Thou shalt not covet thy neighbour’s house, part 3

(… continued from Thou shalt not covet thy neighbour’s house, part 2, posted on 16 Sep 2014).

You may think that it is ironic that a landowner who wishes to dispose of land for redevelopment purposes, with the prospect of making a financial gain in the process, should be objecting to Clause 47, which would give the Transport Secretary the power to intervene to facilitate HS2-related regeneration. This apparent contradiction provided Tim Mould QC, lead counsel for the promoter, with something of an open goal when he cross-examined Charles Gillett FRICS, witness for the Gooch Estate, in front of the HS2 Select Committee on the evening of Monday 1st September (see footnote 1).

Mr Mould took Mr Gillett on a short verbal excursion, in the way that experienced barristers like Mr Mould can employ to advantage, along a path that Mr Gillet did not really want to follow to a place at which he certainly did not wish to arrive. During the course of this gentle excursion, which had the purpose of getting Mr Gillett to concede that Clause 47 should be seen as potentially of benefit to the Gooch Estate, Mr Mould did at least provide the clarification that I was seeking in the final paragraph of part 2 of this blog series of why the powers of Clause 47 might be required.

In the first place, Mr Mould appeared to confirm that, other than allowing the Transport Secretary to intervene, the proposed powers did not extend further than those of the Town and Country Planning Act 1990 (TCPA). According to Mr Mould (see footnote 2):

“[Clause 47] mirrors the arrangements that apply generally and under the general law for those powers of compulsory purchase which allow land to be acquired for regeneration purposes where there are difficulties in land assembly and that kind of thing.”

Mr Mould also presented a helpful example of where the Transport Secretary might see the need to employ the powers conveyed by Clause 47, using a potential scenario that might involve the Gooch Estate, in order to cast the Transport Secretary in the guise of the property developer’s friend. Indeed, Mr Mould was notably avuncular in the way that he explained to Mr Gillett that the Gooch Estate has nothing to fear from good old uncle McLoughlin, or more likely one of his successors.

Mr Mould, in paragraph 313 of the transcript, asked Mr Gillett to suppose that the Gooch Estate having, in due course, “reviewed its plans for redevelopment of the Digbeth area suggests to the City Council that it would be helpful to promote a comprehensive development scheme for Digbeth, building on the HS2 station, which embraces not only the Gooch Estate’s own land but also land which is presently owned by another party”.

Mr Mould further asked Mr Gillett to consider a situation where “that other party is unwilling to release its land for that purpose”. I’m sure that the vision of a lonely octogenarian, barricaded into his house and surrounded by cleared land, bulldozers and a posse of reporters and photographers must have formed in Mr Gillett’s mind.

Mr Mould put to Mr Gillett that, in such circumstances, the Gooch Estate might well go to the local authority and say, “We need your help. We would like you to exercise your compulsory purchase powers under the Planning Act to assemble the land that we need for our scheme. Will you do so?” Mr Gillett was forced to agree that this was a realistic scenario.

Mr Mould continued his narrative, slowly and surely approaching the point of his tale, by asking Mr Gillett to imagine the situation in which the local authority felt unable to help the Gooch Estate out of the problem that he had fantasized (paragraph 315). He imagined the Secretary of State saying in such circumstances:

“In that kind of case, you can come to me, Gooch Estate, and I will step in and I will be willing to consider exercising my power under Clause 47(1) in place of the City Council.”

Mr Mould went on (paragraph 319) to give the assurance that any future Transport Secretary who did this “would still have to justify a decision to exercise that power” and that “the ordinary procedures for compulsory purchase would apply”. This meant that any decision would be subject to public inquiry, and “would have to satisfy the test that any compulsory purchase can only take place in circumstances where there’s a compelling case in the public interest”.

So, thanks to Mr Mould, it is clear that Clause 47 is intended to give the Transport Secretary the means to usurp the function of a properly-constituted planning authority and to act in its stead but with the same powers, constraints and checks that currently apply to compulsory purchase orders made under the provisions of the TCPA.

And I thought that the Coalition Government was in favour of localism.

(To be concluded …)

Footnotes:

  1. The relevant section of Mr Mould’s cross-examination of Mr Gillet starts at paragraph 303 in the transcript and at 20:12 hrs in the video and extends to paragraph 333 in the transcript and 20:22 hrs in the video.
  2. This confirmation is in paragraph 307 of the transcript. I have omitted the word “says” and the quotation marks that appear in the transcript, because these give the incorrect impression that Mr Mould was quoting from Information Paper C11. He was not; these words are his own interpretation of the nature of Clause 47.

Important Note: The account of the proceedings of the HS2 Select Committee that is given in this blog is based upon an uncorrected transcript of evidence, which is not yet an approved formal record of the proceedings of the HS2 Select Committee. Neither witnesses nor Members have had the opportunity to correct the record, and it may therefore be subject to changes being made in the light of any such corrections being requested.

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One response to this post.

  1. Posted by chriseaglen on September 20, 2014 at 6:57 am

    would still have to justify a decision to exercise that power Not much of a criteria in reality. View the steam rolled HS2 Phase 1 with the MP form of democracy not that of the people for real localism. The issue is the determination of lifting the safeguarding veil to suit HS2 gains and property developer gains at large. More significant primary issues to address again than the petitioning charade.

    Reply

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