QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| ELIZABETH SUSAN PASCOE
|- and -
THE FIRST SECRETARY OF STATE (whose functions have transferred to the SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
|THE URBAN REGENERATION AGENCY
(operating under the name "English Partnerships")
|First Interested Party
|LIVERPOOL CITY COUNCIL
||Second Interested Party
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
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Official Shorthand Writers to the Court)
James Maurici (instructed by The Treasury Solicitor) for the Defendant
Neil Cameron (instructed by Eversheds LLP) for the First Interested Party
Ms. Sasha Blackmore (instructed by the Solicitor to Liverpool City Council) for the Second Interested Party
Crown Copyright ©
Mr Justice Forbes:
"(2) If on the application the court is satisfied that
(a) the authorisation granted by the compulsory purchase order is not empowered to be granted under this Act or any such enactment as is mentioned in section 1(1) of this Act, or
(b) the interests of the applicant have been substantially prejudiced by any relevant requirement not having been complied with,
the court may quash the compulsory purchase order or any provision contained therein either generally or in so far as it affects any property of the applicant."
"59. I have lived here 10 years and I know all the neighbours in my street. We rely on each other. The local community is really diverse and there is a real sense of community spirit, which has suffered as a result of the CPO.
60. I have student lodgers, including overseas students. They prefer to stay with me instead of staying in purpose built student accommodation About 40% of my income comes from my lodgers
61. I lost my previous home, that I loved, after my divorce. It has taken years to get to know my neighbours, be trusted, know the city (I am a very nervous driver). Having been extremely low before, I know losing my house would be very damaging to me. The modest compensation which is on offer would not be enough to enable me to buy another similar property in the area if the houses were demolished and re-built. (Many others are in a similar position to me). In any event, it will take years to re-develop the area, and I could not face the upheaval of two moves. And if I did come back, the people I know would all have been dispersed and it would just not be the same. I am already 60 years of age, and the thought of losing my home and starting again somewhere new is very distressing to me.
62. I consider that our community is being swept away by acquisition of each of our interests and homes, to make way for something unknown and different, both socially and physically. However, it will take a very long time to build a new community from scratch, if ever, and the destruction of the existing community seems completely at odds with the declared objective of regeneration. It is difficult to understand how compulsory exclusion of the community is regeneration.
63. I believe that we are being asked to pay too high a price for this "scheme", with the loss of our homes, our friends and our community. In practical terms, the displacement will be difficult for everyone, particularly because the statutory compensation levels are low. We are thereby prohibited financially from moving back into this area and achieving equivalence of accommodation or community. People are unlikely to be able to afford to return, even if that was practical for them after a wait of several years. "
"Objects of Agency
159. (1) The main object of the Agency shall be to secure the regeneration of land in England
(a) which is land of one or more of the descriptions mentioned in subsection (2); and
(b) which the Agency (having regard to guidance, and acting in accordance with directions, given by the Secretary of State under section 167) determines to be suitable for regeneration under this Part.
(2) The descriptions of land referred to in subsection (1)(a) are
(a) land which is vacant or unused;
(b) land which is situated in an urban area and which is under-used or ineffectively used;
(c) land which is contaminated, derelict, neglected or unsightly; and
(d) land which is likely to become derelict, neglected or unsightly by reason of actual or apprehended collapse of the surface as the result of the carrying out of relevant operations which have ceased to be carried out;
and in this subsection "relevant operations" has the same meaning as in section 1 of the Derelict Land Act 1982.
(3) The Agency shall also have the object of securing the development of land in England which the Agency
(a) having regard to guidance given by the Secretary of State under section 167;
(b) acting in accordance with directions given by the Secretary of State under that section; and
(c) with the consent of the Secretary of State,
determines to be suitable for development under this Part.
(4) The objects of the Agency are to be achieved in particular by the following means (or by such of them as seem to the Agency to be appropriate in any particular case), namely
(a) by securing that land and buildings are brought into effective use;
(b) by developing, or encouraging the development of, existing and new industry and commerce;
(c) by creating an attractive and safe environment;
(d) by facilitating the provision of housing and providing, or facilitating the provision of, social and recreational facilities."
"General powers of Agency
160. (1) Subject to the following provisions of this Part, for the purpose of achieving its objects the Agency may
(a) acquire, hold, manage, reclaim, improve and dispose of land, plant, machinery, equipment and other property;
(b) carry out the development or redevelopment of land, including the conversion or demolition of existing buildings;
(c) carry out building and other operations;
(l) generally do anything necessary or expedient for the purposes of its objects or for purposes incidental to those purposes.
(4) In this section
"improve" in relation to land, includes refurbish, equip and fit out;
and in this section and the following provisions of this Part references to land include land not falling within subsection (1) or (3) of section 159."
"Acquisition of land
162. (1) The Agency may, for the purpose of achieving its objects or for purposes incidental to that purpose, acquire land by agreement or, on being authorised to do so by the Secretary of State, compulsorily.
"167. (1) The Agency shall have regard to guidance from time to time given by the Secretary of State in deciding
(a) which land is suitable for regeneration or development under this Part; and
(b) which of its functions under this Part it is to exercise for securing the regeneration or development of any particular land and how it is to exercise those functions.
"A compulsory purchase order should only be made where there is a compelling case in the public interest. An acquiring authority should be sure that the purposes for which it is making a compulsory purchase order sufficiently justify interfering with the human rights of those with an interest in the land affected. Regard should be had, in particular, to the provisions of Article 1 of the First Protocol to the European Convention on Human Rights and, in the case of a dwelling, Article 8 of the Convention."
