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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 973 (Admin)
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QUEEN'S BENCH DIVISION
1 Bridge Street West
Manchester M60 9DJ
B e f o r e :
(SITTING AS A JUDGE OF THE HIGH COURT)
| (1) MARGATE TOWN CENTRE REGENERATION COMPANY LIMITED
(2) MARGATE CINEMA LIMITED
(3) MARGATE RIDE LIMITED
(4) DMS 3 LIMITED
(5) MIDOS SERVICES LIMITED
(6) MIDOS INVESTMENTS LIMITED
(7) CHARLES TOBY HUNTER, AS TRUSTEE OF THE HUNTER FAMILY SETTLEMENT No 2
(8) EMMA LOUISE HUNTER, AS TRUSTEE OF THE HUNTER FAMILY SETTLEMENT No 2
(9) DREAMLAND LEISURE LIMITED
|- and -
|(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) THANET DISTRICT COUNCIL
David Forsdick (instructed by the Treasury Solicitor) for the 1st Defendant
Martin Edwards (instructed by Trowers and Hamlins LLP) for the 2nd Defendant
Hearing dates: 20 & 21 March 2013
Crown Copyright ©
His Honour Judge Sycamore:
(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 or any such enactment as is mentioned in Section 1(1) of this Act, he may make an application to the High Court.
(2) If any person aggrieved by –
a) a compulsory purchase order, or
b) a certificate under part III of, or Schedule 3 to this Act.
desires to question the validity thereof on the ground that any relevant requirement has not been complied with in relation to the order or certificate he may make an application to the High Court.
(3) In subsection (2) above "relevant requirement" means –
a) any requirement of this Act, or of any regulation under section 7(2) above, or
b) any requirement of the [Tribunals and Inquiries Act 1992] or of any Rules made, or having effect as if made, under that Act.
(4) An application to the High Court under this section shall be made within six weeks ….
(1) On an application under section 23 above the court may by interim order suspend the operation of the compulsory purchase order or any provision contained therein, or of the certificate, either generally or in so far as it affects any property of the applicant, until the final determination of the proceedings.
(2) If on the application the court is satisfied that –
(a) The authorisation granted by the compulsory purchase order is not empowered to be granted under this Act or any such enactment as is mentioned in Section 1(1) of this Act, or
(b) The interests of the applicant have been substantially prejudiced by any relevant requirement (as defined in section 23(3) above) not having been complied with,
the court may quash the compulsory purchase order or any provision contained therein, or the certificate, either generally or in so far as it affects any property of the applicant.
THE LEGAL FRAMEWORK
"Seeing that that decision is entrusted to the Minister, we have to consider the power of the court to interfere with his decision. It is given in Schedule 4, paragraph 2. The Court can only interfere on the ground that the Minister has gone outside the powers of the Act or that any requirement of the Act has not been complied with. Under this section it seems to me that the Court can interfere with the Minister's decision if he has acted on no evidence; or if he has come to a conclusion to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa; or has otherwise gone wrong in law. It is identical with the position when the Court has power to interfere with the decision of a lower tribunal which has erred in point of law."
"6. An application under Section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse, is in principle, within the scope of a challenge under Section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a re-run of the arguments on the planning merits.
7. In any case, where an expert Tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the Site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.
8. Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the Site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task …."
"3. The grounds for a challenge under Section 23 are constrained; that is to say this hearing is not an opportunity to re-run the merits of the compulsory purchase order, it is simply an opportunity to see whether there is any procedural or legal error in the process of confirmation….
8. "…. The change in the rules reflected the reality in planning and compulsory purchase order enquiries and other inquiries of a similar kind. It is very difficult to disentangle straightforward findings of fact from matters of a judgment or opinion and thus one very often sees finding of facts and conclusions and opinions mixed up …. If it can be demonstrated that in reaching his or her conclusions the Inspector has omitted to make an essential finding of fact, not a matter of disputed judgment, then that may form the basis of a legal challenge …."
