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England and Wales High Court (Administrative Court) Decisions

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Cite as: [2000] EWHC Admin 333

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Case No: CO/3100/99
Liverpool Crown Court
Queen Elizabeth II Law Courts
Liverpool L2 1XA
Wednesday 19th April 2000

B e f o r e :



- v -



Second Respondent

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)

Mr. Anthony Crean (instructed by Messrs Eversheds) appeared for the Applicant
Mr. J Litton (instructed by the Treasury Solicitors) appeared for the First Respondent
Mr. Vincent Fraser (instructed by Liverpool City Council) appeared for the Second Respondent
As Approved by the Court

Within a short distance of the junction of Lime Street, William Brown Street and London Road in the centre of Liverpool some of the finest Nineteenth Century civil buildings in England are to be found. Not surprisingly, it is part of a conservation area. The area also includes the Empire Theatre, a Grade II listed building dating from the 1920s. Liverpool City Council (the Council) favours the redevelopment of an area close to the Empire Theatre so as to provide improved facilities for the theatre. To this end the Council promulgated the City of Liverpool (London Road) Compulsory Purchase Order 1998 under section 226 (1)(a) of the Town and Country Planning Act 1990 and the Acquisition of Land Act 1981. The Order relates to three plots comprising premises in London Road, one of which is a public house known as the Legs of Man. It stands on the corner of London Road and Lime Street. It is in a good state of repair, being a remodelling of an earlier building carried out in the 1950s. On a number of days between October 1998 and February 1999 an Inspector appointed by the Secretary of State for the Environment, Transport and the Regions held an Inquiry in connection with an application for confirmation of the Order. On 30 April 1999 the Inspector recommended confirmation. By a letter dated 21 June 1999 the Secretary of State decided to accept the recommendation of the Inspector and confirmed the Order without modification. On 2 August 1999 Notice of Confirmation was published.
The Applicant, Enterprise Inns Limited, stands in the shoes of one of the objectors at the Inquiry. It is the owner of the Legs of Man. In these proceedings it seeks to challenge the confirmation of the Order by an application pursuant to section 23 of the Acquisition of Land Act 1981.
Preliminary point: jurisdiction
At the hearing of the application Mr. Fraser, on behalf of the Council, raised a point concerning jurisdiction. Mr. Litton, on behalf of the Secretary of State, rapidly adopted it. The point is a simple one but, if it is correct, it is conclusive against this application. An application to the High Court under section 23(4)
"shall be made within six weeks-
(b)...... from the date on which notice of the confirmation or making of the order is first published in accordance with this Act."
In the present case the application was issued on 30 July 1999, some three days before the Notice of Confirmation was published. The point advanced on behalf of the Council and the Secretary of State is that section 23 (4)(b) creates a six week "window" within which any application must be made and that the Court has no more jurisdiction to entertain an application commenced before the commencement of that six week period than it would have to entertain one commenced after its expiry. Because this point is of such fundamental importance to this case, at the request of Mr. Crean, on behalf of the Applicant, I agreed to consider additional and sequential written submissions on it after the conclusion of the hearing.
It is axiomatic that, in relation to a statutory application such as this, an applicant must bring himself within the statutory provisions. I shall have to refer to some other statutory material later, but at the outset, it is appropriate to set out section 25, which is explicitly linked with section 23 (4)(b). Section 25 states:
"Subject to the preceding provisions of this Part of this Act, a compulsory purchase order .......shall not, either before or after it has been confirmed, made or given, be questioned in any legal proceedings whatsoever."
Thus, the relief sought by the Applicant in the present case is only available upon a statutory application and not, for example, upon an application for judicial review.
In seeking to establish jurisdiction, Mr. Crean made submissions under
five sub-headings as follows:
(1) Section 23 (4)(b) provides only an "end date"
