Manoranjitham Saravanamuthu v Secretary of State for Communities, Housing and Local Government & Anor

MR JUSTICE MOULD : Introduction

1. This is an application by the Claimant under section 23 of the Acquisition of Land Act 1981 ["the 1981 Act"] challenging the validity of a compulsory purchase order made by the Second Defendant and confirmed by the First Defendant under the powers conferred by section 226(1)(a) of the Town and Country Planning Act 1990 [“the 1990 Act”] .

2. The London Borough of Newham (James Riley Point) Compulsory Purchase Order 2023 [“the Order”] was made by the Second Defendant on 4 July 2023. The Order authorises the compulsory purchase of the land described in the schedule to the Order [“the Order land”] for the stated purpose of facilitating the carrying out of a comprehensive scheme of development, redevelopment and improvement of James Riley Point, Carpenters Road, London E15 to deliver high quality refurbished homes, a community centre and improved public realm [“the Scheme”] . The Order states that the Scheme will contribute to achieving the promotion or improvement of the economic, social and environmental well-being of the area. Planning permission to carry out the development comprised in the Scheme was granted on 13 April 2023.

3. James Riley Point [“JRP”] is a 23-storey residential tower block situated on the Carpenters Estate. JRP contains 132 flats. The Second Defendant is the freehold owner of JRP. The Claimant is the leasehold owner of Flat 128 [“the Premises”] , a three bedroomed flat on the 21 st floor of JRP. The Claimant has occupied the Premises with her family since 1994. Initially she did so as tenant of the Second Defendant. On 10 June 2002, the Claimant acquired her leasehold interest in the Premises pursuant to the Second Defendant’s right-to-buy scheme. The Claimant and her family occupied the Premises as their home until April 2022. I shall return later to the family’s living arrangements since April 2022.

4. By early July 2023 when the Second Defendant made the Order, the Claimant was the sole remaining leaseholder in possession at JRP. Other leasehold owners had entered into agreements to give vacant possession to the Second Defendant. All the Second Defendant’s tenants had vacated their flats. None of the flats were in actual occupation.

5. The Claimant and other members of her family objected to the making of the Order. In accordance with the procedure for confirmation of a compulsory purchase which is subject to remaining objections under Part 2 of the 1981 Act, the First Defendant appointed an inspector to hold a public local inquiry. The inspector held the inquiry over three days between 20 – 22 February 2024. He heard evidence from witnesses called on behalf of the Second Defendant as acquiring authority, and from the Claimant and other witnesses in support of her and her family’s remaining objections to the Order.

6. On 23 April 2024, the inspector issued his written decision. He confirmed the Order without modification. Notice of confirmation of the Order was first published on 15 May 2024. This claim was issued on 4 June 2024. Ground of challenge

7. The Claimant advances the following grounds of challenge to the validity of the Order – (1) In concluding that it had been demonstrated that the Scheme was funded and viable, with a realistic prospect that the Scheme would be delivered following confirmation of the Order, the inspector failed in his duty of reasonable inquiry, applying the principle stated in Secretary of State for Education v Tameside Metropolitan Borough Council [1977] AC 1014, 1065 [“Tameside”] . Further, the inspector failed to give proper or adequate reasons for those conclusions, and failed to have proper regard to a material consideration, namely the First Defendant’s inspector’s decision of 4 October 2022 not to confirm the London Borough of Barking and Dagenham Council (Vicarage Field and surrounding land) Compulsory Purchase Order 2021 [“the Dagenham decision”] . (2) In concluding that the Second Defendant had taken reasonable steps to acquire the Claimant’s leasehold interest in the Premises by agreement, the inspector had failed to take into account the long history of failed attempts by the Second Defendant to refurbish JRP; and the living conditions endured by the Claimant’s family as a result of the Second Defendant’s failure to maintain the building. The inspector had misunderstood the terms of the so-called “uplift offer” made by the Second Defendant to the Claimant and to other remaining leaseholders at JRP in September 2022 and March 2023. The inspector had failed to reach any conclusion on the Claimant’s contentions that the Second Defendant was in breach of its obligations as landlord and housing authority. The inspector had failed to give proper or adequate reasons for his conclusions on these matters. (3) In concluding that the use of compulsory purchase powers to acquire the Claimant’s leasehold interest in the Premises was proportionate and rejecting the Claimant’s argument that compulsory purchase exceeded what was necessary to achieve the Second Defendant’s stated purposes, the inspector had failed to address the Claimant’s offer to grant a licence to the Second Defendant to enable the Scheme to be carried out. That offer obviated the need for the Second Defendant to resort to compulsory purchase of the Claimant’s leasehold interest in the premises. The inspector’s decision letter

8. In the introduction to his decision letter [“DL”] , the inspector said that the main grounds of objection to the Order advanced by the Claimant and her family were as follows – (1) The Second Defendant as acquiring authority had failed to make adequate attempts to acquire the Claimant’s leasehold interest in the Premises through negotiation and agreement. (2) The Second Defendant had been unable to demonstrate that the Scheme was viable and enjoyed a realistic prospect of being funded and delivered. (3) The Second Defendant’s resort to compulsory purchase powers to acquire the Claimant’s leasehold interest was unnecessary and excessive. (4) The Second Defendant had failed to discharge its public sector equality duty under section 149 of the Equality Act 2010.

9. In DL6, the inspector said that the Departmental guidance on compulsory purchase process and the Crichel Down Rules published in 2019 [“the CPO Guidance”] identifies matters to be considered in deciding whether to confirm a compulsory purchase order. He said that he had used the CPO Guidance as the structure for his decision.

10. In DL7 to DL14, the inspector considered the national and local planning policy framework relating to the Scheme. He concluded that the Scheme was supported by national and local planning policy and that planning permission had been obtained in respect of the Scheme.

11. In DL15 to DL21, the Inspector assessed the degree to which the Scheme would deliver social, economic and environmental benefits. He concluded that the Scheme would bring a number of significant benefits, including comprehensive, transformative change to this site in the Carpenters Estate, contributing to the Second Defendant’s ambition to provide mixed-use development with delivery of much needed housing including mainly affordable homes, and economic and environmental benefits. Given these benefits and the need to regenerate JRP, he found there to be a compelling case for the acquisition of the land included in the Order.

12. In DL22 to DL26, the inspector set out his assessment of and conclusions on the proposed funding arrangements, the viability and the deliverability of the Scheme. He concluded that the Second Defendant had demonstrated that the Scheme was funded and viable, and that there was a reasonable prospect of its delivery within a reasonable time. As the inspector’s reasoning and conclusions on those matters form the subject matter of ground 1, I shall set them out when I consider that ground of challenge below.

13. In DL27 the inspector turned to the outstanding objections from the Claimant and her family. For present purposes the relevant topics are his consideration of the objectors’ case that the Second Defendant had failed to make reasonable efforts to negotiate with the Claimant and her family; and his assessment of the objectors’ argument that the Second Defendant’s decision to resort to making the Order was an excessive use of their powers.

14. The inspector addressed the first of those topics in DL28 to DL35. He concluded that the Second Defendant had taken reasonable steps to acquire the Order land by agreement, including the Claimant’s leasehold interest in the Premises. As his reasons for so concluding form the subject matter of ground 2, I shall return to them in more detail when I consider that ground of challenge.

15. In DL36 to DL38 the inspector set out his analysis and conclusion in relation to the Claimant’s argument that the Order represented an excessive use of power. He said that one of the factors to be taken into account in considering whether to confirm a compulsory purchase order, is to ask whether the purpose for which the land is to be acquired could be achieved by means other than compulsory acquisition. It may be necessary to consider the appropriateness of any alternative proposals to or locations for the Scheme which may have been put forward, during the process of making and seeking confirmation of the Order. At DL37 and DL38 he concluded that the use of compulsory purchase powers was necessary and proportionate in this case. The validity of that conclusion is challenged under ground 3 of this claim.

16. In DL 49 the inspector mentioned the Objector’s reliance on the Dagenham decision. He said that he had been provided with neither a full copy of that decision nor an explanation of how it related to the decision whether to confirm the Order in this case. He therefore gave the Dagenham decision only limited weight . The inspector stated his overall conclusions in DL51 and DL52 – “51. The Scheme underpinning the CPO is wholly in accordance with the development plan and has the benefit of planning permission.

52. I am satisfied that the Scheme would substantially contribute to the achievement of the promotion or improvement of the economic, social, and environmental well being of the area, and that these purposes could not be achieved by other means. Financial resources are also in place for the Scheme. The Order would interfere with the human rights of the Objectors, but I consider that the interference is proportionate and that there is a strong public interest in ensuring that the regeneration of the James Riley Point site takes place. Overall, and having taken all matters into account, I conclude that there is a compelling case in the public interest for the acquisition of the Order Land”. Legal and policy framework

17. Section 226(1)(a) of the 1990 Act provides that a local authority has power to acquire compulsorily any land in their area if they think that acquisition will facilitate the carrying out of development, re-development or improvement on or in relation to the land. The First Defendant’s authorisation is needed in order to exercise that power of compulsory purchase.

18. The procedures enacted under Part 1 of the 1981 Act apply for the purpose of the First Defendant’s determination whether to confirm a compulsory purchase order made by a local authority pursuant to section 226(1)(a) of the 1990 Act. Where, as in the present case, the First Defendant’s appointed inspector decides that the compulsory purchase order should be confirmed, the acquiring authority must publicise that fact and serve notice of confirmation on any remaining objector. The compulsory purchase order becomes operative on the date on which notice of its confirmation is first published: see sections 15 and 26 of the 1981 Act.

19. Sections 23 and 24 of the 1981 Act enable an application to be made to the High Court questioning the validity of a compulsory purchase order. Insofar as material to the present claim, they provide – “23(1) I f any person aggrieved by a compulsory purchase order desires to question the validity thereof, or of any provision contained therein, on the ground that the authorisation of a compulsory purchase thereby granted is not empowered to be granted under this Act or any such enactment as is mentioned in section 1(1) of this Act, he may make an application to the High Court. (2) If any person aggrieved by - (a) a compulsory purchase order, … desires to question the validity thereof on the ground that any relevant requirement has not been complied with in relation to the order … he may make an application to the High Court. (3) In subsection (2) above “ relevant requirement ” means— … (b) any requirement of the Tribunals and Inquiries Act 1992 or of any rules made, or having effect as if made, under that Act. (4) An application to the High Court under this section shall be made within six weeks – … (b) in the case of a compulsory purchase order to which the [Statutory Orders (Special Procedure) Act 1945] does not apply, from the date on which notice of the confirmation or making of the order is first published in accordance with this Act, …. 24(1) … (2) If on the application the court is satisfied that— (a) the authorisation granted by the compulsory purchase order is not empowered to be granted under this Act or any such enactment as is mentioned in section 1(1) of this Act, or (b) the interests of the applicant have been substantially prejudiced by any relevant requirement (as defined in section 23(3) above) not having been complied with, the court may quash the compulsory purchase order or any provision contained therein… either generally or in so far as it affects any property of the applicant. (3) If the court has power under subsection (2) to quash a compulsory purchase order it may instead quash the decision to confirm the order either generally or in so far as it affects any property of the applicant” .

20. Rule 19(1) of the Compulsory Purchase (Inquiries Procedure) Rules 2007 requires the authorising authority, in this case the inspector, to give notice of their decision and the reasons for it in writing to the acquiring authority and any remaining objector. The 2007 Rules were made under section 9 of the Tribunals and Inquiries Act 1992. The requirement to give reasons is accordingly a relevant requirement for the purposes of section 23(2) and 23(3) of the 1981 Act.

21. The principles upon which the court decides an application made under section 23 of the 1981 Act are well established. They were summarised by the Court of Appeal in Margate Town Centre Regeneration Company Ltd and others v Secretary of State for Communities and Local Government and Thanet DC [2013] EWCA Civ 1178 at [17] – “17. The applicable law is not in dispute and so I will summarise the relevant principles briefly. a) "A CPO should only be made where there is a compelling case in the public interest. An acquiring authority should be sure that the purposes for which it is making a CPO sufficiently justify interfering with the human rights of those with an interest in the land affected": see para. 16 of Circular 06/2004. To similar effect are certain observations of Lord Denning MR in Prest v Secretary of State for Wales [1982] 266 EG 527. b) A consequence of principle (a) is that "the draconian nature of the order will itself render it more vulnerable to successful challenge on Wednesbury/Ashbridge grounds unless sufficient reasons are adduced affirmatively to justify it on the merits": per Slade LJ in De Rothschild v Secretary of State for Transport (1988) 57 P. & C.R. 330. c) The grounds of challenge under section 23 do not entitle the court to revisit the merits of the decision, only to see whether there is any legal or procedural error in the confirmation: see the observations of Sullivan J, as he was, in R (James Powell and Others) v Secretary of State for Communities and Local Government [2007] EWHC 2051 (Admin) para.3. d) When deciding whether or not to confirm an order, the Secretary of State must have regard to all material considerations and must not take into account immaterial considerations. But it is for the court to decide what are material considerations: see Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at 764 per Lor Keith of Kinkel. e) The reasons for a decision must be intelligible and adequate. In determining whether those criteria are satisfied the decision letter must be read fairly as a whole, as if by a well-informed reader: South Buckinghamshire District Council v Porter (No.2) [2004] 1 WLR 1953 at 1964 per Lord Brown of Eaton-under-Heywood. f) The Court should interfere only if the decision leaves a "genuine as opposed to a forensic doubt" as to what has been decided and why: Clarke Homes Limited v Secretary of State (1993) 66 P. & C.R.263, 271 per Sir Thomas Bingham M.R. g) Where a decision maker has erred in law the decision should be quashed unless the court is satisfied that the decision maker would necessarily have made the same decision had the error not been made: see Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1988] 3 PLR 25 at 42 per Staughton LJ. ” Ground 1 – Viability The issue

22. The Claimant’s challenge under ground 1 is to the validity of the inspector’s conclusions that the Scheme was funded and viable, and that there was a reasonable prospect of its delivery within a reasonable timescale. The Claimant contends that the inspector failed to fulfil his Tameside duty of reasonable inquiry in reaching those conclusions. It was contended that the inspector had failed to act in accordance with the CPO Guidance. He failed to have regard to the Dagenham decision, which was a material consideration in assessing whether the Scheme was viable and deliverable. It was argued that the inspector had failed to give proper, adequate and intelligible reasons for his conclusions. The CPO Guidance

23. In order to address these issues, it is necessary to refer to the relevant paragraphs in the CPO Guidance, in the terms in which they were promulgated at the date of the inspector’s decision.

