| PLANNING — Development — Regeneration of urban area — Compulsory purchase order made in under powers to acquire “under-used or ineffectively used” land — Land comprising derelict and well-maintained properties — Inspector concluding that land “predominately” under or ineffectively used — Secretary of State confirming order — Whether conclusion satisfying statutory requirements — Leasehold Reform, Housing and Urban Development Act 1993 (c 28), ss 159(2)(b), 162
Pascoe v First Secretary of State [2006] EWHC 2356 (Admin)
QBD: (Admin): Forbes J: 27 September 2006
When issuing a compulsory purchase order (“CPO”) on “land which is situated in an urban area and which is under-used or ineffectively used”, as described under s 159(2)(b) of the Leasehold Reform, Housing and Urban Development Act 1993, the inspector and the Secretary of State were required to consider the land in question as a unified and coherent whole, and it was not sufficient if the land was “predominately” under-used or ineffectively used.
Forbes J so held in the Queen’s Bench Division (Administrative Court) when quashing the CPO made by the Urban Regeneration Agency (operating under the name “English Partnerships”) and confirmed by the inspector of the defendant, the First Secretary of State, in respect of an area of land which included the house owned by the claimant, Elizabeth Susan Pascoe, in the area of Liverpool City Council.
The agency, when making the CPO pursuant to its powers conferred by s 162(1) of the 1993 Act, relied on s 159(2)(b) as the basis for the order since the land, which had been identified as a “Pathfinder” area in need of regeneration, was rundown and contained many vacant and derelict properties. The claimant objected to the CPO on the ground that some of the properties subjected to the order were occupied and well-maintained, including her own. The inspector found that, although the order land was not entirely comprised of vacant or derelict properties, there was sufficient evidence to show that the land was predominately under-used or ineffectively used urban land, so satisfying s 159(2)(b) of the 1993 Act. The Secretary of State confirmed the order, having accepted the inspector’s findings and conclusions without qualification or modification.
FORBES J said, quashing the CPO, that although for land to fall within the description under s 159(2)(b), the whole of the land in question had to be under or ineffectively used, that did not mean that if only one of the individual units of land that made up the area was found to be neither under-used nor ineffectively used, the area as a whole did not satisfy the statutory requirements. However, the inspector and the Secretary of State had not decided that the order land, when considered as a unified and coherent whole, fell within the description “under-used or ineffectively used”, since the inspector had decided, and the Secretary of State agreed, that the land was “predominately” under- or ineffectively used. That finding involved an impermissible watering down of the statutory requirements of the section. It followed that both the inspector and the Secretary of State had erred by applying a less stringent standard than that required before the agency was empowered to acquire the land in question. It followed that the CPO was ultra vires. Accordingly, the interference in Ms Pascoe’s Convention rights was not in accordance with the law and was, therefore, not justified and constituted a breach of s 6(1) of the Human Rights Act 1998. |
