HERTFORDSHIRE COUNTY COUNCIL

CABINET

MONDAY, 17MAY2010 AT 2.00 P.M.

STEVENAGE SECONDARY SCHOOLS: AREA REVIEW - PROPOSED SCHOOL SITE TO NORTH-EAST OF STEVENAGE

Joint Report of the Director of Resources Performance and the Chief Legal Officer

Authors:Dick Bowler (01992 556223)

Kathryn Pettitt(01992 555527)

Executive Members: Richard Thake, Education & Skills

David Lloyd, Resources & Economic Wellbeing

Local Member: Tony Hunter (North Herts Rural)

  1. Purpose Of Report

1.1To report to the Cabinet:-

(a)An objection received to the making of a compulsory purchase order in respect of the lands necessary for the development of new secondary school premises on a site located to the north east of Stevenage which alleges that the Compulsory Purchase Order made departs from the Cabinet’s authorisation to make the Compulsory Purchase Order and is ultra vires;

(b)to report officers’ understanding that the Compulsory Purchase Order was made within the terms of the Cabinet’s authorisation and to invite the Cabinet to state whether or not officers’ understanding is correct; and

(c)if the officers’ understanding is not correct, then to ask the Council whether it wishes to ratify the decision to make the Compulsory Purchase Order.

  1. Summary

2.1Following the making and publication of THE HERTFORDSHIRE COUNTY COUNCIL (LAND AT GREAT ASHBY) COMPULSORY PURCHASE ORDER2009(the CPO)an objection has been made as to the vires and process of the County Council in the making of that CPO.

2.2To ensure that there is no doubt as to the correct position, the Cabinet is asked to consider whether officers are correct in their understanding of the authorisation granted to them to make the CPO in the way that they did. If not, the Cabinet is asked to ratify the decision to make the CPO.

3.Decision

3.1Cabinet is asked:-

(a) To consider the decisions of Cabinet on 23 July 2007, as appended to this report (Appendix 2);

(b) to consider the Delegated Officer decisions on 1 July 2009, as appended to this report (Appendix 3); and

(c) to confirm whether the delegated officer decisions on 1 July 2009 were within the authority granted to them by the Cabinet decisions on 23 July 2007; and

(d) if necessary, to ratify the delegated officer decisions on 1 July2009.

4.Background

4.1At its meeting on 23 July 2007 Cabinet received a report on the proposed school site and took decisions to authorise the making of a planning application and, if required, for there to be authorised a compulsory purchase order (CPO) to enable the site acquisition. The report to and the minutes of that Cabinet meeting are attached (Appendices 1 and 2).

4.2On 1 July 2009, acting under the delegation provided by the Cabinet decision of 23 July 2007, a delegated officer decision was taken, after consultation with Executive Members, to authorise the making of a CPO. The consultation report and the decision are attached (Appendix 3).

4.3The CPO was made on 20 November 2009. Following the Cabinet decision on 23 July 2007 an application for planning permission was made and on 23 April 2010 planning permission was granted.

4.4Following the making and publication of the CPO, an objection to the CPO was made by Mills and Reeve, solicitors acting for the Trustees of the Western Settlement (“the Objection”) dated 14 December 2009. This alleged that :

“paragraph 5.3 [of the Statement of Reasons] appears to envisage that planning permission should be granted prior to the making of the CPO (since it is stated that the CPO “is for all of the land interests that would be required in order to implement the planning permission)”. Making the Order at this stage departs from the terms of the resolution and is ultra vires”.

4.5The Objection therefore alleges that the making of the CPO was ultra vires. The allegation is that the decision made on 23 July 2007,which authorised:-

(a) an application for planning permission for the development of secondary school premises at a site north east of Stevenage, as is shown upon the map in the school area review consultation document; and

(b) a compulsory purchase order for all of the land interests that would be required in order to implement the planning permission

required planning permission to have been granted before any CPO could be made.

4.6 The statutory objections to the CPO which have been received will be considered at a Public Inquiry as to whether the CPO should be confirmed. That Inquiry will commence on 6 July 2010. This objection will, therefore, potentially fail to be considered at that Inquiry if it is pursued by the Objector.

4.7 The Chief Legal Officer is of the view that the Objection is not well-founded. She considers that the decision taken by officers was intra vires the authorisation that was given and properly taken on the basis that the resolution as approved did not in fact require planning permission to exist before the making of the CPO. The authorisation permitted a CPO to be made to acquire all the land interests required in order to implement any planning permission granted pursuant to the application which was contemplated.

4.8 However in order to resolve this Objection and provide clarity at the Public Inquiry,Cabinet is now asked toconsider the terms of its authorisation and the action of its officers and to confirm whether the view of the Chief Legal Officer is correct. Alternatively, if that view is not correct, the Cabinet is invited to ratify the decision taken by delegated officers to make such a CPO in light of the fact that planning permission has now been granted for the proposed school.

4.9 Accordingly, the Cabinet is asked:

  1. To decide whether its decision of 23 July 2007 required planning permission to exist before a CPO could be made, or whether it permitted a CPO to be made in contemplation of such planning permission being granted.
  1. If (contrary to the Chief Legal Officer’s view) it required permission to exist before a CPO was made, to decide whether to ratify the officers’ decision to make the CPO prior to the grant of planning permission, now that planning permission has in fact been granted.

5.Financial Implications

5.1There are no additional financial implications arising solely from this decision.

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