Mr. Crean submitted that the purpose of section 23 (4)(b) is to promote certainty and finality and that any application before the end of the six week period satisfied that purpose. However, in my judgment that pays no heed to the wording of the provision which identifies an end date by reference to a six week period which commences upon a specific occurrence. Mr. Fraser and Mr. Litton relied on Okolo v. Secretary of State for the Environment [1997] 4 All ER 242 as an illustration of how section 23 (4)(b) can be productive of hardship which the courts are powerless to mitigate. Although its factual matrix is different, it is a helpful illustration. Parliament has deliberately prescribed a window rather than simply an end date in section 23 (4)(b) and, in these circumstances, it is, in my judgment, not sufficient to show that the application was made before the end date. It must also come within the window. If Mr. Crean's submission were correct, it would be possible to issue an application at any time after confirmation and before publication but it is publication and not confirmation that Parliament has chosen as the trigger. The reason for this is plain, as McCullough J pointed out in Regina v. Cornwall County Council, ex parte Huntingdon [1994] 1 All ER 694 (CA), where Simon |Brown LJ said (at p. 700):
"Mc Cullough J.......[said]:
` is the intention of Parliament.....that the High Court should only become involved when all the administrative steps have been completed.'
Again, I agree."
(2) The "start date" is the date of confirmation, not publication
Mr. Crean observed that the subject-matter of the present challenge is the Order as confirmed by the Secretary of State, which confirmation was contained in the letter of 21 June 1999. Whilst publication provides for wider dissemination, it is the Order, as confirmed, which is challenged and not the published Notice of Confirmation. Thus, the start date is the date of confirmation and the present application was issued within six weeks thereafter.
This submission was advanced by reference to the final paragraph of the judgment of Simon Brown LJ in ex parte Huntingdon where he said (at p. 702):
".....there can be no legal challenge unless and until an order is confirmed. The applicants then have 42 days in which to invoke the court's statutory review jurisdiction."
That case, which arose under different, albeit cognate legislation, was concerned with applications made before confirmation. It is therefore not surprising that the judgment ended with a focus on that factual context. In my judgment it is abundantly clear from the central part of the judgment, and the quotations with express approval from the first instance judgments of McCullough J. (supra) and Mann LJ and Brooke J. [1992] 3 All ER 566, 575-576, that the principle established in that authority operates in the same way when an application is issued between confirmation and publication. It could hardly be otherwise. If Mr. Crean's submission were correct, there could be cases in which the six week period would be well advanced or had even expired before the occurrence referred to in the section - publication - had taken place.
(3) The Court has the power to waive any irregularity in respect of prematurity
In support of this submission, Mr. Crean justifiably remarked that the jurisdictional point is, in the circumstances of this case, unattractive - a proposition from which Mr. Fraser and Mr.Litton did not dissent. However, it is a point going to jurisdiction and, in the absence of a statutorily conferred discretion, I cannot see how, if there is an absence of jurisdiction, I can overcome it by an exercise of discretion in relation to slight prematurity any more that I could if an application were issued just after the expiration of the six week period.
(4) The Notice did not comply with the Act
This submission arose for the first time in Mr. Crean's post-hearing written submissions. Its rationale is as follows. Section 23 (4)(b) causes time to run from the date when notice of the confirmation "is first published in accordance with this Act". If a purported notice of publication does not accord with the statutory requirements, then that date of publication is of no effect for purposes of section 23 (4)(b). Here, publication did not accord with the statutory requirements because it did not comply with section 15, which provides:
"As soon as may be after the order has been confirmed, the acquiring authority shall publish in one or more local newspapers.....a notice in the prescribed form."
The Council became aware of the Secretary of State's decision to confirm on or about 22 June 1999. There was no reason to delay publication and, in the circumstances, publication on 2 August was not "as soon as may be" after 22 June. Accordingly, the publication was of no effect and in particular did not trigger the six week period because it was not publication "in accordance with the Act". Mr. Crean sought to make good this submission by reference to recent authorities on human rights, namely Regina v. Ministry of Defence, ex parte Smith [1996] QB 517; Regina v. North and East Devon Health Authority, ex parte Coughlan [1999] LGR 703; and Regina v. Director of Public Prosecutions, ex parte Kebilene [1999] 4 All ER 801. However, in my judgment, those authorities do not impact upon the present situation in which what it in issue is the construction of unambiguous statutory provisions before the commencement date of the Human Rights Act 1998. I entirely accept