24. The CPO Guidance consists of a series of parts or “tiers”. Tier 1 provides policy guidance in the form of an overview of the key stages of compulsory purchase process. Tier 2 provides more focused and detailed policy guidance on specific areas of administrative action in which powers of compulsory acquisition are likely to be exercised.

25. Tier 1 Stage 2 is headed “Justifying a compulsory purchase order” . Paragraph 12 states the well-established principle that a compulsory purchase order should only be made where there is a compelling case in the public interest. Paragraph 13 states that in determining whether to confirm a compulsory purchase order, the minister will need to be able to take a balanced view between the intentions of the acquiring authority, the concerns of those with an interest in the land that is subject to the proposed compulsory purchase and the wider public interest. The minister will consider each case on its merits and no particular degree of justification is to be taken to be required in any given case. The guidance continues – “ It is not essential to show that land is required immediately to secure the purpose for which it is to be acquired but a confirming minister will need to understand, and the acquiring authority must be able to demonstrate, that there are sufficiently compelling reasons for the powers to be sought at this time. If the acquiring authority does not: • have a clear idea of how it intends to use the land which it is proposing to acquire; and • cannot show that all the necessary resources are likely to be available to achieve that end within a reasonable time-scale it will be difficult to show conclusively that the compulsory acquisition of the land included in the order is justified in the public interest, at any rate at the time of its making.”

26. The reader is then referred to the later section in Tier 2 of the CPO Guidance on the exercise of the compulsory purchase powers given by section 226 of the 1990 Act.

27. Paragraph 14 poses the question “What information about the resource implications of the proposed scheme does an acquiring authority need to provide?” and states – “ In preparing its justification for the compulsory purchase order, the acquiring authority should address: a) sources of funding – the acquiring authority should provide substantive information as to the sources of funding available for both acquiring the land and implementing the scheme for which the land is required. If the scheme is not intended to be independently financially viable, or the details cannot be finalised until there is certainty that the necessary land will be required, the acquiring authority should provide an indication of how any potential shortfalls are intended to be met. This should include: • the degree to which other bodies (including the private sector) have agreed to make financial contributions or underwrite the scheme; and • the basis on which the contributions or underwriting is to be made b) timing of that funding – funding should generally be available now or early in the process. Failing that, the confirming minister would expect funding to be available to complete the compulsory acquisition within the statutory period ( see section 4 of the Compulsory Purchase Act 1965 ) following the operative date ; and only in exceptional circumstances would it be reasonable to acquire land with little prospect of the scheme being implemented for a number of years. Evidence should also be provided to show that sufficient funding could be made available immediately to cope with any acquisition resulting from a blight notice .”

28. Section 1 of Tier 2 of the CPO Guidance gives advice on exercising compulsory purchase powers under section 226 of the 1990 Act. Paragraph 106 describes the factors that the First Defendant will take into account in deciding whether to confirm a compulsory purchase order made under section 226(1)(a) of the 1990 Act - “ Any decision about whether to confirm an order made under section 226(1)(a) will be made on its own merits, but the factors which the Secretary of State can be expected to consider include: • whether the purpose for which the land is being acquired fits in with the adopted Local Plan for the area or, where no such up to date Local Plan exists, with the draft Local Plan and the National Planning Policy Framework • the extent to which the proposed purpose will contribute to the achievement of the promotion or improvement of the economic, social or environmental wellbeing of the area • whether the purpose for which the local authority is proposing to acquire the land could be achieved by any other means. This may include considering the appropriateness of any alternative proposals put forward by the owners of the land, or any other persons, for its reuse. It may also involve examining the suitability of any alternative locations for the purpose for which the land is being acquired • the potential financial viability of the scheme for which the land is being acquired. A general indication of funding intentions, and of any commitment from third parties, will usually suffice to reassure the Secretary of State that there is a reasonable prospect that the scheme will proceed. The greater the uncertainty about the financial viability of the scheme, however, the more compelling the other grounds for undertaking the compulsory purchase will need to be. The timing of any available funding may also be important. For example, a strict time limit on the availability of the necessary funding may be an argument put forward by the acquiring authority to justify proceeding with the order before finalising the details of the replacement scheme and/or the statutory planning position.” Funding and delivery arrangements – the Second Defendant’s case

29. In their statement of case for confirmation of the Order, the Second Defendant said that they were the freeholder of the Order land and, subject to the outstanding third-party interests which they proposed to acquire, owned all the land needed to deliver the Scheme. They proposed to deliver the Scheme via the development agreement with their wholly owned housing provider, Populo Living [“Populo”] . The Second Defendant would continue to own the Scheme during and following the development.

30. The Second Defendant did not consider that there were any funding impediments to acquiring the Order land or delivering the Scheme. They were fully committed to delivering the Scheme, having already spent considerable resources acquiring relevant interests, negotiating to acquire further interests and obtaining the main planning approvals required to authorise and deliver the Scheme.

31. In paragraphs 5.20 to 5.24 of their statement of reasons for making the Order, the Second Defendant explained how they proposed both to fund and deliver the Scheme. Paragraphs 4.40 to 4.44 of their statement of case addressed those matters in essentially similar terms. The Second Defendant recognised that in order to make the Order, they were required to demonstrate that all the necessary resources were likely to be available both to pay land compensation and to ensure that there was no budgetary impediment to the Scheme being delivered. They said – “Whilst the viability appraisal for the Scheme suggests that it is not commercially viable, the delivery strategy set out below and in the Cabinet report from 9th March 2023 shows firstly the Council’s commitment to entirely funding (and underwriting the costs of) this project and secondly how the costs could be recovered from the delivery of the masterplan in the future. While the Council intends to recover costs, the Cabinet report reiterates how the Scheme is to be brought forward as a stand-alone project that is not reliant on the viability or future delivery of the masterplan. The Council intend to retain control over delivery of the project through a Design and Build approach with a main contractor. The Council will remain the Client with Populo Living (“Populo”), a company wholly owned by the Council, providing development management services, overseeing the delivery of the contract. The Scheme is the first phase of the wider Carpenters Estate masterplan. It will deliver predominantly affordable housing, offering opportunity to decant existing secure tenants and homeowners. The creation of a community and sports centre, as well as delivering significant benefits in its own right, will facilitate vacant possession of a significant land parcel adjacent to Stratford Station and is part of a wider strategy to provide at least 50% affordable housing across the whole masterplan area. As such, while the Scheme is not structured to be commercially viable in its own right, it does not need to be so. It offers significant wider social and economic benefits demonstrating the Council’s commitment to invest in the Carpenters Estate community and generates support for further investment in the masterplan. In addition to the significant benefits that the Scheme itself will deliver, it is expected to act as a catalyst ahead of the wider masterplan and the Council is committed to funding the project on this basis as agreed at Cabinet on 9th March 2023. As set out in the Cabinet report, the initial masterplan financial appraisal shows how the cost of the Scheme can be recovered from future phases of the masterplan. However, the masterplan has not yet secured planning consent from LLDC and its implementation remains subject to future Cabinet decisions and so Cabinet agreed on 9th March 2021 to bring the JRP scheme forward as a standalone project. On 9th March 2023 Cabinet agreed to make sufficient capital budget available to make the CPO and implement the Scheme independently of and irrespective of the masterplan outcome.” Funding and delivery arrangements – the Second Defendant’s evidence

32. At the public inquiry, evidence in relation to the proposed arrangements for funding and delivering the Scheme was given by the Second Defendant’s Director of Community Wealth Building, Darren Mackin. Mr Mackin’s evidence was that the Second Defendant was committed both to bringing forward and funding the Scheme as a standalone project at the total budget agreed by Cabinet at its meeting on 9 March 2023. At that meeting, Cabinet had approved an overall budget of £78.1M plus CPO costs. The Second Defendant would be funding the Scheme through its capital programme, for which the principal source was borrowing from the Public Works Loan Board [“PWLB”] via the Second Defendant’s housing revenue account.

33. Mr Mackin gave evidence that the Second Defendant did not consider there to be any funding impediment to acquiring the Order land or to delivery of the Scheme. The Second Defendant had expended considerable resources to date on acquiring the necessary land and rights to carry out the Scheme. Further land interests had been acquired by agreement. The requisite main planning approvals to authorise and to carry out the Scheme had been secured. The Scheme was a strategic priority for the Second Defendant, as it would contribute to the regeneration of Stratford, the most important town centre in Newham.

34. Mr Mackin said that Cabinet had appointed Populo to act as development manager for the Scheme. Populo would provide development management services and oversee delivery of the Scheme. The Scheme was to be delivered on a design and build contract. Populo were responsible for procurement of the contractor. Prior to the refurbishment works, a separate enabling works contractor would be appointed to carry out the demolition works needed to strip the building back to its frame. Mr Mackin gave evidence that the enabling works programme was expected to begin in summer 2024 and the Scheme to be substantially completed well before the end of 2027.

35. The inspector also heard evidence from the project director at Populo, Nicholas Clough. Mr Clough provided a more detailed breakdown of the proposed works programme for delivery of the Scheme The projected completion date for the main works was May 2027. Completion of the Scheme as a standalone project would allow the Second Defendant to decant tenants from elsewhere on the Carpenters Estate into the refurbished flats at JRP. The programme assumed that remaining leaseholders, including the Claimant and her family, would be able to return to their flats by December 2027.

36. Mr Clough gave evidence that both the enabling works and the main works contracts had been negotiated and contractors selected. Design work, the preparation of procurement packages for sub-contractors and pricing was in progress under a pre-construction services agreement, with a view to the main works contract being let in April 2025. The March report

37. Mr Mackin referred the inspector to a series of Cabinet decisions taken by the current Mayoral administration of the Second Defendant since December 2018. The relevant reports were in evidence before the public inquiry. Mr Mackin made particular reference to decisions taken by the Cabinet in response to a report from officers which it considered on 9 March 2023 [“the March report”] .

38. In the March report, Cabinet were advised that in order to progress with a compulsory purchase order as recommended, the Second Defendant would need to demonstrate at all the necessary resources were likely to be available both to pay the requisite land compensation and to implement the Scheme. At the date of the March report, the approved budget for the Scheme stood at £54.1M. A principal purpose of the March report was to seek Cabinet approval for an increase in that budget to £78.1M (plus CPO costs).

39. Section 4.2 of the March report addressed the Scheme budget and explained the increase of £24M since Cabinet approved a budget of £54.1M in July 2021 – “As approved by Cabinet in July 2021, Populo has undertaken a two-stage procurement process to select a main contractor. As part of the procurement process, a target cost plan has been prepared along with an updated financial appraisal to provide the latest construction figures and overall project budget as set out in this report. The successful contractor’s cost information has been reviewed and checked for robustness by the appointed QS firm, Mott MacDonald. This process gives confidence in advance of Stage 1 and further provides confidence that the budget and the level of contingency for risk including cost inflation are sufficiently covered. It should be noted that since July 2021 there has been a number of geopolitical factors including the war in Ukraine, which have increased construction costs”.

40. Tables in the March report provided both a breakdown of the forecast cost of the Scheme of £78.1M (plus CPO costs) and an analysis of the £24M increase in cost from the figure of £54.1M approved in July 2021.

41. Section 4.3 of the March report advised Cabinet on the financial viability of the Scheme. The advice was that the Scheme was to be delivered as a “self-standing project” and also as the first phase of the masterplan for regeneration of the Carpenters Estate. The Scheme proposed predominantly affordable housing. It offered the opportunity to decant existing tenants and to enable remaining leaseholders to return following completion of the works. The March report continued – “As such, the viability of the JRP scheme offers wider benefits acting as a loss-leader ahead of the wider masterplan. This report is therefore seeking approval to make sufficient capital budget available to proceed and implement the JRP scheme and to kickstart regeneration and rejuvenation of the Carpenters Estate. The masterplan financial appraisal is demonstrated to show the cost of the JRP scheme can be recovered from future phases of the masterplan, but the masterplan is still seeking planning consent from LLDC and its implementation remains subject to future cabinet decisions.”

42. The March report included specific advice from the Second Defendant’s Director of Finance – “This report sets out the proposed increase in the budget for the JRP scheme, which forms part of the wider Carpenters estate programme. For the reasons set out in the report, an additional £24m expenditure (plus CPO costs) now needs to be budgeted for, and the report recommends doing so. The report also assumes that a £12m GLA grant will no longer be available for the JRP scheme due to the delay in achieving vacant possession. Officers will continue to engage with the GLA to explore other opportunities to bring grant income into the scheme, but it is deemed prudent to assume no grant will be received at this stage. All else being equal, this will reduce the Programme cash flow by £36m thereby impacting on the wider Carpenters Programme Viability. However, since July 2021 the private rental market has performed more strongly, financially, than anticipated at that time. Populo have engaged JLL to provide the private home rental and sales valuations and forecasts. JLL's current valuations show an average 15% rise in private rental values from those included in the July 2021 Cabinet Report. In July 2021, the forecast was for an average 9% rise which was a reasonable assumption at the time, but like all models can only ever be an estimate. This additional 6% increase above the forecast has improved the private rental income stream, which is the largest income stream in the masterplan model, which has made a significant contribution to maintaining Programme viability. The updated Programme Viability Model for the overall masterplan will be reported to Cabinet later in 2023.” Overview and scrutiny process

43. On 9 March 2023 Cabinet resolved to approve the increase in the budget for the Scheme recommended in the March report. The Cabinet’s decision was subsequently “called-in” for review by the Second Defendant’s Overview and Scrutiny Committee. Concern was raised at the meeting of the Overview and Scrutiny Committee held on 29 March 2023 about the rising costs of the Scheme, the impact of funding the Scheme on the Second Defendant’s housing revenue budget and the viability of the Carpenters Estate masterplan. The minutes record that members questioned the viability of the Scheme given that it was to be funded from a variety of sources that were uncertain, such as future rental income. There were concerns about the broader implications of using funds from the housing revenue account when there were many existing burdens on that source of revenue. The Overview and Scrutiny Committee resolved that Cabinet’s decision of 9 March 2023 should be referred back to Cabinet for reconsideration and that a number of key concerns and recommendations be submitted to Cabinet, including – (1) That an updated external review be carried out by a suitably qualified accountancy firm on the Carpenters regeneration programme. (2) That compulsory purchase arrangements be value for money tested for the public purse and the process be looked at by a suitably qualified accountancy firm. (3) That the viability of the Carpenters regeneration programme, excluding the Scheme, be reassessed by a suitably qualified accountancy firm using more prudent assumptions.

