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.