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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> International UK Ltd. v First Secretary of State & Anor [2004] EWHC 3120 (Admin) (14 December 2004) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2004/3120.html Cite as: [2004] EWHC 3120 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		14th December 2004

1. Mr Justice Davis: The claimant, a company called RE International UK Limited (which I will call "REI") applies under section 23 of the Acquisition of Land Act 1981 to quash a decision of the Secretary of State for Trade and Industry, contained in a letter dated 13th August 2004, confirming parts of a compulsory purchase order, published on 20th February 2004 pursuant to the provisions of the Regional Development Agencies Act 1998. By such CPO, in its eventual form, the London Development Agency (which I will call the "LDA") was authorised to acquire compulsorily some 3.9 hectares of land situated between Wembley town centre and the new Wembley National Stadium. The scheme of the legislation in essence is that for such CPO to be of lawful effect it requires confirmation from the Secretary of State. It was the letter of 13th August 2004 which provided that confirmation, albeit with some modifications which are not material for present purposes.
2. REI owns the freehold of around 1.7 hectares of the land the subject of the CPO as confirmed. That land is sited to the north of the railway line and south of a road called South Way and comprises all or parts of plots 40, 43 and 45 on the useful plan contained in the bundle at page 395. Other adjoining land, also to the north of the railway line and south of South Way, is in separate ownership, two of the owners being Network Rail and the local Conservative Club. Portions of land to the south and south east of the railway line adjoining Wembley High Road were also the subject of the CPO as issued by the LDA, but they are not material for present purposes.
3. The land of REI was acquired by REI some years ago. It is, as is common ground, in derelict condition and also suffers in places from an infestation of Japanese Knotweed. The edge of the land is very close to the new stadium and it adjoins one of the main gateways to the stadium.
4. A number of objections, including from REI, were lodged against the CPO as issued by the LDA. An enquiry was held, lasting some six days, before an Inspector in May 2004. REI and the LDA, among others, were legally represented at such enquiry and adduced evidence and made detailed representations. An outline planning application by the LDA had also been submitted to the local council, which was Brent, in February 2004. That was a composite outline application for, amongst other things, demolition of properties, erection of a comprehensive mixed used development and related access, landscaping, station improvement and other facilities. All matters were reserved with the exception of means of access. In April 2004 the local council resolved to grant planning permission subject to certain matters.
5. A key component of the planning application was the provision of a means of access, comprising a bridge, pedestrian path and "marshalling yards" (which were for the assembly of football supporters attending the stadium). This has cumulatively been called before me "the pedestrian link". The LDA and its supporters have been extremely anxious to construct this pedestrian link, which would in part incorporate some of REI's land, by September 2005, that being, as I gather, the projected date for the first event at the new stadium.
6. Although REI had initially opposed this CPO in its entirety insofar as it related to it, at the enquiry it modified its position. It made no objection to the pedestrian link and marshalling yards and agreed to grant the necessary licence to enable the necessary building works to go ahead in that regard. Indeed, REI offered some land for the proposed marshalling yards and also made an offer of £1 million to assist with the general regeneration works. But REI objected to the CPO insofar as it affected the remainder of its land. In that regard REI had itself, in 2003, submitted its own planning application in respect of its land. Its case was, in essence, that the overall regeneration sought for Wembley could be achieved by leaving REI free to pursue its own development plans for its own site.
7. The position before the Inspector was that the LDA had allocated the money needed to construct the pedestrian link and was anxious to press on with that. As to the proposed development of the remainder of the land, the LDA had entered into a written agreement dated 7th May 2004 with a substantial property developer, Quintain Estates and Development plc. One of the terms of the agreement was that the developer was to use reasonable endeavours to procure, within five years of the transfer of the development land to it, the carrying out and completion of the comprehensive development of all the land designed to be regenerated in accordance with the masterplan framework.
8. It may be noted that it was not disputed that the entirety of the land, the subject of the confirmed CPO, including the land of REI itself, really cried out for regeneration and redevelopment. It was also common ground that the proposed regeneration and redevelopment accorded with the relevant plans and planning policies as well as the 1998 Act itself. Mr Jeremy Cahill QC, appearing for REI, confirmed to me that REI accepted that there was a compelling case in the public interest for such regeneration and redevelopment.
9. The essential issue in this case, at all events before the Inspector, was in essence, however, this. Was there a compelling case in the public interest for the compulsory acquisition of the balance of REI's land to achieve such regeneration and redevelopment?
10. The general approach to be adopted in this context is, as was common ground before me, usefully set out in Office of Deputy Prime Minister Circular 02/03 on Compulsory Purchase Orders. In particular, paragraphs 13 to 16 set out in general terms the necessary preconditions by way of justification for making a CPO. The Circular makes clear that such a CPO should only be made where there is a compelling case in the public interest. That is, and has long been established in this context, plainly right. It is a strong thing indeed to divest a landowner against his agreement of his rights of property.
11. Paragraphs 17 to 18 of the Circular relate to resource implications. In this regard, and indeed in regard to Appendix B to which I shall come, the LDA was relying on its written agreement with Quintain as showing its ability to complete the development of the entirety of the land, subject, of course, to the provisions set out in the agreement of 7th May 2004 itself. Appendix B to the Circular related specifically to orders made under section 20 of the 1998 Act. Paragraph 8, for instance, gives examples of where a regional development agency may think it appropriate to make such a CPO.
12. In paragraphs 13 and 14 of Appendix B this is said:

"13. In reaching a decision about whether to confirm an Order made under section 20 of the 1998 Act, the Secretary of State will have in mind the statutory purposes of the RDA and will, amongst other things, consider:

(i) whether the RDA has established the bare and justification for its actions through its adopted strategy and any related action plan (including any reviews thereof) which should be in general accordance with regional and local planning policies;

