Communities secretary gave insufficient reasoning in Shepherds Bush Market regeneration CPO, says court

Out-Law News | 24 Mar 2016 | 2:59 pm | 2 min. read

The Court of Appeal has upheld a challenge against the former communities secretary Eric Pickles' decision confirming a compulsory purchase order in Shepherds Bush Market, London.

Pickles confirmed the CPO in October last year, despite recommendations by a planning inspector for refusal, concluding that "sufficient safeguards had been put in place to protect traders and shopkeepers". The CPO allows Hammersmith and Fulham Council to acquire all the property interests needed for joint venture Orion Shepherds Bush Limited's plans to expand and redevelop Shepherds Bush Market.

Despite a judicial review challenge by Shepherd's Bush Market Tenants' Association, the High Court upheld the CPO in July. Last year, a number of Shepherd's Bush market traders applied for permission to appeal the High Court decision.

The Court of Appeal held that "although it is clear that the secretary of state disagreed with the inspector’s view… he does not explain why he came to that conclusion." The Court accepted that the secretary of state does not need to give a "paragraph by paragraph" account of why he disagrees with the inspector but it does require an explanation that is "beyond merely stating his conclusion that he did".

"The secretary of state may have had perfectly good reasons for concluding that the guarantees and safeguards were adequate. The problem is that we do not know what they were," said the ruling.

The Court discussed the importance of ensuring that the reasons behind the secretary of state's decision were clear and "easy to understand" as the "livelihoods of the traders are put at risk by the proposed development."

Both the developer and secretary of state argued that the decision letter was "addressed to parties well aware of the issues involved." But the Court held that "the reader of the decision letter would have had to have been not only well-informed but also psychic to have extracted from the two laconic sentences [] the elaborate chain of reasoning upon which [the secretary of state] relies."

The Court analysed Pickles' decision letter and found it to be unclear in most parts and they were unable to establish exactly what he was disagreeing with. "The inspector's key concern about affordability was not mentioned at all", nor were the concerns in relation to the arches.

"It was agreed at the hearing of the appeal that the question of the appropriate form of relief would be decided later," the ruling said.

Planning expert Victoria Lindsay of Pinsent Masons, the law firm behind Out-Law.com said "This is an important decision and reiterates that reasons for a decision must be clear and adequately detailed in terms that ordinary citizens can understand. It is somewhat surprising that the former communities secretary's decision letter was deficient in this regard especially given the long running and controversial nature of the CPO decision. We await to see what the appropriate form of relief will be and whether this will give certainty to the traders involved".