UK: Rookery Court Of Appeal Decision: Compulsory Purchase And Reasons

Summary and implications

On 22 November 2011, a Panel of three Commissioners of the now superseded Infrastructure Planning Commission made an order granting development consent ("DCO") to Covanta Rookery South Limited ("Covanta") for a Resource Recovery Facility, comprising an Energy from Waste plant and a Materials Recycling Facility at the Rookery South Pitt, near Stewartby, Bedfordshire.

Over three years later, following a Special Parliamentary Procedure, and High Court and Court of Appeal Judicial Review hearings, Covanta is only now in a position to implement the DCO free from challenge following the Court of Appeal's dismissal of the Judicial Review appeal.

This article examines the findings of the Court of Appeal on the reasons challenge, and the lessons to be learnt for future DCOs.

The DCO

The Special Parliamentary Procedure was triggered because the DCO authorised the compulsory acquisition of land belonging to local authorities and statutory undertakers who had made representations which they had not withdrawn. Use of the Procedure meant that the DCO did not come into force until 28 February 2013, once Parliament's Joint Committee had reported on the DCO without amendment. Thankfully the Special Parliamentary Procedure no longer applies for DCOs, so this is one less future barrier to a DCO coming into force.

The risk of judicial review, however, firmly remains for DCOs. Large infrastructure projects, particularly those seeking compulsory acquisition powers, will almost inevitably impact on numerous individuals, organisations and Local Authorities. It only takes one of those persons affected to seek to challenge the legality of the DCO to potentially then delay the safe implementation of the scheme for a considerable period of time.

Reasons Challenge

The Court of Appeal held that the IPC Panel recognised that a compelling case in the public interest had to be demonstrated, arranged a hearing to deal specifically with the issue of compulsory acquisition and dealt with "Compulsory Acquisition Matters" in a separate Chapter (7) of the Panel's Decision and Statement of Reasons document ("SR Document").

The Appellant had argued to the IPC Panel that there were alternative sites available which could be used to meet existing need without using compulsory acquisition powers. In the Court of Appeal, the Appellant then argued that the Panel failed to give adequate reasons for its conclusion that there was a compelling case in the public interest for the grant of compulsory acquisition powers, because it had failed to explain why it had concluded that there were no reasonable alternatives to compulsory acquisition.

In paragraph 7.93 of the SR Document the IPC stated that "a number of points were put to us in the course of the compulsory acquisition hearing including the following", and then proceeded to list points put to them by the proposed developer explaining why the alternatives were inadequate.

The IPC did not expressly agree with those points, or state that the Panel accepted those points, going on to state at the beginning of the next paragraph: "We are of the view that there are no alternative sites...in terms of delivery and timescale".

The Court of Appeal upheld the findings of Mitting J from the High Court, holding that those points as set out in the SR Document "by necessary implication" had been agreed by the Panel, reading into the SR Document an agreement with the points stated based on a linguistic interpretation of the phrasing in the SR Document. An earlier chapter of the SR Document considered the merits of alternative schemes when assessing whether development consent should be granted for the scheme. The Court of Appeal found that the SR Document was to be read "as a whole", and that the Appellant's arguments that inadequate reasons were stated was "too analytical and indeed a perverse construction of the language used by the Panel if the SR [Document] is read as a whole".

Conclusions

The Court of Appeal has, therefore, made it clear that it will not find a decision making body having provided inadequate reasons, provided the decisions document "read as a whole" can be interpreted so as to show the reasons given for there being a compelling case in the public interest for the grant of compulsory acquisition powers.

It may be arguable that the claim the Appellant's arguments were "too analytical" is somewhat contradictory, given the analytical detail the Court exercised in finding the Panel had adopted explanations by the proposed developer "by necessary implication", particularly in the context of explaining why it is acceptable to authorise compulsory acquisition rights over other persons' land.

Lessons to decision makers

It remains, however, that the IPC could very easily have explicitly stated their reasons for concluding there was a compelling case in the public interest. The lessons, therefore, are not so much in the findings of the Court, but the warning to decision makers that, where reasons are to be stated for a decision being made: be explicit. In the context of the hundreds of pages of reports and findings from the Panel, an additional few words or sentences would not have been particularly burdensome, but may have provided a much greater degree of certainty as to the Panel's meaning, and potentially saved the developer from two years of judicial review challenges.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.