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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mortell v Secretary of State for Communities and Local Government [2008] EWHC 3022 (Admin) (12 December 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/3022.html Cite as: [2008] EWHC 3022 (Admin)

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 December 2008

Mr Justice COLLINS :

1. This claim seeks to quash a Compulsory Purchase Order (CPO) entitled the Oldham (Derker Area Phase 1 Regeneration) Compulsory Purchase Order 2006. The Secretary of State accepted by letter dated 4 October 2007 the recommendation of an inspector to confirm the CPO. The inspector presided over an inquiry held over 13 days between 6 February and 3 April 2007. The claim is brought pursuant to section 23(1) of the Acquisition of Land Act 1981, which entitles a person aggrieved by a CPO to apply to the High Court if he desires to question its validity on the ground that it was not within the power conferred by the Act.
2. The claimant is a resident of a dwelling which is to be acquired under the CPO. He is thus a person aggrieved for the purposes of s.23(1) and was what is known as a statutory objector to the CPO. Thus he and other residents who objected to the CPO were entitled to attend and be heard at the inquiry: see Section 13(2) of the 1981 Act. There are two separate aspects to this claim. First, it is alleged that the inspector acted in a manner which was unfair in various respects to the claimant and led him and others to believe that he was biased in favour of the acquiring authority. Secondly, it is said that there were a number of errors of law in the inspector's and defendant's approach to reaching their conclusions which should lead to the quashing of the CPO.
3. Research in the early 2000s was undertaken to identify and to seek to ascertain the causes of low demand for housing in particular areas of the country. This research sought to differentiate between low demand and unpopular housing, the former being areas where there was a shortfall of demand relative to existing supply and the latter being housing in particular neighbourhoods which were less desirable or attractive within the context of a local housing market. Demand in particular neighbourhoods was not surprisingly linked to matters such as the poor reputation of an area, anti-social behaviour problems, empty properties, low house prices and a poor quality environment. A national analysis showed that the problem was most acute in the North West. Areas particularly concerned were those affected by a decline in demand for social housing and movement out of areas of high levels of such housing especially by working families. Areas at risk in Oldham were identified as being multi-tenure located close to the town centre. There was thus said to be a need for a radical restructuring of such areas which would include selective clearance, and development based on a long term approach.
4. The Government's response was to announce a policy aimed at housing market renewal in order to address problems of low demand. Housing policies should be integrated with programmes and initiatives to address matters such as crime, education, health and social inclusion and should be designed to promote a partnership between the community, those who lived in the area or had an interest in ensuring its vitality and the private sector. Nine housing market renewal areas were identified under the title Pathfinder. One of these was Oldham / Rochdale. Relevant policies were set out in RPG 13, the planning guidance for the North West. This applies the Pathfinder approach. The Government's objectives in planning for housing was set out in its draft policy statement in 2005 thus:-

"The Government's key objective for planning for housing is to ensure that everyone has the opportunity of living in a decent home, which they can afford, in a community where they want to live. To achieve this objective, the Government is seeking to:

(a) ensure that a wide choice of housing type is available, for both affordable and market housing, to meet the needs of all members of the community;

(b) deliver a better balance between housing demand and supply in every housing market and to improve affordability where necessary; and

(c) create sustainable, inclusive, mixed communities in all areas. Developments should be attractive, safe and designed and built to a high quality. They should be located in areas with good access to jobs, key services and infrastructure."

The Oldham Metropolitan UDP adopted in July 2006 contains policies linked to that objective with particular reference to Pathfinder. The key principles of the housing market renewal programme are as follows:-

"An holistic approach to address weaknesses in the economy, the environment and housing at a sub-regional level;

A long-term commitment of 15 years to address housing market weakness;

A strategy and a programme of intervention tailored to local circumstances designed to solve permanently the causes of decline;

Integration with other programmes and initiatives in relation to the economy, crime, education, health and social inclusion;

Remodelling of neighbourhoods and the housing supply to meet a target population based upon economic and demographic change and aspirations to create sustainable communities;

A provision of a range of housing in terms of both type and tenure, coupled with investment in the existing stock, the environment and neighbourhood management;

Partnership working with the community, stakeholders and the private sector; and

A more competitive housing market, which does not display the symptoms of low demand, that is, low property prices, vacant properties, high turnover and transient communities."

