 5.4 hectares of the Clanway Farm site will be provided for the purpose of open space available to the public under the Open Spaces Act 1906 being land of such nature and in such location as in the opinion of the Secretary of State is suitable for that purpose."
24. Immediately following the issue of the Joint Committee’s Special Report on 15 December 1999, there followed correspondence between the Council and the Secretary of State relating to the provision of the open space land required pursuant to the Joint Committee’s amendment. That correspondence culminated in the Secretary of State’s decision letter of 23 August 2000 (“the August 2000 decision”), which was the decision impugned in proceedings brought by another objector, Mr Edward, which were decided by Mr Justice Harrison and to which I will refer in somewhat greater detail later in this judgment. However, before doing so, it is necessary to refer to the correspondence that took place between the date of the Special Report and the Secretary of State’s August 2000 decision.
25. On 16 December 1999, the day after the issue of the Special Report, the Council wrote to the Secretary of State sending him a copy of the Special Report and referring to the 5.4 hectares of land mentioned in the report as if it was the area 5.4 hectares of open space shown on the plan accompanying Redland’s outline application; The letter also stated:
"Obviously during the residential development of their land there will be additional smaller areas of public open space created, one of which could well be a connecting corridor to the Tunstall Greenway."
26. On the next day the Council issued a News Release stating that the Council had proposed the 5.4 hectares of open space to the Secretary of State back in December 1998 and that the outcome of the Parliamentary Select Committee was exactly in line with the proposals suggested by the Council in December 1998. It was therefore apparent that the Council was not considering any land as satisfying the requirement of the Joint Committee’s amendment apart from the 5.4 hectares of open space proposed in Redland’s outline planning permission.
27. On 3 December 2000 the Secretary of State wrote to the Council raising some queries about the adequacy of the section 106 agreement in the light of the Joint Committee’s amendment. He referred to the fact that the Joint Committee did not actually specify what part of the Clanway Farm site should constitute the extra 5.4 hectares of open space, although he thought that the references in the Special Report to the section 106 agreement implied that it would be the land to which the agreement related. In fact the section 106 agreement did not refer to any area of 5.4 hectares. Nevertheless, the Secretary of State was concerned whether there was any scope for speeding up the provision of open space, and he asked the Council what the practicalities were of considering a different part of the site which might be reclaimed and completed as open space more quickly. He pointed out that, in order to satisfy the requirement placed on him by the Joint Committee, there should ideally be a transfer of an area of 5.4 hectares within the Clanway Farm site to the Council very soon, with an obligation on Redland to reclaim the land and on the Council to adopt the land as open space. He also pointed out that the section 106 agreement needed to be renegotiated because the time scales were no longer appropriate.
28. On 11 February 2000 the Council replied to the Secretary of State agreeing that the section 106 agreement would have to be varied for the reasons mentioned by him. The Council then went on to state as follows:
"The 5.4 hectares has already been identified as being the area submitted to you on the plan provided and this is the area that will be so provided."
29. On 31 March 2000 the Council sent to the Secretary of State a deed of variation of the section 106 agreement and a deed of exchange relating to land on the Clanway Farm site, including the provision of the 5.4 hectares of open space. The Council stated that the location of the area of the 5.4 hectares of open space was justified, firstly because it had always been identified by Redland as such during the planning process, and had been so identified by the Council to the Secretary of State in December 1998, and secondly because it was the area that the Council had identified to the Joint Committee during the special parliamentary procedure. The Council went on to explain that, pursuant to the revised documents, the area of 5.4 hectares would be reclaimed as part of the construction of the by-pass and that it would be transferred to the Council immediately after completion of the road, with enhancement works to be carried out on the open space land when the Clanway Farm site was developed.
30. On 4 July 2000 the Secretary of State wrote to the Council identifying the suitability of the land as being the key question, involving consideration of improvement works and their timescale and the condition of the land after improvement. The Secretary of State also asked if details of a master plan, required by the planning permission, for the provision of open space facilities were available so that he could assess the suitability of the land.
31. On 17 July 2000 the Council replied making it clear that the open space land, seeded and graded, would be available on completion of the road but the provision of the enhancement works, involving the provision of a neighbourhood play and recreation area, would be dependant on the implementation of the residential development.
32. That was the extent of the correspondence between the Secretary of the State and the Council between the date of the Joint Committee’s Special Report and the Secretary of State’s purported decision on 23 August 2000 to make the Order operative (“the August 2000 decision”). During the same period there was also some correspondence between the Secretary of State and various objectors and supporters.
33. The Secretary of State issued his August 2000 decision by letter dated 23 August 2000. In paragraph 7 of that letter the Secretary of State stated that representations received from third parties since publication of the Joint Committee’s report supporting and opposing the road proposal, including some from petitioners to the Special Procedure Order, had been taken into consideration. In paragraph 8 of his decision letter the Secretary of State went on to state:
"In assessing location the Secretary of State notes that the Joint Committee did not specify which part of the Clanway Farm site should form the additional 5.4 hectares of open space, although in their report (paras 18-21) they endorsed the Inquiry Inspector’s view that the area of the marl hole on the Clanway Farm site might be worth considering. The Committee also referred to a s 106 agreement associated with a planning permission granted to Redland Properties Limited for residential development of the Clanway Farm site. The Secretary of State notes that the 5.4 hectare area identified by the City Council for the additional open space in the various agreements relating to the Clanway Farm site is in the marl hole area and is located to the north of the marl hole. He has considered whether other areas of the site closer to the Tunstall Greenway would have been preferable, but in the Secretary of State’s view this does not render the chosen location as inappropriate for public open space use. He is aware that further incidental open space is proposed in connection with the residential development which is intended to link the 5.4 hectare area with other open space. In the light of these considerations the Secretary of State concludes that the Committee’s requirements on location have been met."