"36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need only refer to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon a future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the Court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
In Proudfoot Properties v Secretary of State  EWHC 2043 (Admin) Lang J summarised the scope of the duty to give reasons which had been the subject of extensive review by the courts as follows:
"…. A decision letter must be read (1) fairly and in good faith, and as a whole without an unduly legalistic or critical approach; (2) in a down-to-earth manner, and not as if it were a legal instrument; (3) as if by a well informed reader who understands the principal controversial issues in the case: see Clarke Homes v Secretary of State for the Environment (1993) 66 P&CR 263, at 271; Seddon Properties v Secretary of State for the Environment (1981) 42 P&CR 26 at 28; and South Somerset District Council v Secretary of State for the Environment (1993) 66 P&CR 83."
"…. There are dangers in over-simplifying issues of this kind as also of over-complicating them. I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down to earth reading of his decision letter without excessive legalism or exegetical sophistication…."
"…. To what extent is the Secretary of State entitled to use compulsory powers to acquire the land of a private individual? It is clear that no Minister or public authority can acquire land compulsorily except the power to do so be given by Parliament: and Parliament only grants it, or should only grant it, when it is necessary in the public interest. In any case, therefore, where the scales are evenly balanced – for or against compulsory acquisition – the decision – by whomsoever it is made – should come down against compulsory acquisition. I regard it as a principle of our constitutional law that no citizen is to be deprived of his land by any public authority against his will, unless it is expressively authorised by Parliament and the public interest decisively so demands …. If there is any reasonable doubt on the matter, the balance must be resolved in favour of the citizen."
"….Though all the judgments in Prest contained observations regarding onus, I, for my part, read them as doing no more than giving a warning that in cases where a compulsory purchase order is under challenge, the draconian nature of the order will itself render it more vulnerable to successful challenge on Wednesbury/Ashbridge grounds unless sufficient reasons are adduced affirmatively to justify it on its merits".
"….. It is not necessary for Mr Barnes to show that the minister would, or even probably would, have come to a different conclusion. He has to exclude only the contrary contention, namely that the Minister necessarily would still have made the same decision ….".
THE STATUTORY BASIS FOR COMPULSORY PURCHASE
(1A) But a local authority must not exercise the power under paragraph (a) of subsection (1) unless they think that the development, re-development or improvement is likely to contribute the achievement of any one or more of the following objects –
(a) the promotion or improvement of the economic well-being of their area;
(b) the promotion or improvement of the social well-being of their area;
(c) the promotion or improvement of the environmental well-being of their area.
Crucially, the position is that a landowner may, in appropriate circumstances, be deprived of his land in the public interest. A balance must be struck between the private interest of the landowner and the wider public interest. The effect of the introduction of Section 226 (1A) in 2004 was to widen the power of local planning authorities to compulsorily acquire land for planning purposes by the introduction of the "well-being" requirement.
17 A compulsory purchase order should only be made where there is a compelling case in the public interest.
19 If an acquiring authority does not have a clear idea of how it intends to use the land which it is proposing to acquire, and cannot show that all the necessary resources are likely to be available to achieve that end within a reasonable time-scale, it will be difficult to show conclusively that the compulsory acquisition of the land included in the order is justified in the public interest, at any rate at the time of its making. Parliament has always taken the view that land should only be taken compulsorily where there is clear evidence that the public benefit will outweigh the private loss. The Human Rights Act reinforces that basic requirement.
20 In preparing its justification, the acquiring authority should provide as much information as possible about the resource implications of both acquiring the land and implementing the scheme for which the land is required. It may be that the scheme is not intended to be independently financially viable, or that the details cannot be finalised until there is certainty about the assembly of the necessary land. In such instances, the acquiring authority should provide an indication of how any potential shortfalls are intended to be met. This should include the degree to which other bodies (including the private sector) have agreed to make financial contributions or to underwrite the scheme, and on what basis such contributions or underwriting is to be made.
21 The timing of the availability of the funding is also likely to be a relevant factor. It would only be in exceptional (and fully justified) circumstances that it might be reasonable to acquire land where there was little prospect of implementing the scheme for a number of years. Even more importantly, the confirming Minister would expect to be reasssured that it was anticipated that adequate funding would be available to enable the authority to complete the compulsory acquisition within the statutory period following confirmation of the order. He may also look for evidence that sufficient resources could be made available immediately to cope with any acquisition resulting from a blight notice….
