It cannot be over-emphasised that the very idea of a CPO runs against the grain of centuries of British justice.
One of the three clauses of the 1215 Magna Carta which are still on statute is Clause 39, the right to due process:
“No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgement of his peers, or by the law of the land.”
This is why, time and again, the finest legal minds in the country keep hammering home that a CPO can only ever be an act of last resort that can only be contemplated when the need to act is overwhelming, and all other avenues have been exhausted. (More recently, of course, this principle has been enshrined in national and international human rights legislation.)
“…depriving a landowner of land that belongs to him, no matter how popular it may be with other local people, is not something the law permits lightly…”
So said the Judge in a 2012 CPO case between Barnsley Metropolitan Council and the Secretary of State. In his judgement, he quoted with approval other Judges, such as Lord Denning:
“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 expressly authorised by Parliament and the public interest decisively so demands …”
And Judge Watkins:
“The taking of a person’s land against his will is a serious invasion of his proprietary rights. The use of statutory authority for the destruction of those rights requires to be most carefully scrutinised. The courts must be vigilant to see to it that that authority is not abused. It must not be used unless it is clear that the Secretary of State has allowed those rights to be violated by a decision based upon the right legal principles, adequate evidence and proper consideration of the factor which sways his mind into confirmation of the order sought.”
So, you won’t get a CPO on the basis of it being a popular idea. You need it to be decisively in the public interest and your application needs to be based on sound evidence.
This, of course, is not news (although the airport supporters do not seem to grasp how difficult it is to have a CPO awarded against the land’s legal owner). The Barnsley judgement also deals a killer blow to the idea that Councils can use their general “well-being” powers alone to justify a CPO.
The next bit is dull but important. Our very own TDC is planning to use S.226 of the Town and Country Planning Act 1990 to CPO Manston. This says that Councils can CPO for development and other planning purposes if this would contribute to the economic, and/or social, and/or environmental well-being of the area.
Put to one side for the moment the fact that Manston is a proven economic disaster; that its social contribution was 144 jobs at peak employment, many of which were part-time; and that it carries very significant environmental downsides and no environmental upsides. There’s an even bigger obstacle for the CPO fan club ahead.
The Judge in the Barnsley case was emphatically clear that all Councils are limited in their CPO activities by S.121 of the Local Government Act 1972. This says specifically that Councils cannot CPO purely for “the benefit, improvement or development of their area”. The Judge concluded:
“It is, of course, the case that section 226(1A) of the 1990 Act has permitted the compulsory purchase of land for planning purposes if one or other of the well being objectives are also satisfied, but that is a somewhat different context from the acquisition of land purely for one or more of the well-being objectives set out in section 2 of the 2000 Act. “
This means that you can CPO if you can tick one of the three “well-being” boxes, but only if you’re also doing it for a “planning purpose”.
Now, let’s have a little think. Is there a “planning purpose” – in the proper statutory meaning of the words – behind the desire to CPO Manston? No, there isn’t.
Government Circular, ODPM 06/2004, explains this “planning purpose” bit further.
“Any programme of land assembly needs to be set within a clear strategic framework, and this will be particularly important when demonstrating the justification for acquiring land compulsorily under section 226(1)(a) powers as a means of furthering the well-being of the wider area. Such a framework will need to be founded on an appropriate evidence base, and to have been subjected to consultation processes including with those whose property is directly affected.”
Well that’s a blow, isn’t it? There’s no TDC Local Plan built on proper consultation that relies on a CPO for a cargo airport and no wider planning “scheme” of which this CPO’d land would be an integral part – i.e. there’s no strategic need to CPO the Manston site to put a road through it, for example, or to use it as part of a bigger plan to redevelop the western end of Ramsgate, say. The CPO idea is just a stand alone, knee jerk reaction to an unverified petition.
ODPM 06/2004 goes on (bear with us – it’s dull, but it’s good):
“Where the local plan is out-of-date [and TDC’s is] and local development documents are still in preparation [and TDC’s still are], it may well be appropriate to take account of more detailed proposals being prepared on a non-statutory basis with the intention that they will be incorporated into the local development framework at the appropriate time. […] Where such proposals are being used to provide additional justification and support for a particular order, there should be clear evidence that all those who might have objections to the underlying proposals in the supporting non-statutory plan have had an opportunity to have them taken into account by the body promoting that plan, whether or not that is the authority making the order.”
Have we been consulted about the airport enthusiasts’ desire to CPO the land for a cargo hub? Nope.
Have we been consulted about whether we want to give up the employment, leisure and housing opportunities offered by the owners’ plans? Nope.
Indeed, many of us who have grave concerns about the CPO/cargo hub idea can’t even get TDC Councillors to answer our emails and so are shut out of the debate entirely.
So, if you can’t CPO just for the economic, social and environmental good of the area; and you don’t have a planning scheme [which TDC hasn’t], and you can’t CPO purely for the “benefit, improvement or development” of your area, and you haven’t consulted [which TDC hasn’t]… you can’t CPO. Simple.
There are other CPO obstacles in this helpful little Government Circular. We’ll return to this in a day or so with a few pithy words about the likelihood of planning permission being granted and the financial viability of the CPO. In the meantime, digest and enjoy!
Courtesy of Manston Pickle