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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Smith & Ors v Secretary of State for Trade and Industry [2007] EWHC 1013 (Admin) (03 May 2007) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2007/1013.html Cite as: [2007] NPC 56, [2008] WLR 394, [2007] EWHC 1013 (Admin), [2008] 1 WLR 394 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
LISA SMITH MARY ELLEN REILLY JULIA REILLY |
Claimants |
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- and - |
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THE SECRETARY OF STATE FOR TRADE AND INDUSTRY LONDON DEVELOPMENT AGENCY |
Defendant Interested Party |
____________________
Mr Richard Drabble QC & Mr James Maurici
(instructed by the Treasury Solicitor's Department) for the Defendant
Mr Guy Roots QC & Mr Richard Glover for the Interested Party
Hearing dates: 25th April 2007
____________________
Crown Copyright ©
Mr Justice Wyn Williams :
"…securing the economic development and the regeneration of land, promoting business efficiency, investment and competitiveness, promoting employment, enhancing the development and applications of skills relevant to employment and contributing towards the achievement of sustainable development within its area and for the purposes incidental thereto, namely by the development of the land which will result in the significant regeneration of the area by the provision of the main facilities for the 2012 Olympic and Paralympic games, the Legacy facilities and the development of the Stratford Rail Lands."
"In my opinion, although the benefits of the Order are very compelling, a small group should not be left to pay any excessive personal and social cost for those benefits to be achieved. It is also telling that the Objectors do not want to stand in the way of the Olympics and Legacy developments; they object merely to ensure that they continue to have a suitable place in which to live.
Against this background, I consider that the Order should not be confirmed until the Secretary of State is satisfied that suitable relocation sites will be available to meet the reasonable needs of the Gypsies and the Travellers that would be displaced."[1]
"He has considered the Inspector's conclusion that the Order should not be confirmed until he, the Secretary of State, is satisfied that suitable relocation sites will be available to meet the reasonable needs of the Gypsies and Travellers that would be displaced (IR 6.2.122). The Secretary of State has considerable sympathy with those living at the Clays Lane and Waterden Crescent sites but as mentioned above, he takes the view that the scale and the extent of physical infrastructure required for the Olympic Games necessitate control of the major part of the Order lands by mid-2007 (IR 6.1.15-6.1.16). Therefore given the urgency, timing and importance of the Olympics and Legacy development, he considers the acquisition of the gypsy and travellers' sites is vital in order to meet the requirement of the Olympic timetable and there is a compelling case for confirming these sites in the Order now. He consequently disagrees with the Inspector's conclusion that the Order should not be confirmed until the relocation to alternative sites has the certainty that would be derived from the grant of planning permission. The Secretary of State notes the Inspector was aware of the LDA's continuing work towards a satisfactory relocation of the gypsies and travellers (IR6.2.116). He is confident that the LDA are fully aware of the issues involved and, as with the bus depots, will make strenuous effort to deal with them so as to ensure the satisfactory relocation of the gypsies and travellers. However, as with the bus garages, the Secretary of State appreciates that there is a risk of failure on the relevant timescale that cannot be eliminated but having regard in particular to the clear and overwhelming importance of the Order and the urgency of the timing issues already referred to considers it right to confirm the Order now."[2]
"(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 the 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) …………….
desires to question the validity thereof on the ground that any relevant requirement has not been complied with in relation to the order ……….. he may make an application to the High Court."
The Relevant Factual Background
"The Lower Lea Valley, within which the Order Lands are located, is generally built up in character. Land uses are mainly industrial, with a high proportion of older buildings and yards; open working/storage type activities; and transport-related facilities. These characteristics contribute to a low employment density, generally, throughout the area. The area has more than its fair share of vacant sites and derelict buildings awaiting re-use or redevelopment. More encouragingly, pockets of comparatively modern industrial and commercial buildings provide a marked contrast; but my general impression is of an area that is, as a whole, used inefficiently and demanding of regeneration.
The general economic outlook is one of decline in the context of the area's recorded high level of deprivation which manifests itself through a number of economic indicators including: - high unemployment; a high incidence of manufacturing jobs; a low proportion of managerial or professional skills; and a marked concentration of employment in the waste and recycling sub-sector. Socially, crime levels are high; health is poor; the population is generally younger, more diverse and less settled than average.