22 In demonstrating that there is a reasonable prospect of the scheme going ahead, the acquiring authority will also need to be able to show that it is unlikely to be blocked by any impediments to implementation. In addition to potential financial impediments, physical and legal factors need to be taken into account…..
24 Before embarking on compulsory purchase and throughout the preparation and procedural stages, acquiring authorities should seek to acquire land by negotiation wherever practicable. The compulsory purchase of land is intended as a last resort in the event that attempts to acquire by agreement fail…
2 The powers in Section 226 as amended by Section 99 of the Planning and Compulsory Purchase Act are intended to provide a positive tool to help acquiring authorities with planning powers to assemble land where this is necessary to implement the proposals in their community strategies and Local Development Documents. These powers are expressed in wide terms and can therefore be used by such authorities to assemble land for regeneration and other schemes where the range of activities or purposes proposed mean that no other single specific compulsory purchase power would be appropriate enabling powers, and the statement of reasons should make clear the justification of using the Planning Act powers. In particular, the First Secretary of State ('The Secretary of State' in this Appendix) may refuse to confirm an order if he considers that this general power is or is to be used in a way intended to frustrate or overturn the intention of Parliament by attempting to acquire land for a purpose which had been explicitly excluded from a specific a power.
15 It is also recognised that it may not always be feasible or sensible to wait until the full details of the scheme have been worked up, and planning permission obtained, before proceeding with the order. Furthermore, in cases where the proposed acquisitions form part of a longer–term strategy which needs to be able to cope with changing circumstances, it is acknowledged that it may not always be possible to demonstrate with absolute clarity or certainty the precise nature of the end-use proposed for the particular areas of land included in any particular CPO. In all such cases the responsibility will lie with the acquiring authority to put forward a compelling case for acquisition in advance of resolving all the uncertainties.
16 iii) the potential financial viability of the scheme for which the land is being acquired. A general indication of funding intentions, and of any commitments from third parties, will usually suffice to reassure the Secretary of State that there is a reasonable prospect that the scheme will proceed. The greater the uncertainty about the financial viability of the scheme, however, the more compelling the other grounds for undertaking the compulsory purchase will need to be. The timing of any available funding may also be important. For example, a strict time-limit on the availability of the necessary funding may be an argument put forward by the acquiring authority to justify proceeding with the order before finalising the details of the replacement scheme and/or the statutory planning position.
"24. There are circumstances in which the Secretary of State might lawfully confirm a compulsory purchase order even though he cannot conclude that the related development would, or would probably, go ahead ….
34. There may very readily be cases where the Secretary of State concludes (a) that the public interest decisively requires the development to go ahead; (b) that it is less likely, or much less likely, to go ahead without a compulsory purchase order; (c) but that even if the order is made he cannot conclude that it will probably go ahead…."
SUMMARY OF GROUNDS OF CHALLENGE
THE ORDER LANDS
i) The listed Dreamland Cinema on the Marina Terrace frontage ("The Cinema").
ii) An area to the rear containing the listed Scenic Railway and listed menagerie cages (the "HAP Lands").
iii) Two adjacent areas (referred to in the Inspector's report as areas 5 and 6), one of which is used as a car park and the other, which is vacant. The claimants all have an estate or interest in the Order Lands which cover three freehold interests, namely the Cinema and associated buildings (Margate Cinema Limited), the area containing the Scenic Railway (Margate Rides Limited) and the remainder (Margate Town Centre Regeneration Company). With the exception of Dreamland Leisure Limited all of the other claimants have charges over one or more of the freehold estates. Dreamland Leisure Limited has a lease for 99 years from the 6 April 2005 of the ground floor of the cinema building.
"Exceptionally, development of a limited part of the Site may be accepted as a part of a comprehensive scheme for the upgrading and improvement of the Amusement Park. The scheme will be required to demonstrate that the future viability of the Amusement Park can be assured and the Council will negotiate a legal agreement to ensure that the proposed development and the agreed investment in the Amusement Park are carried out in parallel ….