5. The Pathfinder identified two areas of intervention in Oldham. These were Derker, with which this claim is concerned, and Werneth / Freehold. A combination of demolition, refurbishment and associated social and environmental initiatives were to create a balanced housing market providing a choice of housing in terms of size, type and tenure in neighbourhoods in which people would want to live.
6. The major problem in both the areas in Oldham has stemmed from the existence of a large number of small terraced houses built to house workers in the adjacent cotton mills. Industrial decline has meant the closure of the mills but there has been very little newer or larger housing or diversity. Demand for small terraced houses is likely to continue to decline. There has been an increase in purchases by private landlords and this coupled with a failure in some cases to manage the properties properly has increased the outward migration. The value of houses is significantly lower than those in other parts of the borough.
7. The Council has endeavoured to purchase houses on a voluntary basis. To this end it has implemented a scheme known as House Xchange which provides a mechanism for those who wish to stay in the area to move to a similar property. This includes what is called an equity loan package whereby a house owner can move to a more expensive property with the help of an interest free loan in the form of an equity share in the property. Voluntary move has not been attractive for those such as the claimant who have lived most if not all their lives in their house which, after years of hard work, they own with no outstanding mortgage. They understandably do not want a move from a community in which most know and help each other, particularly if that move will require that they will enter into an arrangement which means they can no longer deal with their property as they wish since others may acquire an interest in wherever they move. I should say that many of the objectors of whom the claimant is representative are elderly.
8. The Council concluded that what it regarded as necessary development in order to improve the quality of the area could not take place unless a CPO was obtained. The power to make such a CPO is contained in s.226 of the Town and Country Planning Act 1990. This provides:-

"A local authority … shall, on being authorised to do so by the Secretary of State, have power to acquire compulsorily any land in their area

(a) if the authority think that the acquisition will facilitate the carrying out of development, redevelopment or improvement in relation to the land …

(1A) But a local authority must not exercise the power under paragraph (a) … unless they think the development, redevelopment or improvement is likely to contribute to the achievement of any one or more of the following objects:

(a) the promotion or improvement of the economic well being of the area;

(b) the promotion or improvement of the social well being of this area;

(c) the promotion or improvement of the environmental well being of this area …"

The test that must be applied by the defendant if she is to approve a CPO is whether there is a compelling case in the public interest for it to be made. And it must, of course, be able to achieve one or more of the objectives set out in s.226(1A) of the 1990 Act.

9. There is no doubt that the compulsory acquisition of his property will engage a person's human rights, in particular Article 8 of the Convention and Article 1 of the First Protocol. Equally, his civil rights are in issue so that the procedure engages Article 6, albeit the common law requirement of fairness will usually provide for a process which accords with what Article 6 requires. The substantive rights in question are not absolute and the ECtHR has decided in the context of leasehold enfranchisement that the taking of a person's property in the public interest does not, provided there are in place provisions to afford reasonable compensation, contravene Article 1 of the First Protocol. The same approach will apply to Article 8 and to compulsory acquisition of property by means of a CPO: see James v U.K. [1986] 8 EHRR 123. As the inspector pointed out, the statutory provisions require the payment of compensation based on the market value of the property and a duty to rehouse residents in circumstances such as arise in this case: see Section 39 of the Land Compensation Act 1973. Thus the diminution in value of the houses due to the problems in the area covered by the CPO would make it very difficult if not impossible for those affected to find an equivalent property at an affordable price. But the provisions of s.39 should require the Council to take all reasonable steps to overcome that difficulty.
10. In Pascoe v First Secretary of State [2007] 1 WLR 885 Forbes J concluded, in dealing with a CPO where the local housing market was depressed, that the Compensation Code (which includes a disturbance allowance and a home loss payment) meant that compulsory acquisition would, if the conditions enabling it to be exercised were established, be proportionate: see p.914 Paragraphs 87 and 88. Furthermore, it is clear that, provided there is a compelling case in the public interest and that compulsory purchase is reasonably necessary, it is not required that it is the least intrusive possible: see R(Clays Lane Housing Co-operative Ltd) v The Housing Corporation [2005] 1 WLR 2229 per Maurice Kay, LJ at paragraph 25. Mr McCracken argued that the Pascoe approach should not be applied because it was relevant, particularly in dealing with Article 8, to consider the individual circumstances of persons affected and the existence of compensation was not conclusive, albeit an important consideration. He submitted that this was consistent with observations of Moses J in R(London and Continental Stations and Properties Ltd) v Rail Regulator [2003] EWHC 2607 (Admin) at paragraph 41, where he said:-