Paragraph 18 of the Circular is in the following terms:
"The confirming Minister has to be able to take a balanced view between the intentions of the acquiring authority and the concerns of those whose interest in land it is proposed to acquire compulsorily."
"1. English Partnerships ("EP") in its present form was created administratively in May 1999 by bringing together the Commission for the New Towns ("CNT") and the national structure of the Urban Regeneration Agency ("URA"). EP is therefore able to utilise the powers compulsorily to acquire land and new rights over land given to the URA respectively by sections 162(1) and (2) of the (1993 Act). The purpose for which those powers may be used is the achievement of the URA's objectives (or purposes incidental thereto). The confirming authority (under the terms of the 1981 Act) for a compulsory acquisition by the URA is currently the Deputy Prime Minister in his capacity as First Secretary of State (referred to as "the Secretary of State" in this Appendix).
2. The objects of the URA (and therefore the purposes for which EP may exercise compulsory powers) are set out in section 159 of the 1993 Act and are to secure:
( The regeneration of land in England which is within one or more of the following descriptions:
- land which is vacant or unused;
- land which is situated in an urban area and which is under-used or ineffectively used;
- land which is contaminated, derelict, neglected or unsightly; and
- land which is likely to become derelict, neglected or unsightly by reason of actual or apprehended collapse of the surface as the result of the carrying out of relevant operations which have ceased to be carried out (section 159(1)(a));
( the development of land in England which the Agency (having regard to guidance and acting in accordance with any directions given by the Secretary of State under section 167 of the 1993 Act) determines to be suitable for development under the URA's powers and to which the Secretary of State consents (section 159(1)(b) and (3).
3. The Government has outlined a new role for EP (Parliamentary statement of the Deputy Prime Minister 24th July 2002). This identified EP as a key delivery agency in the Government's sustainable communities agenda to regenerate the towns, cities and rural areas of England and as the national catalyst for property led regeneration and development. It is charged with delivering urban renaissance and helping the Government meet its targets for accommodating household growth on brownfield land, EP is clearly in a position to utilise the URA's compulsory powers to assist it in fulfilling this role.
Exercising Compulsory Purchase Powers
7. It is for EP to decide how best to use the URA's land acquisition powers to fulfil its purposes and in accordance with any guidance which may be issued from time to time by its sponsoring Department. The fact that the powers have been expressed in wide and general terms, together with the Government's statement mentioned above, reflects the national importance of the task facing EP.
8. EP is charged with securing the regeneration of types of land which may be unattractive to existing or potential residents, developers or investors, and therefore need the catalyst of public sector commitment to turn them round. The Government's statement identified EP as the national catalyst for this type of initiative.
14. In reaching a decision about whether to confirm an order made under section 162 of the 1993 Act the Secretary of State will have in mind the statutory purposes of the URA and will, amongst other things, consider:
(i) whether EP has established the basis and justification for its actions through its Corporate Plan and any related action plan, (including any reviews thereof), which should be in general accordance with regional and local planning policies and other guidance referred to in paragraph 9 above;
(ii) whether, where appropriate, EP has demonstrated that the land is in need of regeneration;
(iii) any directions and guidance which may be given under section 167 and (in the case of development) any consent under section 159(3);
(iv) what, if any, alternative proposals have been put forward by the owners of the land or by other persons for the use or re-use of the land; whether such proposals are likely to be, or are capable of being implemented, (including consideration of the experience and capability of the landowner or developer and any previous track record of delivery); what planning applications have been submitted and/or determined; how long the land has been unused; and the extent to which the proposals advocated by the other parties may conflict with EP's proposals as regards the timing and nature of the regeneration of the wider area concerned.
(v) whether the proposed development or regeneration is, on balance, more likely to be achieved if the land is acquired by EP, including consideration of the contribution which acquiring the land is likely to make to stimulating and/or maintaining the long-term regeneration of the area;
(vi) whether, if EP intends to carry out direct development, it will not thereby, without proper justification, displace or disadvantage private sector development or investment, and that the aims of the URA cannot be achieved by any other means;
(vii) the condition of the land and its recent history;
(viii) the quality of, and proposed timetable for completing, both the proposals for which EP is proposing to acquire the land under the URA's compulsory purchase powers and any alternative proposals."
"The First Secretary of State wrongly concluded that (the Agency) had power under s.162(1) (of the 1993 Act) to make a compulsory purchase order in respect of the Claimant's home, and misdirected himself in law by deciding that:
(i) the criteria in s.159(2) (of the 1993 Act) were satisfied in respect of all the parcels of land in the area covered by the CPO, provided that there was evidence that a "predominant" number came within the criteria;
(ii) there was no need to establish that specific parcels of land came within the criteria in s.159(2);
(iii) the description in s.159(2)(b) "land which is situated in an urban area and which is under-used or ineffectively used" referred to an area of land, not individual parcels of land, and could include properties which did not fall within any of the descriptions in s.159(2)."
"18. The following is the general case for the Acquiring Authority and provides the basis of its response to many of the individual objections made to the confirmation of the Order.
19. Section 162(1) of the (1993 Act) authorises the Urban Regeneration Agency carrying on business as English Partnerships (and hereafter referred to as EP) to acquire land compulsorily when authorised so to do by the Secretary of State for the purpose of achieving its objects, or for purposes incidental to that purpose.
20. Section 159 of the 1993 Act provides that the main object of EP shall be to secure the regeneration of land in England which is land in one or more of the descriptions mentioned in section 159(2) and which EP (having due regard to guidance, and acting in accordance with directions given by the Secretary of State) determines to be suitable for regeneration under Part III of the 1993 Act. The descriptions of land which are relevant to the Order are those specified in the Order , namely:
(a) land which is vacant or unused;
(b) land which is in an urban area and which is under-used or ineffectively used;
(c) which is contaminated, derelict, neglected or unsightly.