"…. ii) the predominate use of the Site being for leisure purposes (an element of mixed residential would be appropriate but only on such a scale as needed to support delivery of the comprehensive vision for the Site) ….".
• at that time that there would be an element of enabling development (pursuant to Policy T8) to ensure "viable retention, improvement and future operation of the Park". In summary the development aspirations of the planning brief included retention and use of the cinema and scenic railway, an amusement park, car parking and a link road. Any enabling development was to be limited to the residual area alongside Eastern Road to the east (area 6 and possibly area 5). At that time the second defendants were in negotiation with the claimants and it was envisaged that funding in the region of £12.4 million pounds would be required. It was envisaged that there would be funding provided as follows:
£4 million pounds from the Government's Sea Change Programme ("SCP"). SCP was a scheme funded by the Department for Culture Media and Sport to assist in the regeneration of seaside resorts.
£4 million pounds from MTCRC
£4.4 million pounds from the Heritage Lottery Fund ("HLF") and other grant funding.
EVENTS LEADING UP TO ISSUE OF THE COMPULSORY PURCHASE ORDER
"Provided additional funding sources have been explored authority be given to the Director of Finance and Corporate Service to arrange and enter into such agreements as she considers prudent for additional borrowing up to a maximum of £1.8 million pounds to bridge the remaining funding gap."
"…. Policy T8 envisages the need for enabling development only in the context that the retention of an amusement park proved not to be viable. The receipt of grant funding means that enabling development is no longer essential for the restoration of the amusement park."
THE GROUNDS PURSUED BY THE CLAIMANTS
"A general indication of funding intentions, and of any commitments from third-parties, will usually suffice to reassure the Secretary of State that there is a reasonable prospect that the scheme will proceed."
"108. The resolution to borrow £1.8 million pounds was made in May 2010, at which time the scheme was not the one before the Inquiry. Members were advised that the proposal would generate 700,000 visitors and 200 jobs and that they could recoup the money by developing the non-HAP land. TDC's case now is that the scheme would now generate 350,000 visitors and that there would be 14 full time jobs at the HAP with a further 32 FTEs in the summer. There is no intention of developing the non-HAP land. Thus the benefits of the expenditure have been severely reduced and the means of recouping it gone. The Secretary of State cannot assume that TDC members are still willing to borrow £1.8 million pounds in these very changed circumstances. A new resolution is needed."
" …. As the works have already been severely pared down there is no room for savings and any increase in cost would have to be met by a reduction in the HAP offer. The inadequacies of TDC's case on this aspect are so many and manifest as to make it impossible to confirm the CPO."
"191. The Council has in place the funding necessary to carry out all the works in Phase 1 of the scheme. The objectors, for their part, assert that the Council is not in a position to carry out the works because, among other things, it has not made provision for the cost of acquiring the Order Lands".
"192. It is, however, quite clear from the evidence that the question of compensation has been considered by the Council and that it has made provision for it. The Council's reluctance to divulge its estimate of the sum involved is entirely reasonable as this could prejudice later negotiations between the parties. The amount of compensation payable is a matter to be decided quite separately and has no bearing on whether or not the Order should be confirmed."
(1) The Locum Consulting Business Plan which covered the overall Dreamland site but related to the HAP within that site.
(2) The Brittan McGrath Business Plan which contemplated the overall eventual development but related specifically to the HAP on the part of the Site for which the HLF funding was sought.
(3) The Business Plan prepared by Mr Michael Collins who had given evidence on behalf of the claimants at the inquiry. This again covered the whole site but was in the context of the claimants' alternative proposals for the Site which included a HAP.
The Inspector found that all three plans concluded that an amusement park would be viable.
"2. With reference to IR194, I would like to make a small correction. Where I state that three separate Business Plans were prepared for the HAP I should have correctly stated that three separate Business Plans were prepared for the Site, of which two related to the HAP. The point made by the Council was that all three showed the proposals for an amusement park on the Site would be viable. I did not agree with the objectors that the Dreamland Trust had accepted that the Locum Business Plan was illogical. It was clear from Mr Laister's evidence that the Trust did not consider the Forum report to be illogical or defective. It did, however, consider it to be on the optimistic side in its assessment of the HAP prospects. It was for that the Dreamland Trust Board decided to get a second opinion. Far from being a weakness in the case for the Council, this seemed to me to indicate how cautious the Dreamland Trust and the Council had been approaching an ambitious venture."