44. The minutes of the meeting of Cabinet held on 30 March 2023 in response to these recommendations record that they were rejected. The following points are recorded in the minutes – “…officers gave assurances on the financial viability of the Scheme and that the Council had received independent financial advice from specialists, that the scheme viability would be kept under constant review, that there were checks and balances in place to monitor expenditure, and that an overall masterplan would be developed with flexibility to change any of its components if required. …. The representatives of Overview and Scrutiny Committee (OSC) explained that OSC were in support of the project to regenerate the area and had called in the decision due to the increased pressures on the budget and project costs overrun. Officers explained that inflation and additional specifications caused the additional expenditure and extended time frame of the Scheme and added that all these costs were accounted for. In addition, officers stated that there would be further reflection on the costed (sic) and CPO process to apply lessons learned to future schemes.”

45. Cabinet confirmed their decision of 9 March 2023 to approve the revised budget for the Scheme and to make a compulsory purchase order under section 226(1)(a) of the 1990 Act to facilitate delivery of the Scheme. The Claimant’s case on viability and funding

46. The Claimant’s written objections to confirmation of the Order were submitted by her solicitors on her behalf on 8 August 2023. They did not raise the issues of viability, lack of funding and uncertainty over delivery of the Scheme as particular points of concern at that time.

47. On 30 January 2024, shortly before the start of the public inquiry, the Claimant’s solicitors wrote to the Second Defendant’s solicitors summarising the Claimant’s objections to confirmation of the Order. In that letter, the Claimant’s solicitors stated – “We have real concerns regarding the viability of the scheme. We have requested disclosure of the underlying viability statements, i.e. the Target Cost Plan and Updated Financial Appraisal referred to in the Acquiring Authority’s report to its Cabinet meeting of 9 March 2023. However, given the history of this scheme we do not consider the authority has demonstrated that the scheme will be viable. It is apparent that the figures and viability have not been subject to independent analysis. In the case of the London Borough of Barking and Dagenham Council CPO in 2021 the order was not confirmed. The refusal by the Inspector was based on doubts about the viability of the project and the lack of updated viability appraisals. In the circumstances, we would be grateful if the above-mentioned viability statements could be sent to me as soon as possible and included in the bundle of core documents.”

48. The Claimant instructed a chartered surveyor, Adam Rhead of Gerald Eve LLP, to give evidence at the public inquiry. In his expert report dated 6 February 2024, Mr Rhead stated that he specialised in compulsory purchase and compensation matters and had advised both claimants and acquiring authorities. He said that his instructions had asked that he consider whether there was a compelling case in the public interest to confirm the Order. Section 7.5 of his report was headed “Viability” . He referred to the requirement stated in paragraph 13 of the CPO Guidance that acquiring authorities must show that all the necessary resources are likely be available to deliver the scheme within a reasonable timescale. He referred to the March report and stated – “Some of the information in the Cabinet Report - the Target Cost Plan and Updated Financial Appraisal - has been withheld by the Council. It is unclear whether the Council has sufficient funds available to complete the Scheme or that these funds are ringfenced given recent press releases issued by the Council on the ‘unprecedented challenges facing the borough’ (Appendix AR8). To date the Council has not disclosed key documents necessary to demonstrate that the scheme is viable.”

49. On 15 February 2024, the Second Defendant’s solicitors emailed to the Claimant’s solicitors two tables containing the Updated Financial Appraisal and Target Cost Plan. The tables showed a breakdown of the total project cost of £78.1M, and funding from GLA grant (£12M) and long-term debt (£66.1M). Compulsory purchase costs were not disclosed on the basis that they were exempt information. The parties’ closing submissions

50. In his closing submissions to the public inquiry on behalf of the Claimant, Mr Gregory Jones KC submitted that the CPO Guidance placed the burden on the Second Defendant as acquiring authority to demonstrate that necessary resources were available to deliver the Scheme with a reasonable timescale. The Scheme was not said to be independently financially viable. It was therefore necessary for the inspector to test whether the sources of funding upon which the Second Defendant relied would be both available and sufficient to enable the Scheme to be delivered. Moreover, as recorded in the March report, there had been a huge increase of £24M in the projected costs of the Scheme. Critically, the information provided by the Second Defendant did not enable either the objectors or the inspector to test whether the projected costs were reliable.

51. Leading counsel submitted to the inspector that there was an obvious risk in relying on the Scheme being funded through the Second Defendant’s housing revenue account, should projected costs increase further. He placed particular reliance on the absence of any evidence to show that funding would actually be forthcoming from the PWLB. The Second Defendant had not called evidence to explain how the Second Defendant would be able to build up the revenue needed to repay any loan which they might seek from the PWLB. In any event, the Second Defendant’s position was “quite hopeless” because they had only resolved to underwrite the Scheme by a loan to the value of £78.1M. That projected cost was based upon figures which the Second Defendant had not been willing to expose to independent expert assessment or scrutiny at the public inquiry. In the absence of such assessment or scrutiny, the risk of a further significant increase in project costs could not reasonably be discounted. Mr Jones KC submitted that the Second Defendant’s Overview and Scrutiny Committee had held similar concerns, but their recommendation for an external review of projected costs by a suitably qualified firm of accountants had been rejected by Cabinet on 30 March 2023. The role of Populo did not increase confidence in the Second Defendant’s ability to deliver the Scheme. Populo had no track record of managing a scheme of this size. As a wholly owned company of the Second Defendant, Populo was not in a position to exercise any independent control or scrutiny of the Scheme.

52. Mr Jones KC argued for a clear similarity with the Dagenham decision in respect of the uncertainty and lack of transparency over the viability, funding and delivery of the Scheme. In both cases, there was a fundamental lack of tangible and substantive evidence to demonstrate the financial viability of the scheme for which compulsory purchase powers were sought; and of the acquiring authority’s ability to deliver that scheme.

53. In his closing submissions for the Second Defendant, Mr Douglas Edwards KC said that the Second Defendant had made it clear in its evidence to the public inquiry that the Scheme was not commercially viable in the sense of generating a return on the investment. The Second Defendant did not intend that the Scheme should produce a profit. That would be unrealistic, given that the purpose of the Scheme was to deliver affordable, largely social rented housing and community floorspace. Nevertheless, on the evidence of Mr Mackin and Mr Clough, the Scheme was both fully funded and capable of being delivered within a reasonable timescale.

54. It was submitted that the Second Defendant as acquiring authority had committed to funding the Scheme as a standalone project. The Second Defendant had decided to fund the projected costs of the Scheme through their housing revenue account and via borrowing from the PWLB. The Claimant had confused the Second Defendant’s revenue funding arrangements to fulfil their housing management responsibilities with the prioritisation of a standalone capital project. The PWLB routinely provided loans to fund capital projects of this kind undertaken by local authorities. PWLB funding is non-discretionary, in the sense that the board does not revisit or evaluate the merits of such schemes.

55. Mr Edwards KC submitted that there was no reasonable basis for questioning the costs budget approved by Cabinet in response to the March report. The costs had been derived from the procurement process carried out by Populo and had been reviewed by the Second Defendant’s appointed quantity surveyors, Mott MacDonald. A substantial contingency of £8.66M had been included in the budget. The Second Defendant’s legal, finance and monitoring officers had assisted in preparation of the March report. The objectors had not produced any evidence to challenge the projected costs of the Scheme which had been approved by Cabinet. They had access to the March report and had been provided prior to the public inquiry with the Updated Financial Appraisal and Target Cost Plan referred to in the March report.

56. There was no requirement in the CPO Guidance for the Second Defendant to submit the cost plan and financial appraisal for the Scheme to independent assessment or scrutiny. The recommendations made by the Second Defendant’s Overview and Scrutiny Committee did not affect the position. They had been considered by the Cabinet on 30 March 2023. The analogy which the Claimant sought to draw with the Dagenham decision was false: the scheme in that case was intended to be financially viable. In terms of the advice given in the CPO Guidance, the Second Defendant had given a clear indication of its funding intentions for the Scheme; and had provided substantive information about the sources of funding available to them to meet both the costs of land acquisition and delivering the Scheme. The programme for implementation was in evidence before the public inquiry. The inspector’s conclusions

57. As I have already noted, the inspector addressed these issues in DL22 to DL26, which I should set out in full. “22. The Council's evidence (i.e. Darren Mackin) sets out in detail how the Scheme will be funded and that there is a reasonable prospect that it will be delivered. The Council considered funding of the Scheme on 9 March 2023 and its Cabinet accepted the recommendations to increase funding for the refurbishment of JRP. It also ratified that the CPO Scheme is to be funded through the Council's Housing Revenue Account and borrowing from the Public Works Loan Board (PWLB).

23. The Council’s report of 9 March 2023 also considered the recouperation of the funds required for the Scheme through the delivery of the masterplan for the Carpenters Estate. However, it is reiterated that the Scheme to refurbish JRP is nonetheless a standalone project that is not reliant on the viability or future delivery of the masterplan for the estate.

24. I have carefully considered the evidence of the Objectors, specifically in relation to the funding of the CPO Scheme. As a Scheme that will provide 96% affordable homes, it was queried whether the development would be viable. However, the Council has provided evidence that it is capable of funding the refurbishment programme itself through its public report of 9 March 2023 that it is capable of funding the refurbishment programme itself, which was prepared by its Finance Team and ultimately sanctioned by its elected Members.

25. Although the Objectors have argued that the funding agreed by the Council has not been independently scrutinised and verified, there is nothing before me to suggest that funding would not be forthcoming. Indeed, the evidence from the Acquiring Authority points out that there is no requirement for the funding to be verified, rather that there is a realistic possibility that it will come forward. Given that the totality of the Scheme is to be funded by the London Borough of Newham and it has access to funds from its Housing Revenue Account and for a non-discretionary loan from the PWLB, I am satisfied that there is a realistic probability of the Scheme being fully funded and is therefore viable and likely to be delivered within a realistic timeframe (Nicholas Clough’s evidence).

26. Therefore, based on the evidence before me I can conclude that it has been demonstrated that the Scheme is funded and viable, meaning that there is a realistic prospect that it will be delivered within a reasonable time scale”. Submissions

58. Mr Jones KC submitted that the Second Defendant’s evidence had been inadequate to show that the Scheme was funded, viable and capable of delivery within a reasonable timescale. There had been a history of abortive regeneration schemes at JRP. In that context, it had been vital for the inspector to ask himself whether he had sufficient, reliable evidence both on the costs of the Scheme and its funding to enable him to be satisfied that the Scheme was likely to be delivered.

59. It was submitted that the evidence before the public inquiry raised unresolved and real uncertainties about the costs of the Scheme and sources of funding. There had been a sudden and substantial increase in the projected costs. It was unreasonable of the inspector to have rejected the Claimant’s case for independent assessment and scrutiny of the target costs budget put forward by the Second Defendant. In making that case, the Claimant was doing no more that relying on and repeating the concerns of the Second Defendant’s Overview and Scrutiny Committee, which had been unreasonably rejected by Cabinet. In the absence of such independent assessment, the inspector had lacked the objective evidence which he needed in order to form a reasonable, independent judgment of the reliability of the projected costs relied upon by the Second Defendant.

60. There was no evidence before the inquiry to show that the PWLB was committed or even willing to fund the Scheme. The inspector had not heard evidence from the Second Defendant’s Director of Finance as to how any loan made by the PWLB was to be serviced from the Second Defendant’s own resources, which were known to be under pressure.

61. For these reasons, there were real and unresolved concerns about the viability of the Scheme. Similar concerns had caused the inspector deciding the Dagenham decision, and following the CPO Guidance, to refuse to confirm the compulsory purchase order in that case. The inspector was not able lawfully to disregard that comparable decision simply on the basis that a full copy had not been provided to him. He had been referred to the Dagenham decision. The principle of consistency required that he take it properly into consideration.

62. Mr Jones KC submitted that the inspector had misinterpreted the CPO Guidance. He had proceeded on the basis that it was sufficient to ask whether there was a reasonable possibility of the Scheme being delivered. That, however, was too narrow. Properly understood, the CPO Guidance required the inspector firstly to establish the prospects of the Scheme being delivered; and having done so, to weigh the likely prospects of delivery in the balance when determining whether the Second Defendant has compelling justified the case for compulsory purchase. In order to do so, the inspector needed to make a properly informed assessment of the viability of the Scheme and to take steps to avail himself of the evidence reasonably needed for that purpose. He had failed to take those steps, with the result that his conclusion in DL26 was both unlawful and inadequately explained by the reasons which he purported to give in DL22 to DL25. Discussion

63. I begin by considering the Claimant’s argument that the inspector’s conclusions in DL26 were reached in breach of his Tameside duty. Lord Diplock stated the duty in Tameside at page 1065 – “The question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”

64. The general principles which govern the Tameside duty were summarised by the Court of Appeal in R (Balajigari) v Secretary of State for the Home Department [2019] 1 WLR 4647 at [70]. The duty on the inspector was only to take such steps to inform himself as were reasonable. It was for the inspector and not the court to decide upon the manner and intensity of the inquiry to be undertaken. The court should establish what material was before the inspector and should only strike down a decision not to make further enquiries if no reasonable inspector could have been satisfied on the basis of the inquiries made that they possessed the information necessary for the decision which they were required to make.

65. This ground of challenge is concerned with the inspector’s conclusion that the Scheme was funded and viable, and capable of being delivered within a reasonable timescale. Those were questions which arose from the decision making framework set as a matter of policy by the CPO Guidance. As I have set out earlier in this judgment, the CPO Guidance required the inspector to satisfy himself that the Second Defendant as acquiring authority was likely to have available to them the resources needed to deliver the Scheme within a reasonable timescale. The Second Defendant was required to provide evidence of the source of their funding both to meet the costs of compulsory purchase and of carrying out the Scheme. They were required to show that funding would be available now or early in the process of delivery. Where, as in the present case, the Scheme was not intended to be independently financially viable, the Second Defendant was required to indicate how any shortfall in funding was intended to be met.