21. Confirmation of the Order is sought on ground (b). Certain parts of the Order land are additionally vacant, unused, derelict, neglected and/or unsightly These matters are relied upon in support of the contention that the lands are under-used and/or ineffectively used. The Order has been made for the purposes of securing the regeneration of land in the Kensington/Edge Hill area through the provision of new housing and related development and improvements to Edge Lane West
26. The delivery of sustainable communities, delivering Pathfinder housing renewal schemes, and delivering strategic development sites of national or regional significance, cannot be effected without securing properties and land which do not fall within descriptions (a) or (c) (of section 159(2)) but fall within these general areas where regeneration is appropriate (within description (b)). A piecemeal or "pepper-potted" approach would simply not meet the statutory object of securing the regeneration of land. It is vital to the success of the scheme to bring forward its various elements in a comprehensive and integrated manner so as to create a "critical mass" to trigger a step change in the area.
27. The Acquiring Authority does not rely on Housing Act, Highways Act, or Town and Country Planning Act powers. As a result, EP does not seek to justify the Order by sole reference to housing, highways or planning issues. EP promotes this Order to secure area-wide regeneration through a scheme that would act as a catalyst for investment in both the housing and commercial sectors "
"428. This is the first occasion on which a CPO made under the provisions of section 162(1) of the (1993 Act) by the Urban Regeneration Agency (URA), carrying on business as English Partnerships (EP) has come to an Inquiry. As the appropriateness of the use of this power has been questioned I therefore start by considering this aspect, following a brief outline of EP's proposals.
429. Appendix C to the Memorandum of Circular 06/2004 provides guidance on the making of Orders by EP. It indicates at paragraph 14 that, in reaching a decision about whether to confirm an Order made under section 162 of the 1993 Act, the Secretary of State (FSS) will have in mind the statutory purposes of the URA. It also sets out other matters that will be considered by the FSS and I have used these as a structure for my conclusions. Following this, I consider the various other matters raised by Objectors, including procedural issues, such as alleged "inequality of arms".
430. Paragraph 17 of Part 1 of Circular 06/2004 reiterates the long-established principle that a CPO should only be made where there is a compelling case in the public interest. Paragraph 19 further indicates that land should only be taken compulsorily where there is clear evidence that the public benefit will outweigh the private loss, the Human Rights Act 1998 (HRA) reinforcing this basic requirement. I (must) therefore come to an overall conclusion as to whether a compelling case in the public interest for confirmation has been established.
The reason for the making of the Order
431. The Order is promoted to secure area-wide regeneration. The regeneration scheme comprises two interlinked elements: highway corridor improvements to Edge Lane West, which are part of a wider strategy for such improvements over the entire length of Edge Lane; and transformational redevelopment, with residential and commercial components flanking the highway improvements. The highway corridor works benefit from detailed planning permission. The wider regeneration scheme has outline planning permission.
432. The details that are likely to come forward within the scheme would include the provision of residential accommodation of varying types, commercial, retail and community uses, and public spaces aimed at fostering a sustainable community. The highway corridor improvements aim to enhance environmental quality and safety for the benefit of all. They include the provision of a tree-lined boulevard "gateway" entrance to the city centre, with wider traffic lanes and footways, in order to ease traffic congestion, improve parking and reduce pedestrian severance to the north and south created by the existing road.
433. Whilst many plots of land and individual properties are already in public sector ownership, or have already been acquired by agreement, there are others which have not. These are in differing ownerships, some of it in investment property let to short-term tenants. It is unlikely that all interests could be acquired by private treaty. The land and property is required to enable the comprehensive regeneration scheme to progress within a reasonable timescale.
434. Paragraph 2 of Appendix C to the Memorandum of Circular 06/2004 indicates that the objects of the URA (and therefore the purpose for which EP may exercise compulsory powers) are set out in section 159 of the 1993 Act. The objects are to secure the regeneration of land in England which is within one or more of four descriptions. In this case, the three descriptions of relevance are:
- land which is vacant or unused;
- land which is situated in an urban area and which is under-used or ineffectively used;
- and land which is contaminated, derelict, neglected or unsightly.
435. EP seeks confirmation of the Order to secure regeneration of land which it situated in an urban area and which is under-used or ineffectively used. It maintains that certain parts of the Order land are additionally vacant, unused, derelict, neglected and/or unsightly. These latter matters are relied upon in support of the principal contention of the land falling within the category of under-used or ineffectively used urban land. Regeneration is to be secured through the provision of new housing and commercial properties and through the related development and improvements to Edge Lane West.
436. I therefore consider firstly whether the Order land falls within the claimed categories. Having regard to the matters the FSS will consider in reaching a decision as to whether to confirm the Order, I consider in paragraphs 452-460 below whether is has been demonstrated that the land is in need of regeneration.
437. The Order land is centred around Edge Lane West itself. This is part of a principal strategic radial route linking the city centre with the M62 motorway and is defined as a Major Road Corridor within the UDP. It suffers problems of confusion in the geometry of the road layout, especially for turning traffic, parking problems for businesses and residents, and lack of highway capacity. This leads to substantial vehicular delays, particularly at peak times, pedestrian severance and safety implications. BEVEL claims that it is difficult to reconcile the "high levels of congestion" with the "under-use" of land. It further suggests that as the road appears to be over-used this falls outside the statutory qualifying factual criteria of ineffective or under-use. On the other hand, it is clear that there is a strong consensus that Edge Lane West does suffer from problems that need to be addressed through improvements to the highway. This points to the fact that the highway corridor is clearly currently used inefficiently as it is congested and poses parking problems and highway safety issues. "Inefficient" is a synonym for "ineffective". It is not therefore incorrect to describe this road corridor as being ineffectively used.