32. Paragraph 11 of the August 2000 decision letter is in the following terms:
"Taking all these matters into consideration the Secretary of State concludes that the 5.4 hectare area of the Clanway Farm site put forward by the Council as the extra open space is suitably located, and that the arrangements now in place ensure that the area will be reclaimed as open space within a reasonable and defined timescale, no later than the date of completion of the Tunstall Northern Bypass, and that it will be available to the public under the Open Spaces Act 1906."
34. The Secretary of State then went on to say that he was, therefore, satisfied that the requirements placed on him by the Joint Committee’s amendment had been met, that he had decided to make the Order operative without delay and that the letter constituted his decision to that effect. In fact, the Order became operative by virtue of the publication of the public notice of the order in the London Gazette and in local newspapers on that day.
35. The Secretary of State’s August 2000 decision was then successfully challenged by another objector to the by-pass, Mr Edward, in proceedings for judicial review that were heard and decided by Harrison J.: see R (on the application of Edward) ~v~ Secretary of State for the Environment, Transport and the Regions CO/3624/2000.
36. In Mr Edward’s case it was contended (in particular) that the Secretary of State had failed to have regard to the need for synergy with existing open space, as identified by the Inspector and endorsed by the Joint Committee. That argument (inter alia) was accepted by Harrison J. who, on 27th November 2000, quashed the Secretary of State’s August 2000 decision: see paragraphs 46 and 47 of Harrison J’s judgment which are in the following terms:
“46. I entirely accept that the Joint Committee left it to the discretion of the Secretary of State to approve the suitability of the nature and location of the 5.4 hectares but, in exercising that discretion the Secretary of State had to have regard, as a material consideration, to what the Joint Committee was clearly trying to achieve in insisting on the additional 5.4 hectares of suitable open space land. The Committee were not saying that the 5.4 hectares had to be attached to plot 6 or to other open space because they were not in a position to know whether it was practicable. But it was plainly their desired objective that it should be synergistic in that way if it were possible for it to be so. In those circumstances, it behoved the Secretary of State, when taking into account that material consideration, to ascertain whether it was possible to achieve that desired objective.
47. Although the Secretary of State states in para 8 of the decision letter that he has considered whether other areas closer to the Greenway would have been preferable, there is no evidence before me whether by way of explanatory affidavit on behalf of the Secretary of State or otherwise, to show what, if any, sites were considered and what conclusions were reached about them. All the evidence contained in the correspondence suggests that it was not a matter investigated or explored in any realistic way by the Secretary of State. It is also clear from the correspondence that the Council were making it appear that the Joint Committee were proposing the 5.4 hectares which had been suggested by the Council back in December 1998, when that was plainly not so. The Council showed no willingness to consider investigating the desired objective of the Joint Committee. They were only prepared to consider investigating the 5.4 hectares proposed by Redland in the planning permission. Apart from the one query in his letter of 3 February 2000 about the practicality of considering a different part of the site which, even then, was only connected with speeding up the process, the Secretary of State seems to have gone along with the Council’s approach without any proper investigation of whether the Joint Committee’s desired objective could be achieved. In my view that was unlawful in that it constituted a failure to take into account a material consideration.”
37. The Secretary of State then reconsidered the matter and wrote to both the Council and to objectors, inviting representations on the areas that were considered to be suitable for the required extra open space. Both the Council and the objectors were then given the opportunity to comment on the other’s proposals.
38. In response to the Secretary of State’s invitation, Mr Norris wrote to the Government Office for the West Midlands (“GOWM”) on about 4th March 2001 and put forward two suggested areas of public open space that he considered would be “acceptable and more in line with the inspector’s and joint committee’s findings”. As I understand the position, Mr Norris’ suggestions can be regarded as representative of the views of other petitioners.
39. The first area suggested by Mr Norris was located to the west side of Plot 6 at its southern end and projecting westwards around and beyond the marl hole: the second area was adjacent to the western side of Plot 6 and extending along its entire length: see the plan attached to Mr Norris’ letter (B1/196). Each of areas suggested by Mr Norris formed part of the Clanway Farm site but, apart from a very small part of the north-west corner of the first area, neither of the suggested areas incorporated the 5.4 hectares that Redland had offered for use as public open space.
40. In its response to the Secretary of State’s invitation, the Council submitted two detailed options (Options A and B), under cover of its letter dated 9th March 2001. Both options involved the same 5.4 hectares that had previously been offered to and accepted by the Secretary of State in his (now quashed) August 2000 decision (i.e. the 5.4 hectares that Redland was prepared to make available for public open space).
41. Having considered the various representations made to him, the Secretary of State wrote to the parties on 17th October 2001 (“the October 2001 letter”), indicating that he accepted the Council’s proposed Option B for the provision of the 5.4 hectares of open space, stating the criteria that he had applied and setting out detailed reasons for the decision that he had reached. Having regard, in particular, to the first ground of challenge (see below), I consider that it is helpful to set out the Secretary of State’s reasoning in full, as follows:
“Criteria for Secretary of State’s Decision
48. Applying the amendments made to the Compulsory Purchase Order by the Joint Parliamentary Committee, and the guidance given on the interpretation of those amendments by the High Court in its judgment, the Secretary of State considers that the main issues on which he needs to be satisfied are as follows:
(i) that land, not being less than 5.4 hectares in area, is identified within the Clanway Farm site, to be provided for public open space (in addition to the exchange land already identified in the Local Government Act Compulsory Purchase Order, i.e. plots 6, 7, 8 and 9);
(ii) that such land is, in his opinion, of such nature and in such location within the Clanway Farm site as to be suitable for the purpose of public open space;
(iii) that a synergistic effect is achieved between the land so provided and the other open space in the vicinity by the land being beside or continuous with such other open space, if practically possible, or by some other means if not;
(iv) that such land will be provided in a legally binding way to ensure that it is made available for the public under the Open Spaces Act 1906 by the opening of the bypass.
