For the second time in four months, a high-profile compulsory purchase order (CPO) application has been recommended for refusal by the Planning Inspectorate as inspectors continue to scrutinise the actions of Acquiring Authorities and, in particular, their engagement with affected parties.

Following the decision at Vicarage Fields in October, Inspector John Felgate BA (Hons) MA MRTPI rejected the proposed CPO for the Nicholsons Shopping Centre redevelopment scheme made by the Royal Borough of Maidenhead & Windsor ("the Council"). As with the recent Vicarage Fields decision in Barking, the main issue, in this case, appears to be weaknesses in the Council's efforts to effectively engage and negotiate with an affected party, in this instance, the owners of a local nightclub, Smokeys.

The Council secured planning permission to redevelop the Nicholsons Shopping Centre to deliver a mixed-use development providing the town centre with a revitalised retail, office and residential offering. The Inspector was explicitly supportive of the benefits to the town's social, economic and environmental wellbeing in his decision, which leads to the question; what went wrong?

WHY WAS THE CPO REJECTED?

Smokeys, an established nightclub owned by a local family, was one of eleven objectors to the CPO and, ultimately, the one that may prove costly for the Acquiring Authority. The nightclub, which has been in its current location since 1967, is something of a local institution. Given the nature of the business and the potential disturbance a use of this sort can create for neighbouring residents and businesses, relocation of Smokeys was always going to be a challenge for the Acquiring Authority. Understandably the owners wanted to continue their family business if at all possible, the concept of which was supported by the Inspector.

The Inspector's decision is firm in his conclusions that the Council did not make a compelling case for the compulsory acquisition of Smokey's despite recognising the substantial benefits the scheme would bring.

The Inspector was critical regarding the Council's attempts to engage in an appropriate, timely and reasonable manner and, ultimately, that the harm caused by the loss of the business to the owners, combined with the inability to find a suitable relocation for the company would not justify the use of CPO powers. The Inspector was not satisfied that the Acquiring Authority had reached the point of last resort.

Crucially, the Inspector also comments that the onus is on the Acquiring Authority to provide reasonable and appropriate relocation options to affected parties. Whilst two relocation properties, a snooker hall and an office space, were presented to the claimant, both were reasonably dismissed as being inappropriate and unsuitable by the nightclub's owners. A further option was sought within the scheme but was also deemed unworkable.

The manner in which this particular avenue was explored was a significant point of criticism from the Inspector, who pointed to the fact that the nightclub owners were not provided with sufficient design details of the space to assess it properly until after the CPO had been made where it was deemed unsuitable, leaving them with no relocation options, and the fact that there was an unreasonable seven-month gap in correspondence from the Council, as reasons as to why the Inspector concluded it had not been demonstrated that the confirmation of the CPO was justified by a compelling case in the public interest.  

The key to this decision seems to centre on the extent and nature of the Council's engagement with the nightclub owners. It is evident that some engagement and negotiation took place, but the decision is critical of the suitability of the relocation options presented to the owners and the efforts to include a relocation option within the scheme. The Inspector disparages that little to no consideration was taken to redesigning the scheme to provide a flexible unit with the required specification for Smokeys to relocate their business.

LEARNINGS FROM THE NICHOLSONS SHOPPING CENTRE CASE

This case should encourage those seeking to use CPO powers to seriously evaluate their engagement, negotiation and relocation strategies with affected parties, particularly where there is a unique use with strong community value, such as cultural and leisure uses by the wider population. These types of businesses may have unique locational and building requirements, which Acquiring Authorities should be wary of. If these kinds of businesses have to be included within the CPO boundary, then Acquiring Authorities must make significant efforts to engage and make genuine attempts to understand the specific relocation requirements of the business. This decision clearly shows that offering a couple of "token" relocation options that have not been properly considered will not suffice. The Inspector is firm, after all; the onus is on the Acquiring Authority to find alternative premises, not just the affected party.

The message from the Inspector in his decision is clear; engagement and negotiation must be reasonable, well-considered and thorough. Acquiring Authorities cannot be half-hearted in their discussions and negotiations with affected parties; otherwise, they will expose themselves to greater risk and scrutiny at Inquiry. There needs to be an understanding of each business within a scheme to fully understand their relocation requirements to present them with realistic and appropriate options. Equally, if relocation options are limited on the market, the Inspector has made it clear that an Acquiring Authority will need a strong justification not to include a reasonable replacement within the scheme and will be expected to demonstrate their attempts to accommodate such a unit.

OUR KEY FINDINGS

So, to Acquiring Authorities, the key takeaways from this decision are;

• Carefully consider the nature of businesses included within the CPO red line, which may have wider community benefits and cultural and heritage value;
• Engage early, often, honestly and thoroughly
• Take ownership of the relocation process working closely with affected parties;
• Provide information in a timely manner to allow for constructive dialogue;
• Ensure you have considered all avenues for reprovision within the scheme