the submissions of Mr. Fraser and Mr. Litton that the argument based on the alleged tardiness of publication is incorrect for a number of reasons. First, the words "as soon as may be" are not, as Mr. Crean submitted, synonymous with "as soon as reasonably practicable" or "as soon as possible". They are less demanding. If a more specifically demanding test had been intended, it would have been expressly included. Secondly, if the submission were correct, the logical consequence would be that there has not been publication "in accordance with the Act", section 23 (4)(b) would not have been triggered, and there would be no jurisdiction to entertain the current application in any event. Thirdly, any challenge to the validity of the published Notice, if appropriate at all, would have to be by way of judicial review rather than statutory application. Such an application for judicial review may not be restricted by section 25 but, if it is not, it is far too late for such an application in the present case. Fourthly, in the present case, this point only having been taken in written submissions after the hearing, there is no evidential basis upon which I could conclude that the "as soon as may be" test has not been satisfied, whatever may be its true meaning (as to which I am in no doubt). Fifthly, the approach contended for by Mr. Crean would have the wholly undesirable consequence of an intensification of the potential for litigation in this area. Judicial inquiry into what was reasonably practicable in the timing of publication would be a recipe for uncertainty in an area where all parties have a common interest in certainty. Sixthly, it would be unfortunate indeed if this issue were to become a focus for litigation because publication acts not only as the trigger for any application to the Court under section 23; it is also the point at which a compulsory purchase order becomes operative (section 26).
For all these reasons, I have conceded that there is nothing in relation to the timing of publication in this case which assists the Applicant on the jurisdictional issue.
(5) Article 6 of the European Convention on Human Rights
Article 6 (1) protects the right to a fair trial within a reasonable time. Mr. Crean submitted that, when article 6 (1) is considered upon the construction of section 23 (4)(b), it militates against the narrow "window" construction. To the extent that this submission is in the form of resort to the Convention as an aid in the construction of an ambiguous statute, it falls at the first hurdle because, in my judgment, section 23 (4)(b) is wholly lacking in ambiguity. However, the submission also faces other insuperable difficulties. Section 23 (4)(b) simply provides for the time within which any challenge to a compulsory purchase order must be commenced. The right enschined in article 6(1) is not absolute. As the European Court of Human Rights said in Stubbings v. United Kingdom (1997) 23 EHHR 213, 233:
".....Article 6(1) embodies the `right to a court', of which the right to access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect.
However, this right is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation.....It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired."
In my judgment, it cannot be said that section 23 (4)(b), by its enactment of the six week window, constitutes such a restriction or reduction. It provides a time limit which in its duration, commencement and expiry is objectively justified in the interests of certainty and good public administration. In the circumstances I do not find that Article 6 (1) avails the Applicant. Properly understood, it is not offended by section 23 (4)(b) as I have construed it and that construction is, as I have held, clear and unambiguous. The provision is, in my judgment, consistent with the ECHR and it will not be jeopardised by the commencement of the Human Rights Act in October 2000.
It follows from what I have said that the jurisdictional point raised with appropriate diffidence by the Council and the Secretary of State must be resolved in their favour. Quite simply, the Applicant has failed to fulfil the condition precedent to jurisdiction - not by commencing proceedings too late (as more often happens) but by doing so too soon, before (in the words of McCullough J.) "all the administrative steps have been completed" as required by section 23 (4)(b). As a result, the Order is unchallengeable in these proceedings or otherwise. Mr. Crean invited me to proceed to the merits of the application, even if I found against him on jurisdiction. On reflection I have decided not to accede to his invitation (which appeared to have the tacit support of the other parties). When a judge is wholly, if regrettably, satisfied that he has no jurisdiction in relation to an issue, it is often preferable that he resists the temptation to proceed on the hypothetical assumption that he has. That is not to be taken as an indication of my view of the merits, one way or the other.

© 2000 Crown Copyright

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