Agenda Reports Pack (Public) 15/10/2012, 19.00 - Meetings ...

5 Appeal5.1 If the Secretary of State is not minded to confirm the CPO whether as to the whole orany part thereof (other than an exclusion from the CPO to which the Developer in itsdiscretion agrees will not adversely affect the Development) the Council will if theDeveloper so requires in writing (and subject to paragraph 5.2) appeal to the HighCourt against the non-confirmation or partial confirmation or apply for judicial reviewwhichever Leading Counsel shall advise as being more appropriate in thecircumstances5.2 The Council shall not be obliged to appeal to the High Court against the nonconfirmationor partial confirmation or apply for judicial review if:5.2.1 having reviewed the Secretary of State decision is does not consider it wouldnot be likely to promote and/or improve the economic and/or social and/orenvironmental well-being of the area to pursue such an appeal; and/or5.2.2 written advice from Leading Counsel asserts that there is less than forty (40)per cent chance of such appeal or application succeeding leaving in place a CPOwhich meets the respective reasonable requirements of the Council and Developer andprovided further than the Developer shall first have been given the opportunity toconsider the terms of instruction to be submitted to Leading Counsel and to attend anyconference or consultation with Leading Counsel in relation thereto.6 Upper Tribunal (Lands Chamber)Without prejudice to the Council's right to refer any matter to the Upper Tribunal(Lands Chamber) at such time as the Council may reasonably determine, if after thedate upon which the CPO shall have become operative the Developer shall by writtennotice to the Council request the determination of the statutory compensation payablein respect of any Third Party Interest or New Right to be made by the Upper Tribunal(Lands Chamber) then the Council shall provide all reasonable cooperation to theDeveloper in the prosecution of such reference or proceedings in such manner as theDeveloper may reasonably require and produce with all due expedition anyinformation or documentation, including witness statements, as the Developer mayreasonably require in relation to such matters.7 Repayment of CPO CostsIf any CPO Costs which the Developer has reimbursed are overpaid then theDeveloper shall be entitled to the benefit of any refund lawfully due either as a lumpsum or as a credit against any further payments due in respect of any CPO Costs andwithout prejudice to the generality of the foregoing the Developer shall be entitled toreceive any surplus advance compensation paid under section 52 of the 1973 Actwhich is repaid to the Council and the Council shall pursue repayment of the same.8 Shepherds Bush Market TenanciesL1.040-CPO-CPOIA.v2.232Page 115