Outwardly, areas of derelict and overgrown land, fly-tipping and the condition of some water ways, are symptomatic of the physical neglect of the environment; and wide-spread ground contamination is a legacy of the past. Open spaces, in relieving built up form, are generally, at best, functional.
The area as a whole, in my view, conveys a negative impression"[3]
No one, in these proceedings, has suggested that the Inspector's description of the Lower Lea Valley is in any way inaccurate.
"The London Plan 2004, identifies a way forward by defining the Stratford and the Lower Lea Valley as "Opportunity Areas." Unlike the raft of documents and policies that have gone before, its ambition of accomplishment focuses on the benefits that would surge from the hosting the 2012 Olympic Games. Such an event would drive major change, achieve investment on an unprecedented scale and, more specifically, secure delivery within a short space of time.
At the end of the Games there would be a legacy of: - a rejuvenated environment; improved communications and infrastructure; new facilities major opportunities for employment-creating development; and a significant number of new homes, with a marked contribution to affordable needs for London and the South East."[4]
"The successful outcome of the London Bid will bring a remarkable event to the Lower Lea Valley. That event will require an extraordinary effort to transform what has gone before by implementing works on an enormous scale within an incredibly short period of time. The challenge is immense; but the benefit of hosting the Games and providing the catalyst to a lasting Legacy, are likely to immeasurable."
Again, it is correct that I should record no one in these proceedings has questioned that conclusion.
The Nature of the Decision under challenge and the Relevant Date for considering its Lawfulness
Grounds of Challenge
Ground 1
"1. Everyone has a right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others".
"The Court considers that the applicant's occupation of her caravan is an integral part of her ethnic identity as a gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. This is the case even though, under the pressure of development and diverse policies or from their own volition, many gypsies no longer live a wholly nomadic existence and increasingly settle for long periods in one place in order to facilitate, for example, the education of their children. Measures which affect the applicant's stationing of her caravans have therefore a wider impact than on the right to respect for home. They also affect her ability to maintain her identity as a gypsy and to lead her private and family life in accordance with that tradition."
At paragraph 96 the Court said: -
"Nonetheless, although the fact of being a member of a minority with a traditional lifestyle different from that of the majority of a society does not confer an immunity from general laws intended to safeguard assets common to the whole society such as the environment, it may have an incidence on the manner in which such laws are to be implemented. As intimated in the Buckley judgment, the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at the decisions in particular cases. To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life."
"The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three-stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself:
"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.""
"will usually have to be considered in two distinct stages. At the first stage, the question is: can the objective of the measure be achieved by means which are less interfering of an individual's right? ……. At the second stage, it is assumed that the means employed to achieve the legitimate aim are necessary in the sense that they are the least intrusive of Convention Rights that can be devised in order to achieve the aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons?"[7]
"49. The concept of proportionality is inherent in the approach to decision making in planning law. The procedure stated by Dyson LJ in the Samaroo case [2001] UKHRR 1150, as stated, is not wholly appropriate to decision making in the present context in that it does not take account of the right, recognised in the Convention, of a landowner to make use of his land, a right which is, however, to be weighted against the rights of others affected by the use of land and of the community in general. The first stage of the procedure stated by Dyson LJ does not require, nor was it intended to require that, before any development of land is permitted, it must be established that the objective of the development cannot be achieved in some other way or on some other site. The effect of the proposal on adjoining owners and occupants must however be considered in the context of Article 8, and a balancing of interests is necessary. The question whether the permission has "an excessive or disproportionate effect on the interests of affected persons" (Dyson LJ at paragraph 20) is, in the present context, no different from the question posed by the Inspector, a question which has routinely been posed by decision makers both before and after the enactment of the 1998 Act. Dyson LJ stated, at paragraph 18, that "It is important to emphasise that the striking of a fair balance lies at the heart of proportionality".
50. I am entirely unpersuaded that the absence of the word "proportionality" in the decision letter renders the decision unsatisfactory or liable to be quashed…………. The need to strike a balance is central to the conclusion in each case. There may be cases where the two-stage approach to decision making necessary in other fields is also appropriate to a decision as to land use, and the concept of proportionality undoubtedly is, and always has been, a useful tool in striking a balance, but the decision in the Samaroo case does not have the effect of imposing on planning procedures the straight-jacket advocated by Mr. Clayton. There was no flaw in the approach of the Inspector in the present case."
