Pascoe v Secretary of State for Communities and Local Government

Urban regeneration — Land acquisition — Compulsory purchase order (CPO) — Defendant confirming CPO in respect of predominantly underused or ineffectively used urban land — Claimant applying to quash CPO — Whether defendant erring in law — Whether CPO breaching claimant’s human rights — Application allowed The claimant owned a residential that had been property named in a compulsory purchase order (CPO), purportedly made by the Urban Regeneration Agency (the first interested party), pursuant to powers conferred by section 162(1) of the Leasehold Reform, Housing and Urban Development Act 1993. A public inquiry was held and the defendant’s inspector issued a report recommending that the CPO be confirmed without qualification. The inspector considered that a compelling case in the public interest had been demonstrated that justified the interference with the human rights of those with an interest in the land affected. He took the view that the inclusion of properties within the CPO land that were not “under-used” or “ineffectively used” within section 159(2) of the 1993 Act should not prevent the confirmation of the CPO. The inspector did not consider that his finding that the CPO land was predominantly under or ineffectively used was undermined by his conclusion that some of the properties included in the CPO did not require intervention. The defendant confirmed the CPO, having accepted the inspector’s findings and agreed with his conclusions. The claimant, who was also the principal organiser of a group formed to oppose the CPO and to give evidence at the inquiry, applied to quash the order as a person aggrieved, pursuant to section 23(1) of the Land Acquisition Act 1981. The questions for the court were, inter alia, whether: (i) the defendant had erred in concluding that the first interested party had had the necessary statutory power to make the CPO; and (ii) the CPO amounted to an unjustified interference with the claimant’s right to respect for her private life and peaceful enjoyment of her possessions under Article 8 of and Article 1 of the First Protocol to the European Convention on Human Rights (ECHR). Held: The application was allowed. (1) The inspector and the defendant had erred in concluding that the CPO land (considered as a whole) was predominantly underused and/or ineffectively used. The purpose of the statutory compulsory purchase power contained in the 1993 Act was to secure area-wide regeneration. In practical terms, the regeneration of a complete area would often require the authority to take over the entire area in order to implement a coherent and effective plan of regeneration. Parliament could not have intended to restrict the power of the first interested party to a piecemeal or patchwork acquisition of individual plots of land in a regeneration area, and the claimant’s submissions to the contrary would be rejected. The concept of land being “underused” or “ineffectively used” in section 159(2)(b) contemplated that some of the land to be acquired was being used, otherwise it would be unused land, which was dealt with separately under section 159(2)(a). However, the inspector’s finding involved an impermissible watering down of the statutory requirements of section 159(2)(b). The use of the word “predominantly” signified the application of a less stringent standard than that required by the subsection: Meyrick Estate Management Ltd v Secretary of State for Environment, Food and Rural Affairs [2005] EWHC 2618 (Admin); [2006] JPL 1049; [2005] 45 EG 169 (CS) referred to. Furthermore, the error could not properly be remedied by recourse to section 160(4) of the 1993 Act to validate the confirmation of the CPO to “improve” the claimant’s land. That would involve a degree of usurpation of the function of the specialist decision maker and deprive the claimant and other objectors of an opportunity to challenge the new basis for the intervention. (2) It followed that the CPO constituted an interference with the claimant’s rights under Article 8 and Article 1 of the First Protocol to the ECHR since it deprived her of her home. The onus was on the public authority to justify the interference with the claimant’s rights. The court was satisfied that the inspector’s assessment that no less intrusive alternatives to the proposed scheme were available had been properly made and the human rights issues had been properly considered by the inspector and the defendant. Robert McCracken QC and Katherine Olley (instructed by Public Interest Lawyers, of Birmingham) appeared for the claimant; James Maurici (instructed by the Treasury Solicitor) appeared for the defendant; Neil Cameron (instructed by Eversheds LLP, of Leeds) appeared for the first interested party, the Urban Regeneration Agency; Sasha Blackmore (instructed by the legal department of Liverpool City Council) appeared for the second interested party, Liverpool City Council. Eileen O’Grady, barrister