Sunday, 25 October 2015

The legal advice

As it gets closer to the 29th October the propaganda war has intensified with Riveroak leaking their solicitors Wragge's advice out into the public domain with the view to pushing their supporters into making a major effort to seek to influence the Councillors at TDC. 
It must be recognised that TDC have been here before when Iris Johnston and her colleagues came to the same conclusion over Riveroak that Chris Wells and his colleagues must come to. The advice that they used to come to this conclusion was given and is reproduced below and is actually the same as Wragges have given Riveroak. The only difference is in its interpretation. The advice is reproduced below. I have added my comments between the pictures however their are two fundamental issues.

Firstly "The overarching public interest test is whether there is a compelling case in the public interest" There are many on the pro side who believe that the public interest is served by making planes fly again from Manston. However for many different reasons that is fundamentally flawed.
Jobs: Riveroaks 5 year plan only envisages 139 jobs
Environmental: It has long been known that planes, especially 747's, are polluting and at only 800ft over Ramsgate noisy as well.
Profitability: In the last 20 years it has never made a profit.

Secondly "Before proceeding to any CPO the Council should seek further information on their plans for the site from the new owners" There is no evidence that TDC has ever discussed with Mssrs Cartner & Musgrave what they intend to do with the site. This is mainly due to their perception that they are only currently deciding whether Riveroak will make a suitable indemnity partner.

Personally this whole can of worms should have been nipped in the bud had politics not got in the way of reality as it would have been unlikely had TDC examined the current owner's plans and realised that a CPO was a waste of time and money. All Wragge's advice show is Riveroak think a CPO is a goer forgetting they have to prove to TDC they are suitable indemnity partners something the advice fails to do.

Advice given to TDC December 2014
1.      The Council cannot be expected to take a leap of faith. It must consider its ability to meet the tests set out in statute (section 226 TCPA 1990) and the Circular 06/04 on the evidence available to it in order to justify proceeding with a CPO (and to assess whether to do is worthwhile in light of the likelihood of it being confirmed by the Secretary of State if necessary).

2.      The Council need to be satisfied in promoting the CPO that it is able to meet the tests of Circular 06/2004 on the likelihood of the project going ahead.  The Secretary of State will not confirm a CPO unless he is satisfied that there is a real likelihood of the project going ahead.   If the Council take the decision to pursue a CPO, members would want to have assurance that a partner would take this forward. The Secretary of State will need to be satisfied that the scheme is likely to go ahead based on a realistic assessment.  (Advice is given in Circular 06/04 paras 16 – 23, and Appendix A paragraph 16). 

3.      It may be that a scheme is not intended to be independently financially viable. Or it may be that the viability is uncertain. If so, it is necessary to consider where financial contributions will come from, and whether the Council itself would underwrite any shortfall. Evidence as to this will have to be produced in due course. In many cases, say for town centre redevelopment, it is not uncommon for the scheme to be promoted in partnership with a substantial and financially sound developer (e.g. a large supermarket chain) which will have entered into an indemnity agreement with the local authority. If so, then evidence must be available (subject to confidentiality considerations) to show that there is a real prospect of the scheme going ahead based upon assessments of scheme viability. In many cases, the S151 officer will be expected to certify (e.g. in a witness statement) that he was satisfied that the project was viable and/or that the local authority (or some other funding source) would meet any funding shortfall if the partner investment was not forthcoming, or provide evidence that the viability of the scheme had been independently assessed and the necessary agreements to deliver the scheme are in place. In the latter circumstances, evidence in relation to this may well be provided by the development partner. The key question in considering these financial issues is whether the Council will be able to show that there is a real prospect that the scheme will proceed, and to do so will provide as much information as possible as to the resource implications of proceeding (see in particular paragraphs 20 and 21 Circ. 06/04 and Appendix A para 16(iii). As noted above, the Council must be in a position to form a view on these matters in resolving whether to make a CPO.

4.      If the Council is unable at the outset to be satisfied that the key resource and financial tests are not fulfilled at the start, it would be very difficult to move forward unless they have a high degree of confidence that these matters will be addressed shortly.  This also begs the question as to why should the Council progress before receiving the necessary assurances? 

5.      The new ownership of the site since previous legal advice will be a major factor when the Council is deciding to make the CPO and when the Secretary of State is deciding whether or not to confirm a CPO. The overarching public interest test is whether there is a compelling case in the public interest. As the Circular advises (17), an authority should be sure that the purposes for which it is making the CPO sufficiently justify interfering with the human rights of those with an interest in the land affected.

6.      It should be emphasized that any decision to make a CPO requires proper consideration of a likely interference with the owners’ human rights. Before proceeding to any CPO the Council should seek further information on their plans for the site from the new owners. The Council must be in a position to assess the degree of interference with the landowner’s human rights, and also, if appropriate, to consider the benefits of their alternative proposals for the site to strike the public interest balance.

7.      In seeking to justify any CPO the Council would have to show that the benefits of what it proposed would be so extensive that (notwithstanding the merits of the new owners’ proposals) the public interest v human rights balance would still be in favour of the CPO.

8.      It should be remembered that a CPO is a last resort. Counsel does not agree with the implication (if this is the implication) within James Maurici QC’s advice to RiverOak that the Council should not seek to negotiate with the owners of the land with a view to determining whether a negotiated sale is possible.   Counsel would not advise against attempting to negotiate. Indeed, in order to strike the balancing exercise properly (and safely) it is in the Council’s interest to understand the new owner’s position, and their intentions for the land.

9.      The approach taken to determine whether the prospective indemnity partner is suitable before embarking on any CPO appears reasonable.


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