Secretary of State’s Conclusions on Stoke-on-Trent City Council’s Options
49. The Secretary of State’s conclusion is that the Council have demonstrated that Option B Phase 1 would satisfy all the above criteria. His detailed reasons for reaching this conclusion are given below.
(i) Identification of the 5.4 Hectares of Additional Land
50. The Secretary of State notes that the land being offered under the two options submitted by the Council is situated within the Clanway Farm site and is not less than 5.4 hectares in area. He notes that the principal area proposed for open space is referred to as the “Special Earthworks Area” and is in the north-western part of the site. He also notes that the reclamation and landscaping works for both options would be split into two phases. The Phase 1 works would be undertaken in conjunction with the construction of the proposed bypass, and would be complete and available under the Open Spaces Act 1906 on completion of the bypass. The Phase 2 works would be implemented following reclamation of the site during its development for housing. The Secretary of State notes that the works proposed under Phase 2 would thus be conditional on the housing development proceeding and would not be carried out by the completion of the bypass. Consequently, in view of the Joint Committee’s amendment he gives little weight to the Phase 2 proposals. However, the Secretary of State accepts that both Phase 1 proposals would meet the Joint Committee’s minimum criteria on size and allocation with 5.4 hectares being provided under Option A and 6.02 hectares under Option B on the Clanway Farm site.
(ii) Nature, Location and Suitability of the Suggested Land for Open Space
51. From all the evidence presented on the extent of dereliction, and the existing topography of the site, the Secretary of State considers that substantial reclamation works would be needed to make any area of the Clanway Farm site suitable for public open space use.
52. The Secretary of State notes that the Council’s proposals for the Special Earthworks Area under both options are, after initial reclamation and regrading, to plant trees and shrubs to create blocks of native woodland and scrub with the balance of the area and seeded grassland/meadow to reflect the acid grassland/heathland character of the area and seeded with mixes of appropriate wildflowers. Paths would be laid out within the Area to provide circular routes within the Area itself and a variety of views including long distance views to the north. These proposals would therefore provide a facility for informal public recreational use. The Option B Phase 1 proposal would, in addition, provide landscaped corridors incorporating footpath links to the east and to the south. The main area of public open space so created would therefore not only be directly adjacent to the Sandyford housing area but would also be accessible from housing to the east and south of the Clanway Farm site via the connecting footpaths.
53. The Secretary of State accepts that subsequent remodelling works to the boundaries of the main area would be required when the housing development proceeds, and that horse-riders would not be provided for, but in his view these factors do not detract from the merits of the public open space proposed. He therefore concludes that the land being offered under Option B Phase 1 will be of such a nature and in such a location as, in his opinion, would be suitable for the purpose of public open space.
(iii) Synergy between the Extra Open Space and Existing Open Space
54. The most obvious strategy to achieve synergy with the “existing” open space would be to locate the proposed open space adjacent to plot 6 of the CPO which adjoins Tunstall Greenway. The Inspector at the 1998 Public Inquiry concluded there was no obvious best location for additional open space land but that, as the most useful approach in his view would include building up the mass of uninterrupted public open space, the area of the marl hole might be worth consideration.
55. However, the land the Council is proposing for the extra open space does not apply either approach. Instead their Option B Phase 1 proposal puts forward, as the main area of extra open space, land at the north-western sector of the site referred to as the “Special Earthworks Area”. This land does not adjoin any existing open space. It is the same as proposed by the Council at the time of the Court hearing. However, the Option B Phase 1 proposal adds additional land to it and improves its accessibility as described below. In reconsidering the matter, the Secretary of State has therefore paid particular attention to the reasonableness of allocating the Special Earthworks Area in preference to any other area of the Clanway Farm site.
56. The Secretary of State notes that the Council’s rationale for proposing the Special Earthworks Area derives from detailed site investigations carried out by Wardell Armstrong (Mining, Minerals, Engineering and Environmental Consultants) in 1995 and 1997 on behalf of the owners, Redland Properties Ltd, in relation to their planning application for residential development. The results of these investigations show that the Special Earthworks Area largely comprises a former clay pit that has been infilled to depths of up to 17 metres.
57. The reports indicate that, due to its history of tipping, the Clanway Farm site is predominantly covered with varying thicknesses of made ground. They indicate extensive deposits of colliery spoil up to 17 metres thick have been made predominantly across the north-western and central portions of the site. They indicate the made ground has been placed without consideration to future construction. The strength of the made ground material is not considered to be adequate for built development and the settlement behaviour is likely to be unpredictable. The reports indicate that where, after regrading, the thickness of made ground exceeds two metres, alternative foundation designs employing raft foundations in conjunction with ground improvement or pile foundations would be necessary. The reports indicate that reclamation costs would be highly sensitive to, amongst other factors, the depth of fill materials following site regrading and the extent of any necessary ground improvement or special foundations.
58. The Secretary of State understands that, as the Special Earthworks Area has particularly deep in fill, these factors are particularly relevant and result in this area being more expensive and less practical to redevelop for housing. Indeed the owners, Redland, maintain that these constraints mean that built development here is effectively prohibited by excessive cost. These factors indicate why it was proposed for open space use as part of the outline planning permission for residential development of the Clanway Farm site that was granted to Redland in 1998.