"194. Much time at the Inquiry was taken up with discussions about the merits of the Business Plan. Business planning is essentially a matter of judgment rather than science. The selection of data on which they are based and assumptions made about that data rely on experience and judgment. In all, three separate Business Plans have been produced for the HAP, each prepared by a firm with specialist knowledge of the industry. Notwithstanding the dispute as to which of them should be preferred, all three conclude that an amusement park on the Dreamland site would be viable. Moreover the difference between the two latest plans is small and depends on the selection of particular rides. As the Council points out that is also a matter of professional judgment."
"195. The Business Plan has been independently assessed by the council, prior to its decision to become associated with the Dreamland Trust's proposals, and again by central government, the Prince's Trust and the HLF. While there can be no guarantee that any Business Plan will prove be a wholly accurate predictor of future events the TDC/DT Business Plan has been subjected to intensive independent scrutiny and there is no reason to doubt its robustness. In short the evidence suggests that there is no reason to doubt the viability of the HAP proposals."
"3. It is said that I erred in finding that the Council/Dreamland Trust Plan had been subjected to intensive independent scrutiny. What appears to be in dispute is whether "intensive …. scrutiny" was applied by each of these organisations. The reference to "intensive" was meant to describe the overall process, whereby the Business Plan was subject to scrutiny by a number of different organisations, including grant making bodies."
"18. The recent subdivision of the legal title could create a false impression that the compulsory purchase order (CPO) seeks to acquire three separate and unconnected parcels of land. Dreamland has, however, always been a complete site, a single planning unit devoted to a single purpose as an amusement park. The CPO seeks to acquire all the land that has historically made up the Site."
"31. […] MTCRC's proposals represent a complete break with the past, effectively splitting Dreamland in two and using almost half to build 474 dwellings. The HAP would be unable to expand once half of the planning unit had been permanently taken for housing. MTCRC's proposals, whether to develop 49% of the Site for housing or simply to delete from the CPO some areas for which it has no firm proposals of its own, would radically alter the situation and create two distinct new and smaller planning units devoted to what might be incompatible uses."
"Proposals that seek to extend, upgrade or improve the attractiveness of Dreamland as an amusement park will be permitted, development that would lead to a reduction in the attractiveness leisure or tourist potential will be resisted."
It was necessary that the whole site be acquired in order to allow for the future expansion of the HAP on to the remainder of the order land.
"The exclusion of areas 5 and 6 would, therefore, restrict the regenerative effect of the proposed development, impede the implementation of Policy T8 and would be likely to result in the continued disuse of area 6."
"Apart from retaining the existing car park, the objectors have not suggested how, if areas 5 and 6 were to be excluded from the order they could be developed in a way that complied with Policy T8. The argument that Policy T8 would be "spent" following the completion of HAP scheme, freeing the land for other forms of development, is not a good one. The Policy seeks the restoration of the amusement park on the whole of the Site and would not become redundant simply because the HAP had been created on part of it."
"… The Business Plan predicts an annual income of £25,000 from events within the HAP land for the first five years but envisages no income from areas 5 or 6. Mr Laister suggested that these areas could produce an income of £25,000 from year 6 onwards. He was not in a position to give evidence on this matter of opinion. Moreover, if he was right, the proposal to compulsorily purchase this area of previously developed land in the heart of Margate on the basis that it would produce £25,000 in annual revenue in six years time is a measure of the quality of the Council's case."
And in his conclusions at paragraph 185 and 186:
"185. The objectors argue that the Order, if confirmed, should be modified so as to exclude two areas of land (areas 5 and 6) that did not form part of the HAP proposals and the leasehold part of the cinema.
