AC-2024-LON-001877 - [2025] EWHC 2132 (Admin)

In DL29, the inspector referred to the CPO Guidance that acquiring authorities are expected to provide evidence of genuine and meaningful attempts at negotiation with those whose land or rights are subject to proposed compulsory purchase. There should be evidence of reasonable steps being taken with a view to acquiring the land required for the scheme underlying compulsory purchase by agreement. Nevertheless, in order to maintain the momentum of the scheme, it may be appropriate to take steps to secure compulsory purchase powers whilst also pursuing negotiations to acquire the land and rights needed for the scheme by agreement.

It is important to have well in mind why these considerations are relevant to the decision whether to confirm a compulsory purchase order. The acquiring authority is expected to advance a compelling case in the public interest for confirmation of the order. Compulsory purchase is intended as a last resort. Unless the acquiring authority has engaged in meaningful negotiations with land owners and rights owners whose property is needed to achieve the purposes for which the order is made, it will not be possible (at least in the majority of cases) for the confirming authority to determine whether resort to compulsory acquisition might have been avoided. In the absence of evidence of reasonable efforts to acquire the requisite land and rights by agreement, it is unlikely to be open to the confirming authority safely to conclude that a compelling case for compulsory acquisition has been established.

However, what is required in order to demonstrate that the acquiring authority has at least attempted to engage in and take forward such meaningful negotiations, and has made reasonable efforts to acquire the land and rights required for the scheme by agreement, will vary from case to case. Moreover, the judgment whether the action taken by the acquiring authority fulfils those policy requirements is primarily for the confirming authority, in this case the inspector, subject only to statutory review by this court on Wednesbury principles.

It is vital also to have well in mind that the policy of the CPO Guidance is to require the acquiring authority to attempt and take forward meaningful negotiations and make reasonable efforts to acquire by agreement. It is not to insist on those negotiations and efforts achieve a successful outcome. Ex hypothesi, there will be cases in which the acquiring authority will need to resort to compulsory purchase because the parties have failed to reach an agreement for sale or possession of the requisite land or rights which is mutually acceptable, despite the meaningful and reasonable efforts of the acquiring authority to secure such an agreement.

Essentially, that was the inspector’s conclusion in DL36, having considered the history of negotiations between the Second Defendant and the remaining leaseholders, including the Claimant, which was before him in evidence in the present case. I have set out that evidence and the respective contentions advanced by the Claimant and the Second Defendant in some detail. I am unable to accept that the inspector’s consideration of that evidence and those contentions in DL28 to 35 and DL38 of his decision reveals or substantiates the legal errors contended for by Mr Jones KC.

In the light of the inspector’s reasons in DL28 and DL29, it is beyond argument that the inspector directed himself properly by reference to the relevant policy and advice given in the CPO Guidance.

It is incorrect to say that the inspector failed to take account of the prolonged period of uncertainty over plans for regeneration of JRP. He refers to that history in DL31. His task was not to review the reasons why matters had taken so long. The relevant question for him was to consider whether the Second Defendant had made appropriate arrangements to accommodate the impact of the current refurbishment proposals under the Scheme on remaining leaseholders at JRP, including the Claimant and her family. It was of significance that the Claimant and her family favoured refurbishment over demolition, and had voted in favour of the Landlord Offer on that basis. In making that choice, the Claimant and her family inevitably accepted that they would at least need to move out of the Premises to alternative residential accommodation during the course of the refurbishment works. On the evidence before him, the inspector was entitled to making the findings that he sets out in DL32.

The inspector referred specifically to the options available to the Claimant and her family under the Landlord Offer. I have mentioned those options in paragraph 98 of this judgment. Of particular note is that under the Landlord Offer, following completion of the Scheme the Claimant and her family will be able to resume possession of the Premises and take the benefit not only of their refurbishment but also the resulting uplift in value of her lease in the refurbished JRP. As the inspector noted in DL34, Mr Mackin had confirmed the options which remained available to the Claimant at the public inquiry.

In the light of those matters, the inspector cannot be said to have failed to have taken proper account of the period of uncertainty which preceded the Second Defendant’s decision to take forward refurbishment of JRP and promote the Landlord Offer.

I do not accept that the inspector fell into legal error, in finding that the issues over mismanagement of JRP and the alleged failure of the Second Defendant to fulfil their duties as landlord and housing authority were not material to his decision whether to confirm the Order. His statutory function was to make that decision. He chose to do so by applying the framework set by the CPO Guidance. The overarching question for him to decide was whether the Second Defendant had established a compelling case in the public interest for confirmation.

