Tottenham Stadium JR - In whose interest?

RCJ by Joe Dunckley

What price democracy? – That is the question which in the end the judge may have to come to in the ongoing legal dispute between Tottenham Hotspur Football Club and Archway Sheet Metals, a small family business whose land is being taken off them as part of Tottenham’s redevelopment plans.

The proceedings today at the Royal Courts of Justice were a particularly dry affair, with none of the barristers speaking likely to be asked to warm up the crowd at White Hart Lane any time soon.

Archway’s challenge rests on a number of legal points, as inevitably any high court challenge to an administrative decision must. A judge can only quash a decision if there is an error of law, he cannot put himself in the place of the decision maker and must keep his views on the proposal to himself. An error of law usually means an error in the way in which the decision was taken.

In Archway’s case this means that the council, when making the compulsory purchase order did not meet the conditions it had set for itself, without giving any explanation why. The Secretary of State, they say, did not have the full facts in front of him when he made a decision.

To make sense of what is happening with Tottenham’s redevelopment plans it is worth considering some of the wider principles at play here.


Human rights and the public interest

Compulsory purchase is a breach of someone’s human rights, that is something that is beyond question, everyone has a right to enjoy their property without it being taken off them. However, in the UK, it is possible to remove someone’s right to use their land though a compulsory purchase if there is a compelling public interest in doing so.

What is the public interest, and whether any public interest is compelling enough in order to justify an accepted breach of someone’s human rights is always likely to controversial. There will be competing arguments, with those seeking compulsory purchase likely to talk up the public interest in their proposals and those suffering compulsory purchase likely to argue that the public interest has been inflated.

That is why of primary importance is that we have a robust, independent, open, transparent and above all fair process in order to come to a decision. It is vitally important to a democratic system that if fundamental rights and freedoms are to be taken away from someone it is done though a fair process.

These points all weigh heavily in favour of Archway. Firstly, they make the argument that there was no binding agreement between Tottenham and the Council to actually carry out the development once the compulsory purchase had been granted. This is important because Haringey had made this a condition of their planning permission, but then seem to have dropped the requirement without any explanation. It is also a point of principle as a compulsory purchase shouldn’t be granted if there is doubt that a project will go ahead. To do so would risk kicking people off their land for no reason (if a scheme then failed to materialise).

But more importantly it appears from the evidence presented at today’s court hearing that the compulsory purchase was approved on the basis of what appears, in my opinion, to be a deception. Although the compulsory purchase was tied to a specific plan to redevelop the stadium that was approved by the council in 2011, the council was in advanced discussions with club about different plans for a larger stadium with more redevelopment at the same time as it was seeking a CPO. These discussions were going on without the knowledge of the Secretary of State and only came to light when an eagle eyed person from Archway’s team spotted reference to discussions in a footnote to a document from TfL.

Tottenham then actively resisted releasing any further details about this issue but were ordered to disclose by a judge. According to Archway the documents reveal plans for a larger stadium, a greater level of supporting development including housing and office space and better commercial opportunities including naming rights sponsorship, which appear to have already been agreed.

Archway’s lawyers say this is important because the Secretary of State had raised concern about the lack of affordable housing with the redevelopment plans when he granted the order. Tottenham had said that the affordable housing would make the scheme unviable, but Archway say that if he had known about another more profitable scheme in the works, he may well have insisted that the affordable housing be delivered before confirming the order.

A great enough injustice?

Tottenham, The Secretary of State, and the Council will put their case tomorrow, but weighing heavily in their favour is another important principle, proportionality. Even if the judge was to determine that the process leading to the decision of the Secretary of State to confirm the CPO was flawed, he can still refuse to quash the decision. It is open to him to find that any legal flaw was minor, and would not have had the possibility of changing the decision of the Secretary of State.

This is because the judge is not a decision maker. All the judge can do is ask the decision maker to consider the issue again. The judge knows that there is a great public expense in holding a new public inquiry and that there is little public interest in holding up a regeneration project if he is thinks that the decision maker will most likely come to the same conclusion. In those circumstances it may be acceptable that justice was not done at the inquiry - it wasn’t unfair enough. As I said at the beginning of the post, what price democracy?