"Further, the terms under which compensation is received in return for the use or expropriation of land are material to the assessment of whether a fair balance is struck between the public interest and the protection of property rights. In particular, compensation terms are relevant to the question of whether a disproportion burden has been imposed upon a property owner (see Jokela v Finland [2002] ECGR May 21^st App. No 28856/95, 37 EHRR 26). "

That case concerned an issue whether the way in which the defendant had calculated the compensation payable was disproportionate. It is of no relevance to the matters in issue in this or in any CPO case since the compensation code does provide a proportionate redress for the acquisition of a person's property. That is clear from authorities such as James v U.K. and Clays Lane. I am satisfied that Forbes J's approach in Pascoe was correct.

11. The importance of consideration of human rights lies in the inspector's view in paragraph 145 of his report (which I will refer to hereafter as IR followed by any relevant paragraph) that compensation issues were not material. He said this:-

"The statutory provisions governing the compulsory acquisition of property require the payment of compensation, including where necessary the provision of alternative accommodation. The courts have indicated that in those circumstances no human rights violation can be said to have occurred under Article 8 of the Human Rights Act 1998. Any objectives relating to the level of compensation are outside the remit of this enquiry."

If one adds in Article 1 of the First protocol, he was in my view correct. Thus he was not wrong to prevent an objector from exploring that issue in cross-examination and human rights generally were not an additional factor to be taken into account. It would be a proportionate interference with human rights if the test of a compelling case in the public interest for making the CPO were established. The inspector was satisfied that that test was met – see IR 148.

12. Mr McCracken has relied on a number of matters which he says the inspector and so the defendant failed to take into account and which they ought to have taken into account. He pointed out that in introducing Pathfinder in the Commons the Deputy Prime Minister had said:-

"No-one is asking members of the public to change their existing homes."

I have not seen the precise context in which that observation was made, but if it bears the construction which Mr McCracken seeks to place on it it would prevent any CPO being used to pursue a Pathfinder improvement. That is clearly contrary to the whole idea of Pathfinder. No doubt a CPO is a last resort, as the compelling case tests shows, and refurbishment of existing properties must be the first consideration. That would be consistent with all government advice and was indeed the main point being made by objectors to the CPO at the inquiry. There is I fear no merit in this submission of Mr McCracken.

13. He then says that the inspector misrepresented the evidence and submissions of the claimants in dealing with the increase in value of their houses. Their expert witness, Mr Massey, had stated in his proof that over the last 3 years average house prices in Derker had doubled. The inspector recorded this in IR69. However, in the course of the inquiry evidence had been elicited from the Council's witnesses that prices had tripled over 6 years. This had been mentioned in Mr McCracken's final written submissions (he had represented two objectors who were in receipt of legal aid) including the claimant at the inquiry: he may also have represented others under the heading of the Derker Action Group, which has led to submissions with which I shall deal when considering the alleged unfairness). Mr McCracken submitted that a tripling over 6 years was a much more powerful demonstration of a sustained rise in housing demand in the area. This should have meant that any Pathfinder demolition programme must be reviewed. He referred to the report of the House of Commons Committee 'Empty Homes and Low-Demand Pathfinders' in which this was stated at paragraph 9:-

"If there is strong evidence that the rise in housing demand is sustained and not just the result of an artificial boost to the market due to speculative activity, the Pathfinders should review their demolition programmes as a matter of urgency and concentrate on neighbourhood management and housing refurbishment."