(ii) whether the RDA has demonstrated that the land is in need of regeneration or is needed for such other purposes of the RDA as have been put forward as justification, or for purposes incidental thereto;

(iii) what, if any, alternative proposals have been put forward by the owners of the land or by other persons for the use of or re-use of the land; whether such proposals are likely to be, or are capable of being, complemented (including consideration of the experience and capability of the landowner or developer and any previous track record of delivery); what planning applications have been submitted and/or determined; how long the land has been unused; and the extent to which the proposals advocated by the other parties may conflict with the RDA's proposals as regards the timing and nature of the regeneration of the wider area concerned;

(iv) whether regeneration (or such other purposes of the RDA as are given in the order) is, on balance, more likely to be achieved if the land is acquired by the RDA, including consideration of the contribution which acquiring the land is likely to make to stimulating and/or maintaining the long-term regeneration of the area;

(v) whether, if the RDA intends to carry out direct development, it will not thereby, without proper justification, displace or disadvantage private sector development or investment, and that the aims of the agency cannot be achieved by any other means;

(vi) the condition of the land and its recent history; and

(vii) the quality of, and proposed timetable for completing, both the proposals for which the RDA is proposing to acquire the land and any alternative proposals.

14. Where the land is being acquired to stimulate private sector investment, the Secretary of State will also have regard to the fact that it will not always be possible or desirable for an RDA to have specific proposals for the land concerned beyond any broad indications in its general framework for the area. Although this means that detailed land use planning and other factors may not necessarily have been resolved before making the order, the Secretary of State will still, however, want to be reassured that there is a reasonable prospect of the project proceeding, as proposed; and the RDA will need to be able to show that the proposed exercise of its compulsory purchase powers is clearly in the public interest."

13. By his report, which was designed to make recommendations and to report to the Secretary of State, the Inspector concluded that there was a compelling case in the public interest for compulsory purchase of inter alia the balance of REI's land. It may be noted in passing that in respect of certain other areas of land, the subject of the overall application, the Inspector concluded that the public interest did not require compulsory acquisition. Those parts of land are not related to the application before me.
14. The Secretary of State, who plainly through her officials was herself putting the matter in her own words in the decision letter, also expressly adopted the Inspector's reasons and conclusions in confirming the CPO in the relevant respects and reached the same overall conclusion.
15. The sole ground of challenge to that decision of the Secretary of State is that the reasons given by the Secretary of State, and therefore referentially by the Inspector, were not intelligible or adequate, and gave rise to a substantial doubt that the Secretary of State had erred in law; and that REI had been prejudiced thereby.
16. At the hearing before me a number of legal issues were not in dispute. First, it is a fundamental principle of planning law that the planning judgment and assessment is that of the decision maker himself or herself or itself; in this case the Secretary of State. Second, the applicable legal approach in this context can be taken as summarised by Lord Brown of Eaton-under-Heyward in paragraphs 35 to 36 of his opinion in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953.
17. Third, and reflecting Lord Brown's comments, decision letters are required to address the principal important controversial issues and are to be read in a straightforward way, recognising, also, that they are addressed to parties who know the issues and can be taken to be informed readers. Fourth, if the reasons challenge is well founded that in turn would establish a successful ground for the purposes of section 23 of the Acquisition of Land Act 1981. Fifth, the decision letter and the Inspector's report each must be read as a whole.
18. I should add that, although the claim form on its face seeks to quash the entirety of the CPO as confirmed by the Secretary of State, Mr Cahill makes clear that REI only seeks to quash it insofar as it relates to the balance of REI's land; that is those parts not needed for the pedestrian link and marshalling yards.
19. When it issued the CPO in February 2004 the LDA issued a statement of reasons in support. These, amongst other things, said this:

"3.12. The LDA recognises that, in order to maximum the regeneration benefits to Wembley Town Centre and the wider area, it is of great importance to provide direct access to the new National Stadium from Wembley Town Centre, to provide a direct visual link from the Town Centre towards the Stadium and to connect the main nodes of existing and proposed activity. With a view to achieving these objectives, the LDA intends to acquire the Order Land and to provide a new bridge and pedestrian access between South Way and High Road, Wembley. It will then make land available for development by others in accordance with the proposals outlined below.

3.13. Construction of the new National Stadium is currently underway. The construction programme provides for it to be open in September 2005. It is important that the link between the Town Centre and the Stadium is in place for the opening event. In addition, the National Stadium is a key component in London's bid to host the Olympics in 2012 and the International Olympic Committee will be visiting London to assess the infrastructure provision in early 2005. It is important to be able to demonstrate by that date that the bridge over the railway and the associated pedestrian access to the Stadium has been duly authorised and will be constructed."

20. In a subsequent statement of case updating those reasons the LDA said this:

"7.1 The objectors suggest that it is not necessary to use CPO powers to secure the aims of the LDA.

The need generally for the CPO is set out in the Statement of Reasons and also again in the Statement of Case at section 5. The CPO provides the means to ensure a comprehensive redevelopment of all the Order Land. Currently, the Order Land is in fragmented ownership. Contact with occupiers of all premises within the Order Land has taken place and the LDA welcomes discussion with landowners for the acquisition of their interest. Only a CPO will ensure that all interests in the Order Land can be secured to carry out the proposed development. Furthermore, the CPO is the only means of providing certainty that the LDA's aim to complete the proposed infrastructure works by September 2005 will be achieved.

...

The primary reason for making the CPO is to secure the regeneration of the Order Land. This is to be achieved by providing a link between Wembley Town Centre and the National Stadium. Whilst this link will also assist in significantly improving public access, it is not being provided solely for highway purposes but for broad regeneration purposes.

The objectors consider that this land could be brought forward as part of the LDA's proposed scheme by agreement with the objectors and without the need for the CPO and also assert that the land take is excessive.