66. In the case of a compulsory purchase order made under section 226(1)(a) of the 1990 Act, the CPO Guidance required the inspector to take the potential financial viability of the Scheme into account. In that context, a general indication of the acquiring authority’s funding intentions and any commitment from third parties would usually be sufficient to give reassurance that the scheme underlying compulsory acquisition will proceed. Where financial viability is uncertain, there will need to be other compelling grounds for confirmation of the compulsory purchase order.

67. In order to judge whether the inspector was in breach of his Tameside duty in addressing those questions, it is necessary to identify the information which was made available to him through the public inquiry proceedings.

68. The inspector received written proofs of evidence from Mr Mackin and Mr Clough. Both witnesses gave oral evidence at the public inquiry. Their evidence was subject to cross-examination on behalf of the Claimant. Mr Mackin stated the Second Defendant’s commitment to funding the Scheme as a standalone project and on the basis of the target costs budget and updated financial appraisal explained in the March report. He confirmed that the Second Defendant was no longer relying on GLA grant funding. The Scheme was to be funded through the Second Defendant’s capital programme, the principal source of funds being a loan from the PWLB borrowed via the housing revenue account. Both the March report and other relevant Cabinet reports were in evidence before the inspector. Mr Mackin confirmed that the Scheme was not expected to be commercially viable, although the Second Defendant would seek to recover costs in future through the wider Carpenters Estate redevelopment programme. He identified the Second Defendant’s strategic objectives in promoting the Scheme as the provision of a substantial number of affordable homes and to act as a catalyst for future investment in the masterplan for the Carpenters Estate. Mr Clough gave evidence of the progress with contractual procurement and the current programme for delivery of the Scheme to projected completion prior to the end of 2027.

69. The Claimant’s witness, Mr Rhead, called into question the viability of the Scheme in his expert report. He did not, however, seek to advance a positive case that, for example, the Second Defendant’s projected costs for the Scheme were significantly underestimated or unreliable; or that the Second Defendant’s reliance on securing loan funding from the PWLB was misplaced. The documents to which he referred in his report, the Target Cost Plan and the Updated Financial Appraisal mentioned in the March report, were disclosed to the Claimant shortly before the start of the public inquiry and accordingly in evidence before the inspector. I understand that Mr Rhead commented on that evidence during his oral testimony at that public inquiry.

70. In the light of this evidence, there was no doubt as to the Second Defendant’s funding intentions for the Scheme. The Second Defendant’s approved costs budget for the Scheme was in evidence before the inspector. The principal source of funding to meet the projected capital costs of delivering the Scheme had been clearly identified. There was no issue that, as a standalone refurbishment project, the Scheme was not expected to be financially viable, in the sense of providing a positive return on investment. The Second Defendant strategic objectives for promoting the Scheme as a standalone project were clearly stated in evidence. There was no evidence before the inspector which substantiated the Claimant’s main contentions that the costs budget approved by Cabinet in response to the March report was wrong or unreliable and that the requisite loan funding from PWLB was contingent upon a positive investment decision by the PWLB.

71. It is clear from the inspector’s reasoning in DL22 to DL26 that he asked himself whether the information which I have just summarised was sufficient to enable him to draw his conclusions on whether the Scheme was funded, viable and likely to be delivered within a reasonable timescale. He concluded that it was sufficient for that purpose. In doing so, he considered and rejected the Claimant’s argument that there was a clear need for independent assessment and scrutiny of the costs budget approved by Cabinet, that no reasonable conclusion could be drawn about the funding and delivery of the Scheme in the absence of such an independent assessment and that there was no proper basis for concluding that the requisite loan would be forthcoming from PWLB.

72. Applying the principles stated by the court in Balajigari , I am unable to accept that the inspector acted Wednesbury unreasonably in reaching those conclusions. His reasons in DL24 and DL25 for rejecting the Claimant’s argument were proper and adequate. He acknowledged that the project costs and funding arrangements approved by Cabinet in response to the March report had not been independently scrutinised and verified. He was correct to say that there was no requirement for such independent scrutiny or verification. No such requirement is stated in the CPO Guidance. What is required is an indication of the acquiring authority’s funding intentions and evidence of the sources of funding, particularly in a case where, as here, the acquiring authority accepts that the Scheme will not achieve a financial return on the capital investment required to deliver it.

73. Whilst there may be cases in which the information provided by the acquiring authority is shown to be so questionable that independent scrutiny is clearly called for, it is very difficult to conceive of a case in which the inspector holding the public inquiry will fail to identify that fact. The very purpose of the public inquiry procedure is to enable inspectors to consider whether the acquiring authority has addressed the matters identified in the CPO Guidance to their satisfaction. It will be a rare case indeed in which the inspector can be shown to have failed to take reasonable steps to acquaint himself with the relevant information to enable him to do so, notwithstanding the public inquiry proceedings. Here, the inspector was well aware of the concerns which had been raised by the Overview and Scrutiny Committee; and that having considered those matters with the benefit of further advice from officers, including the finance and monitoring officers, Cabinet had re-affirmed its approval of the costs budget and funding and delivery arrangements for the Scheme. In my judgment, in this case the inspector was reasonably entitled to find as he did in DL24 and DL25, that those matters had been sufficiently addressed in the Second Defendant’s evidence and on the basis of the information contained in the March report.

74. The March report explained why the forecast cost of the Scheme had increased by £24M since July 2021. A substantial contingency had been priced into the target costs budget. It is relevant to note that, according to the March report, the projected construction costs had been checked by the Scheme’s appointed quantity surveyors. The March report itself had been prepared with input from the Second Defendant’s finance team and approved by Cabinet.

75. Mr Mackin’s evidence was that loan funding for capital projects such as the Scheme was routinely available to local authorities from the PWLB. HM Treasury had set up the PWLB to provide loan facilities exclusively to local authorities to fund capital projects such as the Scheme. PWLB loan funding was provided on a “non-discretionary” basis, with the judgment whether the given project justified the capital investment to be funded by the loan resting with the local authority. That evidence was consistent with the PWLB’s own explanation of its lending arrangements on its website, which was put into evidence during the course of the public inquiry. The PWLB stated that major local authorities such as borough councils may take out PWLB loans and, under current arrangements, are “free to finance capital projects by borrowing, provided they can afford to service their debts out of their revenues” , such decisions being the responsibility of the elected members of the local authority who are accountable to their electorates. In closing submissions, Mr Jones KC had relied upon the PWLB’s statement that a local authority’s freedom to borrow was subject to their finance director being “satisfied that they are acting in line which statute and can afford to repay the loan” . The inspector, however, was aware that the March report had been prepared with input from the Second Defendant’s finance team.

76. In summary, the inspector had sufficient information upon which to reach proper and reasonable conclusions, as he did in DL25, on the adequacy of funding arrangements for the Scheme. In particular, he was in a position on the basis of the evidence reasonably to decide whether the Scheme would be funded and how the required funds were to be sourced. Likewise, Mr Clough’s evidence provided the inspector with sufficient information upon which reasonably to judge whether the Scheme was likely to be delivered within a reasonable timescale.

77. In paragraphs 51 to 57 above I have rehearsed in some detail the closing submissions which were made to the inspector on behalf of the Claimant and the Second Defendant. It is clear that there was extensive disagreement between the parties as to whether the Second Defendant’s evidence justified the conclusions subsequently reached by the inspector on the funding, viability and deliverability of the Scheme. Whether the inspector was right to reach those conclusions is not a matter for me to decide on an application brought under section 23 of the 1981 Act. This is not an appeal from the inspector’s decision. By invoking the Tameside principle, the Claimant must establish both that the inspector lacked the information necessary reasonably to address the questions raised by the CPO Guidance and failed to take reasonable steps to address that deficiency. For these reasons I have given, the Claimant has failed to do so.

78. The next question is whether the inspector fell into error in failing to have regard to the Dagenham decision. Mr Jones KC criticised the inspector for stating in DL49 that he had not been provided with a full copy of the Dagenham decision. It was submitted that the inspector could readily have been provided with a full copy, had he but asked the Claimant to provide one to him. In any event, he would have been in a position to obtain one within the planning inspectorate.

79. In my view, that criticism misses the inspector’s point in DL49. The reason why the inspector was unable to give more than limited weight to the Dagenham decision was because the Claimant had given little if any real explanation as to why it was material to the decision whether to confirm the Order in the present case. In my judgment, the inspector was justified in taking that point. As Ms Ruchi Parekh submitted on behalf of the First Defendant, the Claimant’s reliance on the Dagenham decision in relation to the issue of viability was essentially limited to the quotation of two isolated, brief passages. Those passages appeared to reflect the judgment of the inspector in that case on the evidence, such as it may have been, which had been led by the acquiring authority on that topic.

80. It is well-established that a previous decision is capable of being a material consideration in planning appeal proceedings, for reasons of consistency: see Baroness Cumberledge of Newark v Secretary of State for Communities and Local Government [2018] PTSR 2063 at [29] and the cases there cited. However, in order to be material on that basis, it is necessary to show that the previous decision is not distinguishable on its facts from the instant case. In North Wiltshire District Council v Secretary of State for the Environment (1992) 65 P&CR 137, 145 Mann LJ said – “To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way”.

81. Although the principle has typically been applied in the context of planning appeal decisions under section 78 of the 1990 Act, I can see no good reason why it should not also apply in the context of decisions whether to confirm compulsory purchase orders made under section 226(1)(a) of the 1990 Act. In this case, however, the Claimant appears simply to have assumed that the Dagenham decision was indistinguishable in any relevant respect from the case before the inspector. No attempt was made to explain why the Dagenham decision should be taken to be a like case to the present one, insofar as the issue of viability of the scheme underlying compulsory purchase was concerned.

82. In closing submissions for the Second Defendant, Mr Edwards KC pointed out that the brief extract from the Dagenham decision relied upon by the Claimant indicated that in that earlier case, the scheme was intended to be commercially viable. That was in clear contrast to the Second Defendant’s case in support of confirmation in the present case, which acknowledged that the Scheme was not intended to produce a positive return on investment and would be fully funded by the Second Defendant via a capital loan.

83. That being the position before the inspector, he was indisputably justified in questioning how the Dagenham decision related to the Order before him for confirmation. It is entirely unsurprising, in those circumstances, that he should decide that he was able to give the Dagenham decision only limited weight.

84. The parties have since provided a full copy of the Dagenham decision to the court, which enabled me to hear argument about its potential relevance to the decision under challenge and to form my own provisional view as to whether it could reasonably be said to be indistinguishable from the decision which the inspector had to make on the question of viability. In the Dagenham case, the scheme of development underlying the compulsory purchase order was to be delivered by a single purpose private company which sought a positive return on its investment. Evidence before the public inquiry indicated that the development scheme was substantially lacking in financial viability. That evidence consisted of a financial viability appraisal and review carried out over five years prior to the public inquiry. The acquiring authority did not rely on those appraisals, but had not submitted an up-to-date assessment of the scheme’s financial viability to the inspector. The inspector found the financial viability of the scheme to be uncertain; and that the private investors who were funding the scheme via the acquiring authority’s development partner would be unlikely to continue to do so in such circumstances. It is clear that the issues on viability raised for determination in the Dagenham decision were quite different from those arising in the present case.

85. There is no substance in the Claimant’s argument that the inspector misinterpreted the CPO Guidance. The overarching policy to which the CPO Guidance is directed is that a compulsory purchase order should not be confirmed unless there has been shown to be a compelling case in the public interest for compulsory acquisition of the land included in the order. The question whether the scheme underlying compulsory acquisition is funded, viable and capable of being delivered is self-evidently material to the decision whether a compelling case for compulsory purchase has been made out. As the CPO Guidance states, if the acquiring authority cannot show that all the necessary resources are likely to be available to deliver the scheme for which the land is said to be required, it will be difficult to establish a compelling case for its compulsory purchase in the public interest. That is why acquiring authorities are advised to provide substantive information about the sources and timing of funding for both land acquisition and implementation of the scheme. The absence of such information would raise a real doubt as to whether the expropriation of the land included in the compulsory purchase order was justified in the public interest. Essentially similar advice is given to acquiring authorities who are seeking to justify confirmation by the First Defendant of a compulsory purchase order made under section 226(1)(a) of the 1990 Act. Perhaps reflecting the fact that many such orders are made to assemble the land required to deliver development projects promoted by local planning authorities in partnership with a private developer seeking a commercial rate of return on their investment, the advice in paragraph 106 of the CPO Guidance focuses on the financial viability of such schemes. The Dagenham decision concern such a scheme. Nevertheless, the essential guidance is that the acquiring authority should provide evidence of funding intentions, sources and timing of funding, so that the confirming minister or the appointed inspector is able to make an informed judgment on the prospects of the scheme being delivered, in the event that compulsory purchase of the requisite land is authorised.

86. Insofar as Mr Jones KC’s submission was that the inspector’s informed judgment on the prospects of delivery of the Scheme must also inform his overall determination of the overarching question whether confirmation of the Order was compellingly justified in the public interest, I would accept it. However, I have no doubt that the inspector was well aware of the need ultimately to address that overarching question. It is clear from DL52 that his conclusions in DL26 did inform his determination of that question. Nor, finally, is there any merit in the Claimant’s complaint that the inspector failed to give proper, adequate and intelligible reasons for his conclusions in DL26. The explanation he gave in DL22 to DL25 was unarguably sufficient for that purpose.