59. The remaining land within the site is more viable for development because it is more practical and economic to bring it up to developable standards. In particular the water-filled marl hole can be infilled under supervision to an engineering specification suitable for build development and thus reclaimed for housing. Accordingly Redland are willing to transfer the land contained within Option B Phase 1 to the Council free of charge. The land would then be reclaimed and laid out as open space as part of the contract to be let by the Council for the construction of the bypass and would become available to the public on completion of the bypass.
60. The Secretary of State notes that Redland are not willing to offer any other areas of their site for open space use. In view of the Council’s planning and regeneration policy for the site, the owners’ current planning approval for housing, and the practical and economic considerations outlined above, it would be difficult to justify applying further pressure on the owners, such as compulsory purchase powers, to seek the release of alternative or additional areas of the site for public open space. This could result in considerable outlay by the Council, such as compensation liability, and in delay or could prevent the regeneration of the site and the construction of the road scheme. This could undermine the prospects for residential development of a previously developed site in line with national planning policy guidance set out in Planning Policy Guidance Note 3: Housing (PPG3).
61. The Secretary of State accepts that for the reasons described above it is not practically possible for the extra open space land to be provided adjacent to plot 6 and the Tunstall Greenway, or in the area of the marl hole and, therefore for synergy to be achieved in this way.
62. However, the Secretary of State accepts that an adequate level of “synergy” would be achieved by the Option B Phase 1 proposal through the landscaped corridors which form an integral part of this option. The Special Earthworks Area would be adjacent to the Sandyford housing area immediately to the west, from which there would be footpath access. Along the northern edge of the Clanway Farm site there would be a landscaped corridor with a footpath linking the northern edge of the Special Earthworks Area to plot 6 and the Scotia Valley. Along the south-western edge of the site there would also be a footpath link with some landscaping connecting the southern end of the Special Earthworks Area to the new bypass which would link to Clanway Stadium via a pedestrian crossing. Finally, by redesigning the northern road embankment of the new bypass a landscaped corridor with footpath would be provided along the southern edge of the site linked to the new footpath along the south-western edge of the site and also to the Scotia Valley. These new footpaths would thus link the Special Earthworks Area with the other open space area in the vicinity, rendering it accessible to the housing areas to the south and east as well as to the Sandyford housing area to the west and would form a continuous pedestrian circular route round the perimeter of the Clanway Farm site.
63. In the circumstances the Secretary of State is satisfied that suitable and adequate synergy with other open space in the vicinity is achieved by the Council’s Option B Phase 1 proposal.
(iv) Availability of the Land to the Public under the Open Spaces Act 1906
64. The Secretary of State understands that planning approval to carry out the reclamation and landscaping works on the Option B Phase 1 land has been secured via the application by Redland for detailed approval of the landscaping condition on their existing residential permission. He notes that an amended Deed of Variation to the original Section 106 Town and Country Planning Act 1990 Agreement and an amended Agreement for the exchange of land between Redland and the Council would be entered into to provide a guarantee that the new open space land would be transferred into the ownership of the Council and be held by them as public open space and would be available for use by the public by the completion of the bypass.
65. The Secretary of State is satisfied that these measures would ensure that the land proposed for new public open space in Option B Phase 1 would be reclaimed as public open space by completion of the bypass and would be available to the public under the Open Spaces Act 1906.
The Secretary of State’s Conclusions on the Petitioners’ Suggestions
66. The Secretary of State notes that all the petitioners’ proposals for the additional open space provide a substantial interface with the southern end of Plot 6 and the Tunstall Greenway, and most incorporate the water-filled marl hole. In his view they meet two of the criteria set out in paragraph 48 above in that at least 5.4 hectares would be provided as open space and there would be synergy with existing open space. But the water-filled marl hole presents a significant hazard that would require substantial reclamation works before it could be made safely accessible for public open space use. The Secretary of State accepts that it would be possible for such work to be undertaken but, for the reasons given above, controlled infilling of the marl hole could render it suitable for housing development, and the other areas suggested by the petitioners alongside plot 6 could also be rendered so suitable. To use these areas for open space would sterilise land that is practically and economically viable for residential development. Accordingly the land owners are not prepared to release such parts of the site voluntarily.
67. The Secretary of State considers that the use of Compulsory Purchase powers to take these parts of the site is not a realistic or practical option and, in all the circumstances, concludes that there is no practical prospect of Redland entering into the necessary agreements to secure any of the petitioners’ suggested areas as open space.
68. Having considered all the representations made and in the light of the High Court judgment and the report of the Joint Parliamentary Committee, the Secretary of State is satisfied that the Council’s Option B Phase1 proposal meets the necessary criteria described above and is the best and most suitable option that is available for the extra open space. It provides a minimum of 5.4 hectares of publicly accessible open space available to the local community, incorporating landscaped links to existing open space, and would be available on completion of the bypass.
69. For the reasons given, the Secretary of State accepts the Council’s Option B Phase 1 proposal as set out in their submission of 9 March and accompanying plan … as the basis for making operative the City of Stoke-on-Trent Tunstall Northern Bypass Local Government Compulsory Purchase Order 1997 in accordance with the new Article 3A of the Order. However, before making the Order operative he needs to be satisfied that the necessary legal agreements have been entered into and the relevant planning approvals obtained. Would you therefore please submit the proposed legal agreements for consideration as soon as possible together with a copy of the relevant planning approvals for the Option B Phase 1 open space proposals.”