438. BEVEL and the other Objectors accept that there is a need for regeneration within the area. The numbers of vacant, unused, derelict, neglected and unsightly properties within the Order land are clearly established. There has been no challenge to this categorisation. This supports the general contention that the Order land is under-used or ineffectively used. (I consider the question of unfitness of properties, raised by BEVEL, in paragraphs 457-460 below. The proper consideration of whether the land is "ineffectively and/or under-used" does not, in my view, entail a comparative exercise of "before" and "after", as claimed by BEVEL.
439. It is equally clear, however, that there are properties within the Order land that do not fall within any of the above descriptions. This point has been forcibly made by many individual Objectors They claim that an Order under the 1993 Act cannot be made or confirmed where certain specific properties do not qualify under any of these descriptions. However, I agree with the view of EP that, in dealing with land within an urban area which is in need of regeneration, it is likely that there will be certain properties within it that are in good condition. Furthermore, the Guidance issued in 1994 by the Secretary of State requires EP to focus on the promotion of the regeneration of areas of need. Account should be taken of areas of need as defined by the Government. Although the Guidance predates the Sustainable Communities agenda and Pathfinder initiatives by a decade or so, I accept that it is apparent that the Government now regards such areas of need as including Pathfinder areas. Similarly, by reference to Appendix C of Circular 06/2004, it is clear that EP is charged to deliver urban renaissance, with a need for a coherent and comprehensive approach to regeneration.
440. I have not been pointed to any specific guidance indicating that the objective of securing regeneration of an area will sometimes require the acquisition and redevelopment of some properties which may not themselves be in need of intervention. Nevertheless, I consider that in trying to bring about area-wide regeneration in a comprehensive and coherent manner, the inclusion of some property not falling within the specified descriptions is, in reality, all but certain. EP's report to its Board, at which the decision was taken to make the Order, recognises that the area is not entirely composed of vacant or derelict properties. However, there is sufficient evidence to support the view that the Order land falls predominantly within the defined categories and that it is under-used or ineffectively used. To thwart a regenerative proposal on the basis that some properties within a wide-area scheme are not vacant, unused, derelict, neglected or unsightly would be counter to the thrust of the enabling powers relied upon. I therefore consider that the inclusion of properties within the Order land not falling within the specified descriptions is not in itself a matter that should be fatal to the Order's confirmation.
442. The Order is promoted to secure area-wide regeneration. EP does not rely on powers under Housing, Highways or Town and Country Planning Acts. Nor does it seek to justify the making of the Order by sole reference to housing, highways or planning issues. The rationale for the use of the chosen powers has been established clearly. The BEVEL contention that the use of the section 162 powers of the 1993 Act may not have been the most appropriate is not well made. From the foregoing, I consider the legislative justification of the making of the Order is sound."
"452. There is little dispute that the area generally is in need of regeneration. Clearly there is disagreement that certain properties need to be acquired and demolished to effect regeneration. Likewise, there is disagreement with the generality of the currently proposed scheme to bring this about on an area-wide basis. In securing regeneration it is a question not so much as whether it should be done but the methods by which it should be achieved and, in particular, whether it is necessary to acquire the amount of land/property that is proposed.
453. The basis on which it is claimed that regeneration is necessary is set out in paragraphs 435 and 437 above. It is established that the Order land is predominantly under-used or ineffectively used urban land. One element underpinning this is the claim of housing market failure within the Order land. EP's evidence is that the area was suffering housing market failure before any regeneration scheme was agreed.
459. I was able to see externally all the Order land properties on my site visits but in the absence of specific evidence on their individual condition I made no attempt to form a judgment on this. It is not therefore possible to say what proportion of properties within the Order land fall into any of the mentioned categories. That said, it is clearly apparent that some properties are in need of physical attention of one sort or another and that the numbers of vacant and boarded properties inevitably lend an air of neglect and unsightliness. As already mentioned in paragraph 438 above, there has been no challenge to the categorisation of properties as vacant, unused, derelict, neglected or unsightly. On the other hand, in the absence of detailed evidence from EP of the condition of properties within the Order land, I do not consider that it can be claimed that the properties there can be classified as necessarily obsolete. As I saw on my formal site visit, there are properties providing appropriate and acceptable living accommodation.
460. As referred to in paragraph 438 above, there is little dispute regarding the need for regeneration. I consider the questioning of housing market failure and the condition of properties within the Order land does not undermine the general contention of need for regeneration, but goes to the heart of how this might be achieved. "
501. The Order has been made using the correct powers under the 1993 Act. The Order land is predominantly under-used or ineffectively used. It is partly characterised also by vacant, unused, derelict, neglected and unsightly land. There is general agreement that its regeneration is necessary to address problems within the area. Whilst there is no evidential basis pointing to the number of properties within the Order land which are unfit, in substantial disrepair or non-decent, this does not deflect from the findings within the NRA for Kensington that these problems manifest themselves within this wider area.
502. There is a well advanced proposed composite regeneration scheme involving highway improvements and associated housing and environmental redevelopment. Substantial benefits would result from this scheme and would extend beyond the immediate Order land. Acquisition of land and property not already acquired by agreement would further the realisation of this scheme and such action would be in fulfilment of EP's statutory purposes. Whilst various other suggestions have been made as to how regeneration and improvements to the area could be achieved without the need for the demolition proposed, these do not amount to realistic workable alternatives to the scheme in respect of which the Order is made.