14. As it seems to me, what is important is not so much an increase in value – that might be expected if house prices generally increase – but whether the value is in accord with averages in a particular town. There was clear and it seems indisputable evidence that prices in the Derker area covered by the CPO were significantly lower than those in the borough as a whole. Thus the tripling in 6 years as opposed to doubling in 3 could not have made any difference to the ultimate decision of the inspector. The inspector dealt with the matters which gave rise to the establishment of the need for the CPO in IR 122 to 125. He said this:-

"The Well-Being of the Area

122. Oldham has a legacy of decline following the disappearance of the textile industry in the last century. Werneth/Freehold and Derker are areas in the town where low market demand has resulted in house prices, especially for terraced houses, being power than corresponding properties in the surrounding area. There is also a preponderance of properties of similar age, size and characteristics that offer little choice and thus do not meet the needs of residents and the housing market. Both areas are not places into which people from outside would choose to move, and there is an outward movement of population influenced by anti-social behaviour and the lack of housing choice and quality.

123. In Werneth/Freehold the market dysfunction is demonstrated by a mismatch between the requirements of the local population and the sizes of the properties available. In Derker it is demonstrated by the increase in properties owned by private landlords that were poorly maintained and by an increase in anti-social behaviour.

124. Accordingly, I note that the aim of the two Orders is to secure the revitalisation of the housing market in the two areas, with the objective of creating long-term sustainable communities. The elements of the changes to the areas are a reduction in the overall numbers of terraced houses, new building in prominent locations in the areas, a greater choice of house type and size, and the production of high quality, energy-efficient housing, together with improvements to the overall environmental quality. As part of the housing marker renewal initiative in Werneth/Freehold and Derker the refurbishment of properties and new building is currently taking place. The role of the Order lands in this is the creation of areas of attractive sustainable development that would aid the transformation of these well-placed areas.

125. Accordingly, I am satisfied that the proposed purpose behind the Orders will contribute to the achievement of the promotion or improvement of the economic, social, and environmental well-being of the area."

It is apparent from IR172 that it was the fact that house prices were lower than corresponding properties in surrounding areas that he regarded as important. He was not wrong to do so and the increase in value in accordance with the general rise in house prices could not have produced a different conclusion.

15. There would be a reduction in the accommodation available, particularly in 2 bedroom properties albeit an increase in 3 / 4 bedroom properties. It is said by Mr McCracken that this was important because of the need to cater for affordable housing. There was a waiting list in the relevant areas of some 7000 for social housing. But the inspector was well aware of the reduction and took it into account – see IR124. It is in my judgment impossible to contend that the inspector failed to have regard to any important consideration in this respect. The purpose of the scheme was to change the balance of housing and to remove those which people did not want to live in.
16. It is said that the inspector failed to identify the difference in cost between refurbishment and demolition and so the defendant did not properly have regard to value for money. He did not specifically refer to cost. It must have been obvious that refurbishment would be less expensive, but it would produce accommodation for which there was no real market. The inspector dealt with the possibility of using other means than a CPO in IR 128. He said this:-

"Options have been put forward as a means of achieving the improvements in housing in the areas. It has been suggested that vacant land and land not used for residential purposes in Derker could be developed for housing, whilst existing houses should be refurbished. As part of the wider scheme in the area, on sites not the subject of the CPO, it is apparent from the master plan that vacant sites are planned for use and that commercial premises will be used for residential purposes. Such an approach does not preclude the use of the Order lands, as they are part of the overall scheme. And with refurbishment, to carry out the radical works deemed important, it is necessary to acquire properties on a comprehensive basis rather than on the piecemeal, incremental basis that seems to be promoted. In Werneth/Freehold, the idea of self-build schemes has been put forward, and I note that the authority is not averse to this principle. However, the self-build schemes to take place properties need to be acquired in a planned and co-ordinated manner. I conclude, therefore, in the absence of agreements being reached to acquire properties voluntarily, the principle of using compulsory purchase powers is the most appropriate way forward."