The LDA acknowledges that dialogue has taken place between the objectors and the LDA and continues to welcome negotiations. However, the LDA must proceed with certainty in order to achieve its purposes and aims within the timescales suggested. Proposals by the objectors are dependent upon securing land and rights together with funding necessary to implement and construct a bridge over the railway line to Wembley Stadium Station. However, such proposals require either agreement of other landowners or the exercise of the LDA's CPO powers in acquiring such interests. All the land in the CPO is necessary to secure the comprehensive development of the Order Land. Further, even if this objector's interest was omitted, it would still be necessary not only to acquire compulsorily, but also to fund the compensation for the acquisition of, all the other land required to achieve the proposed development.

The objectors consider that it can itself deliver a scheme without the need for compulsory acquisition."

21. As to the Inspector's report making recommendations to the Secretary of State, and issued after the conclusion of the enquiry itself, that is a very detailed and thorough document, 89 pages in length excluding appendices. The overall structure of the report was this. Part 1 related to procedural matters and statutory formalities. Part 2 described the land and the surrounding environment. Part 3 dealt with the planning policy and other policy guidance: including, amongst other things, the relevant unitary development plan. Part 4 summarised the case of the LDA. Part 5 summarised the case of the Brent Council. Part 6 summarised the case of REI and included in it the LDA's response to REI's case. Part 7 summarised the case of another objector called Lionrule with the LDA's response to that. Part 8 summarised the case of other written objections with the LDA's response to those.
22. The crucial part of the report, as was common ground before me, is contained in section 9 of that report. It is on that which the parties before me have focused, concentrating in particular, as I will come on to mention, on certain paragraphs of that section. It is section 9 which contains the Inspector's conclusions and recommendations.
23. This is said in paragraphs 9.6, 9.7 and 9.10:

"9.6. There is no dispute that Wembley and the town centre has suffered from significant environmental and economic decline and both are in need of regeneration (3.8 and 4.4). Similarly, despite its national and international reputation as the home of football and now the home of the new English National Stadium, Wembley Stadium is surrounded by a dated, declining and poor quality industrial/commercial area. This provides a wholly inappropriate and depressing setting for a world class sport and leisure venue. Whilst there is a strong physical and visual link between the Stadium and Wembley Park to the north, the link to Wembley Town Centre is very poor (7.52). This has resulted in the wholly understandable perception of '2 Wembleys', the stadium area and the town centre (3.11).

9.7. Through the designation of the Wembley Regeneration Area (WRA), the National Stadium Policy Area (NSPA), a Comprehensive Development Area (CDA) and the identification of Major Opportunity Sites, the policies of the development plan are directed at arresting the economic and environmental decline of the Wembley area. One of the key elements in arresting this decline is harnessing the potential of the new Wembley Stadium to act as a trigger to redevelopment and regeneration in the area.

...

9.10. A key objective of the planning and economic strategy is to facilitate the spread of the regenerative benefits of the Stadium into the town centre. This will be assisted by the creation of a more direct, legible and active pedestrian link between the Stadium and the town centre as a continuation of the existing link from Wembley Park Station, and the redevelopment of derelict and underused land to the south west (3.11 and 3.16). These aims are set out in the UDP and expanded in SPG. The SPG, which was subject to public consultation and as such attracts significant weight, contains guidance for the redevelopment and regeneration of the area around the Stadium including the provision of a pedestrian link between the town centre and the Stadium (3.22 to 3.28). The junction of Wembley High Road and Wembley Hill Road (The Triangle) is identified in the SPG as a strategic Western Gateway to the Stadium area. Whilst both the UDP and the SPG refer to the general direction and location of the pedestrian link, neither include a specific route (7.13)."

24. At paragraphs 9.15 to 9.36 the Inspector set out his conclusions with regard to REI's land. The Inspector said this at paragraphs 9.15 and 9.16:

"9.15. REI seek modification to the Order to exclude all the land not required to provide for the construction of the bridge and the pedestrian link including the marshalling area between the railway line and the South Way (6.17). The extent of this area is shown on REI 13A and REI are willing to enter into a licence arrangement with the LDA to allow the balance of the land to be used for construction purposes. Notwithstanding, the offer of land for the marshalling yard, there is still a strong thread running through REI's submissions to the effect that its provision is not required as part of the link, but is unfinished business from the decision to allow for an enlarged Wembley Stadium (6.17, 6.22 and 6.70). I will return to this point later.

9.16. The REI land and adjoining plots comprise overgrown land and embankments, a disused ticket office and former railway sidings, and all are in very poor condition. The open areas are overgrown, there is some evidence of previous tipping and there is an extensive infestation of Japanese Knotweed. The former ticket office is empty, boarded up and the building is in decline. This prominent area, visible from Wembley Hill Road and South Way is derelict and does little to provide an attractive setting for the stadium to the north east (6.76). If left in this condition, given that this land adjoins one of the main gateways to the Stadium, it will continue to seriously detract from the setting and appearance of the new Stadium. In this context and given that the Stadium will open in September 2005 and feature as part of London's bid for the 2012 Olympic Games, I am in no doubt that the REI site and adjoining land is in urgent need of regeneration/redevelopment."

25. The Inspector then went on to dispose of various ancillary points as not justifying in themselves the exercise of compulsory purchase powers, for example, the Japanese Knotweed. He rejected a case, insofar as it was made, that there was a financial imperative for all the land to be acquired, and concluded that the evidence did not show a need for a compulsory purchase order of REI's land on viability or cross subsidy grounds.
26. Having disposed of those various points, the Inspector then said this at paragraph 9.25:

"In my view, the nub of the issue relates to the ability to achieve the objective of regeneration of this land through the provision of the pedestrian link and its redevelopment."