503. The scheme accords with the national, regional and local planning and regenerational policy background. It is clearly defined, has a deliverable objective, is well advanced, and has the financial resources and partnership backing to allow it to happen. This provides confidence that there would be a realistic prospect it could be successfully implemented in a timely manner, thereby bringing land into beneficial use. I consider that the public benefit would outweigh the private loss of land and property and that a compelling case in the public interest has been demonstrated as to why the Order should be confirmed. This justifies the interference with the human rights of those who have an interest in the land affected."
"8 The Secretary of State agrees with the Inspector's conclusion that the Order has been made using the correct powers under the 1993 Act In this respect, he agrees with the Inspector that the Order land is predominantly under-used or ineffectively used and is partly characterised also by vacant, unused, derelict, neglected and unsightly land. He agrees that whilst there is no evidential basis pointing to the number of properties within the Order land which are unfit, in substantial disrepair or non-decent, this does not deflect from the findings within the Neighbourhood Renewal Assessment for Kensington that these problems manifest themselves within this wider area.
9. Whilst various suggestion have been made as to how regeneration and improvements to the area could be achieved without the need for the demolition proposed, the Secretary of State agrees with the Inspector that no realistic alternative proposals capable of implementation have been advanced. There are no alternative proposals that benefit from extant permissions or have funding, that are to be preferred to the existing comprehensive regeneration scheme whose delivery the Order seeks to achieve.
11. The First Secretary of State has carefully considered whether the purposes for which the compulsory purchase order was made sufficiently justifies interfering with the human rights of the landowners and objectors and he is satisfied that such interference is justified since, for the reasons given above, he is satisfied that there is a compelling need in the public interest for the land, the subject of the compulsory purchase order, to be compulsorily acquired. In particular he has considered the provisions of Article 8 of, and Article 1 of the First Protocol to the European Convention on Human Rights. In this respect the Secretary of State is satisfied that in confirming the compulsory purchase order a fair balance has been struck between the use of compulsory purchase powers, the relevant order and the rights of the landowners and objectors.
14. The First Secretary of State has given careful consideration to the Inspector's report and the submissions of the parties. He accepts the Inspector's findings and agrees with his conclusions. The First Secretary of State has therefore decided to accept the Inspector's recommendation and to confirm the Order. "
"(1) in order for the statutory power to be used it is necessary to examine and determine whether each and every individual piece of land within the Order land is in and of itself ineffectively or underused and that if any single piece of land cannot be so categorised then there is no power to make a compulsory order in respect of an area that includes that piece of land;
(2) in any event the question of whether the Order land as a whole is ineffectively or under-used was never the subject of a finding in the IR or the DL the only finding made was that the Order land was predominantly under or ineffectively used and that this is insufficient to meet the statutory test; and
(3) the only actual finding of ineffective/under-use in respect of the Order land was in respect of the road (see IR, paragraph 437 and that finding is absurd."
"8. It has been claimed by certain Objectors that an Order under the 1993 Act cannot be made/confirmed where, as in the present case, certain specific properties in the Order land do not, taken by themselves, qualify under any of the statutory descriptions.
9. This claim shows a misapprehension of the scope of the powers.
10. Since paragraphs (a) and (c) specify "vacant or unused", "derelict, neglected or unsightly", it is clear that paragraph (b) must denote land which, either wholly or in part, does not qualify under paragraphs (a) and (c). Further, paragraph (b) relates, unlike paragraphs (a) or (c), to land in an urban area. It is self-evident that land in existing urban areas which arises as a candidate for regeneration, is likely to include certain properties that are in good condition."
"The Order has been made using the correct powers under the 1993 Act. The Order land is predominantly under-used or ineffectively used (emphasis added). It is partly characterised also by vacant, unused, derelict, neglected and unsightly land."
In my view, it is significant that the Inspector has characterised the Order land as being "predominantly underused or ineffectively used", whilst at the same time acknowledging that it is also partly characterised by vacant, unused, derelict, neglected and unsightly land. There is no doubt in my mind that the Inspector's expressed conclusion as to the under or ineffectively used state of the Order land (considered as a whole) was that it was "predominantly" so. This expression was not an occasional oversight or a somewhat infelicitous use of language. I am satisfied that the conclusion reached by the Inspector on the evidence that he had heard and considered was that when the Order land was considered as a whole it was "predominantly under-used or ineffectively used". In my view, that finding did not satisfy the requirements of section 159(2)(b) of the 1993 Act and I reject Mr Maurici's and Mr Cameron's submissions to the contrary effect.
"In this respect, he agrees with the inspector that the Order land is predominantly under-used or ineffectively used and is partly characterised also by vacant, unused, derelict, neglected and unsightly land."
"The first Secretary of State erred in concluding that the interference with the Claimant's Convention rights under Art.8 and Art.1 Protocol 1 was justified. The Order is incompatible with her Convention rights and is therefore unlawful under s.6 Human Rights Act 1998."
"1. Everyone has the right to respect for his private and family life; his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
"27 The contours of the principle of proportionality are familiar. In de Freitas ~v~ Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing (1999) 1 AC 69 the Privy Council adopted a three-stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself:
"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."
"19. in deciding what proportionality requires in any particular case, the issue will have to be considered in two distinct stages. At the first stage, the question is: can the objective of the measure be achieved by means which are less interfering of an individual's rights?
20. At the second stage, it is assumed that the means employed to achieve the legitimate aim are necessary in the sense that they are the least intrusive of Convention rights that can be devised in order to achieve the aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons."
"43. was it the only alternative, or, to adopt the words of Samaroo, was it the least intrusive means of securing the public interest?