In a short concurring judgment Keene LJ said that he agreed with Pill LJ: -
"that the process outlined in Samaroo while appropriate where there is direct interference with Article 8 rights by a public body, cannot be applied without adaptation in a situation where the essential conflict is between two or more groups of private interests."
"I therefore focus on the context in this case. It is not a case of naked property deprivation. It is common ground that the decision of 24 June 2002 that there should be a transfer by reason of mismanagement of CLCH is unassailable. The context is one wherein a statutory regulator, the Housing Corporation, having unobjectionably decided upon a transfer, then had to choose between two alternatives …………
In my judgment, the task in which HC was engaged was wholly different from the task of the Secretary of State in Samaroo's case [2001] UKHRR 1150.. Having lawfully decided that there would have to be a transfer, the decision was then one between two preferred alternatives. Although not in every respect the same as a planning decision, it approximated to what Keene LJ was describing in Lough v First Secretary of State [2004] 1WLR 2557, para 55, namely "a situation where the essential conflict is between two or more groups of private interests". I conclude that the appropriate test of proportionality requires a balancing exercise and a decision which is justified on the basis of a compelling case in the public interest and as being reasonably necessary but not obligatorily the least intrusive of Convention rights. That accords with Strasbourg and domestic authority. It is also consistent with sensible and practical decision making in the public interest in this context. If "strict necessity" were to compel the "least intrusive" alternative, decisions which were distinctly second best or worse when tested against the performance of a regulator's statutory functions would become mandatory. A decision which was fraught with adverse consequences would have to prevail because it was, perhaps quite marginally, the least intrusive. Whilst one can readily see why that should be so in some Convention contexts, it would be a recipe for poor public administration in the context of cases such as Lough v First Secretary of State and the present case."
"[58] Central to his submissions on this ground of challenge was Mr. McCracken's [counsel for the claimant]contention that it is well established that the means used must be no more than that which is necessary to accomplish the objective: in this case, in order to be necessary the means used to achieve the legitimate aim of the regeneration of the Edge Lane area must be the least intrusive of the Claimant's convention rights that can be devised in order to meet that aim."
Having set out that submission the learned judge then reviewed all the authorities set out above as well as many others. At paragraph 73 the judge said:-
"I accept Mr. Maurici's [counsel for the defendant]submission that the intensity of review depends on the particular context in question in a given case. I also agree that the Samaroo approach is not one of universal application."
Forbes J then cited the passages from the judgment of Keene LJ in Lough and from the judgment in Maurice Kay LJ in Clays Lane which I have set out above before concluding that he rejected the Claimant's approach that the means used to achieve the regeneration must be the least intrusive of the Claimant's Convention rights.
"Secondly, it is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The inadequacy of that approach was exposed in Smith and Grady v The United Kingdom [1999] 29 EHRR 493, para 138, and the new approach required under the 1998 Act was described by Lord Steyn in R (Daly) v The Secretary of State for the Home Department [2001] 2 AC 532, paragraphs 25 – 28, in terms which have never to my knowledge been questioned. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Minister of Defence ex parte Smith [1996] QB 554. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time: Wilson v The First County Trust Limited (No. 2) [2004] 1 AC 816, paragraph 62-67. Proportionality must be judged objectively, by the Courts: R (Williamson) v The Secretary of State for Education and Employment [2005] 2 AC 246, paragraph 51."
"Circular 01/2006, Planning for Gypsy and Traveller Caravans Sites, provides the policy context for the consideration of proposals such as these. Its main thrust is to ensure that Gypsies and Travellers have access to suitable accommodation; and that where new development requires an authorised site to be relocated, the onus is placed on the planning applicant to identify and provide an alternative site. Here that responsibility rests with the LDA as the acquiring authority. In proposing relocation and in seeking a relocation site, regard will need to be paid both to the Gypsy and Traveller communities' social, economic and environmental needs and identified social, economic and environmental benefits that the major redevelopment project will bring to the wider area.