27. Pausing there, Mr Cahill agreed that that was a proper assessment of the position as made by the Inspector. It may be noted that the Inspector is there referring to all the land to be regenerated through the provision of the pedestrian link and (emphasis added) its redevelopment.
28. Having so stated, the Inspector went on in this way. Given the attack that is made, it is necessary to set out his reasoning in full:

"9.26. To secure the objective of economic regeneration and the critical improvements to the setting of the Stadium, the UDP seeks the comprehensive development of the land to the north and west of the Stadium (3.13 and 3.16). However, whilst recognising that fragmentation of ownership is a constraint, the Council's initial approach of requiring a single planning application for the area was not accepted, and the approach the UDP now requires is that development should come forward in accordance with a design framework and SPG (6.52). This format is now in place, with the Masterplan, SPG and the more detailed recommendations contained in the Hub Study.

9.27. In this respect, I agree with REI that this does allow, as REI has done, for individual landowners to come forward with planning applications. Development schemes that complied with the planning objective for the area, and did not preclude the development of adjoining area, could be agreed for the various parcels of land. The objective of securing the pedestrian link could, in part, be achieved through planning conditions but mostly through contributions via S106 Agreement. Whilst this is normal planning practice, I agree with the submissions of the LDA that this could be complex to arrange and potentially time consuming with no guarantee of implementation.

9.28. Given the natural aspiration of the landowners to maximum the returns from their land, I have no doubt that the mix of desired land uses would be the subject of negotiation. Moreover, in the absence of gap funding either by a developer or a public body, critical elements of the pedestrian link, such as the bridge and the link from the railway to The Triangle, would have to wait until proposals came forward, if at all, for redeveloping the Stadium Housing/AIB Bank site and sufficient monies had been collected to fund the necessary works. In reality this could take years to achieve and even in such situations where there are strong generators of development, it is not unknown for strategic parcels of land to remain undeveloped.

9.29. Notwithstanding my view that the physical objective of the development plan, i.e. the pedestrian link could be achieved albeit over a considerably longer period of time by the submission of single planning application, I do not consider the situation that appertains in this area to be normal. Here, immediately adjoining the REI site, is one of the largest and most exciting sporting/leisure developments to take place in the United Kingdom for some considerable time. The Stadium will be a London wide landmark and, internationally, it will be an instantly recognised iconic building. The regeneration spin-offs of the Stadium are beginning to be felt. To the north west, beyond the Palace of Industry, new detail development has taken place. Quintain, one of the largest landowners, has produced a Masterplan for the area, which the Council has adopted, and it has submitted a planning application for an ambitious mixed-use scheme on most of the land and buildings to the north and west of the Stadium. This major redevelopment would be substantially completed by 2013. However, I consider that if this development goes forward without the creation of the physical link to the town centre, it will only serve to reinforce the perception of '2 Wembleys' and the huge potential for wider regeneration may falter and the opportunity will have been squandered.

9.30. In my experience, despite the massive kick-start that the Stadium has given to economic and physical regeneration in the area, investment confidence in the process can be fragile. Delays in bringing forward key elements of the process, such as the Wembley Link, could substantially distort the regeneration benefits or prove fatal. In this respect, I wholeheartedly agree with the LDA when they submit that to maximise the regeneration effects of the Stadium and establish the confidence of investors and private sector developers in Wembley it is important that the infrastructure supporting the Stadium is in place for its opening. Thus, it is, in my view, imperative that the pedestrian link and its integration with Wembley Stadium Station is built and open by September 2005, the date of the first scheduled event at the Stadium. However, that is only part of the scheme's objective. To ensure that the regeneration benefits of the Stadium and the link are felt in the wider area, it is necessary to ensure the development of the land between the railway and South Way.

9.31. In my view, the provision of the link will provide a powerful catalyst for the redevelopment of the land between railway and South Way. In this context, I consider the single owner approach advocated by the LDA is the key to the success of this part of the scheme. I accept that, in principle, REI could bring forward a scheme in accordance with the Masterplan and SPG approach, either through the prosecution of its own outline planning application, or the submission of reserve matters following the issue of planning permission on the LDA scheme (6.101). However, the REI planning application, despite being submitted in July 2003, is still in an early stage of assessment and REI do not expect a decision until February 2005 (6.2, 6.5 and 6.80). Moreover, on evidence before me, I have little confidence in REI's ability to develop this land along the lines envisaged by the UDP and SPG either on their own or with a development partner.

9.32. Company information indicates that REI is an international consultant and contracting engineering company involved in major schemes (6.55). However, the bulk of these projects took place prior to 1980 and only three have been carried out in the 1990s and all were overseas and outside Europe (6.104). Apart from initial contact, there is no indication that REI has made, or can make, any meaningful progress in either acquiring adjoining land holdings or bring those owners into a joint scheme (6.102). It is clear that to achieve the objectives of the UDP, the Council will seek a wide range of uses on the land between the railway and South Way (6.98). Thus, whilst REI could submit reserved matters on that part of the application site, which it owns, it is unlikely to reflect the broad range of use sought by the Council. Given the recent history of participation in the wider planning policy context of the area and the planning application process, I would anticipate that negotiations over any scheme would be protracted (6.77 and 6.105).

9.33. Despite the strategic location of the REI site in relation to the former Stadium and now the new Stadium, this site has remained undeveloped for some considerable time. Whilst over the last year there has been some activity regarding the site, REI appear to have been unable to retain initial development partner interest and currently the only interest shown is by a company of unknown experience and interested in a multi-joint venture development partnership (6.55 and 6.104). Despite REI has submitted an outline planning application, I have little confidence that REI has, in this situation, the ability to bring forward within the constraints set by the time tabling of the Stadium, either on its own land or in conjunction with adjoining landowners, a scheme that would achieve the objectives sought by the development plan.