Here the promoters of the regeneration seem to have on the face of it a strong case, and the huge scale of the regeneration project and the strong backing it has received from the Mayor, the Secretary of State and Haringey make Archway’s mountain an even harder one to climb.

Also, although the Secretary of State asked the applicants to provide more affordable housing, when they gave a vague and inadequate response (The Secretary of State’s words) he was willing to approve the compulsory purchase anyway.


A better strategy for Tottenham (club and community)?

These are the kinds of difficult judgements that judges have to make, and in due course Mr Justice Dove will issue his decision, after of course hearing the case for the defence. But the whole saga also raises an important issue about the strategy of Tottenham. We have a nagging feeling that if Tottenham had played their hand differently they may have had their compulsory purchase order already.

The Secretary of State in his decision letter said that if Tottenham had made a financial contribution to the infrastructure needed to support the redevelopment, and provided the required affordable housing, than the public interest of their plans would have been beyond question. In the end he decided in their favour but it was more finely balanced decision. That must put the club at greater risk of seeing their plans set back.

Had the club made the contributions asked for and normally required, Archway may not have had a case at all. The redevelopment may have already have been underway.

It is obviously more profitable on paper for Tottenham to not build affordable housing and not to make a financial contribution to infrastructure, but what has been the cost of further delay and the possibility of even more delay? Like so many other developments in London, the developer has come into conflict with the community by seeking the maximum gain for themselves whilst minimising their social contribution.

The attempt to get out of their social obligations appears to be a strategy of higher risk for higher return. That risk is shared by the fans, by foregoing a new stadium for longer, but the return all goes to the managers, owners and players though higher profits (theoretically it could be shared with the fans though cheaper tickets but how likely is that really?). Would different decisions have been made if fans had had a greater voice? Would the club have been prepared to pay the extra cash for an easier path to a new stadium? We may never know the answer, but we may still find out the cost of not doing so.

The case continues.

  • Robin Angell

    First rate article but let’s be honest, Archway aren’t doing this for affordable housing or some other socially beneficial reason are they. They may well be using them as a legal challenge to the CPO but let’s not forget they also tried to block an earlier decision by claiming the font used was the wrong size and type or a colon was in the wrong place. I fully expect Justice Dove to reject the appeal. I also have a nagging feeling legal advisors will use human rights arguments to further delay the plans which would be outrageous.

    • johnny

      outrageous ?…… the only outrage is Tottnumbs bullying and amateur handling of the whole affair…..Mr Levy not so clever after all.

  • Ztranche

    I’m a loyal supporter of this great club, a business owner, finance professional and someone that has love & respect for the neighborhood. It’s a complex, emotional set of issues with many interested parties. I appreciate the work you’ve done here as it strikes me as the most complete, unbiased accounting of the case. Nice job.

  • Will

    Typical non reality based leftist rubbish. Where were you when the Emirates was being built?

    • the Offshore Game

      That was years ago - we have just started. We are taking issues as they come. The Emirates case is quite interesting. It was the legal precedence that established financial secrecy in planning applications. Something which is now rightly being eroded by the Information Commissioner.

  • Corrupted Mind

    I like a lot of this article but I just cannot help but think that its premise is misguided.

    While it is obvious that Archway is a smaller company than Tottenham Hotspur I find it difficult to feel that Archway’s pursuit of money is any more noble that Tottenham’s. Or, more importantly, that the Local Authority, London Mayor and Secretary of State for Planning desire to obtain in essence - infrastructure on the cheap - is somehow more noble that Tottenham’s desire to minimise their costs in relation to anything but their core business. These are all big boys playing big boy games! This is why I have such trouble with the following line:

    “We have a nagging feeling that if Tottenham had played their hand differently they may have had their compulsory purchase order already.”