Approaching matters in that way, it was open to him reasonably to take the view that allegations of historic property management failures and breaches of covenant made against the Second Defendant, which were disputed, were not for him to resolve. It is obvious from both DL30 and DL38 that he had those matters well in mind. The logic of the Claimant’s argument on this point is that all other factors pointing clearly in favour of a compelling case in the public interest for confirmation of the Order, the Claimant’s objection should nonetheless prevail on the basis of the alleged history of failures on the part of the Second Defendant to fulfil their responsibilities as landlord and housing authority. As the inspector points out, however, the Claimant and her family had voted in favour of refurbishment of JRP. That was also, as the inspector found, what the public interest demanded, largely because of the need to bring JRP back into use and meet the local need for affordable housing. The inspector was reasonably entitled to judge that past failings that were themselves disputed were not a matter that bore materially on the decision which he was called upon to make.

It is pertinent to recall that the reason why the Claimant contended that those matters were relevant in her written objection was that, as she saw it, the Second Defendant’s failings as landlord and housing authority had resulted in the diminution in value of her lease in the no scheme world. However, the terms of the revised draft agreement offered by the Second Defendant addressed her concern: they provided for the Claimant’s leasehold interest to be valued on the assumption that the refurbishment works had reached practical completion. Mr Mackin confirmed that in his proof if evidence, in outlining the principal terms which remained on offer to the Claimant.

In his oral submissions, Mr Jones KC placed particular emphasis on his argument on the meaning and effect of clause 9.4 of the draft agreement. He submitted that the inspector’s reasoning in DL30 revealed the inspector’s misunderstanding of the true extent of the uplift offer included in the draft revised agreement and which lapsed at the end of March 2023.

Mr Edwards KC submitted that the Claimant had not raised the effect of clause 9.4 of the draft agreement as a core concern at the public inquiry. Neither Mr Rhead nor the Claimant’s son had raised that clause as a matter of concern. It had been mentioned only fleetingly in the Claimant’ closing submissions. There is force in those submissions. It is also correct to say that the draft revised agreement was in evidence before the inspector. There was no dispute as to the meaning and effect of clause 9.4. It is easy to understand that the Second Defendant as acquiring authority would not wish to be under an obligation to purchase remaining leases at JRP in circumstances in which the Scheme was abandoned before it had even begun to be implemented. It does not appear that either the Claimant’s son or Mr Rhead expressed any specific concern about that proposed term.

These points serve to make Mr Jones KC’s submission an unpromising one. But in any event, in my view, this part of the Claimant’s case is founded upon a misreading of the inspector’s reasoning in DL30.

In DL30, the inspector’s focus was on the question whether the Second Defendant had acted reasonably in setting the final deadline of 29 March 2023 for acceptance of the revised draft agreement containing the uplift offer; and in declining either to extend that deadline at the request of the Claimant’s solicitors or to reinstate the uplift offer during subsequent negotiations. Those were the core complaints made by the Claimant’s son in his evidence and by Mr Jones KC in his closing submissions.

As was in fact common ground between the Claimant’s son and Mr Mackin, the main outstanding issue in negotiations had been the Second Defendant’s refusal to reinstate the uplift offer. Both parties had clearly stated to the inspector the reasons for their respective positions in relation to that unresolved issue. It was for him to decide whether the parties’ failure to reach agreement on that matter resulted from a lack of meaningful and reasonable effort to negotiate on the part of the Second Defendant as acquiring authority. The Second Defendant’s solicitors had stated the Second Defendant’s reasons for their negotiating position in their letter of 6 October 2023.

As is obvious from DL33 to DL35, the inspector had considered the evidence in relation to those negotiations. He concluded that failure of effort or lack of reasonable engagement on the part of the Second Defendant was not the reason why the parties had been unable to resolve that issue between them. That was a judgment he was reasonably entitled to make, based on the information before him. DL30 does not reveal any misunderstanding either of the terms of the Second Defendant’s offer, including clause 9.4, or of the factual position more generally. The observation that in September 2022 and again in early 2023 the Second Defendant agreed that an uplift of £1 million would be paid, should the scheme fail, is no more than shorthand for the uplift offer that was included in clause 10.14 of the revised draft agreement for acceptance finally by 29 March 2023. The focus of debate before the inspector was whether the deadline for acceptance of that enhanced offer, the refusal to extend it and the refusal to reinstate it were unexplained and unreasonable. The parties are left in no genuine doubt as to the inspector’s conclusion on those matters and that he accepted the Second Defendant’s evidence that they had good reason for acting as they did.

For these reasons, ground 2 must be rejected.