9.34. In light of the above, I consider regeneration/redevelopment is, on balance, more likely to be achieved if all of the REI land is acquired by the LDA and such a course would assist in maintaining the long-term regeneration of the area. Accordingly, I conclude that in order to provide for the implementation of Wembley Link, the development of adjoining land in a manner consistent with the objectives of the UDP and SPG and the achievement of a world class setting for the Stadium, that there is a compelling public interest that the whole of the REI site is retained within the Order.

9.35. For these reasons, I consider that the objection should not be upheld.

9.36. Should the Secretary of State not agree with my conclusion and modify the Order along the lines suggested by REI (i.e the exclusion of the land not required for the construction of the Wembley Link) before the Order is confirmed, REI and the LDA should be given the opportunity to assess the implication of the need to provide access under the proposed pedestrian link and the nature of the licence to enable construction."

29. Thereafter he went on to deal with the position relating to Lionrule and the other objectors. Then he proceeded to state his overall general conclusions by way of summary in paragraphs 9.72 and 9.73:

"9.72. Wembley Town Centre and the area generally has suffered from the economic and physical decline. The redevelopment of Wembley Stadium as the new English National Stadium is proving that it can trigger regeneration and redevelopment in the surrounding area. Thus, there is considerable potential for this new found confidence to spread the benefits to the land to the south west. Most of the land to the south west is derelict and clearly in need of regeneration.

9.73. The proposal to create direct physical and visual links to the town centre, so as to harness the regeneration potential of the Stadium, is well founded in development plan SPG and other planning policy. The LDA has allocated funding for the construction of the Wembley Link, the Council has resolved to grant planning permission for the link and the redevelopment of surrounding land and a partner has been signed up to fund the acquisition of the land. In this context, I conclude that there is a reasonable prospect that the scheme will go ahead. Thus, having regard to the guidance contained in paragraph 13 of Annexe B to Circular 02/2003, I consider that there is a compelling case in the public interest to confirm an Order for the compulsory acquisition of Plots 25 to 48 as set out in the Schedule to the Order. However, for the reasons set out in my consideration of the case by Lion1rule Commercial Limited and others, I conclude that a compelling case in the public interest has not been made for the inclusion of Plots 1 to 24 in the Order."

30. It is plain, I might add, from the way in which the Inspector phrased himself throughout section 9 of his report that he was specifically addressing the requirements of Circular 02/03 and, in particular, Appendix B to that Circular. It is also plain from what he said that he had regard to the existence of the agreement with Quintain for the purposes of paragraph 13 of Appendix B to that Circular, as indeed he was entitled to do.
31. The subsequent decision letter of the Secretary of State is a seven page document. It refers to the Inspector's report in great length and frequently. In paragraph 15 of the decision letter the Secretary of State, amongst other things, said this:

"She also acknowledges and attaches considerable weight to the fact that, through the UDP and London Plan Designations, the policies of these plans are directed at arresting the economic and environmental decline of the Wembley area and that a key element in this is harnessing the potential of the new Wembley Stadium to act as a trigger to redevelopment and regeneration in the area (IR 9.7)."

32. Then a little further on:

"For the reasons given by the Inspector the Secretary of State concurs with his view that significant weight should be attached to the rationale behind the choice of the route (IR 9.11 to 9.13)."

33. Then at paragraph 16:

"The Secretary of State accepts the Inspector's conclusion that, having regard to advice contained in Annexe B, paragraph 13(i) of Circular 02/2003, the LDA has established the basis and justification for the CPO in terms of its investment/development strategies, development and plan policy and SPG IR (9.14)."

34. Mr Cahill accepts that the Secretary of State was entitled as decision maker to attach considerable weight to the matters there mentioned in the decision letter.
35. Paragraph 17 of the decision letter says this:

"17. The REI land extends to some 1.7 hectares located between Wembley Stadium Station and South Way. The Secretary of State agrees with the Inspector's assessment that this prominent area, visible from Wembley Hill Road and South Way, is derelict and does little to provide an attractive setting for the new National Stadium. Like her Inspector, the Secretary of State considers that if left in this condition, given that the land adjoins one of the main gateways to the Stadium, it will continue to seriously detract from the setting and appearance of the new Stadium. In this context, and given that the Stadium will open in September 2005 and feature as part of London's bid for the 2012 Olympic Games, the Secretary of State agrees that the REI site and adjoining land is in urgent need of regeneration/redevelopment (IR 9.16)."

36. So there it can be seen that the Secretary of State is, as had the Inspector, amongst other things concluding that the REI site and adjoining land is in urgent need of regeneration/redevelopment. I can pass over for present purposes paragraph 18 of the decision letter, although I have had regard to it, as I have had regard to the entirety of the decision letter, and proceed to paragraph 19. That refers to the agreement with Quintain.
37. In paragraph 19 the Secretary of State accepts, she says, in general terms that there may be risks that could affect the viability of development proposals. She goes on a little later in the paragraph to say this:

"Therefore in this case, like the Inspector (IR 9.73), the Secretary of State considers that there is a reasonable prospect that the scheme will go ahead. The Secretary of State also agrees with the Inspector (IR 9.25) that the nub of the issue relates to the ability to achieve the objective of regeneration of this land through the provision of the pedestrian link and its redevelopment."

So there is the express endorsement of that being indeed the nub of the issue.

38. At paragraph 20 the Secretary of State goes on to consider certain other matters with regard to REI. Towards the end of that paragraph the Secretary of State says this:

"The Secretary of State ... also agrees with her Inspector that if this development goes forward without the creation of the physical link to the town centre, it will only serve to reinforce the perception of '2 Wembleys' and the huge potential for wider regeneration may falter and the opportunity will have been squandered (IR 9.29). The Secretary of State agrees with the Inspector that the provision of the link will provide a powerful catalyst for the redevelopment of the land between the railway and South Way and that the single ownership advocated by LDA is the key to the success of this part of the scheme (IR 9.30 to 31). She concurs with the Inspector that whilst REI could bring forward a scheme in accordance with the Masterplan and SPG approach, despite being submitted in July 2003 the REI application is still in the early stages of assessment and that REI do not expect a decision before February 2005 (IR 9.31). The Secretary of State agrees with the Inspector that on balance the regeneration/redevelopment is more likely to be achieved if all of the REI land is acquired by LDA. She also concurs with the Inspector's conclusion that, in order to provide for the implementation of the Wembley Link, the development of adjoining land in a manner consistent with the objectives of the UDP and SPG, and the achievement of a world class setting for the stadium, there is a compelling public interest that the whole of the REI site is retained within the order and that therefore the objection should not be upheld (IR 9.34-35)."