87. For these reasons, ground 1 must be rejected. Ground 2 – Reasonable efforts to acquire by agreement The issue

88. The Claimant’s challenge under this ground is to the validity of the inspector’s conclusion that the Second Defendant as acquiring authority had taken reasonable steps to acquire all the Order land, including the Claimant’s leasehold interest in the premises, by agreement. The Claimant contends that in reaching that conclusion, the inspector had misunderstood the terms of the “uplift offer” made to the Claimant in early 2023, which in fact exposed the Claimant to the risk of being left without compensation in an unrefurbished home on an upper floor of an otherwise uninhabitable tower block. Further, the inspector had failed to have proper regard to the history of interactions between the Claimant and the Second Defendant during the period of abortive attempts to bring forward the refurbishment of JRP. In order to take proper account of that history and its impact on the question whether the Second Defendant had acted reasonably in negotiations to acquire the Premises, the inspector needed to reach a judgment as to whether the Second Defendant had been in breach of its covenants as Landlord and of its duties as local housing authority. The inspector had failed to do so. Finally, the inspector had failed to give proper and adequate reasons for his conclusion. The CPO Guidance

89. The general overview of compulsory purchase powers and procedures in Tier 1 of the CPO Guidance advises as follows – “ The confirming authority will expect the acquiring authority to demonstrate that they have taken reasonable steps to acquire all of the land and rights included in the Order by agreement. Where acquiring authorities decide to/arrange to acquire land by agreement, they will pay compensation as if it had been compulsorily purchased, unless the land was already on offer on the open market. Compulsory purchase is intended as a last resort to secure the assembly of all the land needed for the implementation of projects. However, if an acquiring authority waits for negotiations to break down before starting the compulsory purchase process, valuable time will be lost. Therefore, depending on when the land is required, it may often be sensible, given the amount of time required to complete the compulsory purchase process, for the acquiring authority to: • plan a compulsory purchase timetable as a contingency measure; • initiate formal procedures This will also help to make the seriousness of the authority’s intentions clear from the outset, which in turn might encourage those whose land is affected to enter more readily into meaningful negotiations.”

90. Paragraph 3 of the general overview poses the question “What should acquiring authorities consider when offering financial compensation in advance of a compulsory purchase order?” and states – “ When offering financial compensation for land in advance of the making of a compulsory purchase order, public sector organisations should, as is the norm, consider value for money in terms of the Exchequer as a whole in order to avoid any repercussive cost impacts or pressures on both the scheme in question and other publicly-funded schemes. … In order to reach early settlements, public sector organisations should make reasonable initial offers, and be prepared to engage constructively with claimants about relocation issues and mitigation and accommodation works where relevant.”

91. Tier 1 of the CPO Guidance gives advice on preparing and making a compulsory purchase order. It includes the following – “ 17 What are the benefits of undertaking negotiations in parallel with preparing and making a compulsory purchase order? Undertaking negotiations in parallel with preparing and making a compulsory purchase order can help to build a good working relationship with those whose interests are affected by showing that the authority is willing to be open and to treat their concerns with respect. This includes statutory undertakers and similar bodies as well as private individuals and businesses. Such negotiations can then help to save time at the formal objection stage by minimising the fear that can arise from misunderstandings. Talking to landowners will also assist the acquiring authority to understand more about the land it seeks to acquire and any physical or legal impediments to development that may exist. It may also help to in identifying what measures can be taken to mitigate the effects of the scheme on landowners and neighbours, thereby reducing the cost of a scheme. Acquiring authorities are expected to provide evidence that meaningful attempts at negotiation have been pursued or at least genuinely attempted, save for lands where land ownership is unknown or in question.” The factual background

92. I base this summary of the relevant factual background on those points of chronology that have been agreed between the parties and on the contemporary documents. The parties did not agree any summary of the history of management of JRP following the beginning of the decanting process in 2005.

93. The Second Defendant initiated plans to regenerate JRP and the wider Carpenters Estate as long ago as 2003. Between 2005 and 2013, a number of different proposals were considered. During that period, the Second Defendant began the process of decanting existing tenants from flats in JRP.

94. From 2018 onwards, a change in Mayoral administration at the Second Defendant led to a renewed commitment to regenerating Carpenters Estate. At the end of that year, Cabinet decided to move away from a joint venture with private developers as the regeneration vehicle and to pursue a “resident led” redevelopment model.

95. On 17 April 2019, the Second Defendant’s agents made an offer to purchase the Claimant’s leasehold interest in the Premises. The Claimant’s son’s evidence to the public inquiry was that the Claimant did not receive that letter.

96. In early 2020 Populo was appointed by the Second Defendant as development manager. Part of Populo’s role was to produce a masterplan for the Carpenters Estate and to engage with existing residents for that purpose.

97. On 30 June 2021, the Second Defendant’s agents made a second offer to purchase the Claimant’s leasehold interest in the Premises. The Claimant’s son’s evidence to the public inquiry was again that the Claimant did not receive that letter. It appears that neither this offer nor the previous offer was followed up by the Second Defendant’s agents at that time.

98. In July 2021, Cabinet endorsed the masterplan for redevelopment of the Carpenters Estate and decided to carry out a ballot of existing residents by posing the question “Are you in favour of the proposal for the regeneration of the Carpenters Estate?” . Residents were invited to answer that question “Yes” or “No”. The ballot was informed by a document entitled “Your Carpenters Estate Landlord Offer” [“the Landlord Offer”] which was in two parts. Part one described the design proposals for regeneration of the Carpenters Estate as proposed in the masterplan. Part 2 explained the housing offer for residents living on or with the right to return to the Carpenters Estate. Page 22 of the Landlord Offer was headed “The offer to resident homeowners living in James Riley Point and Lund Point”. Amongst other things, it was stated that resident leaseholders whose flats in JRP were due to be refurbished would have the option of selling their interest or buying an alternative home in the regeneration area. They could choose to move into a temporary home of comparable size and type near to their existing home, to allow the refurbishment works to be carried out. The Second Defendant would offer such accommodation and pay the reasonable costs of the move. Resident leaseholders of JRP would be offered a range of options to continue to own a new home on the Carpenters Estate, depending on their financial circumstances, including arrangements to enable them to bridge the gap between the value of their existing leasehold interest and the price of a flat on the redeveloped estate. The Landlord Offer concluded with the following – “If an agreement cannot be reached, the Council may, as a last resort, apply for a compulsory purchase order to gain vacant possession to complete works to the building in which your home is located”.

99. In December 2021 the ballot resulted in 73% of existing residents answering “Yes” to the question posed in the Landlord Offer. Those in favour included the Claimant.

100. On 20 April 2022, the Second Defendant provided the Claimant and her family with a draft agreement which formed the basis for discussions and negotiations over the following months. In May 2022 all remaining leaseholders in JRP were provided with hotel accommodation following the failure of the lift at the building. The Claimant and her family moved into a hotel. By September 2022, agreement had yet to be reached with the four leaseholders, including the Claimant. It was an that point that the Second Defendant included the offer of an option uplift payment [“the uplift offer”] with a view to bringing negotiations to a successful conclusion. I set out the terms of the uplift offer in paragraphs 109 and 110 below.

101. The Second Defendant subsequently imposed a deadline of 12 December 2022 for acceptance of the uplift offer, which was extended to 16 December 2022. By that date, the Second Defendant had not reached agreement with any of the four remaining leaseholders.

102. Meanwhile, in December 2022 the Claimant and her family moved from hotel accommodation into temporary alternative accommodation, where they continued to live at the date of the public inquiry.

103. On 23 February 2023, the Second Defendant reinstated the uplift offer. A deadline of 24 March 2023 was given for acceptance of that offer. On 9 March 2023, the Second Defendant sent a revised draft agreement including the uplift offer to the solicitors then retained by the Claimant. Revised draft agreement and uplift offer

104. The principal purpose of the proposed terms of the revised draft agreement was to enable the Second Defendant to undertake the refurbishment works at JRP without the need for compulsory purchase of the remaining leasehold interests. Its proposed terms provided a basis on which each of the remaining leaseholders would give vacant possession of their leasehold premises at JRP and grant a licence to the Second Defendant to occupy those premises for the purposes of carrying out the refurbishment works comprised in the Scheme. The Second Defendant was to grant to each remaining leaseholder a tenancy of comparable alternative premises during the course of those works and until their practical completion. That tenancy was to be at no rent. The Second Defendant was also to make two payments to each remaining leaseholder – the Phase One Payment and the Phase Two Payment. The Phase One Payment was a disturbance payment in the sum of £41,100. The Phase Two Payment was to reimburse the reasonable expenses incurred by the remaining leaseholders in moving into the temporary accommodation and later returning to their leasehold premises following completion of the refurbishment works at JRP. There was to be no transfer of title. Upon practical completion, each remaining leaseholder would resume possession of their leasehold premises at JRP, taking the benefit of a newly refurbished flat and any uplift in the value of their lease resulting from the refurbishment of that flat and of JRP. The revised draft agreement proposed a long stop date of three and a half years from the date on which the Second Defendant was to take vacant possession of the remaining leasehold premises at JRP for practical completion of the Scheme.

105. Clause 9.3 of the revised draft agreement contemplated three scenarios in which the Scheme may not achieve completion. The first was that having started the refurbishment works, the Second Defendant may not have achieved practical completion by the long stop date. The second was that the Second Defendant became convinced for good reason that the works would or could not achieve practical completion by that date. The third was that following the commencement of the Scheme in accordance with clause 3 of the revised draft agreement – the “Commencement Date” – it may become clear to the Second Defendant acting reasonably, that the works could not be carried out wholly or in part for one or more specified reasons – a “Works Termination Event”. In the event of any of these three possible scenarios coming about, the Second Defendant was able under clause 9.3 to exercise the option granted by the leaseholder to the Second Defendant under clause 10 of the revised draft agreement – the “Landlord’s Option”.

106. A further possible outcome contemplated by the revised draft agreement was that the Second Defendant may decide that the refurbishment works at JRP were no longer viable prior to reaching the “Commencement Date” in accordance with clause 3. Clause 9.4 made provision for that event – “9.4 In the event that the Commencement Date has not been reached and the Landlord deems the Works no longer viable for any reason, such that the Commencement Date cannot occur, then the Landlord shall at its absolute discretion (acting reasonably): (a) hand back the Property to the Leaseholder and end the Temporary Accommodation Tenancy as if Practical Completion had taken place (save that the Property will be handed back in accordance with its condition at the Property Vacant Possession Date); and (b) pay to the Leaseholder the Phase Two Payment; and (c) this Agreement shall immediately determine (save for any payments due under this Agreement or the Lease) following the end of the Temporary Accommodation Tenancy.”

107. Clause 10.2 and 10.3 of the revised draft agreement provide the “Landlords Option” – “10.2 From the date here of until the date of Practical Completion the Leaseholder grants to the Landlord, in consideration for the Landlord’s obligations set out in this agreement, the Landlord’s Option to purchase the Property (or accept the Leaseholder’s surrender of all interest in the Property). 10.3 The Landlord’s Option shall only be exercised in relation to the Property in the event that any one of the circumstances set out in clause 9.3 have occurred, or that the Landlord has determined that the Commencement Date cannot occur in accordance with clause 9.4”.

108. Clause 10 made contractual arrangements for agreement of the purchase price, for the resolution of a dispute as to that price and for the mechanics of exercising the option (including service of an option notice) and completing assignment of the lease. Clause 10.4(b) required the purchase price to be determined on the assumption that the refurbishment works both to the leasehold premises and to JRP as a whole had been practically completed. On completion of the assignment, clause 10.13 required the Second Defendant to pay any outstanding Phase Two Payment, the leaseholder’s professional fees reasonably incurred and a sum equivalent to the Home Loss Payment due to the leaseholder under section 29 of the Land Compensation Act 1973, had their lease been compulsorily purchased.

109. Clause 10.14 of the revised draft agreement then stated the terms of the uplift offer – “10.14 In the event that all leaseholders in the Building have given vacant possession of their properties to the Landlord by 17 th March 2023 and either: (a) a Works Termination Event has occurred; OR (b) Practical Completion has not been reached, by 29 th September 2026, then within 30 days of that date the Landlord shall exercise the Option and serve an Option Notice in accordance with clause 10.4, and pay to the Leaseholder the Option Uplift Payment on completion of the Transaction”.

110. The “Option Uplift Payment” was defined in clause 1 of the revised draft agreement as – “The difference between the total of the Agreed Purchase Price together with all sums paid under clause 10.13, and the sum of £1,000,000.00 (ONE MILLION POUNDS)”. March 2023 discussions and correspondence

111. On 16 March 2023 a without prejudice meeting round table meeting was held between the Claimant and members of her family, the Second Defendant’s Corporate Director of Inclusive Economy and Housing, Vicky Clark, and the parties’ legal representatives. Further correspondence and emails were exchanged over the course of the following days. On 20 March 2023 Ms Clark again met with the Claimant and members of her family. On 21 March 2023, the Second Defendant agreed to extend the deadline for acceptance of the offer until 29 March 2023.

112. On 27 March 2023 Ms Clark emailed the remaining leaseholders, including the Claimant, in the following terms – “I am very pleased that we are moving towards an agreed date for Vacant Possession of 29 th March. This date is important for the Council because it allows us to progress the scheme, and to safeguard £12m of Greater London Authority grant investment in the scheme. Moreover the Council is not minded to extend deadlines again as we have already made our best and final offer to leaseholders and there is no scope to amend this further. I would like to remind you that the offer being made to you via the contract offers exceptional value. • You have the right to return to a fully refurbished flat worth significantly more than the property in its current state, at no net cost to you. • Should the scheme start but stall part way through you will have sufficient compensation to purchase something equivalent in size and quality to your refurbished flat, in a similar location. • You will receive a disturbance payment of £40,100 per flat within fourteen working days of the contract being signed. In the event that you do not accept the offer and agree the VP date, the Council will move to make a Compulsory Purchase Order. • Under the terms of a confirmed Compulsory Purchase Order the price which the Council can offer you is your flat’s market value, plus 10%. I know that alongside final assurances on contracts, you have all had some practical concerns regarding arrangements for Vacant Possession, Inventory and Removal and I thought it sensible to group these in a single email to everyone - please note that this email is intended to cover all the specific issues that people have raised in discussions over the last week. If you have raised an issue which you feel is not covered here, or if you want further clarification, then please contact me as soon as possible”.

113. The Claimant’s son, Pirakalathan Saravanamuthu, gave evidence at the public inquiry. In his proof of evidence, he states that on 17 March 2023, on receipt of the revised draft agreement the Claimant had instructed new solicitors, Irwin Mitchell LLP, to review it and advise on its terms. He states that it was on 22 March 2023 that the Second Defendant informed the Claimant that the deadline for accepting the revised draft agreement was linked to the availability of GLA grant funding. He says that the Second Defendant agreed at the Claimant’s request to extend the deadline for acceptance of the terms of the revised draft agreement to 29 March 2023. He says that the Claimant received Irwin Mitchell’s advice “around 28 March 2023” .