45. That consideration has to be reflected in the decision making process. Proportionality is not simply whether at the end result the balance is fair, but whether, in getting there, it has been decided that the most appropriate course of conduct is also the least interfering with human rights, having regard to the public benefit to be achieved and the different means of achieving it."
" This amounts to reading a test of strict necessity into the article, an interpretation which the court does not find warranted. The availability of alternative solutions does not in itself render the leasehold reform legislation unjustified; it constitutes one factor, along with others, relevant for determining whether the means chosen could be regarded as reasonable and suited to achieving a legitimate aim being pursued, having regard to the need to strike a "fair balance". Provided the legislature remained within these bounds, it is not for the court to say whether the legislation represented the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way."
" I agree with Pill LJ that the process outlined in the Samaroo case whilst appropriate where there is direct interference with article 8 rights by a public body, cannot be applied without adaptation in a situation where the essential conflict is between two or more groups of private interests. In such a situation, a balancing exercise of the kind conducted in the present case by the inspector is sufficient to meet any requirement of proportionality."
" I conclude that the appropriate test of proportionality requires a balancing exercise and a decision which is justified on the basis of a compelling case in the public interest and as being reasonably necessary but not obligatorily the least intrusive of Convention rights. That accords with Strasbourg and domestic authority. It is also consistent with sensible and practical decision-making in the public interest in this context. If "strict necessity" were to compel the "least intrusive" alternative, performance of a regulator's statutory functions would become mandatory. A decision which was fraught with adverse consequences would have to prevail because it was, perhaps quite marginally, the least intrusive. Whilst one can readily see why that should be so in some Convention contexts, it would be a recipe for poor public administration in the context of cases such as Lough and the present case."
" Whilst various suggestions have been made as to how regeneration and improvements to the area could be achieved without the need for the demolition proposed, the Secretary of State agrees with the Inspector that no realistic alternative proposals capable of implementation have been advanced. There are no alternative proposals that benefit from extant permissions or have funding, that are to be preferred to the existing comprehensive regeneration scheme whose delivery the Order seeks to achieve."
"462. BEVEL has put forward a number of ideas, suggestions or pointers as to potential solutions for consideration relating to the regeneration of the Order land. But these are just that: they do not amount to firm "alternative proposals" either in respect of highway improvements or the refurbishment of particular properties or groups of properties. Nevertheless, these were considered at the Inquiry.
463. Ideas for road improvement have been suggested involving far less removal of the present frontage development. However, EP's evidence suggests that, for various reasons, those presented at the Inquiry would be technically unworkable. As such, they would be unlikely to gain planning permission and funding. This rebuttal evidence has not been challenged and is to be preferred. Other ideas, such as upgrading of public transport links and Park and Ride, have been merely floated as possible solutions to traffic problems. No details of firm proposals, extant planning permissions or funding have been provided.
464. These ideas are all geared at retaining most of the existing built fabric surrounding Edge Lane West in the belief that this contributes to an essentially Victorian landscape worth saving in its own right; retention is seen be some Objectors as providing the fitting gateway entrance to the city that is desired and would assist in retaining the existing community. Renovation and refurbishment of the existing housing stock, with minimal demolition to allow junction improvements, is suggested."
(i) "There are no other realistic alternative proposals aimed at providing the package of regenerational measures against which the present scheme can be compared. The scheme represents an integral element in the regeneration of the wider area" (see IR, paragraph 472).
(ii) "The CPO is necessary as many individual pieces of land and properties remain to be acquired and to ensure that the scheme could proceed in a timely manner" (see IR, paragraph 481).
(iii) "The road corridor element of the scheme benefits from detailed planning permission. It has received provisional funding allocation of up to a maximum of £15.85 million. Full funding approval is expected if the CPO was to be confirmed. There is no contrary evidence to suggest that this would not be so" (see IR, paragraph 481).
(iv) "The other elements of the regeneration scheme are also well advanced. Outline planning permission exists relating to the development to either side of Edge Lane. A developer (Bellway) has been selected for the Wavertree Zone of Opportunity as part of the NewHeartlands HMRI to carry out the residential elements of the scheme. The company has substantial resources to ensure implementation. A commercial developer (Langtree Group PLC) has been appointed to carry out the commercial development. The Heads of Terms of an Overarching Agreement between Bellway, other developers and LCC have been agreed and a total of £40.435 million of funding is in place. Assembly of all the land is considered necessary for the realisation of the comprehensive regeneration scheme" (see IR, paragraph 482).
(v) " it is necessary for the whole of the land to be included in the Order to provide the quantum and layout of development proposed to achieve the benefits claimed " (see IR, paragraph 483).
(i) The Inspector and the Secretary of State both properly directed themselves as to the correct test to apply: see the references to the balancing exercise required by the Circular and by the Human Rights Act 1998 in paragraphs 430 and 495 of the Inspector's report and paragraph 11 of the Secretary of State's decision letter.
(ii) Extensive consideration was given to the benefits of the scheme proposed: see, for example, the references given in paragraphs 81 and 82 of the written skeleton argument prepared on behalf of the Secretary of State.
(iii) The Inspector and the Secretary of State weighed against these benefits the impact of the proposals on both individual residents and the wider community: see paragraphs 489 and 491 of the Inspector's report and paragraph 11 of the Secretary of State's decision letter.
(iv) Since the policy test of "compelling reason in the public interest" fairly reflects the balancing exercise required by Article 8 and Article 1 of the First Protocol, this aspect of the matter should not be judged by simply considering the paragraphs in which there is specific reference to the human rights issues. The Inspector's report and the Secretary of State's decision letter should be considered as a whole.