39. The Secretary of State then herself went on to deal with other objectors, including Lionrule and others, dealt with the human rights aspects, and in paragraph 32 announced her formal decision in this way:

"32. The Secretary of State agrees with the Inspector's conclusion (IR 9.1 to IR 9.73) and accepts his recommendation (IR 9.74-5 and paragraphs 3 to 5 of the addendum report). Therefore, for the reasons given above and by the Inspector, the Secretary of State has accordingly decided to confirm the London Development Agency (High Road, Wembley/South Way, Wembley) Compulsory Purchase Order 2004 with the following modifications which have been made in red on the confirmed order ..."

40. It may be noted from paragraph 32 the Secretary of State has expressly adopted, not only the relevant conclusion of the Inspector, but also his reasons as well. Indeed, in substance the preceding text of the decision letter in many ways mirrors the manner of expression as well as approach of the Inspector in the Inspector's report.
41. At all events, the conclusion was that there was a compelling reason in the public interest to acquire all of REI's land. It is also plain that the Secretary of State had applied herself to the considerations set out in Circular 02/03.
42. Mr Cahill submits that these reasons are insufficient and unintelligible. He submits that the central issue between the parties was whether there was a compelling case in the public interest for the acquisition of the balance of REI's land. That being so, he submits that the Inspector, and in turn the Secretary of State, was bound to ask whether the objectives of regeneration could be achieved in some other way within the required timescale and that the Inspector and Secretary of State had given no reason for saying that only the LDA's scheme, involving Quintain, would achieve that result. The argument went on that the Inspector and Secretary of State made no finding as to how long the delay would be if REI's land were omitted from the CPO, what part of the overall scheme would be affected by any such delay, or why the delay would occur in consequence of modifying the order in the way sought by REI.
43. What was important in terms of the situation here, he submitted, was the construction of the pedestrian link by September 2005, the projected opening event for the new stadium. The findings were that the LDA itself had the funds in place for that and there was no finding that that could only occur if the total redevelopment undertaken by Quintain occurred. Indeed, Mr Cahill stressed that the Inspector, in paragraphs 9.21 to 9.25 of his report (and, in effect, adopted in paragraphs 18 and 19 of the decision letter of the Secretary of State) had ruled out viability and cross subsidy as in themselves justifying a compulsory purchase of the balance of the site.
44. In my judgment, and considering Mr Cahill's argument overall on this point, his submissions involve a reading of the Inspector's conclusions, and in consequence of the Secretary of State's decision letter, which is not sustainable. I agree with the submissions of Mr Brown appearing for the First Secretary of State and Mr Roots QC appearing for the LDA on this.
45. In paragraph 9.25 the Inspector is addressing the regeneration of the entirety of the land through the provision of the link and through redevelopment, thereby giving emphasis to two particular elements of the regeneration. In paragraphs 9.27 to 9.30 the Inspector is plainly, in my view, dealing with the pedestrian link, which, as he himself said, was a "key element", and delay in respect of which could be fatal to the whole regeneration. The Inspector makes it clear on a number of occasions in these paragraphs by the wording that he uses that in those paragraphs he is dealing with the pedestrian link aspects. He expressly rules out the prospect of such a link being achieved through deployment of section 106 agreements: see paragraphs 9.27 and 9.28. He expressly refers to the need for great speed for the physical objective of the development plan "that is to say, i.e the pedestrian link"; that is set out in paragraph 9.29. He refers to the potentially "fatal" effect if this is not achieved promptly.
46. It is true that REI had, at all events ultimately, not objected to the CPO insofar as it related to the pedestrian link. But, in my judgment, it is unsurprising that the Inspector dealt here with the pedestrian link in this way, given, first, its overall and initial importance and, second, the need to give clear recommendations to the Secretary of State on so important an aspect.
47. Moreover, that approach reflects the way that the LDA itself had argued the point at the enquiry: see the summary at paragraphs 6.97 to 6.107 of the Inspector's report. There the LDA (and I summarise) had postulated two scenarios. Scenario 1 was a situation where the LDA had not made any CPO at all; that is to say not even with regard to the pedestrian link. Scenario 2 postulated a situation where a CPO had been made, but it excluded the additional land. It is clear, in my view, from both the wording and the structure of the Inspector's report, that he was approaching the case in that way, dealing first with the first scenario postulated and then with the second scenario postulated.
48. Following on from that, it is also clear, in my view, and contrary to Mr Cahill's submissions, that in paragraphs 9.31 to 9.33 the Inspector is then going on to deal with the acquisition by compulsory purchase of the balance of REI's land. That that is so is demonstrated by the last two sentences of paragraph 30, where the Inspector explicitly flags up that he is moving on to that particular issue; that is to say, the balance of REI's land. I repeat, again, these sentences:

"However, that [that, I interpolate, is the pedestrian link] is only part of the scheme's objective. To ensure that the regeneration benefits of the stadium and the link are felt in the wider area, it is necessary to ensure the development of the land between the railway and South Way."