42. On 23rd November 2001, the Council resolved to commence work on construction of the by-pass, on the basis that this would ensure that Condition 1 of the planning permission for the by-pass (requiring commencement of the works within 5 years) was met: see paragraphs 5.12 and 5.14 of the joint report of the Council’s Directors of Corporate Resources and Environment and Transport to the Executive Committee dated 15th November 2001, the terms of which are as follows:
“5.12 In addition, it is proposed to make an initial start of construction of the bypass by constructing part of the proposed roundabout at the junction of Turnhurst Road with St Michaels Road. The construction would consist of kerbs, footway and associated retaining wall and drainage on the north side of Turnhurst Road extending from the tie-in of the proposed roundabout approach as far as Young Street. Whilst forming part of the bypass these works would not be abortive if for any reason, although not anticipated, construction of the bypass did not proceed. The widening of Turnhurst Road would be incorporated into any improvement to the junction as required as a planning condition of the Bent Farm development off Turnhurst Road.
5.14 As a result of the commencement of the construction of the bypass the condition imposed on the Planning Permission for the bypass that works should commence within five years, i.e. 24 April 2002, will have been met.”
43. By an inter-departmental memorandum dated 26th November 2001, the Council’s Assistant Director of Highways and Transportation sought confirmation from the Assistant Director of Planning that “it would be acceptable for development to commence in advance of the entirety of the proposed public open space being available and accessible to the public.”
44. The Assistant Director of Planning replied by inter-departmental memorandum dated 14th February 2002 and advised as follows:
“I can confirm that the areas and boundaries of the proposed replacement public open space are acceptable and hereby approved in respect of their location.
Further, I can confirm that the areas of open space meet the requirements of the condition in terms of being of comparable or greater size and also of a comparable quality to that being lost to the by-pass construction.
As you are aware, the condition says no development shall take place until the replacement public open space has been made accessible to the public for use.
However, it is clear that 21,511 sq. m. of POS was created in 1999 and is already accessible to the public. This amounts to 48.8% of the total to be lost to the road. Within 3 months of commencement of the main contract a further 18,715 sq. m. will be made available. Together, these areas will replace 91% of the open space actually being lost to the road.
I note that you state that it is proposed to make an initial start on the road which does not in any way affect the existing open space. You are also in the process of completing a legally binding contract for land on the adjacent Clanway Farm development site comprising in total 54,500 sq. m. of POS, which you are additionally legally bound to implement as part of the CPO confirmation.
In conclusion, I acknowledge that the final quantity of replacement open space will be 104,960 sq. m. which is 2.38 times the amount being lost, and that the laying out of these additional areas of open space will form part of the by-pass contract.
I therefore consider that your proposals, legal agreements and commitments are sufficient for it to be accepted that the ability to provide replacement POS, which will be accessible to the public for use, has effectively been secured. Given that 21,511 sq. m. of POS has already been provided, and that for the initial start on the road the existing open space will not be disturbed and therefore still be available for public use, I do not consider it would (be) expedient to take enforcement action, or serve breach of condition notices, regarding commencement of development.”
45. By letter dated 18th February 2002, the Council informed GOWM that it would “very shortly be in a position to forward … the executed legal agreement with Redland” and stated that it was its intention to “commence the main contract for construction in January 2003.”
46. On 20th February 2002, the Council sent a written notice to local residents in the following terms:
“TUNSTALL NORTHERN BYPASS START OF CONSTRUCTION
Construction of the above works is programmed to commence on 4th March 2002.
The start of construction of the bypass comprises the construction of part of the Turnhurst Road approach to the proposed roundabout at the junction of Turnhurst Road with St Michael’s Road. The construction will consist of the kerbs, footway and associated retaining wall and drainage on the north side of Turnhurst Road near to its junction with St Michael’s Road. Wrekin Construction Company will be carrying out these works which are expected to take 6 weeks to complete.
Subject to the completion of the statutory procedures, it is anticipated that the main construction works will start in January 2003 … .”
47. The works in question were duly commenced on 4th March 2002 and were carried out in purported implementation of the bypass planning permission. Mr Norris (and others) queried whether the works would in fact be in commencement of the bypass planning permission, but was expressly assured by the Council by letter dated 5th March 2002 that: “The work currently taking place on the Turnhurst Road approach to the proposed roundabout with St Michael’s Road is being undertaken to specifically comply with the discharge of condition 1 attached to the approved Planning Permission for the Tunstall Northern Bypass”.
48. On 18th October 2004, the Secretary of State wrote to the Council, stating that he had decided to make the Order operative without delay (“the October 2004 decision”). As already indicated, this is the decision that is the subject matter of Mr Norris’ challenge in these proceedings. So far as material, the Secretary of State’s letter is in the following terms:
“THE CITY OF STOKE-ON-TRENT TUNSTALL NORTHERN BYPASS LOCAL GOVERNMENT ACT COMPULSORY PURCHASE ORDER 1997 THE STATUTORY ORDERS (SPECIAL PROCEDURE) ACT 1945
I refer to the decision letter issued by the Secretary of State for Transport, Local Government and the Regions on 17 October 2001. The Secretary of State indicated in paragraph 69 of the letter that he accepted the City Council’s proposals for the additional open space subject to the completion of the necessary legal agreements and planning permissions.
The First Secretary of State for the Office of the Deputy Prime Minister is now satisfied that these have been completed. Consequently, he accepts that the requirements placed on him by the Joint Committee’s amendments have been met. Therefore he has decided to make operative without delay the confirmed City of Stoke-on-Trent Tunstall Northern Bypass Local Government Act Compulsory Purchase Order 1997, as amended and this letter constitutes his decision to that effect. ...
The date on which the Order becomes operative will be the date of the public notice. This is being published in the London Gazette and the Stoke Sentinel on Tuesday 19 October 2004 bringing the Order into operation.”
49. The Grounds of Challenge. On behalf of Mr Norris, Mr Brown put forward the following three grounds of challenge to the Secretary of State’s October 2004 decision to make the Order operative (see pages 9-10 of Mr Brown’s written skeleton argument).