    For some, Tottenham ‘playing its hand differently’ means: (i) funding all the infrastructure that other public bodies (i.e. local and national govt) should pay for from general taxation, local taxes and business rates. This is what government is for. (ii) pay whatever Archway request in order to relocate their business (bearing in mind that as a manufacturing business - none of their customers are local and they could literally operate anywhere in the UK.) Rather than what the company is worth to either liquidate or move elsewhere, (iii) Build cheap housing for the people of North London (iv) restore derelict listed buildings as per the instructions of English Heritage and any other request that any organisation asks because - “Well, they’re a football club, so they’re rich innit!”

    A corrollary to this thinking is that whenever the football club resists these requests, it is acting as a bully, and/or disrespecting the community. Regrettably the correct course of action in this case is obvious. The CPO must be awarded and Archway’s relocated. The Upper Tribunal remains available to ensure they get a fair price but ultimately it is for them to show what premium or additional value they should receive by virtue of operating in the Tottenham area (methinks none). As a society we should eschew the politics of envy - yes football is a rich sport but its not a charity and we cannot sit back and ask these organisations to solve all of societies ills.

    A small side note here on the object of this website. While I understand the opprobrium you heap on the owner of the club and his tax exile status (and the opaque nature of ENIC itself) - it is a glaring ommission on your part to not distinguish between them and the operation of Tottenham Hotspur Football Club PLC the corporate entity - its annual report shows around £2m in Corporation Tax paid (2013) and nil in dividends (it is clear that this is a transparent business that is not operating as an offshore ATM for its owners).

    Lastly, it may be unfashionable to say it, but the local area needs this development - it will be the centre piece of the local area - without it much of the redevelopment planned simply won’t go ahead. While it would have been *nice* if the club contributed more - they (rightly) recognise their value to the community, and it might sound brutal but 20 affordable homes and/or £15m in infrastructure is small beer to the community in exchange for £500m of leisure facilities that Tottenham are bringing to the area. What people (rightly) should be doing, in my view, is holding the Local Authority/London Mayor and National Government feet to the fire in supporting the private investments that are being made.

  • Mouse

    It’s important to consider the effect of the club temporarily moving away will have on local businesses etc…

    If we’re playing a game of morals, then surely we should discuss the issue of Archway putting their own business above that of all of all the others that rely on income from match day revenue. Do we think there will be any original pubs left for fans to drink in once Spurs are ready to move back into their shiny new ground?

  • Archie Ball

    Corrupted Mind sounds like another Spurs fan with a quest for a new stadium at whatever and a whoever cost.

    This article is Spot On and not misguided - Excellent piece, well done!

    However I am a loyal Spurs fan but hate what the Club are doing here. Yes, correct they have played a horrible hand at a huge cost to their development (stupid costly delays). THFC are hiding behind the regeneration argument and everyone is buying it. I’m not. (Read the original inspectors report at the CPO public inquiry).

    The Inspectors Conclusions were:
    The CPO should NOT be confirmed because:
    - there are fatal legal defects and unlawful state aid would arise.
    - the scheme does not conform with the adopted planning framework.
    - it’s contribution to regeneration and well-being would be modest.
    - the assessment for alternatives has been inadequate.
    - there has been no discussion other than on the basis of Existing Use Value.

    Archway are purely exercising their right to a fair say, why is everyone embroiled in their compensation, if they are entitled to “key value” which could be in the tens of millions, as the law states they could be entitled to between 30% - 40% of the value of the projects (THFC) revenue. “Ransom Value” this is well know phrase. They are purely exercising the full extent of the law and going through the legal road to seek a fair compensation because THFC obviously don’t want to pay it.

    Face it, anyone else in their shoes will do the same. If CPO is deemed to be unlawful why can’t THFC and the Council be challenged on it and be made accountable. Human Right laws are there for a reason.

    So what if Archway are not a retail outlet relying solely on passing trade, their Human Rights are the same, Period!

    Why are we all willing to accept players wages on one hand and not willing to pay a fair settlement in cases like these on the other!