49. The following paragraphs then deal with that land, that is to say the land between the railway and South Way, and including the balance of REI's land. Those following paragraphs also go on to set out why the Inspector had "little confidence" in REI's ability to develop the balance of its land.
50. In my view, Mr Cahill's submissions also have serious obstacles in the light of the express conclusions of the Inspector and adopted by the Secretary of State to this effect. First, that the REI site and adjoining land was in "urgent" need of regeneration/redevelopment, and, second that "the single owner approach advocated by the LDA is the key to success of this part of the scheme". At one stage Mr Cahill submitted that "this part of the scheme", as used in the second sentence of paragraph 31 of the Inspector's report, meant the pedestrian link. But reflecting what I have already said, it is clear that that is not so. Indeed, the first sentence of paragraph 9.31 itself had, in terms, referred to "redevelopment of the land between the railway and South Way." Further, it was a single owner approach for all of that land that the LDA was advocating.
51. Mr Cahill, however, fastened on to the words "within the constraints set out by the timetabling of the stadium" as used in paragraph 9.33. But there were, he submitted, no such constraints, save only with regard to the pedestrian link and the projected first use of the stadium in September 2005. Indeed, under the Quintain agreement itself, he says, up to five years (and that from the transfer of regeneration land to Quintain) was contemplated as the timeframe for the overall comprehensive redevelopment. The only relevant time constraints, he therefore submitted, were those by reference to the first opening event scheduled for September 2005. Thus, the Inspector and the Secretary of State, he submits, have unjustifiably subjected REI to an unjustified timetable.
52. However this approach, in my view, does not set that particular part of that sentence in context, and, with respect, infringes the principle that the report, just as the decision letter, must be read as a whole. I might also add that that particular interpretation advanced by Mr Cahill on a narrower and more linguistic approach does not sit at all well with the use of the word "objectives" (plural: emphasis added) in that self-same sentence.
53. Putting it more widely than that, as the Inspector had expressly concluded, as I repeat, and as the Secretary of State herself had concluded, as I repeat, there was a "urgent need" for regeneration of the REI site. Urgency is something of a relative term. But one thing the Inspector had found, as had the Secretary of State, was that a single owner approach was the key to success of this part of the scheme and that there could be little confidence in REI in this regard: a conclusion, as Mr Cahill conceded, the Inspector and Secretary of State were entitled to reach.
54. It is true that no dates as such were set by the Inspector or the Secretary of State for the overall regeneration. But the Inspector and the Secretary of State set out compelling reasons for urgent need in general for regeneration of the site as a whole for which the stadium and the pedestrian link were catalysts. As Mr Brown observed, the urgency as found for the whole site strongly supports a conclusion of compelling need given the findings also made as to REI. It is plain, in my judgment, that that is what is meant in this particular part of paragraph 9.33 when set in context.
55. For these reasons I conclude that the requirements for making good a reasoned challenge on the basis of the principles outlined by Lord Brown in the Porter case fall short, and I have to say a very long way short, of being established in this case. I can see no significant doubt at all arising out of the Inspector's reasons or the Secretary of State's reasons. As to the conclusions reached, they are themselves both intelligible and rational and plainly are conclusions open to the Secretary of State, as the decision maker, to reach. That being so, I need not deal with Mr Brown's alternative argument by reference to the actual wording of the decision letter itself, which, he would have submitted, is to be contrasted in some respects with the wording used by the Inspector.
56. Accordingly, and notwithstanding Mr Cahill's skilful presentation, this application fails and the claim is dismissed.
57. MR BROWN: My Lord, I am very grateful for that. In the circumstances I ask for an order that the claimant pay the first defendant's costs of the application. My Lord, I appreciate this has gone over into a second day, but I am going to ask your Lordship to make a summary assessment of it if you would. There should be a schedule which has reached your Lordship which had a total of £8,760, but was prepared on the basis that we might be able to do this within a day. My Lord, I am going to add to that the costs of attending and taking judgment for myself and instructing solicitor, and therefore ask your Lordship to take that up to -- to add £300 to it which will take it to £9,060.
58. MR JUSTICE DAVIS: How much do you want?
59. MR BROWN: £9,060.
60. MR JUSTICE DAVIS: £9,060?
61. MR BROWN: My Lord, yes.
62. MR JUSTICE DAVIS: That is including VAT presumably?
63. MR BROWN: My Lord, yes.
64. MR JUSTICE DAVIS: Mr Roots, what do you say?
65. MR ROOTS: My Lord, I apply also for costs.
66. MR JUSTICE DAVIS: You were not named as a defendant.
67. MR ROOTS: No, the procedure is, of course, a challenge to the Secretary of State's decision, but the proceedings have to be served on my clients as an interested party, and I think the proper title is interested party. My Lord, I say at once that ever since the case of Bolton Metropolitan Borough Council v Secretary of State in 1995 a second set of costs is not a matter of course. It is matter for the court's discretion. In case your Lordship needs reminding of that case, I have copies here.
68. MR JUSTICE DAVIS: I am familiar with the principle.
69. MR ROOTS: Thank you, my Lord. The test, in short, is whether the second party, in this case the London Development Agency, had what could be called a separate interest. The first point I would make is that the fact that my submissions were so closely aligned to those of my learned friend, Mr Brown, does not mean that we don't have a separate position. We just took the same interpretation of the decision letter.
70. The criticisms that have been made of the Inspector's conclusions arise directly out of the way the case for the LDA was put at the enquiry, or, perhaps more accurately, I should say the way that the LDA responded to the way the claimants put their case. We hope that the court has been assisted by the presence of the promoter for the CPO order and certainly questions have arisen, which I hope I have been able to assist my Lord on, about matters as they were dealt with at the enquiry.
