QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT||Defendant|
|(1) HOMES AND COMMUNITIES AGENCY|
|(2) LIVERPOOL CITY COUNCIL||Interested Parties|
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James Maurici (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
Neil Cameron (instructed by Eversheds) appeared on behalf of the First Interested Party
The Second Interested Party was not represented and did not attend
Crown Copyright ©
"567... A large proportion of residential property (some 80 per cent plus) is owned by the acquiring authority or its partners, and most of the dwellings have been boarded up.
568. There remain a few properties which are clearly effectively used and provide a good standard of living accommodation, or business premises. Individually these cannot be said to be either underused or ineffectively used.
569. However, the very fact that the great majority of dwellings (and some commercial and community premises) are empty and currently unused, points to the conclusion that, as a matter of fact and degree, and taken as a unified and coherent whole, the Order Lands, excluding Edge Lane itself, are underused."
"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."
Since Plan B was central to the objection, the Inspector had to have, and did have, regard to Government advice on the consideration of alternatives at a CPO inquiry. Appendix C to Circular 06/2004 contains guidance specific to Urban Regeneration Agency CPOs in this respect:
"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...
(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".
Both Mr Maurici, for the Secretary of State, and Mr Neil Cameron, but a few days from formal appointment as QC, for the HCA, point to other passages in the Circular which emphasise the obligations on the promoter of a CPO to show that there are no planning or other barriers to the scheme. They do so to emphasise the importance of deliverability in the consideration of alternatives as well.
"614... were it just the issue of narrow lanes between the two schemes for Edge Lane West, BEVEL Plan B might well be a viable option."
He then concluded, in relation to the highway issue and, it appears, also certain wider aspects, as follows:
"615. Plan B, though, involves other considerations which, in my view, make it unachievable. First, apart from not having planning permission, there is no funding in place, and I accept that funding is unlikely to be forthcoming if for no other reason than that the specification of the scheme does not meet the criteria which are likely to be required to meet acceptance for funding. Plan B has failed to secure support from the Highway Authority. Secondly, Plan B envisages alterations to St Cyprians Church, in the form of colonnading, which is likely to be controversial at this listed building and may not receive listed building consent. Without such consent Plan B could not go ahead. Thirdly, Plan B would also require the acquisition of property, either voluntarily or by compulsion. There is no evidence that this could be achieved. Fourthly, (and here I acknowledge the work of Dr D Gwynne and others) the scheme has not been costed, and there is no feasibility study or programme on which I can place reliance. Furthermore, it is acknowledged that none of the promoters of the Plan B have the expertise or track record of delivery of such a scheme. As such I do not believe that Edge Lane could be returned to a position of being used effectively through BEVEL Plan B.
616. In identifying these weaknesses I do not seek to decry the work carried out, which I find to be impressive, but it is too little on which to conclude that there is a bona fide possibility that Plan B is a realistic option to the EP scheme."
"617. In relation to the wider Order Lands I am not satisfied that a workable option to the development scheme proposed has been put forward. Although the rolling financing of property renovation by the sale of other property may work in theory, there is too little evidence here that it would be a viable option for the Order Lands. I have been told of other areas where schemes of renovation have been achieved, but the larger of these seem to have included the input or support from an external organisation. Such support is not evident here and there is no credible organisation which has come forward to promote an area-wide renovation approach...
618. Added to this is the fact that most people have now moved out. Even if former owners were offered their old property back, there must be doubt about their willingness to embark on what would be a regeneration programme. There must also be doubt about the feasibility of finding buyers for such a large number of properties, even at discounted prices, in what would be a large renovation project with a long timescale.
619. Arguments that separate dwellings, or groups of dwellings, could be restored or redeveloped separately are not credible in the current circumstances. Occupied dwellings are few, and there is clearly no likelihood that the proponents would make the properties they own available for renovation when the clear aim is for transformational redevelopment."
"621. The objectors have suggested that the quality of the buildings in the Order Lands is sufficient to support their retention and refurbishment. However, they do not suggest that the buildings are of a standard suitable for listing or inclusion within a Conservation Area. The Victorian Society has not objected to the proposed demolition. I am also aware that English Heritage has not objected to the proposals. I do, however, respect and understand the view of those who would prefer that the buildings be retained for their intrinsic attributes and their contribution to the history of Liverpool."
He added, the buildings "would no doubt be missed locally, but their retention could not be justified by their quality or historic associations. These factors are therefore insufficient to add materially to any argument in favour of a refurbishment scheme".