He noted too that the acquisition by the Council of properties through voluntary purchases coupled with the removal of poor landlords, the construction of some new houses and the demolition of some council owned property had already had beneficial effects. That in his view vindicated the actions taken by the Council. As he said in IR 133:-

"133. The development of various sites in Derker as identified by the objectors would represent a piecemeal approach to development on sites that would have insufficient size and impact to bring about the changes required to resurrect the housing market. And without intervention by the Council there would be little incentive for small developers to provide housing to a high environmental standard."

17. In December 2003 the Council had approved what was called a Master Plan as part of the Pathfinder prospectus. For Derker this contained as its main proposals:-

"Demolition of 626 properties to be replaced by up to 786 new build homes and apartments

Refurbishment of 1014 retained properties in the area

Improved retail and community facilities

An improved highway rework, and

An improved open space framework including expansion of Afghan Park."

The CPO covered an area of 5.6176 Hectares within Derker. Mr McCracken submitted to the inspector, as he records in IR 78, that the development plan must set the relevant policies and the UDP did not identify any streets or groups of dwellings within the CPO area for large scale clearance and redevelopment. In his conclusions, the inspector made the point that, while the UDP made references to housing market renewal, those were somewhat tangential and references to proposed actions in Derker were not especially detailed. But there was nothing in the UDP policies which indicated that what was proposed was contrary to the plan, albeit it may not have been specifically recognised.

18. In considering what he called the planning framework, the inspector referred to the Master Plan and to heritage reports which had assessed the buildings in the CPO areas on a subjective basis as to their heritage value. He noted that outline planning permissions had been granted for developments in the CPO areas but these had been quashed by the High Court due, it seems, to a failure to deal properly with the requirements relating to environmental impact. In IR 121, he stated:-

"In conclusion, it would have been beneficial to have greater detail in the UDP, and the order of reports produced and processes undertaken could have been more rational. However, Circular 6/2004 recognises that it may not always be sensible or feasible to wait until the full details of a scheme has been worked up and planning permission obtained before proceeding with an Order. Be that as it may I am satisfied that the purposes for which the lands are being acquired accords with the adopted planning framework for the area."

19. No doubt the Master Plan is not a statutory development plan: it has not gone through the necessary appraisal and public consultation procedure. Nonetheless it is clearly a material consideration which the inspector was entitled to take into account. Mr McCracken submits he erred in regarding it on a par with a development plan, relying on observations of Pill LJ in Pye v Oxford [2002] EWCA Civ 1116. In paragraph 32 he said this:-

"Local planning authorities should bear in mind, and I would respectfully underline, Lord Scarman's comment in Westminster … the effect of which is that SPG must not be used as a device to avoid legitimate public scrutiny of local planning policies in accordance with statutory procedures. It follows from the Westminster decision that what s.36 of the 1990 Act requires to be in a local plan must be in a local plan, and subject to the local plan review procedure. I consider this to be a continuing duty in the plan-led system …"

No doubt this is true, but is of no relevance to the situation here. The inspector was, as I have said, clearly entitled to have regard to the Master Plan since the provisions in the UDP were not as detailed as might have been desirable. Nothing in the Master Plan contradicted the UDP. His inclusion of the master Plan is what he called the planning framework is merely a matter of language. It was a relevant part of the Council's policies which had been the subject of consultation and consideration by the Council. Nor do I think there is any merit in the suggestion that the Master Plan created what Mr McCracken called an absurd, irrational and discriminatory policy aimed at making a situation where house prices would be above Borough average. Any improvement of a particular area might result in house prices rising above those in unimproved areas, but that is no reason to refuse to approve such schemes.