114. In mid-afternoon on 29 March 2023, Irwin Mitchell emailed a letter to the Second Defendant raising a number of points, including – “We have not had enough time to review the Agreement and the supporting documentation in detail but we understand that you have told our clients that they must sign the Agreement today (29 March 2023) or you will compulsorily purchase the Property. They have also told me that the grant funding given to you by the Greater London Authority is dependent on you having acquired the keys to the four leaseholder properties in the Building by 31 March 2023. In respect of the grant funding, I would be grateful if you could confirm that our client’s understanding is correct. Please also let us know whether it is possible to extend this deadline, how the funding is essential to delivery of the Agreement and if you lose the funding, how the Council would fund the compulsory purchase of the Property. In respect to the Agreement, essentially our clients want to secure a position whereby, if the Council does not refurbish the Property and hands it back to them, or hands it back to them prior to the Commencement Date, they are ensured their global settlement figure of £1 million. These principles are contained in the Agreement, and our clients are not seeking to a renegotiation of the principles already agreed. However, further amendments are required to make the Council's obligations enforceable and to protect our clients. Our clients are acting reasonably in seeking to ensure that this happens. The Agreement gives the Council a wide discretion to decide not to carry out the works to the Building and the Property and to decide to exercise the Option and purchase the Property instead. In these circumstances and in the light of past structural and repair issues with the Building, we believe that it is entirely reasonable that our clients want to secure their uplift payment and to avoid any unforeseen expenses or circumstances”.

115. At the end of the afternoon on the same day (29 March 2023), the Second Defendant’s lawyers responded to that letter – “I write after attempting to ring you without success. We are surprised to be contacted by yourselves as we were unaware of your client’s change in solicitors acting. … We would like to confirm that the standing offer is for £1 MILLION as per the contract agreement your client has hopefully shown you. The uplift payment will remain open until midnight tonight if your client can give us vacant possession in that time. I'm afraid we cannot entertain any further amendments to the contract. We have been repeatedly clear on this. It is now the day of signature and three other leaseholders have now completed. We cannot realistically circulate a change at this last minute. We note your letter states that we will compulsorily purchase the property - this is not in fact the case. The relevant deadline today is for the option uplift payment. If your clients provide us with VP after today they will not be entitled to the uplift payment under the contract, but the offer to enter into the contract remains”.

116. The Claimant’s solicitor immediately responded – “I am sorry that you were not able to get hold of me - I'm not sure what happened. Please can you urgently consider extending the deadline to 30 March (tomorrow) so that I may have time to consider the information in your email below with my client”.

117. On the morning of 30 March 2023, the Second Defendant’s lawyers emailed the Claimant’s solicitors as follows – “I write following our call a moment ago. I must be extremely clear that the uplift offer has now expired and will not be reinstated. Please brief your clients accordingly. … Your client is still welcome to sign the contract and hand over the keys. The uplift clauses will no longer be operable but the council's existing compensation offer is quite generous and you must be aware it is a substantial improvement on the statutory minimum. If your clients are agreeable to this route we would ask that they sign as quickly as possible, ideally today. Secondly, we would be prepared to reinstate the original landlord’s offer made to your clients late last year and purchase the flat from them outright. This would be on the basis of a new pre-sale valuation of the property in its current condition. This will offer your clients certainty. If your clients do take this route then we suggest adopting the 14th April as a possible exchange date for simplicity's sake. Please take instructions and let us know your position, particularly if your clients wish to sign the contract”.

118. On 31 March 2023, having failed to obtain vacant possession of the Premises, the Second Defendant lost the opportunity of GLA funding for the Scheme in the sum of £12M. Cabinet’s approval of the budgetary and funding arrangements for the Scheme as set out in the March report and confirmed on 30 March 2023 following call-in by the Overview and Scrutiny Committee had assumed the loss of that GLA grant funding.

119. On 6 April 2023, the Second Defendant’s lawyers sent a detailed response to the Claimant’s solicitors’ letter of 29 March 2023 – “We appreciate at the time of your writing that you had not had sufficient time to review the Agreement. Further, that you were under the impression from your clients that if they had not signed the Agreement by 29 th March 2023 an extension was required because the only alternative was for the Council to compulsory purchase the Property. As we explained when we spoke on 29 th March, however, an extension is unnecessary. The significance of the 29 th March date relates only to the Option Uplift Payment of £1m under clause 10.14, applicable in the event that all leaseholders gave vacant possession of their properties to the Council by that date. The contract remains available for your clients to enter into with the Council, notwithstanding that the effect of clause 10.14 is now academic. In consequence, no extension of time was or is required by your clients. In any event, whilst the Council's Cabinet has approved the use of CPO powers, as we are sure you will have already advised your clients, negotiations can occur alongside a CPO and are not a reason to hold it up. We note that the offer set out in clauses 10.1- 10.13 still applies and your client will still be entitled to receive the purchase price (as valued on the basis that the works were completed) plus a 10% uplift if the works are terminated. … We must emphasise that following the passing of the 29 th March, the effect of cl. 10.14 no longer applies and therefore there is no ‘global settlement figure of £1 million’. We do not follow how you maintain the assurance in your letter that the agreed principles continue to apply. We also note that you state your clients wish to receive payment upon their property being handed back to them, including where this may occur prior to the Commencement Date. Payment under clause 10 of the Agreement where the works do not complete is on an acquisition basis, not a hand back of the property. Further, prior to the Commencement Date and where the works are deemed no longer viable, the provisions of clause 9.4 apply entitling your clients to hand back of their property and the Phase 2 Payment. In summary, the sum of £1 million in clause 10.14 (and the still active full back offer of the refurbished value plus 10% per 10.13(c)) was intended to allow your clients to purchase an equivalent property in the event works had to be halted. It was not a compensation payment for disturbance or disruption, which are covered by the Phase One and Phase Two payments”.

120. Thereafter, during the course of continuing negotiations on the revised draft agreement the Claimant sought to persuade the Second Defendant to reinstatement of the uplift offer. On 6 October 2023, the Second Defendant’s solicitors wrote to the Claimant’s solicitors as follows – “The Council has considered carefully your various amendments to the Option Uplift Payment, which we note as proposed would operate to reinstate the Option, provide a mechanism where payment of the uplift would be made regardless of the date of entry into the agreement by your client and be index-linked. The terms offered to all four leaseholders who retained interests in James Riley Point included at 10.14 of the draft agreement an offer (as amended) of the Option Uplift Payment in the event that a Works Termination Event occurred or Practical Completion had not been reached by 29 th September 2026. The Option Uplift Payment is defined in the Agreement as the difference between the Agreed Purchase Price for the unit (together with all sums paid under cl. 10.13) and the sum of £1m. The commitment on the part of the Council to make the Option Uplift Payment in accordance with cl. 10.14 required all leaseholders to give vacant possession by 29 th March 2023. In the event that vacant possession was not given by all leaseholders, the Option Uplift Payment ceased to be payable to any. Although the three other leaseholders agreed terms with the Council in accordance with the draft agreement, the Option under cl. 10.14 lapsed in all cases as a result of your client failing to agree terms and give vacant possession by the due date. The time limitation on the offer, ending (as amended) on 29 th March 2023, was included because vacant possession of all units within James Riley Point was required by 31 st March 2023 in order to enable the Council secure £12m grant funding from the GLA. Your client's decision not to agree to the terms offered has meant that the grant has now been lost. More widely, the Option Uplift Payment was proposed as a time-limited offer operating, it was hoped, to incentivise leaseholders to provide early vacant possession. This would have thereby enabled the Council to avoid the costs of making a full CPO, deliver an earlier start on site with associated construction cost savings and avoid the costs of works for compliance with building and fire safety requirements for an occupied building which will become largely redundant once refurbishment of the block commences. As a public body, when offering financial compensation for land in advance of a compulsory purchase order, the Council must consider value for money and avoid any repercussive cost impacts or pressures on both the scheme in question and other publicly funded schemes. In the circumstances attaching to this scheme, the Council considers that it was reasonable for the offer of the Option Uplift Payment to have been time-limited and that it is also reasonable now not to reinstate that offer. The potential and now actual loss of the GLA grant funding were and remain factors which reasonably justified the Council's decision that the offer should be time limited and is not to now be reinstated. The offer of £1m exceeded (and exceeds) the reasonable open market value of the leasehold interest in your client's flat both now and upon completion of the refurbishment works. Absent any other compelling reason, the £1m sum would also potentially give rise to repercussive effects on the acquisition of other interests within the wider Carpenters Estate. For these reasons we regret that we are unable to reinstate the Option Uplift Payment”. The Claimant’s objection

121. In her notice of objection to the Order, the Claimant said that the Second Defendant had failed to take reasonable steps to acquire the Premises from her by agreement. The Second Defendant had begun to make plans for the refurbishment of JRP from 2003 onwards, but had not attempted to enter into meaningful negotiations for the acquisition of her leasehold interest in the Premises until October 2021. The Second Defendant had later put forward a draft settlement agreement to which she and her family were able to agree, subject to resolution of two outstanding matters. Yet the Second Defendant had failed to negotiate constructively on those outstanding matters. Had they done so in a timely way, it would have been possible to reach agreement and to have avoided the stressful and protracted compulsory purchase proceedings which she and her family were now having to endure.

122. The Claimant’s first concern about the draft agreement was that on a true understanding of its terms, it did not in fact oblige the Second Defendant to refurbish the Premises and return them to the Claimant; or failing that, to pay to the Claimant the enhanced compensation purportedly payable under its terms. The second point of concern related to the uplift offer proposed under the draft agreement. That proposal had been the subject of continuing discussion between the Claimant’s lawyers and the Second Defendant, but in late March 2023 the Second Defendant had peremptorily withdrawn the offer to include the uplift payment in the draft agreement. That was clear evidence of the Second Defendant’s failure to negotiate constructively or to make reasonable efforts to acquire by agreement the rights in the Premises which they actually required in order to carry out the refurbishment of JRP.

123. The Claimant set out a series of matters as evidence of the Second Defendant’s failure to perform their repairing obligations as Landlord of JRP. They had failed to repair and maintain the drains, the water supply and heating installations. They had withdrawn security cameras and the concierge service. They had licence film companies to use JRP for filming work, which had caused serious noise and vibration to the Claimant and her family, and resulted in the failure of the lifts serving resident occupiers. This presented severe difficulties for the Claimant and her family who live on the upper floor of the tower block. The Second Defendant had even broken into the Premises and installed a gate which prevented the Claimant and her family gaining access to the Premises.

124. The particular relevance of this history of failure was said to be that it had resulted in a depressed value for the Claimant’s leasehold interest in the Premises in the “no-scheme” world, which would be the conventional basis for determining the compensation payable to her under the Land Compensation Acts. That meant that there was a particular onus on the Second Defendant to negotiate constructively with a view to avoiding the need to resort to compulsory purchase. The Second Defendant’s response

125. In responding to these objections in their statement of case, the Second Defendant contended that they had indeed made reasonable efforts to reach agreement with the Claimant either to acquire her leasehold interest in the Premises; or to secure vacant possession of the Premises for the purposes of implementing the Scheme and then restoring the refurbished flat to the Claimant and her family. The Second Defendant said that negotiations with the four remaining leaseholders at JRP, including the Claimant, had been ongoing for a number of years. The Second Defendant had offered terms of settlement to those leaseholders which included an option to return to a fully refurbished property. Three out of those four leaseholders accepted the terms offered and had since given vacant possession of their flats at JRP.

126. The Second Defendant had provided remaining leaseholders with a detailed explanation of the terms on offer. The draft form of agreement included contractual safeguards to protect the leaseholders in the very unlikely event that the Scheme failed to begin; or once begun, the works failed to complete. This included a payment to the leaseholder of the value of their lease assuming that refurbishment had been carried out. The draft agreement included a provision whereby the Council would have to pay each remaining leaseholder an enhanced payment – the uplift offer - in the event that the refurbishment works required as part of the Scheme were not completed by a specific deadline. This incentivised offer was made on the basis that the Second Defendant secured early vacant possession of JRP as a whole, thereby enabling the Second Defendant to secure GLA grant funding, and to begin and complete the works required as part of the Scheme in a timely manner, thereby providing benefits and cost savings to the Second Defendant. As agreement was not reached in time with the Claimant, the Second Defendant was no longer able to secure those benefits and costs savings. Consequently, as the Second Defendant could no longer justify the uplift offer as representing value for money, that element of the draft agreement had been withdrawn from the negotiations with the Claimant.

127. The Second Defendant, however, committed to continuing negotiations for acquisition and or vacant possession of the Claimant’s leasehold interest and would attempt to negotiate with her in parallel with the compulsory purchase proceedings. The Second Defendant remained willing to agree to the Claimant having the option either to move into comparable temporary accommodation in the local area for the duration of the refurbishment works and thereafter return to the Premises; or to sell her leasehold interest to the Second Defendant by private treaty. However, the Second Defendant would not agree to buy the Claimant’s leasehold interest in the Premises at a price very substantially in excess of its open market value.

128. The Second Defendant denied that they had failed to maintain JRP. They contended that they had acted in accordance with their obligations both as Landlord and as local housing authority. They disputed the Claimant’s contention that there had been a history of neglect which had resulted in diminution in the value of the Premises. The Claimant had been offered a package of measures which accord with the CPO Guidance and the compensation code; and the option to return to a fully refurbished and improved home at the Premises following completion of the Scheme. Evidence at the public inquiry

129. Both the Claimant and her son gave written and oral evidence at the public inquiry. The Claimant gave detailed evidence of the deteriorating state of repair and maintenance of JRP during the years following 2005. She referred to problems with heating, cleaning, security, water supply, drainage, leaks and flooding. She gave impressive details of the prolonged noise, disruption and disturbance that she and her family had experienced in consequence of the Second Defendant permitting parts of JRP to be used for film making. These activities had led to physical damage to the Premises, power cuts, the lift becoming out of order and security problems. They had provoked the Claimant into threatening legal proceedings against the Second Defendant as her Landlord. On one occasion in early 2011, the Second Defendant actually broke into the Premises and installed a steel door which prevented the Claimant and her family from gaining entry. The Second Defendant later explained that this had been done in error due to their operatives mistaking the Premises for another flat at JRP. Although the Second Defendant did not accept as accurate the detailed account of these matters given by the Claimant, it is understandable that she and her family should have formed the perception that the Second Defendant was indifferent to the impact of conditions at JRP on those leaseholders who continued to live there; and even pursuing a policy of deliberate neglect.