"The Claimant was deprived of her right to a fair hearing under Art. 6(1) ECHR because of the unavailability of public funding for legal representation."
"In the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
"Article 6(1) may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory or by reason of the complexity of the procedure or of the case."
"59 the Convention is intended to guarantee practical and effective rights. This is particularly so of the right of access to court in view of the prominent place held in a democratic society by the right to a fair trial. It is central to the concept of a fair trial that a litigant is not denied the opportunity to present his or her case effectively before the court and that he or she is able to enjoy equality of arms with the opposing side.
60. Article 6(1) leaves to the state a free choice of the means to be used in guaranteeing litigants the above rights. The institution of a legal aid scheme constitutes one of those means but there are others, such as for example simplifying the applicable procedure.
61. The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant's capacity to represent him or herself effectively.
62. The right of access to a court is not, however, absolute and may be subject to restrictions, provided that these pursue a legitimate aim and are proportionate. It may therefore be acceptable to impose conditions on the grant of legal aid based, inter alia, on the financial situation of the litigant or his or her prospects of success in the proceedings. Moreover, it is not incumbent on the State to seek through the use of public funds to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-ΰ-vis the adversary.
69 in an action of this complexity, neither the sporadic help given by the volunteer lawyers nor the extensive judicial assistance and latitude granted to the litigants in person, was any substitute for competent and sustained representation by an experienced lawyer familiar with the case and with the law "
"96. The Inspector invited submissions from [the Agency] on the point. [The Agency] responded by letter dated 22 July 2005 to the effect that the Secretary of State should not order [the Agency] to fund the objectors but in the alternative, should he be minded to do so, those funds should be limited to £20,000 and be directed to an "accountable body" to ensure its fair distribution amongst the community as a whole.
97. The Inspector wrote to the Claimant's solicitor by letter dated 27 July 2005 see TB/5/2/25 26 and also IR/1-4 and 493, stating inter alia:
"The starting point in the published policy is that the parties at Inquiries normally meet their own expenses, as stated in Circular 8/93, Annex 1, paragraph 1. In the case of CPOs, awards of costs are normally made to successful, or partly successful, statutory objectors, the award to be paid by the Order-making authority or agency... Because of the nature of these awards which follow the event (as distinct from a costs award on the grounds of a party's unreasonable behaviour), applications have to be made formally to the Secretary of State so that the Inspector is not expected to hear submissions and report separately on costs.
In this case the Inquiry has yet to open. I am conscious that I will be reporting to the First Secretary of State on the substantive issues arising, evidence on which has yet to be heard. While I am holding Pre-Inquiry Meetings to prepare for the smooth running of the Inquiry, I cannot 'stand in the shoes' of the Secretary of State when it comes to matters outside my remit. I therefore conclude that it is inappropriate for me to consider or comment on the intended application for a costs order, and the related legal arguments, which should properly be addressed to the First Secretary of State..."
"98. The Inspector then proceeded, in the same letter, to provide the correct postal and email addresses for the Secretary of State's office in the north-west ("GONW").
99. The narrative of events is then taken up in the IR at IR/166-169, where the Inspector summarises the case for [the Agency] on "Equality of Arms":
"166. During the course of cross-examination Ms Pascoe stated that she had written to the GONW (E Pascoe cross-examination, day 5). GONW indicated that it had received no such request (EP/25). When it was put to her that Eversheds had checked with the GONW and that the Government Office had indicated that they had received no such request or application, Ms Pascoe said that she would try and find a copy of her letter. She indicated that she would have difficultly finding the letter. During the course of cross-examination it was made plain to Ms Pascoe that the onus was on her to demonstrate that she had written such a letter.
167. Ms Pascoe later indicated that she did not send a letter to Mr Ashton at the GONW (E Pascoe, verbal comment, day 8). She then said that she sent it 'directly', but was not clear as to whether that letter related to funding or to a request that the planning applications relating to the Order land be called in. Ms Pascoe accepted that she did not go through the proper procedure. She then suggested that she may have asked Jane Kennedy MP to make the request to the FSS.
168. Ms Pascoe indicated that she was considering whether it was appropriate for her to make any letter she had written or received on the issue of costs available to the Inquiry or whether she should produce it in support of a statutory challenge at a later date. The Inspector indicated that if Ms Pascoe had evidence that a written request had been made to the FSS to make a pre-emptive award of costs he would need to have it before the close of the Inquiry. The Inspector stated to Ms Pascoe that "the ball was in your court". In her email dated 23rd October 2005, Ms Pascoe says that ' but as I knew the answer would be "NO" from GONW I didn't bother with that route, but delegated to Jane (Jane Kennedy MP), who may or may not have tried it.' (copy of email within file 5 accompanying BEV/28).
169. It appears that Ms Pascoe did not make a request to GONW, but may have asked Jane Kennedy MP to make a request for funding on BEVEL's behalf. There is, however, no evidence that Ms Kennedy did make an application to the FSS on BEVEL's behalf. In the absence of evidence that an application was made to the FSS for a pre-emptive award of costs, it must be concluded that the Objectors failed to take the most appropriate course of action available to them to secure funding."
"100. The Inspector reached the following conclusions in this regard at IR/493 (see also IR/ 1 4):
"I indicated that consideration of the possible pre-emptive award of costs to address this matter was beyond my remit but that should there be an inclination to pursue this further then an application should be made directly to the FSS. There is no evidence to suggest that such an application was in fact made [165-169]. As this is in effect a legal matter I make no further comments upon the absence or otherwise of such an application."