20. Mr McCracken complains that a copy of his final submissions was not included in the documents sent by the inspector to the defendant. I was told that the Planning Inspectorate has no particular policy on this issue. Some inspectors do forward such submissions, others do not unless there seems a good reason to do so. It is considered that the report should summarise all material matters raised at the inquiry. While this is no doubt true, I think that consideration should be given to sending such submissions routinely, if only to avoid submissions such as have been made by Mr McCracken whereby he complains that matters raised in his submissions but not referred to in the report have not been taken into account. This applies to the tripling of house prices. Further, he says the document which identified the accommodation losses was not before the defendant. I have already dealt with the points raised. I do not think that the defendant has been deprived of the ability to reach a lawful decision by not seeing Mr McCracken's final submissions. The inspector's report deals adequately with all the major issues raised at the inquiry and so complies with the law. Having read the inspector's report, the defendant was satisfied that a compelling need in the public interest had been established. She was entitled to agree with the inspector and conclude as she did.
21. After the hearing before me had concluded, Mr McCracken sent a note raising a point which he said he should have made in oral submission. The inspector records that a number of objectors gave oral evidence or made written representations which were very personal in nature. They expressed their devastation at having to leave their homes and community after so many years and set out the personal hardships which would be involved. The inspector gave these references under DSO number and said that "for the sake of completeness and fairness I have attached those statements as Documents DSO[1 – 19]". The defendant refers to them in her decision letter, saying:-

"A substantial number of objections were also submitted by residents and persons affected by the order on grounds described by the inspector as 'of an overriding personal nature'.

Mr McCracken says there is no reference to any DSO documents in the appendix to the inspector's report and so relies on a letter of 14 November 2007 from the Government Office for the North West which stated:-

"I can confirm that no documents and/or material other than that itemised at the end of the Inspector's report were submitted to the Secretary of State for consideration."

There were some other statements from objectors which, while containing matters personal in nature, did not add to the points already made by others and those the inspector did not indicate he was attaching.

22. I am not prepared to assume that the defendant, having referred to the paragraphs in the inspector's report which said in terms that the proofs were attached, had not had an opportunity of reading them. The inspector said they were attached and the defendant would surely have asked for them if they were not. If the point had any validity, it should have been raised much earlier since evidence would have been given to deal with it. It is too late to raise it now and, as I have indicated, it has no merit in any event.
23. I am satisfied that there are no errors which impugn the inspector's conclusions or the decision of the defendant based on them. That leaves the allegations of unfairness.
24. These are largely identified in a witness statement of Alice Hardy, the solicitor who attended the inquiry with Mr McCracken. In addition, Mr McCracken himself raised some matters. There had been a pre-inquiry meeting (PIM) at which the inspector had considered inter alia the order in which objectors should give evidence. He decided that this should be in the order in which objections had been received by the GONW and on the afternoon before the inquiry commenced a list of the proposed running order was posted so that all could know what was intended. This was an entirely reasonable decision. Mr McCracken had not attended the PIM, but he had or should have received a copy of what had been decided at it.
25. The Procedure Rules (SI 1990 No.512) state (Rule 15) that:-

"Except as otherwise provided in these Rules, the inspector shall determine the procedure at an inquiry."

He can refuse to permit the giving of evidence, cross-examination, or the presentation of any other matter which he considers to be irrelevant or repetitious. He has a very wide discretion as to how he conducts an inquiry but he must, of course, ensure as best he can that all parties are treated fairly and are able to present their cases so far as they are relevant.