    I’m sure if a true and fair settlement was offered in the real reflection of the land value we would not be having this conversation.

    Hopefully justice will be done and we will see a fair and proper outcome for all parties. However Im sure this is only the beginning and both parties are entitled to appeal.

    • Corrupted Mind

      Disclosure: Yes, I am a Spurs fan.

      That said, I’m not a one eyed one. The premise of my reply simply is “why should Spurs pay for all of these additional things?” - If your answer begins “because they can afford it”. That is unacceptable. Being able to pay for something doesn’t mean you should.

      The costly delays are a consequence of modern planning law assuming that the developer has a limitless pot of money that he should share liberally until all possible objectors, withdraw their objections - I believe that this is wrong, in principle.

      I’m glad you mentioned the Inspectors report because it illustrates this phenomenon perfectly. The Inspector recommended that the CPO not be confirmed because he believed that the terms of the original s.106 agreement were preferable to those in the new s.106 agreement. In fact, in his report to council he stated (candidly) that he simply preferred the original s.106 agreement. What did this agreement contain?
      THFC would provide
      (a) £13.341m for Highways, Transport and Parking;
      (b) £0.24m for Heritage
      (c) £0.4m for employment and skills
      (d) £0.885m for Regeneration
      (e) 50% affordable housing (out of 200 units)
      (f) £1.2m for education
      (g) 0.37m for monitoring
      In all Tottenham were responsible for £16m in cash and around 100 social (affordable) homes. The question I ask is should a football club pay for all of this? Where the hell is the state in all of this or more precisely, what are my taxes paying for if these things are all the elements that the football club must pay for? So, how does the new s.106 look?
      (a) Highways, Transport and Parking revised to £7.9m with costs split between London Mayor, Haringey and THFC
      (b) Heritage removed
      (c) Employment and skills funding removed - but local jobs target increased.
      (d) Regeneration removed
      (e) Affordable housing requirement removed
      (f) Education removed
      (g) monitoring removed
      It looks on the face of it like a “big business shirking its responsibilities right” - but THFC will still contribute circa £500k to infrastructure, will still guarantee local jobs, will still have heritage requirements (English Heritage succeeded in getting requirements attached to the planning notice) and despite having no obligation to provide social housing in the stadium development the club under a ‘unilateral undertaking’ will still provide 100 social homes within Haringey. All of this was not sufficient for the inspector, who thought that in addition to building an attraction in the area that will encourage 60-odd thousand people to visit a deprived area of london every fortnight they should also perform every element of social good in cold hard cash.

      The real question was how on earth didn’t he realise that the Secretary of State would disagree with this kind of approach. On this point specifically, its difficult to see how the Secretary of State could make any other decision especially when you look at the unreasonableness of the original list - justified of course on the basis that the football club is rich.

      Turning to Archway, I think you misunderstand my point. They (rightly) say I don’t just want the value of the business or even relocating it - I’m sitting on prime real estate so I deserve a cut of what that is worth. This is an entirely fair position to take and I support them in their efforts to receive a fair valuation of not just the business but the property it is sitting on. But, this has very little to do with human rights and they are no more noble than the football club (family-owned business or not?) They and the club as businesses are pursuing profits. Then do a deal, or argue about compensation in court, the Land chamber of the Upper Tribunal is full of businesses arguing over just these matters. Someone will win, someone will lose, money will change hands. But the idea of holding up a whole community project and launching baseless judicial reviews arguing that the council and government haven’t done their jobs properly - using that as a tactic to get a bigger pay off - is neither noble or particularly good business either.

      For all the talk about Tottenham playing its hand poorly, I think Archway have been poorly advised. I would have used the development as a platform to advertise my business agree to move and then fight over a good settlement. Imagine the difference if they said “we want to support the community so we want to move - but I need the community’s help to make sure that we ensure business continuity and we don’t lose our customers…etc… etc” then if Spurs played rough people would rightly say - look at how these local people have helped you why can’t you help them. Instead they went the money route so sympathy is very hard to come by.

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