130. The Claimant’s son gave evidence of his active involvement in negotiations with the Second Defendant. He confirmed that the Claimant and her family had voted in favour of the Landlord Offer as they wished JRP to be refurbished rather than demolished. He said that negotiations between the Claimant and the Second Defendant began in earnest in April 2022. The Claimant had raised two particular issues. Firstly, the Claimant wished to be able to purchase a property in the local area. Secondly, the Claimant wished to be compensated for all that she and her family had had to endure while living at JRP during the period since 2005.

131. The Claimant’s son stated his understanding of the main terms offered by the Second Defendant under the revised draft agreement as follows – “The structure of the contract was to give the Council a licence to carry out works to the flat. When the works were carried out the Council offered to give the flat back to us. We had an option to sell the flat to the Council at the no scheme value, throughout that process. However, if the Council in its discretion decided that the works were not viable having started them they would pay us the value of the property as if it had been fully refurbished. Finally, if the Council decided that it could not commence the works then it will hand the property back to us. The contract also contained option uplift payment which was £1 million minus the purchase price and disturbance payment. This payment was only available if all the leaseholders signed the agreement by a certain date”.

132. He set out a number of concerns with the Second Defendant’s offer which he had raised during negotiations. He found the revised draft agreement to be a complex document. He was unhappy that the Second Defendant insisted on negotiating collectively with the remaining leaseholders. He was concerned about the short deadline for acceptance of the revised draft agreement in March 2023. He was concerned about failure of the Scheme and what would happen were the refurbishment project not to succeed. In the event of failure, the Claimant’s family wished to be in a position to buy a property in the local area. They had instructed new solicitors to review the revised draft contract and to advise on its terms.

133. The Claimant’s son said that the outstanding issue for the Claimant was the Second Defendant’s refusal to reinstate the uplift offer into the draft agreement. The Second Defendant had acted unreasonably in declining Irwin Mitchell’s request for a short extension of the deadline for acceptance of the revised draft agreement at the end of March 2023. He was of the view that had the Second Defendant done so, the terms of the revised draft agreement, including the uplift offer, would have been agreed and the need for compulsory purchase avoided. He was also concerned at the Second Defendant’s refusal to pay the Claimant’s professional fees incurred since March 2023.

134. The Claimant’s son said that the family had been unable to gain ready access to the Premises due to the lifts at JRP being out of order since May 2022. They were now housed temporarily in temporary accommodation which was too small for the family’s needs. It was a furnished property which meant that the family had not been able to use their own furniture and many of their belongings whilst living there.

135. In his proof of evidence on behalf of the Second Defendant, Mr Mackin gave a detailed chronological account of the history of negotiations with remaining leaseholders at JRP, including the Claimant and her family. He offered the following explanation of the uplift offer – “The Council's initial attempts to encourage agreement with all four leaseholders by the end of July 2022 had been unsuccessful. To incentivise leaseholders to provide early vacant possession, from September 2022, the Council proposed a time limited offer on one aspect of the agreement which became known as the Option Uplift Payment. In essence, where the Council exercised an option to acquire because either the refurbishment works had been terminated or practical completion not achieved by an agreed longstop date, the offer operated to ensure that leaseholders would receive a minimum total payment of £1m, taking into account other payments to which they were entitled under the overall offer. The uplift payment was made conditional upon all leaseholders in concert giving vacant possession by an agreed date which had to be before 31 st March 2023. In the event vacant possession was not given by all leaseholders by the agreed date, the uplift payment ceased to be payable to any. In this way, the Council sought to ensure that vacant possession could be obtained by the date stipulated by the GLA and to incentivise all the leaseholders to make the contractual commitment. … In early 2023, and with the GLA grant condition date of 31 st March approaching, the Council made renewed efforts to achieve agreement with all four leaseholders. Various dates to conclude agreement and provide vacant possession were proposed by the Council, including 17 th March and ultimately 29 th March 2023 was fixed as the contractual date by which vacant possession was required to be given by all leaseholders to trigger the entitlement to the uplift payment. As such, the date of 29 th March 2023 became the date by which all leaseholders were required to give vacant possession so that they might benefit from the £1m uplift figure provided by the uplift payment calculation. On 29 th March 2023, the three other leaseholders completed agreements with the Council and provided vacant possession of their flats. The Objectors did not complete their agreement with the Council as terms could not be agreed. Consequently, as vacant possession of Flat 128 was not obtained by 29 th March 2023, the Option Uplift Payment lapsed for all four leaseholders because the option was conditional on all four agreeing under contract to vacate by 29 th March 2023”.

136. Mr Mackin said that since April 2023, negotiation with the Claimant had been conducted through correspondence with her solicitors and exchanges of amended draft agreements. The principal matter in contention was the uplift offer. The Second Defendant had not been willing to reinstate the uplift offer for the reasons given by the Second Defendants’ solicitors in their letter of 6th October 2023.

137. Mr Mackin stated the principal terms which remained on offer by the Second Defendant to the Claimant – “As a 12 th December 2023, the core terms of the Council's offer for the Objectors’ temporary relocation during refurbishment works are as follows: • a disturbance payment of £40,100 to be made on vacant possession (the “Phase One payment” under the agreement); • the provision of alternative temporary accommodation rent-free for the duration of the refurbishment; • reimbursement of all reasonable costs arising in consequence of the temporary move, including costs incurred by moving into the temporary accommodation and then on return from the temporary accommodation to Flat 128 (the “Phase Two payment” under the agreement); • removal and where necessary storage arrangements for the objectors’ possessions with a new for old offer on items that could not be moved; and • no charge for the refurbishment works. Where the works are terminated for any reason or practical completion not achieved by an agreed longstop date, the Council's offer includes a mechanism under which the Council may exercise an option to acquire Flat 128. That acquisition is at an enhanced value that assumes practical completion has been reached and the refurbishment achieved. Where this mechanism applies, the Objectors’ entitlement is as follows: • acquisition of Flat 128 at an assumed value as if fully refurbished and the works completed, where that valuation is undertaken as if Flat 128 is within a private development; • payment of a further 10% of the assumed value of the property; • payment of all professional fees in relation to the transaction; • retention of the Phase One payment of £40,100; • to the extent not already covered by any Phase Two payment, reimbursement of reasonable expenditure in respect of finding and moving into alternative permanent accommodation incurred by the leaseholder up to the maximum amount that would be payable for costs in respect of purchasing a property up to the value of the hypothetical valuation; continued occupation of the rent-free temporary accommodation until the transaction completes”.

138. Mr Mackin said that the Second Defendant considered the compensation package on offer for the temporary relocation properly reflected the disruption that would be caused to the Claimant’s family by the temporary move and would support them during the refurbishment. On completion, those works would provide them with a newly refurbished flat within JRP at no cost to themselves. Further, where those works did not complete or did not complete on time, the compensation package proposed on acquisition of the Premises by the Second Defendant was highly favourable to the Claimant. That remained the case notwithstanding the withdrawal of the uplift offer. Closing submissions

139. In his closing submissions on these matters, Mr Jones KC submitted that the Second Defendant had failed to make reasonable efforts to negotiate with the Claimant and her family for the land and rights needed to enable the refurbishment works to be carried out at JRP and the Scheme to be delivered. The Second Defendant’s efforts, such as they were, must be judged in the context of the prolonged and persistent mismanagement of JRP by the Second Defendant as both landlord and local housing authority, of which the Claimant had given detailed evidence. The Second Defendant’s offers to purchase the Claimant’s lease in 2019 and 2021 had not been received by her. The Second Defendant had not followed up on either offer. Negotiations did not begin until April 2022.

140. When the Second Defendant introduced the uplift offer into the draft agreement which formed the basis for negotiations with a view to avoiding the need for compulsory purchase, the Second Defendant had set deadlines for acceptance firstly in December 2022 and later in March 2023, but had not informed the Claimant or her solicitors of the reason for imposing that deadline. The Claimant, her family and her solicitors had been unaware that the uplift offer was contingent upon the Second Defendant securing the GLA grant until very shortly prior to the final imposed deadline expired on 29 March 2023. That was unreasonable. That failure was compounded by the Second Defendant’s refusal shortly to extend the final deadline at the request of Irwin Mitchell on 29 March 2023, to enable the solicitors to give proper advice to the Claimant and her family on a complex draft contract. The Claimant’s evidence was that the other remaining leaseholders had simply given in under pressure from the Second Defendant to complete the revised draft agreement by the final imposed deadline of 29 March 2023.

141. It had been unreasonable for the Second Defendant to decline to reinstate the uplift offer in subsequent negotiations with the Claimant’s solicitors. The Claimant’s son had made clear that the Claimant required the security of the uplift offer so that, should the Scheme fail for any reason, she and her family would be in a position to purchase comparable alternative leasehold premises in the local area. Given the history of abortive plans to regenerate JRP since 2005, that was plainly a commitment which the Second Defendant acting reasonably ought to have accepted. Whereas clause 9.4 of the draft agreement would allow the Second Defendant to return the Premises to the Claimant in their current unrefurbished state, should the Second Defendant decide at a later date not to commence the Scheme.

142. The Second Defendant had failed to undertake meaningful efforts to negotiate an agreement with the Claimant which would avoid the need to resort to compulsory purchase powers.

143. For the Second Defendant, Mr Edwards KC submitted that the Claimant’s criticisms of the Second Defendant’s efforts to negotiate an agreement with the Claimant were unjustified. Offers to purchase had been made in 2019 and 2021. The Second Defendant had stated their policy of support for remaining leaseholders at JRP in the Landlord Offer, which the Claimant had supported in the residents’ ballot. Negotiations between the remaining leaseholders, including the Claimant, and the Second Defendant had been in progress since April 2022.

144. The purpose of the draft agreement whose terms were in discussion between the parties was to enable the Second Defendant to secure the rights of vacant possession which they needed to deliver the Scheme, and thereby avoid the need for acquisition of the remaining leaseholders’ leases, whether by agreement or by compulsion. The terms offered would enable the leaseholders and their families to move at no cost to themselves into comparable temporary accommodation for the duration of the refurbishment works at JRP; and to return, again at no cost to themselves following completion of those works. They would receive the Phase One Payment and reimbursement of costs reasonably incurred under the Phase Two Payment. They would take the benefit of a refurbished home at JRP and the enhanced value of their leases, again at no cost to themselves.

145. The purpose of inclusion of the uplift offer in clause 10.14 of the revised draft agreement had been to incentivise the remaining leaseholders to complete the agreement. Three of the four remaining leaseholders had felt able to complete the revised draft agreement by the final deadline set by the Second Defendant. The Claimant alone had not done so. It had been reasonable for the Second Defendant to impose that deadline in order to ensure that their exposure to the cost of the uplift offer was contingent on securing the GLA grant. Otherwise, the uplift offer would not represent value for money for the reasons given by Ms Clark in her letter to the Claimant’s solicitors of 6 October 2023. For those same reasons, it had been reasonable for the Second Defendant to decline to reinstate the uplift offer into the draft agreement on which the parties had continued to negotiate.

146. The terms which remained on offer to the Claimant, as stated by Mr Mackin in his evidence to the public inquiry, nevertheless provide a fair and reasonable basis for the Claimant to withdraw her objection to the Order and reach agreement with the Second Defendant. As the Claimant’s son had confirmed in evidence, the outstanding issue for the Claimant was the Second Defendant’s refusal to reinstate the uplift offer. The Second Defendant had made clear to the Claimant why they were not willing to reinstate the uplift offer. Their reasons for refusing to do so were justified and disclosed no failure to engage in meaningful negotiations with the Claimant.

147. Mr Edwards KC said that the Second Defendant disputed the Claimant’s contentions that they were guilty of mismanaging JRP and had failed in their duties as landlord and local housing authority. The Claimant had not pursued legal proceedings for breach of covenant or of statutory duty. In any event, those issues were of no assistance to the inspector in forming his judgment whether the Second Defendant had conducted meaningful negotiations and made reasonable efforts to acquire the Claimant’s leasehold interest by agreement. The inspector’s decision

148. The inspector’s reasoning and conclusions on those matters are stated in DL28 to DL35 of his decision. “28. The CPO Guidance sets out that acquiring authorities are expected to provide evidence that meaningful attempts at negotiation have been pursued or at least genuinely attempted. Paragraph 19 details what acquiring authorities should consider when negotiating. The AA must demonstrate that it has taken reasonable steps to acquire all the land and rights in the Order by agreement. Compulsory purchase is intended as a last resort. Furthermore, the CPO guidance is clear that it is necessary for the acquiring authority to demonstrate that they have taken reasonable steps to acquire all the land and rights included in the Order by agreement.

29. However, it is also clear that ‘if an acquiring authority waits for negotiations to break down before starting the compulsory purchase process, valuable time will be lost. Therefore, depending on when the land is required, it may often be sensible, given the amount of time required to complete the compulsory purchase process, for the acquiring authority to: plan a compulsory purchase timetable as a contingency measure; and initiate formal procedures’.

30. The Objectors argue that the intention to redevelop or refurbish JRP has been a protracted event, spanning over some 20 years. During this period, it is argued that the Council has allowed JRP to deteriorate to the point that it has made living there a challenge, especially as the Objectors live on the 21 st floor and the only working lift was closed down in 2021 as a result of the Council failing to source replacement parts. The Council did enter into discussions with the Objectors and three other families that held the freehold to their properties in September 2022 and again in early 2023. At this time, the Council agreed that an uplift of £1 million would be paid, should the Scheme fail. However, the Objectors did not enter into the agreement within the timeframe insisted on by the Council as they sought legal advice over its terms and conditions. Furthermore, as the agreement was tied to a grant from the Greater London Authority, the offer of a £1 million uplift in the event of the Scheme's failure was withdrawn. The Objectors argue that no meaningful efforts to negotiate have been made by the Council since the withdrawal of the agreement.