In my opinion the removal of these lawful sites, without suitable replacements would fundamentally undermine the intentions of up-to-date Government Policy. As there is a lack of Gypsy and Traveller sites in the area generally, the loss of these sites would almost certainly lead to camping at the roadside, with all the attended difficulties that presents. Throughout my conclusions I have acknowledged the substantial benefits that would arise from the Olympic and Legacy proposals; but these must be weighed against the needs of the Gypsies and Travellers. To my mind the loss of their homes, with no where else to go, would amount to a disproportionate interference with their rights to their peaceful enjoyment of their homes and there would therefore be a violation of their Human Rights."
"12. The Secretary of State is of the opinion that this is one of the most important and significant development projects planned for the United Kingdom for some considerable time. He has taken into account the clear and overwhelming importance of the Order, not only nationally but regionally and locally and the benefits that it will bring for all. He notes particularly its main purpose in acquiring land in this part of London, not only for the purposes of the London Olympics in 2012, although that of course is important, but, more crucially, in the use of the location of the Games in London as a mechanism whereby much needed regeneration of this area of East End of London can be carried out. So he particularly gives great weight to the Inspector's conclusions that the need to regenerate the Lower Lea Valley is striking and without question and the Olympic Games offer the exceptional means to secure that objective in a wide-ranging comprehensive and timely manner (IR 6.4.7).
13. The Secretary of State is also conscious of the critical time table that is required to be met in order to bring about this regeneration and to hold the Olympics on time in July 2012 and notes that the scale and extent of the work necessitate control of a major part of the Order lands by mid-2007 (IR6.1.16) He accepts the Inspector's overall conclusion that the event will require an extraordinary effort to transform what has gone on before by implementing work on an enormous scale within an incredibly short period of time but agrees with him that, while the challenge is immense, the benefits of hosting the Games and providing the catalyst to a lasting Legacy are likely to be immeasurable (IR 6.5.2). The Secretary of State has therefore reached the view that the decision on the Order is crucial to this time table and has therefore been a factor to which he has attached considerable weight in his consideration of the objections."
"The Secretary of State notes that the Inspector considered the loss of the gypsies and travellers' homes would be a violation of their human rights. He has also taken into the Inspector's opinion that the loss of their homes, with nowhere else to go, would amount to a disproportionate interference with their rights to the peaceful enjoyment of their homes and so there would be a violation of their Human Rights (paragraph 6.2.115). Nevertheless the Secretary of State takes the view that, as mentioned above, the Olympic and Legacy developments represent a wholly exceptional project with convincing and significant benefits for the whole country. Taking these factors together with the demanding Olympic timetable which must be met by a certain date ie, July 2012, he considers that a clear and compelling case for acquiring the land has been made which falls within Article 8 (2) of the European Convention of Human Rights and that, on the fact of this case, the interference with home and family life is proportionate."
"However…..the Secretary of State appreciates that there is a risk of failure on the relevant time scale that cannot be eliminated [to provide alternative sites] but having regard in particular to the clear and overwhelming importance of the Order and the urgency of the timing issues already referred to considers it right to confirm the Order now."
They both submit that this is a key passage in the reasoning of the Defendant. They do so because, they say, it demonstrates that the making of the Order in December 2006 was the only course open to the Defendant, in reality, if the purpose of the Order was to be achieved. Consequently, it was the least intrusive measure open to the Defendant to achieve the legitimate aim which was advanced as the justification for the interference.
"If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move." [8]
I accept that as at December 2006 there was a risk that the Claimants might be evicted from the sites with no alternative lawful sites available and to which they might move. On any view that is an important consideration in an assessment of proportionality. I accept, without reservation, the evidence of the personal circumstances of the particular Claimants.
Ground 2
Ground 3
Ground 4
Ground 5
Ground 6
Conclusion
Note 1 Paragraphs 6.2.121 and 122 [Back] Note 2 Decision letter paragraph 30 [Back] Note 3 Inspector’s Report paragraphs 6.1.1 – 6.1.4 [Back] Note 4 Inspector’s Report paragraphs 6.1.9 and 6.1.10 [Back] Note 5 Inspector’s Report paragraph 6.2.120 [Back] Note 6 Inspector’s Report paragraph 6.1.16 [Back] Note 7 This is Mr. Willer’s summary of paragraphs 19 to 21 of the judgment of Dyson LJ [Back]