"101. The Secretary of State in the DL said at DL/6:
"The Secretary of State also notes that there was some discussion at the Inquiry over the question of a possible claim for Inquiry costs from the group 'BEVEL' (Better Environmental Vision for Edge Lane) under the First Secretary of State's discretionary power of section 250(5) of the Local Government Act 1972. The Secretary of State notes that no such claim has been made from BEVEL or from any other party."
(i) In both Airey and Steel and Morris, the applicants had exhausted all possible sources of funding. This was not the case here because neither the Claimant nor anyone on her behalf contacted the Secretary of State to apply for costs as suggested by the Inspector in his letter dated 27th July 2005. I accept the submission that the Claimant did not face a closed door: a further avenue was suggested through which she might have been able to secure funding, but she failed to take it. I do not accept that the Inspector was under any obligation or duty to forward the Claimant's application to the Secretary of State of his own motion. In those circumstances, as it seems to me, it cannot be said that the Claimant was "deprived" of the funding alleged to be necessary to ensure the right to a fair trial under Article 6(1): see also Andronicou ~v~Cyprus 25 EHHR 491 at page 556, paragraphs 198 to 201.
(ii) Neither Airey nor Steel and Morris is analogous to the present case for the reasons explained above. I accept that inquiry procedures are designed to be more user-friendly and less complex than those found in the courtroom. Individuals are enabled to present their own cases, and inspectors will normally adjust the inquiry timetable to facilitate matters for those seeking to put their case. This was done here, with the Inspector readily arranging the timetable around the availability of BEVEL's witnesses, even if this led to inconveniently long adjournments.
(iii) In fact, the Claimant was much better placed than many litigants in person so far as concerns being able to present her case, because she benefited from a considerable amount of legal assistance and other support from witnesses and experts in an inquisitorial rather than an adversarial procedure: contrast the position of Mr McVicar in McVicar ~v~ UK (2002) 35 EHRR 22.
(i) The Claimant received the benefit of assistance from Counsel and a solicitor in the period before the inquiry. The Claimant's solicitor, a leading expert in compulsory purchase law, drafted a letter of objection in response to the Agency's Statement of Reasons. Counsel for the Claimant drafted for her the application for pre-emptive costs that was submitted at the pre-inquiry meeting on 22nd July 2005.
(ii) During the inquiry itself, the Claimant had at various times the assistance of two barristers, acting pro bono, who attended the inquiry for three days, cross-examined some of the Agency's witnesses and submitted opening and closing submissions to the inquiry.
(iii) The Claimant has a diploma in architecture and a degree in environmental science. She would therefore have had a much better grasp of the issues at the inquiry than would the ordinary lay objector.
(iv) Another statutory objector, Mr Gwynne, who assisted the Claimant at the inquiry and cross-examined a number of the Agency's witnesses, holds professional qualifications in architecture. The Claimant clearly benefited from his expertise during the inquiry.
(v) Despite her limited resources, the Claimant was able to obtain evidence and/or appearances from many witnesses, including several high-calibre public interest groups, academics and local politicians.
(vi) Eversheds, the solicitors acting for the Agency, provided substantial administrative and technical support to the Claimant before, during and even after the inquiry. This was done free of charge. The details are set out in the witness statement of Ms Naylor at paragraphs 12.1 to 12.8. It is clear that the Claimant received very considerable assistance in this way (estimated at approximately 75 hours in all).
(vii) Although additional evidence was served by the Agency on the penultimate day of the Inquiry, the Claimant did not seek an adjournment and, in the event, the Claimant's witnesses successfully responded to the evidence by email to Eversheds on the last day of the Inquiry (27th October 2005). Further, it is clear that Counsel for the Claimant had the benefit of seeing the evidence served by the Agency on 26th October 2005 before drafting the closing submissions on the Claimant's behalf.
(ix) There is no substance in the other alleged disadvantages to which Mr McCracken made reference during his submissions for the reasons given in Mr Maurici's written note of his submissions at page 18, paragraphs 63.9 and 63.10, as follows:
"63.9 the non-disclosure of the Kensington [Neighbourhood Renewal Assessment ] NRA condition schedule: again this is put forward as a particular circumstance where lack of sustained representation counted (or may have counted against) the Claimant BUT:
a Non-disclosure of NRA condition schedule only discussed once at inquiry when [the Agency] gave explanation of City Council's position and Mr Zwart [the Claimant's pro bono Counsel] present so at key moment represented could have pursued via s. 250 [of the Local Government Act 1972] if considered necessary, issues re non-disclosure of documentation considered in Mr Zwart's closing so aware of position made no application at any time;
b Not alleged conclusions in [the Inspector's Report] could not be reached without this evidence or unfair not provided;
c Not even referred to in Grounds as pleaded (by Mr Zwart) as an example of inequality of arms.
63.10 the failure to pursue the "housing market failure"/compensation/human rights point: Claimant had objection drafted by Mr Brand CPO specialist, [an] editor of [the Compulsory Purchase Encyclopaedia] and assistance and closing submissions from 2 barristers specialising in field not raise point for good reason (see above)."
"In respect of the Inquiry itself, I am satisfied that its running allowed the Objectors fairly and reasonably to present their case with the resources available to them. These resources included advice from, and the attendance on two days of, Counsel, acting on a pro bono basis, who chose to cross-examine two of EP's witnesses. Closing submissions were also prepared on BEVEL's behalf by Counsel. The Inquiry programme was arranged to allow BEVEL witnesses to attend when convenient to them. Although fresh evidence was produced throughout the course of the Inquiry (on behalf of both EP and the Objectors) this was perhaps inevitable in the light of the nature of the case and examination and cross-examination of witnesses as the Inquiry progressed. There were no requests for any substantive adjournments to allow new material to be studied."