31. As the Objectors state, the redevelopment or refurbishment of JRP has been mooted for over 20 years. Indeed, from 2020 extensive advertising, workshops, and consultation on the proposed masterplan to regenerate Carpenters Estate was undertaken, culminating in the Council balloting occupiers through the Landlord Offer from 19 November - 14 December 2021. This essentially asked the community whether it agreed to the regeneration of Carpenters Estate, which included JRP. Moreover, the Landlord Offer made it explicit that resident homeowners in JRP would have several options open to them and should a voluntary agreement not be reached, the Council may, as a last resort, apply for a compulsory purchase order to compulsorily acquire their property. The Objectors voted in favour of the Landlord Offer.

32. The Objectors have had to vacate their home and move into temporary accommodation and have not been able to readily access the flat and their personal effects within JRP. However, the Objectors have been rehoused as a family unit, close to JRP, and the Council have adapted the property to ensure that it meets their needs. The Objectors still reside at the property, rent free and can continue to do so until the works at JRP are complete. The Objectors then have the options available to them, as set out within the Landlord Offer.

33. The evidence from the Council is comprehensive and fully demonstrates how it has attempted to negotiate with the Objectors in compliance with the CPO guidance. Therefore, based on the evidence before me I consider that the Council acting as the Acquiring Authority has adequately demonstrated that they entered into meaningful negotiation with the Objectors subject to the Order. In addition, although the Objectors stated that offer letters from Savills were never received and the offers were not followed up, it is clear from the Acquiring Authority's evidence that discussions regarding the purchase of Flat 128 JRP had been taking place between the Objectors and the Council.

34. Although I acknowledge Dr Savaranamuthu’s statement that the other three freeholders “just gave up”, none of the other freeholders/owners of those properties provided any evidence to support this assertion either written, or orally during the inquiry. Moreover, the Acquiring Authority has stated that once the works to JRP has been completed, the Objectors are free to move back into their newly refurbished property, and in the event that the Scheme is not completed, an enhanced payment to the value of the flat as if it were refurbished, would be made.

35. Thus, I am satisfied that the Acquiring Authority has attempted to negotiate the vacant possession of Flat 128 at JRP. In reaching this conclusion I accept that collectively the Objectors’ connection with the Order Land would have made any negotiation very difficult. In this respect I can fully understand their unwillingness to sell their interest in the land or being unable to reach an agreement. However, a failure to ultimately reach an agreement does not mean that the negotiation process was flawed. Therefore, I conclude that the Acquiring Authority have taken reasonable steps to acquire all the land and rights included in the Order by agreement”.

149. It is also relevant to note the following reasoning in DL38 – “I note the current state of the building, which is uninhabitable, the protracted history of decanting, the alleged mismanagement of the building’s maintenance and the tenancy agreement, the antisocial behaviour, and disturbances caused by filming at JRP. However, these matters are not material to the issue at hand”. Submissions

150. Mr Jones KC submitted that the inspector had made a legal error in failing to take into account and attribute weight to the history of abortive plans for regeneration of JRP, which had resulted in the decanting of the block since 2005 and the subsequent history of neglect and mismanagement by the Second Defendant. Those matters formed an important context to the negotiations between the parties. They explained why the Claimant and her family had real and legitimate fears for the risk and the consequences of failure of the Scheme. The Second Defendant had acted unreasonably in failing to acknowledge those concerns in negotiations. The Inspector had acted unlawfully in failing to take proper account of that important context and those concerns in his decision.

151. In particular, those matters served to explain why the Claimant had needed time in March 2023 to take legal advice on the true meaning and effect of the uplift offer before making her decision whether to accept the terms offered by the Second Defendant in the revised draft agreement. Those terms were complex and the drafting was in parts obscure. The inspector had failed to give proper consideration to those vital points, because he had misunderstood the true extent of the terms offered in the revised draft agreement in March 2023. In particular, he had misunderstood the effect of clause 9.4 of the revised draft agreement, which would have enabled the Second Defendant to decide at a later date not to proceed with the Scheme but to hand back the Premises to the Claimant unrefurbished and in an unhabitable tower block.

152. Had the inspector properly understood that the uplift offer was so limited, he would have accepted that the Second Defendant had acted unreasonably in refusing to allow the short extension to the Claimant to receive her solicitors’ advice before making her final choice whether to accept the terms offered by the Second Defendant in late March 2023. His error was compounded by his failure to acknowledge that it had been unreasonable for the Second Defendant not to have divulged that the deadline for acceptance of the uplift offer was driven by the terms which governed the Second Defendant’s eligibility to attract the GLA grant.

153. The reality was that, in the absence of considered advice from her solicitors and given the uncertainty created by clause 9.4 of the revised draft agreement, in late March 2023 the Claimant and her family had been placed by the Second Defendant in an impossible position, in which they could only prudently decline to accept the terms then offered within the tight deadline imposed by the Second Defendant. The inspector’s misunderstanding of the effect of clause 9.4 had led him to fail to grasp that essential point, which rendered the Second Defendant’s negotiating position unreasonable. That position had not improved subsequently, since the Second Defendant had consistently refused to entertain further negotiation on the Claimant’s principal point of concern, which was to secure the fall back to an uplift payment of £1m on sale of her lease, in the event of failure of the Scheme.

154. The inspector had failed to address these matters adequately in his reasons, which were legally deficient to explain why he had concluded in DL35 that the Second Defendant had taken reasonable steps to acquire the land and rights required to deliver the Scheme by agreement. Discussion

155. 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.

156. 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.

157. 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.

158. 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.

159. 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.

160. 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.

161. 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.

162. 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.

163. 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.

164. 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.

165. 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.

166. 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.

167. 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.

168. 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.

169. 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.

170. 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.

171. 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.

172. 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. Conclusion

173. For these reasons, ground 2 must be rejected. Ground 3 – excessive use of compulsory purchase powers The issue

174. The issue under this ground is whether the inspector failed to understand and thereby misdirected himself as to the Claimant’s argument that compulsory purchase of the Premises was an excessive use of the Second Defendant’s power under section 226(1)(a) of the 1990 Act. It is also in issue whether the inspector gave proper, adequate and intelligible reasons for rejecting that argument. CPO Guidance

175. It is well established as a matter of policy that compulsory purchase powers should be deployed as a last resort. In the context of section 226(1)(a) of the 1990 Act, the CPO Guidance advises that the confirming authority will consider whether the purpose for which the acquiring authority is proposing to acquire the land could be achieved by means other than compulsory acquisition. This may include considering the appropriateness of any alternative proposals put forward by the owners of the land, or any other persons, for its reuse. It may also involve examining the suitability of any alternative locations for the purpose for which the land is being acquired. The parties’ contentions

176. The Second Defendant’s case for confirmation of the Order was that in order to facilitate the construction and delivery of the Scheme, they required full vacant possession of JRP, including the Premises. In the absence of an agreement with the Claimant for vacant possession or acquisition of the Premises, the Scheme could not be achieved without the use of compulsory purchase powers. The powers to take temporary possession of land for public works enacted under Part 2 of the Neighbourhood Planning Act 2017 were not yet in force. In the absence of either agreement with the Claimant for vacant possession of the Premises or the power to take temporary possession of the Premises, the Council had as a last resort exercised its powers of compulsory acquisition under section 226(1)(a) of the 1990 Act in order to facilitate the delivery of the Scheme.

177. The Claimant’s case was that the Premises were already vacant and she and her family living in temporary alternative accommodation. She remained willing to offer the Second Defendant a licence or other legal arrangement to allow access to the Premises for the purpose of undertaking the refurbishment works. There was no practical or commercial need for the Second Defendant to acquire her leasehold interest in order to deliver the Scheme. The inspector’s decision

178. The inspector addressed the question whether the proposed use of compulsory purchase powers was excessive in DL36 to DL38 – “36. One of the factors in considering whether to confirm a CPO is if the purpose for which the AA is proposing to acquire the land could be achieved by any other means. This may include considering the appropriateness of any alternative proposals/locations put forward by others.

37. The Objectors argue that the Acquiring Authority's requirement to acquire all of their legal interest in the property is disproportionate as the flat is already vacant. Moreover, the Objectors are willing to stay in their emergency accommodation for a further three years, until the works are completed. A licence or arrangement to allow temporary access into the flat is also agreeable to allow the refurbishment works to be undertaken.

38. I note the current state of the building, which is uninhabitable, the protracted history of decanting, the alleged mismanagement of the building’s maintenance and the tenancy agreement, the antisocial behaviour, and disturbances caused by filming at JRP. However, these matters are not material to the issue at hand. In order to achieve the policy objectives, set out above, the development has to take place on the Order Land and its surroundings. Despite the purported offers from the Objectors, no alternative Scheme or agreement has been put forward which would meet the policy objectives and the comprehensive regeneration of the Order Land which is clearly essential to enable the provision of affordable housing that is needed in the area. It is therefore clear that the purpose for which the Council is proposing to acquire the land cannot be achieved by any other means and the use of the CPO as a last resort is proportionate to achieve the aims set out above”. Submissions

179. Mr Jones KC submitted that the inspector’s reasoning was confusing and appeared to rely on the Claimant’s complaints about the history of the Second Defendant’s mismanagement of JRP since 2005, rather than engaging with the question whether the use of compulsory purchase powers exceeded what was necessary or justified for the purpose of delivering the Scheme. The history of mismanagement of JRP was irrelevant to that question. On the Claimant’s own case, it was a factor relied upon to demonstrate the Second Defendant’s failure to negotiate with the Claimant, rather than the question now under consideration.

180. It was submitted that the inspector had not grappled with the Claimant’s offer to grant the Second Defendant the requisite licence to take possession of the Premises for a temporary period for the purposes of carrying out the refurbishment works. He had not given any explanation why acceptance of that offer would be insufficient to enable the Second Defendant to deliver the Scheme. As a result, the Claimant was substantially prejudiced, since she simply could not know why this ground of objection to the Order had been rejected. Discussion

181. There is an obvious air of unreality about the Claimant’s case on this ground. I have rehearsed the history of negotiations between the Second Defendant and the Claimant in considerable detail earlier in this judgment. A principal purpose of those negotiations had been to try to arrive at mutually acceptable terms upon which both parties could agree that the Second Defendant should be given vacant possession to carry out the refurbishment works required to deliver the Scheme, following which possession of the refurbished Premises would be returned to the Claimant. Those negotiations were founded on the objective of avoiding the need for the Second Defendant to purchase the Claimant’s leasehold interest in the Premises, whether by agreement or under compulsion.

182. In DL35, the inspector concluded that although the parties had not been able to reach agreement, that was not the result of any failure on the part of the Second Defendant to take reasonable steps in the negotiations. I have rejected the Claimant’s contentions under ground 2 that the inspector’s conclusions on that issue are legally flawed.

183. The inescapable fact was that on the evidence before the inspector, those negotiations had not resulted in terms on which both parties could agree. The principal source of disagreement was the uplift offer. The Claimant’s son had made it clear that the Claimant insisted on reinstatement of the uplift offer, since she required the “insurance policy” of the sum of £1m payable under the uplift offer to enable her to purchase a comparable property in the local area should the Scheme fail. The Second Defendant had made it clear that, following the loss of opportunity to secure GLA grant funding at the end of March 2023, they could not justify reinstating the uplift offer. To do so would be commit to paying the Claimant a sum of money which, on the advice of their valuers, would be very substantially in excess of the compensation that was likely to be payable to the Claimant under the land compensation acts in the event of compulsory purchase of her lease of the Premises. The uplift offer could no longer be said to represent value for money to the public purse.

184. In his expert report, Mr Rhead sought to support the Claimant’s argument that the use of compulsory purchase powers in this case was excessive – “… the [Claimant’s] Family are prepared to enter into a licence subject to agreement being reached on the protections contained within the Draft Agreement in such circumstances where the Council decides not to proceed with the Scheme. Since March 2023, the Objectors have been advised by [Irwin Mitchell] and its specialist planning team. They are instructed to agree the terms of the Draft Agreement and an accompanying licence which would allow the Council to take possession of the Property”.

185. That was, in substance, no more than a statement that the Claimant and her family remained willing to continue to negotiate with the Second Defendant. Mr Rhead did not suggest that the Claimant was willing to drop her insistence on the reinstatement of the uplift offer. As the Claimant’s son had made clear in his evidence to the public inquiry, and as Mr Jones KC reminded the inspector in his closing submissions, it remained the Claimant’s position that reinstatement of the uplift offer was needed to provide her with financial security in the event that the Scheme did not proceed to completion.

186. On the evidence before the inspector, there was no realistic prospect that the parties would reach agreement on the terms of a licence to allow the Second Defendant to take vacant possession of the Premises for the purposes of carrying out the refurbishment works. As the inspector said in DL38, despite the Claimant’s offers, no alternative Scheme or agreement had been put forward which would meet the policy objectives and the comprehensive regeneration of the Order land which was essential to enable provision of much needed affordable housing. It was clear that the purpose for which the Second Defendant was proposing to acquire the land could not be achieved by means other than compulsory purchase of the Claimant’s leasehold interest in the Premises.

187. In the light of this analysis, I am unable to accept that the inspector failed properly to address the Claimant’s argument that the use of compulsory purchase powers to acquire her leasehold interest in the Premises was excessive. Nor is his reasoning inadequate to explain why he rejected that argument, in the light of the evidence before him. I can see some force in Mr Jones KC’s submission that the Claimant’s contentions about the history of mismanagement of JRP had little if anything to do with that issue. The inspector’s reasoning in the first sentence of DL38 would perhaps have been better placed earlier in his overall decision, where he addressed the issue of negotiations. Nevertheless, in the second sentence of DL38, he said that the historic matters of which the Claimant complained were not material to the issue at hand. As I understood it, that was Mr Jones KC’s submission. There is, in my judgment, no genuine as opposed to forensic doubt as to the inspector’s reasons for concluding that the use of compulsory purchase powers under section 226(1)(a) of the 1990 Act for the purpose of delivering the Scheme, was as a last resort and proportionate in this case. Conclusion

188. Ground 3 is rejected. Disposal

189. I am very grateful to all Counsel for their very helpful written and oral submissions. In the light of my conclusions on the three grounds of challenge advanced by the Claimant, this claim must be dismissed.