71. My Lord, I should make the point that those instructing me did write to Messrs Devon Ashford for the claimant back in October -- I have a copy of the letter should your Lordship need to see it -- pointing out that it appeared to us that the claim arose out of a misreading of the letter. So the LDA's position was made very clear at a very early stage which gave them an opportunity to reconsider.
72. I would also point out that compulsory purchase is perhaps a little different from planning cases. As I pointed out in making my submissions yesterday, my Lord, should your Lordship have decided that the claimants had made a case out, your Lordship would have been thinking of quashing the order, or part of it, whereas in a planning conventional case, like Bolton, it would have been sent back to the Secretary of State, in which case the Secretary of State would have given the parties the opportunity to make appropriate representations about how the matter should have been dealt with. Possibly the same position would come out with different or more elaborate reasons.
73. I would just also point out that from my client's point of view, which is a public body, it is seen to be a matter of considerable public importance to achieve not only the pedestrian link in a timely fashion, but also the regeneration that has been spoken about. My Lord, those are my submissions.
74. MR JUSTICE DAVIS: Ultimately it is a matter for my discretion, isn't it.
75. MR ROOTS: Entirely, my Lord. Should your Lordship be minded to make an order in my client's favour I would ask for a summary assessment.
76. MR JUSTICE DAVIS: You want rather more than Mr Brown. In fact you want a four letter word more than Mr Brown. You want £32,000.
77. MR ROOTS: That is the sum at the end of the schedule, my Lord. I have only been handed the schedule, but it is detailed as to how it is made out.
78. MR JUSTICE DAVIS: Anyway that is what you want. Otherwise, if I were to make costs, you would ask for a detailed assessment.
79. MR ROOTS: Indeed.
80. MR JUSTICE DAVIS: Miss Wigley.
81. MISS WIGLEY: My Lord, first, if I can extend my apologises for Mr Cahill's non-attendance today. I appear in substitute. My Lord, I cannot, and do not resist, the application for costs of the first respondent either in principle or amount. So those are --
82. MR JUSTICE DAVIS: Including the slight adjustment for attending today?
83. MISS WIGLEY: Yes, my Lord. As regards the costs of the second respondent, I do resist those. My Lord, you are familiar with the case of Bolton.
84. MR JUSTICE DAVIS: Yes.
85. MISS WIGLEY: And the -- as you are aware it is not automatic for a second respondent to have an award of costs. There are two positions in which that award can be forthcoming. That is where there is a separate issue on which he is entitled to be heard, or a separate interest which requires separate representation. My Lord, it is clear from a reading of the skeleton arguments that there was no separate issue on which the second respondent needed, or was entitled to be heard. My Lord, the -- both skeleton arguments concentrate on the narrow issue of the reading of those paragraphs of the decision letter -- sorry, the report of the Inspector and the decision letter that were quoted in your judgment.
86. My Lord, it is clear that the issues covered by counsel for the Secretary of State were -- adequately covered all those issues that were needed to be put by the second respondent. That is made clear by the brevity of the second respondent's submissions to your Lordship and by the fact that during the hearing, as I understand it was acknowledged yesterday, that both respondents were singing from the same song sheet.
87. MR JUSTICE DAVIS: Well, I don't think it is acknowledged, it is simply what I asserted. It is not quite the same thing.
88. MISS WIGLEY: I was not here yesterday as --
89. MR JUSTICE DAVIS: I appreciate that. Anyway you would say that that reflects the reality.
90. MISS WIGLEY: Yes, my Lord. And I hear Mr Roots' submission that he was required to be here to make the LDA's position here. In response to that I would simply say that it is clear from your judgment, my Lord, that the way in which the LDA's case was put in the CPO enquiry was adequately set out in the Inspector's report and the paragraphs which you set out in your judgment, and in those circumstances, my Lord, there was no need for the LDA to appear in this hearing. For those reasons I resist the application for costs by the second respondent. My Lord, I do have a further application which --
91. MR JUSTICE DAVIS: We will deal with costs first. Do you wish to say anything else, Mr Roots?
92. MR ROOTS: No, my Lord.
93. MR JUSTICE DAVIS: So far costs are concerned, it is plainly right that the claimant should pay the first respondent's costs. I summarily assess those costs in the agreed amount of £9,060.
94. There is then the question of whether the claimant should pay the costs of the LDA who has participated in these proceedings as interested party. There can be no doubt but that the LDA does indeed have genuine and legitimate interest in these proceedings given the nature of this claim and the LDA's own concern as to the prospective development at Wembley. Furthermore, I was assisted by Mr Roots' submissions, both written and oral, and it was entirely understandable why the LDA should wish to be represented at this hearing given the importance of this matter to it.
95. But the fact that it was reasonable for the LDA to attend and make submissions does not necessarily mean that it is reasonable for the claimant to pay two sets of costs. And given that in substance the position of the LDA has been the same as the position advanced before me by the Secretary of State, on the whole I have come to the conclusion that it would not be right, as a matter of fairness, to order the claimant to pay the LDA's costs, and grateful though I am to Mr Roots for his submissions I think the LDA must bear their own costs of these proceedings.
96. MISS WIGLEY: My Lord, I am grateful for that. I make an application for permission to appeal on the basis that there is a real prospect of success given the ambiguity in the Inspector's report and the decision letter and the length at which arguments were needed to be put relating to that.
97. MR JUSTICE DAVIS: Do you wish to say anything, Mr Brown?
98. MR BROWN: I only quote from your Lordship's judgment that the reasons challenge doesn't just fall short, but falls a long way short.
99. MR JUSTICE DAVIS: Anything you wish to say, Mr Roots?
100. MR ROOTS: The same. I would also emphasise the need to bring this matter to a speedy conclusion in the light of the evidence.
101. MR JUSTICE DAVIS: Miss Wigley, I am afraid I take the view that there is no ambiguity in this letter. I am afraid I don't think there is any realistically arguable case that there is justifying granting permission. I do not think there is any other compelling reason for granting permission to appeal. So I refuse that application. Any other matters, Mr Brown, Mr Roots, Miss Wigley?
102. MR ROOTS: No, my Lord.
103. MR JUSTICE DAVIS: Thank you very much. May I thank all counsel again.