26. Complaint is made that the inspector stuck to the decision he had reached at the PIM as to the order of witnesses. Mr McCracken wanted to call many of the objectors as his own witnesses since he contended that he represented not only the two claimants to whom legal aid had been granted but these (whoever they were: no list of names was or has been provided) who were in the Derker Action Group. There seems to have been a possible misunderstanding since the inspector's recollection is that when he asked Mr McCracken to provide the necessary documentation to show that he was instructed by the Action Group, Mr McCracken did not pursue the matter. There is in the papers correspondence which asserts that PIL, the solicitors, were concerned on behalf of the Action Group, but that does not seem to have been put before the inspector.
27. It is suggested that some objectors were inhibited from giving evidence as a result and some who did may not have put their cases as well as might have been the case had they been examined by Mr McCracken. I have no evidence from any individual objector that he or she was so prevented or inhibited and certainly no formal complaint to that effect has been made by anyone. There is nothing in this point.
28. It is said that the inspector took an inappropriately firm line with objectors in disallowing cross examination which amounted to the making of statements. The inspector explained the difference: it is a problem which frequently arises when unrepresented individuals have to cross examine. The inspector was entitled to ensure that the inquiry was kept within proper limits and in any event the objectors were in due course able to make their statements.
29. Ms Hardy says the inspector was 'strangely reluctant' to consult documents and that Mr McCracken was 'forced to make robust submissions to induce him to look at evidence he referred to in argument'. The inspector's response is to say that he made a note of what was being referred to but do not necessarily look at every document when it was referred to merely to confirm what it stated. This was, he said, particularly the case because such references to contents of documents were a feature of 'Mr McCracken's lengthy cross-examinations'. There is nothing wrong with the inspector's practice. His comments do lead to the recognition that he may have felt that Mr McCracken was being unduly long-winded and there may well have been a degree of irritation which may have been understandable in the circumstances. But to rely on this sort of thing as a basis for unfairness let alone bias is little short of absurd.
30. There is a general concern which has been expressed by a number of objectors that the inspector seemed to think little of their case and to favour the Council. Mr McCracken's best point (in reality his only possibly arguable point) lay in the concerns raised in correspondence to those instructing him by objectors before the outcome of the inquiry was known. But these are largely based on the perception that the inspector seemed to be adopting a hostile attitude to Mr McCracken by interrupting him on many occasions. It is however significant that no complaint was made to the inspectorate about the inspector's conduct. However it may have appeared to lay people, Mr McCracken was perfectly capable of holding his own and could not be prevented from making the most of his clients' case. It is instructive to note observations of a Mr Crookes, upon whose statement the claimant seeks to rely and who professes to be able to give a valid opinion on shortcomings in the inspector's conduct, in another CPO inquiry to which he submitted evidence as non-statutory objectors. He said this:-

"I have since attended another CPO inquiry in Oldham where the inspectors' were represented by Mr Robert McCracken, Q.C. Compared with the previous inquiry, formal legal representation made a massive difference to the nature of the proceedings. As a result of Mr McCracken's robust cross examination, there was much greater critical scrutiny of the proponents' case and several issues were brought to the attention of the inquiry that would otherwise have remained undisclosed. Such is the momentum of the Pathfinder programme, however, the Orders were still confirmed."

This does not suggest that there was anything that he perceived to have gone wrong at the inquiry.

31. There are other specific incidents referred to by Ms Hardy. One is an allegation that the inspector allowed Mr Sauvain to ask a 'flagrant leading question'. It is not necessary for me to go through them. The inspector has answered them. Suffice it to say that there is in my view no substance in any of them. I am only sorry that it was thought right to rely on them to assert unfairness let alone bias.
32. Having said that, I sympathise with the objectors. They clearly and understandably felt very strongly about what was happening to them. However hard the inspector may have tried, a perceived absence of sympathy with them in his clashes with Mr McCracken led to a view that he had exhibited hostility. That view was no doubt confirmed by his decision. Since I can only find in their favour if there was an error of law and for the reasons I have given I am satisfied there was no such error, I must dismiss this claim. However, I express the hope and, indeed, having regard to s.39 of the 1973 Act, the expectation that the Council will do all it can to ensure that suitable alternative accommodation is found and proper compensation awarded.