"626. To sum up on this matter, there is no proposed alternative scheme which has been granted planning permission, which has been costed, which has been prepared by people with the relevant expertise and track record, or which has any realistic likelihood of obtaining the necessary permissions, consents and funding. On the other hand, demolition has been justified in order to achieve the transformational redevelopment and improve the wider area. This follows CABE guidance. My conclusion on this matter, therefore, is that there is no suitable or deliverable alternative to the proponents' scheme."
"645... Nonetheless, the proponents' scheme is the only one with a reasonable and realistic chance of being taken forward and being able to meet the regeneration objectives set out."
"668. The proposed development would address highway matters, would improve the environment, would provide better links to existing facilities, would provide jobs and new business and community facilities, and would provide new homes of mixed size, style and tenure. It is designed to be the centrepiece of a regenerated Kensington and there is no alternative available with a realistic prospect of delivery. There may be disagreements and valid criticism regarding the details of what is proposed, but I am satisfied that the scheme would deliver the renaissance which is sought. Substantial public benefit would therefore flow from the proponents' scheme."
"If, after the close of an inquiry, the Secretary of State
(a)differs from the inspector on any matter of fact mentioned in, or appearing to him to be material to, a conclusion reached by the inspector, or
(b)takes into consideration any new evidence or new matter of fact... and is for that reason disposed to disagree with a recommendation made by the inspector, he shall not come to a decision which is at variance with that recommendation without first notifying the persons entitled to appear at the inquiry who appeared at it of his disagreement and the reasons for it..."
There then follow requirements to provide an opportunity to make written representations or an opportunity to make representations at a re-opened inquiry.
"Whilst the intention to widen the highway in this section could be one way of enhancing the journey into Liverpool, we do not think that it is the only way to achieve this aim. We urge the local planning authority and their highway department to continue to explore all alternatives and put forward a convincing case for highway widening; if that is considered to be the best way forward. In addition, dualling of the carriageway should be engineered with an understanding of its defining built edges in order to achieve desired highway widths with minimal disruption to the townscape implications of these edges, particularly the existing houses on the south.
The existing housing stock is of reasonable architectural merit and this successful townscape is a part of the entrance journey into Liverpool. We think that the demolition of these buildings will be a loss to the built environment of Edge Lane. The replacement of these buildings can be justified if the project team can demonstrate that the new buildings make a significant improvement to the Edge Lane corridor, which could not be achieved if the existing building were retained."
Under the next heading of "Proposed scheme" it continued:
"We think that there are fundamental problems with the proposed scheme at an urban design level and that the material submitted is of sub-standard quality for a major application."
It then made some general, but quite severe, criticisms of the details submitted. The letter, under the heading "Conclusion", finished with this:
"We are not convinced that the widening of the highway, demolition of the existing buildings and the proposed housing will achieve the objectives of the SPD to improve the entrance route into Liverpool and lead to the type of positive transformational change that is fundamental to Housing Market Renewal. As it stands, we are unable to support this scheme and think that this planning application should not be given consent."
"642... I have no knowledge of whether the scheme has been permitted, whether amendments have been made, or whether it is still under consideration.
643. However, it is clear that a contemporary development of over 200 dwellings is envisaged, of varying sizes and forms. This would offer different forms of tenure, and include key worker and affordable housing. Evidence indicates that building will be carried out to sustainable standards. It falls to LCC to determine the suitability of details, but I have no reason to doubt that the Council will seek to ensure that details approved will provide a fitting gateway to the city."
"... the area generally, particularly flanking Edge Lane West, does benefit from a certain character imparted by the enclosure, rhythm, height, massing and detailing of the predominant Victorian dwellings. There is some degree of continuity to the townscape within the Order Lands along the sinuous and slight rise/fall route of the road and this helps to tell a story of city's development and evolution."
In essence, it is difficult to see how that differs from the judgment urged by CABE in relation to the buildings alongside Edge Lane, or those parts of the townscape which were accepted to have quality within the Order Lands.
"... there is a strong social and environmental imperative to retaining housing stock. Planning should begin with an initial presumption in favour of refurbishment and reuse and a clear case should be made to explain when, where and why it is necessary to redevelop.
To summarise these often-complex issues, CABE and its partners recommend that nothing should be demolished until:
its real value has been established by a range of stakeholders, including the local community,
there is a clear and deliverable strategy in place as to what will replace it, and
there is assurance that cleared housing will be replaced by something of demonstrably better quality."
Broadly speaking, the conclusion of the guidance is that the case for demolition can be made out after consideration of these wider issues, on the basis that the replacement would be better designed and it is therefore for Liverpool City Council, on the Inspector's reasoning, to achieve that through the approval of reserved matters process.