(1) Ground 1. In concluding that it was not practically possible for the extra open space to be provided adjacent to plot 6 or in the area of the marl hole and in rejecting the petitioners’ alternative proposals for the additional open space, the Secretary of State took into account the following irrelevant considerations: (i) the fact that the exchange land offered by the Council could not practically be developed for housing, (ii) the fact that the land proposed by the petitioners was suitable for housing and
(iii) the fact that the petitioners’ alternative proposals could result in considerable outlay by the Council, such as compensation liability, and could delay construction of the road scheme (“the Rationality Challenge”).
(2) Ground 2. In concluding that the necessary legal agreements and planning permissions were in place, the Secretary of State erred in law in that: (i) he failed to consider or ask whether the planning permission for the by-pass was still extant, alternatively (ii) if and to the extent that he concluded that the permission for the bypass was still extant, he was wrong in law to do so (“the By-pass Planning Permission Challenge”).
(3) Ground 3. When determining whether the necessary legal agreements and planning permissions were in place, the Secretary of State failed to consult or seek the views of the petitioners (“the Consultation Challenge”).
50. In the course of his submissions, Mr Brown made it clear that the Consultation Challenge (Ground 3) was not pursued as a freestanding ground, but was only relied on in the event that it was the Defendants’ contention that the Secretary of State had not been asked to consider whether the by-pass planning permission had lapsed or had not been required to consider it because there was no evidence before him to that effect.
51. Mr Brown also confirmed that the following grounds of challenge in the Claim Form were no longer pursued: (i) that the Secretary of State had misunderstood the need for “synergy”, as described by the Inspector, and (ii) that the planning permission for the by-pass has lapsed by reason non-compliance with conditions 4 and/or 6.
52. I now turn to consider each of the three grounds of challenge upon which Mr Norris does rely in these proceedings.
53. Ground 1: The Rationality Challenge.
Mr Brown accepted that the Secretary of State had set himself the correct criteria for the decision that he had to make (see paragraph 48(i)-(iv) of the Secretary of State’s October 2001 letter, quoted in paragraph 41 above). However, Mr Brown submitted that, when properly analysed, it can be seen that the Secretary of State’s decision was really based on the ease and speed with which the additional open space (“the additional land”) put forward by the Council could be achieved, rather than upon a consideration of whether the additional land on offer was suitable for the required purpose of ensuring that “the residents of Stoke-on-Trent continue to enjoy access to adequate public open space” (see paragraph 32 of the Joint Committee’s Special Report (quoted in paragraph 23 above).
54. In effect, it was Mr Brown’s submission that this error in approach by the Secretary of State was demonstrated by and resulted from the fact that he had taken into account several matters that were entirely irrelevant to any proper assessment of the central question that the Secretary of State had to decide and which he had identified by criteria (ii) and (iii) (“the central question”: because the Secretary of State’s criterion (i) was not in issue), namely the suitability of the additional land for public open space (criterion (ii) of the Secretary of State’s criteria), having regard to the need to achieve a “synergistic effect” between the additional land and the other open space (criterion (iii) of the Secretary of State’s criteria). It was therefore Mr Brown’s submission that the Secretary of State’s decision-making was unlawful, because he had irrationally taken into consideration a number of wholly irrelevant matters when reaching the decision that he did.
55. Mr Brown identified three particular matters that the Secretary of State had taken into account, each of which, it was submitted, was entirely irrelevant to the determination of the central question.
56. The first matter identified by Mr Brown was the Secretary of State’s reference to the unsuitability of the additional land proposed by the Council for any other form of development: see paragraph 58 of the Secretary of State’s October 2001 letter. Mr Brown maintained that, whilst the unsuitability of the Council’s suggested additional land for other development might well explain why it was being offered free of charge by Redland, its lack of development value was irrelevant to any consideration of whether it was of comparable quality to the land that would be lost.
57. The second matter identified by Mr Brown as an irrelevant consideration was the Secretary of State’s reference to the fact that the remaining land within the Clanway Farm site was “… more viable for development”: see paragraph 59 of the Secretary of State’s October 2001 letter. Mr Brown also drew attention to paragraph 66 of the same letter, which he submitted constituted a specific rejection of the petitioners’ suggestions for the same irrelevant reason, stating that “to use these areas for open space should sterilise land that is practically and economically viable for residential development.”
58. It was Mr Brown’s submission that the viability for residential development of the remainder of the Clanway Farm site was also irrelevant to the Secretary of State’s consideration of the central question. Mr Brown emphasised that the Secretary of State’s task was to identify additional land (not less than 5.4 hectares in area) that was suitable for public open space, having regard to the need to achieve a “synergistic effect” between that land and the other open space (i.e. “the central question”). Mr Brown argued that the fact that land that did meet these exacting requirements might also be suitable for some other use, such as residential development, is not a reason for discounting it. He suggested that the consequence of adopting such an approach would be to place public open space at the lowest end of the hierarchy for land uses and to relegate it to the status of land that is not considered fit for any other purpose. Mr Brown submitted that such an approach was inconsistent with the Joint Committee’s findings and undermined the very purpose of the express statutory protection that is afforded to areas of public open space. He therefore submitted that the viability of the remainder of the Clanway Farm site for residential development was wholly irrelevant to a proper consideration of the central question that the Secretary of State had to decide.
59. The third and final matter identified by Mr Brown was the Secretary of State’s reference to the possibility that the use of compulsory purchase powers could result in “considerable outlay by the Council, such as compensation liability, and in delay or could prevent the regeneration of the site and construction of the road scheme.”
