The 2012 Olympic and Paralympics Games are a major coup for London and are acting as a catalyst for the regeneration of a part of London which was in desperate need. However, the Olympics village housing all the Olympic park facilities connected with the games requires land; lots of land. The body responsible for delivering the land needed for the Olympics is the London Development Agency (LDA), which was set up in July 2000 following the establishment of the Greater London Authority.
In November 2005 the LDA made a compulsory purchase order to acquire the land needed for the Games: the London Development Agency (Lower Lea Valley, Olympic and Legacy) CPO 2005 (CPO); this was confirmed by the Secretary of State for Trade and Industry (SOS) on the 18 December 2006 following a public inquiry.
There have been a number of challenges to the CPO; all of which have been unsuccessful. The most recent challenge was dismissed by the High Court in the summer. The Judge decided that although the court sympathised with the residents affected by the CPO and those that had already lost their homes, and that there had been substantial interference to the claimant's human rights, the importance of the Olympics and its legacy was overwhelming.
The High Court had previously considered two separate cases on the 3 May: the first case being: R (on the application of Neptune Wharf Ltd and another) v Secretary of State for Trade and Industry.
Neptune's land was being acquired under the CPO to provide a relocation site for a bus depot operated by First Capital East Limited whose land in turn was being acquired to build the Olympic facilities. Neptune objected on the grounds that planning permission would not be granted for the land to be operated as a bus depot.
The inspector reported to the SOS that although a compelling case in the public interest had been made out for the acquisition of the land, ‘Wyke Road does not have planning permission [for a bus depot] and, whilst the use would accord with the development plan, it might falter on one or more detailed aspects which need to be fully addressed...In my view the confirmation or otherwise of these plots must hang on the outcome of the planning process.’
The inspector therefore recommended that the SOS should defer consideration of the CPO in relation to these plots. This recommendation was accepted by the SOS and a direction was issued postponing the CPO until the outcome of the planning application for the bus depot was known (Direction).
Neptune sought to quash the Direction on three grounds: first, that s.13C of the Acquisition of Land Act 1981 (Act) under which the Direction was made requires a date to be set for the making of the relevant decision which the Direction failed to do; secondly, regardless of the proper interpretation of s.13C it is the clear policy of the SOS as set out in Circular 6/2004 to set a deadline by reference to a specific date by which a decision will be made about whether or not to confirm that part of the CPO in question; and thirdly, there was a breach of the rules of natural justice because the SOS failed to inform Neptune that it intended to make the Direction. The challenge failed on all three grounds.
S.13C of the Act was inserted by the Planning and Compulsory Purchase Act 2004 and it allows for a CPO to be confirmed in parts. If land is not ‘necessary’ for the compulsory purchase order (in light of the guidance in Circular 06/04), then it is appropriate (in some circumstances) for the SOS to use his powers under s.13C to defer confirmation of the order in respect of that land. The arguments centred around s13C(5) which states that in the event that a CPO is confirmed in parts, the [SOS] ‘must give a direction postponing consideration of the order, so far as it relates to the remaining part, until such time as may be specified by or under the direction’.
The Judge held that these words did not mean that a fixed date had to be set out in the Direction as ‘time’ could mean the happening of an event as opposed to a specific date. This view was reinforced by looking at the purpose of these provisions which is to permit the confirming authority to defer making a decision when faced with uncertainty, such as whether planning permission will be granted.
On ground two of the challenge, although Circular 06/2004 states that the confirming Minister will set a deadline and specified date for consideration of the remaining part, the Judge felt the Circular was merely a guide to the interpretation of the relevant statute and not to be relied upon as an authoritative interpretation. It was held that circulars did not amount to ‘expressions of policy’ and are no more and no less than a shorthand description of the statutory power. In any event, Mr Justice Williams stated that ‘a Minister does not necessarily act unlawfully in the context of a decision about compulsory purchase simply by departing from his policy. If he did depart from policy, however, at least generally speaking, he has a duty to explain why.’
On the final ground, the Judge held that there was nothing in the Act or Circular which required the SOS to consult with those with an interest in the land before postponing the order. The Circular requires the SOS to consult only the acquiring authority where it proposes to issue a direction under s.13C and whether fairness demands that a person is given an opportunity to make representations in advance of a decision will depend on the circumstances relevant to the case in issue. In this case there was no unfairness caused or a breach of the rules of natural justice.
The second case, Smith and others v Secretary of State for Trade and Industry and another concerned a Romany gypsy who has lived for a number of years in a caravan located at the Clays Lane Caravan Site in Newham. The other two claimants live in the Waterden Crescent Caravan Site in Hackney. Both the caravan sites fall within the Lower Lea Valley which is in need of serious regeneration and which will be achieved by the Olympics. The caravan sites are crucial areas of land within the areas the subject of the CPO: the Clays Lane Caravan Site is within/adjacent to the area which will become the Olympic village and the Waterden Crescent Caravan Site lies in close proximity to one of the stadiums to be constructed. There is therefore no question of the Olympics and legacy developments proceeding without the sites. The inspector concluded in his report that the CPO should not be confirmed in respect of these plots until the SOS ‘is satisfied that suitable relocation sites will be available to meet the reasonable needs of the Gypsies and the Travellers that would be displaced.’
The SOS confirmed the CPO in December 2006 but disagreed with the Inspector's conclusion that the CPO should not be confirmed until alternative sites had been secured. These proceedings were launched under s.23 of the Act to quash the decision of the SOS to confirm the CPO under 6 grounds. The main ground of challenge was that the SOS had acted unlawfully in confirming the CPO since the decision to confirm constituted unlawful interference with the claimants' rights under Article 8 European Convention on Human Rights.
Article 8 (right to respect for private and family life) provides: ‘Everyone has the right to respect for his private and family life, his home and his correspondence.
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 freedoms of others.’
The SOS and LDA argued that the CPO constituted interference which was in accordance with the domestic law and necessary in the interests of the economic wellbeing of the country. Consideration was given to case law on Article 8 especially in relation to its application to gypsies and travellers. The Judge concluded that a decision to confirm a CPO may be proportionate even though it does not amount to the least intrusive interference of the owner's rights under Article 8.
However, he went on to state that an alternative view was clearly possible and he therefore, against his own view, proceeded on the basis that to confirm this CPO would not be proportionate unless, on the particular facts of the case, it was the least intrusive measure open to the decision maker. In this case he held that the SOS's decision to confirm the order was neither unjustified nor disproportionate and it was the least intrusive measure available to him as ‘realistically, the only way of ensuring that a substantial proportion of the Order lands (which included the site) was under the control of the LDA by mid 2007 was to make the order. No other measure, in my judgment would have achieved that objective. If this had not been done, then the whole Olympic development project would be jeopardised.’
All three of these cases argued that the CPO interfered with the claimants' Article 8 rights. In all three cases the court accepted that there was interference but this interference was outweighed by the importance of delivering the Olympics. The courts have shown a reluctance to intervene in relation to the Olympics which would cause any delay in respect of their delivery and the underlying message appears to be that the Olympics are of such huge importance that unless there were blatant breaches of public law which could not be ignored, the courts are not prepared to interfere.