186. Under the Council's proposals areas 5 and 6 (a car park and vacant respectively) would be used as a 250 space car park for the HAP, with the remainder providing space for overflow parking and for special events that would complement the activities in the HAP. The objectors' argument is that, apart from the 250 parking spaces – which could be provided without the need to acquire the land – these areas are not needed for the HAP and should be excluded from the order."
Finally in respect of this ground the claimants say that the Inspector was factually incorrect when he recorded at paragraph 184 of his conclusions as follows:
"184. The objectors have offered to transfer to the Council all the land needed for the HAP for £1. This offer, was, however, made in the context of earlier discussions and was dependent on the Council agreeing to development on the rest of the land. It was clear from the evidence at the Inquiry that the objectors' position on this had not changed."
There was no material factual inaccuracy in the Inspector's report in this regard as was apparent from correspondence between the solicitors for the second defendants and the solicitors for claimants.
"29. Similar considerations apply to the cinema. This important grade II listed building has had an unfortunate history while in the ownership of MTCRC. TDC has already had to undertake major urgent works to protect the building and, as a responsible local planning authority, cannot sit idly by and watch it deteriorate further. The Council has never shied away from the fact that its proposals for the cinema are less clear than for the rest of the land. However as paragraph 15 of Appendix A of Circular 06/2004 acknowledges it is not always feasible or sensible to wait until full details of a scheme have been worked up. Its acquisition forms part of a longer term strategy that needs to be able to change with changing circumstances. It is for that reason that TDC needs to acquire the leasehold interests as well as the freehold of the cinema. Without that the potential for future re-use of the building would be hampered."
The conclusion in the report that there was a compelling case for the acquisition of the cinema was one which was open to the Inspector and consistent with the approach set out in paragraph 15 of Appendix A.
"211. The MTCRC scheme assumes that the grant funding from HLF and Sea Change has been offered to TDC/DT would also be available to MTCRC. That assumption is not backed up by any evidence. On their own admission the objectors have no knowledge of the terms and conditions attached to the offers made to TDC/DT and there is nothing to suggest that the grant funding bodies have ever be asked to consider the proposition. As the two schemes are very different there can be no reasonable grounds for assuming that the grants could simply be transferred from one to the other."
In my judgment this was a lawful conclusion for the Inspector to have reached on the evidence available to him and, in particular, the lack of any evidence from the claimants to support their assertion that the public funding would be transferred to their scheme.
"213. The MTCRC proposals also assume the availability of finance being provided at a favourable rate by a fellow objector, Close Brothers Limited. The evidence of this is a letter from Close Brothers. As the Council points out, however, this letter simply states MTCRC's existing borrowing facility. It makes no reference to any additional funding being available for the development and also states that the interest rate may be varied.
214. Furthermore, no witness from Close Brothers Ltd appeared at the Inquiry to explain or expand upon that document. Indeed, the only information about Close Brothers Ltd before the Inquiry was that it was a bank and a public limited company. No documents were submitted relating to the size, experience and general background of the bank or to the extent of its financial resources. It remains an unknown quantity in so far as its willingness or, indeed, its ability to fund a development of the scale proposed by MTCRC is concerned. In those circumstances limited weight can be attached to its offer to provide funding for the scheme at preferential rates.
215. A further consideration is the ability of MTCRC to carry out the development. While I acknowledge what was claimed at the Inquiry, there is not evidence before me to indicate that MTCRC has a track record of development. It is described as a single purpose company put together with the aim of regenerating Dreamland. Far from being regenerated, however, the Site has continued to de-generate since MTCRC acquired it in 2005. Notwithstanding the difficulties to which the objectors drew attention at the inquiry, the fact remains that during MTCRC's stewardship of the Site the amusement park has ceased to operate, the cinema has closed and the heritage assets on the Site have been allowed to fall into disrepair, to the extent that the Council has been obliged to take urgent measures to secure their survival.
216. There is no evidence to suggest that MTCRC has experience of carrying out any other developments in its own right. Although individual directors of the company may have such experience they did not appear at the inquiry. Consequently the extent of their contribution to the projects referred to could not be examined. Under those circumstances little confidence can be placed in the ability of MTCRC to implement a development of this scale on its own."