60. It was Mr Brown’s submission that the irrelevance of the consequences of the possible use of compulsory purchase powers to the Secretary of State’s proper consideration of the central question was evident from the following:
(i) the provision of adequate exchange land frequently requires the use of compulsory purchase powers and a consequent liability for compensation; (ii) any delay that might result from the need to acquire suitable additional land by compulsory purchase was a direct consequence of the Council’s own failure to make adequate provision in the original Order; (iii) in any event, there was no analysis of what the additional outlay might be and it was by no means clear that the land would have to be purchased at full residential value; and (iv) it was little short of perverse to complain that the provision of suitable open space might hinder construction of the by-pass, when the Joint Committee had expressly found that the by-pass should not go ahead until adequate and suitable public open space was provided.
61. On behalf of the Secretary of State, Mr Mould (whose submissions were adopted and supported by Mr Dove QC on behalf of the Council), stressed that the Secretary of State’s task was to satisfy himself that the requirements of Article 3A (the Joint Committee’s amendment to the Order: see paragraph 24 above) had been met. He submitted (correctly, in my view) that: (i) the Secretary of State would therefore need to consider a number of possible candidates for the required additional land; (ii) the Secretary of State would have to grapple with the competing merits of the various candidates and form a judgment between them; (iii) there was nothing in the Joint Committee’s deliberations to suggest that the practicality of delivering the various candidates to the public as open space would be an irrelevant consideration to the Secretary of State’s judgment; and (iv) there was nothing in the Joint Committee’s deliberations to suggest that the suitability of a candidate should be considered entirely without reference to any other use or uses for which that candidate was suited and for which there was a case for it being provided in the public interest.
62. Mr Mould emphasised that it was common ground that the Secretary of State had set himself the correct criteria for the decision that he had to make. He therefore submitted that Ground 1 was necessarily founded on the erroneous proposition that the matters mentioned in paragraphs 56 to 60 of the Secretary of State’s October 2001 decision letter were legally irrelevant to the comparative analysis that the Secretary of State necessarily had to carry out with regard to the merits of the various alternative proposals that were before him. Mr Mould suggested that, in essence, Ground 1 (and, in effect, the treatment of the “central question” that the Claimant submitted was appropriate) argued for too narrow an approach to the necessary decision-making – an approach that left completely out of account the following important factors: (i) the development potential of the land under consideration for other uses that are, as a matter of current planning policy, in the public interest to achieve; and (ii) the degree to which there is a real prospect of the land in question being secured for development and use as public open space within an acceptable timescale (i.e. the “deliverability” of the additional land).
63. Mr Mould submitted (correctly, in my view) that there is no good reason in law or logic for the Court to restrict the Secretary of State’s comparative analysis of the merits of the alternative proposals in the narrow way suggested by Mr Brown’s submissions on Ground 1, because to do so would be to restrict artificially the Secretary of State’s proper consideration of the practical possibility of the provision of the required additional land, an important issue that was plainly raised by the criteria that the Secretary of State had set himself. As Mr Mould observed, these considerations of land use, policy, cost and implementation are of precisely the kind that are relevant to any sensible comparative assessment of the alternative proposals in relation to the practical possibility of the provision of the required land.
64. Mr Mould submitted that the complaint in Ground 1 was, in effect, that although the Secretary of State had adopted the correct approach (i.e. had set himself the right criteria) he had gone wrong in his application of that approach in respect of (in particular) the “synergistic effect” of the additional land, by taking into account irrelevant considerations. He suggested that, on a full and fair analysis of the October 2001 letter, it is clear that the Secretary of State had not fallen into any such error. Mr Mould submitted that the Secretary of State’s reasons for his selection of the Council’s Option B Phase 1 for the required additional land can be summarised as follows: (i) the Secretary of State accepted that it was not practically possible to provide land alongside the current open space or in the area of the marl hole, for the various reasons contained in paragraphs 56 to 60 of the October 2001 letter (see paragraph 61 of the letter); but (ii) that an adequate level of “synergy” would be provided by the Option B Phase 1 proposal through the landscaped corridors that form an integral part of that option (see paragraph 62 of the letter).
65. For the reasons given in paragraph 63 above, I am satisfied that none of the matters that the Secretary of State took into account for the purposes of the analysis that he carried out in paragraphs 56 to 60 of his October 2001 letter was an irrelevant consideration. In my view, all the matters identified in those paragraphs were relevant to the comparative analysis of the various proposals that the Secretary of State was obliged to carry out. Following that analysis, the Secretary of State then came to a conclusion that he was entitled to reach on all the material that he had considered.
66. I accept Mr Mould’s submission that the Secretary of State’s approach did not impermissibly downgrade the importance of and protection offered to the public open space. Rather, his approach was indicative of the Secretary of State having properly based his decision in planning and economic reality, so that there was a realistic prospect of that decision resulting in the delivery both of the by-pass and of the required additional public open space. As Mr Mould observed, it cannot reasonably have been the intention of the Joint Committee to require the provision of the additional public open space without any regard to the expense and developmental constraints of doing so, with the result that the by-pass became, for practical purposes, incapable of being delivered within any acceptable and realistic timescale.
67. In my view, therefore, there is no reason for concluding that the Secretary of State’s decision to select the Council’s Option B Phase1 proposal as the basis for making the Order operative, in accordance with Article 3A of the Order, was an irrational and/or legally flawed decision for the reasons put forward in the first ground of challenge, which fails accordingly.
68. Grounds 2 and 3: The By-pass Planning Permission Challenge and The Consultation Challenge. Since the Consultation Challenge is dependent on the By-pass Planning Permission Challenge (see paragraph 50 above), it is convenient to deal with them together.
69. It was common ground that the Secretary of State had made no inquiries into the current position with regard to the by-pass planning permission before making his October 2004 decision to make the Order operative. As Mr Mould submitted, the short point raised under the second ground of challenge is that, on 18th October 2004, the Secretary of State was legally constrained from making the Order operative without having first satisfied himself that the planning permission previously granted for the construction of the by-pass had been, or remained capable of being, implemented: see paragraph 19 of Mr Mould’s skeleton argument.
70. Mr Brown submitted that, although paragraph 69 of the Secretary of State’s October 2001 letter (see paragraph 41 above) did not identify the “relevant planning approvals” by name, these must have included the by-pass planning permission and that it would have been irrational on the part of the Secretary of State if it did not.
71. In support of that submission, Mr Brown pointed out that: (i) the by-pass planning permission was the very bedrock upon which the Order was built; (ii) the reason that the Secretary of State wished to be satisfied that the necessary planning permissions were in place was so that he could be satisfied that the open space would actually be provided and condition 3 of the by-pass planning permission was an important guarantee that it would be so provided (condition 3 required that open space of comparable size and quality be both secured and made available before development took place); and (iii) the continuing validity of the by-pass planning permission was critical to the prospects of the by-pass being brought forward within a timescale that would ensure that obligations in other relevant agreements would be triggered.
72. Mr Brown submitted the Secretary of State’s failure to inquire as to the current status of the by-pass planning permission was highly material because, if the Secretary of State had made that inquiry, he would have come to the conclusion that, as matter of law, the by-pass planning permission had lapsed because the development had not been commenced within 5 years, as required by condition 1 of the permission (i.e. by 30th April 2002), for the reasons briefly summarised in the next paragraph.
73. Mr Brown submitted that the works executed in March 2002 in purported implementation of the by-pass planning permission (“the March 2002 works”: see paragraphs 42 to 47 above) were carried out at a time when only part of the open space had been made accessible and, thus, at a time when the requirements of condition 3 of the by-pass planning permission were not satisfied. Accordingly, it was Mr Brown’s submission that the March 2002 works had been carried out in breach of condition 3 and therefore did not constitute a lawful commencement and implementation of the development permitted by the by-pass planning permission: see Henry Boot Homes ~v~ Bassetlaw District Council (2003) JPL 1030 (CA) per Keene LJ at paragraphs 37-39.
74. However, I agree with Mr Mould’s submission that the Secretary of State was under no obligation to inquire into the current status of the by-pass planning permission for the purposes of his October 2004 decision-making. It was not suggested to the Secretary of State by anybody that the by-pass planning permission had lapsed. Furthermore, I agree with Mr Mould’s submission that, so far as concerns the Secretary of State’s need to be satisfied that the necessary legal agreements had been entered into and the relevant planning approvals obtained (see paragraph 69 of his October 2001 letter), this was solely concerned with ensuring that the Option B Phase 1 land would satisfy criterion (iv) of his stated criteria, i.e. that the land in question would be reclaimed as public open space and made available to the public under the Open Spaces Act 1906 (see also paragraphs 64 and 65 of his October 2001 letter).
75. In paragraph 17 of his witness statement dated 31st January 2005, the Higher Executive Officer in GOWM responsible for development control, Mr Martyn Hunt, identified the various agreements and approvals that enabled the Secretary of State to satisfy himself that criterion (iv) had been met by October 2004. Unsurprisingly, the by-pass planning permission was not included. In particular, the material in question made the Secretary of State aware that the Council was presently committed to substantial completion of the by-pass by 30th June 2008 and that the contractual arrangements between the Council and Redland were designed to secure the complete reclamation to open space of the Option B Phase 1 land by January 2008. I accept Mr Mould’s submission that, in circumstances where it was not suggested by anybody that the by-pass planning permission had lapsed, it was wholly unnecessary for the Secretary of State to make his own further inquiries into the current position with regard to the by-pass planning permission, in effect requiring the Secretary of State to double check something as to which no query had been raised and which did not bear upon the matters as to which the Secretary of State still remained to be satisfied before making the Order operative. As Mr Mould observed, there was no good reason in law or logic requiring the Secretary of State to do so as a necessary legal prerequisite to making the Order operative in October 2004. I am therefore satisfied that the Secretary of State’s decision is not flawed in the manner suggested and that Ground 2 also fails.
76. It is to be noted that Mr Brown’s submission that the by-pass planning permission had lapsed was strongly disputed by the Council, for the reasons summarised in paragraphs 15 to 22 of Mr Dove’s written skeleton argument. In my view Mr Dove was able to mount a formidable argument to the effect that the by-pass planning permission had not lapsed. Having regard to my primary conclusion, that the Secretary of State was not under any obligation to make his own inquiries and that his October 2004 decision was therefore not flawed as alleged, I do not propose to express any view as to the merits of the competing submissions on this particular issue (despite being urged to do so by Mr Brown). Suffice it to say that, as observed by Mr Mould in paragraph 23 of his skeleton argument, the operative effect of the Order since October 2004, does not relieve the Council, as a public authority, from the need to act both fairly and reasonably in deciding whether and when to take further steps in exercising the powers of compulsory purchase conferred by the Order. In particular, if the Claimant (and/or others) continue to maintain that there is now the need for the Council to renew the planning permission for the construction of the by-pass, it would be necessary for the Council to consider whether it would be fair and reasonable for it to take any such further steps in advance of having secured a fresh grant of planning permission for the road scheme. Any decision by the Council (and any such further steps) would, of course, be amenable to judicial review.
77. So far as concerns Ground 3, by a parity of reasoning with that expressed in paragraphs 74 and 75 above, I am satisfied that the Secretary of State was not obliged to consult with or seek the views of the petitioners with regard to the by-pass planning permission. Furthermore, as it seems to me, the current status of the permission was essentially a matter of law upon which consultation with the petitioners would not have been appropriate. Accordingly, the third ground of challenge also fails.
78. Conclusion. For the reasons given above, I have come to the firm conclusion that this application fails and that it must be and is hereby dismissed.