Pascoe v The First Secretary of State

Introduction. Section 158 of the Leasehold Reform, Housing and Urban Development Act 1993 (“the 1993 Act”) established a new agency, the Urban Regeneration Agency (the First Interested Party, hereafter referred to as “the Agency”). The Agency came into existence on 10^th November 1993 and in May 1999, when it was merged with the Commission for the New Towns, the Agency adopted the operating name “English Partnerships”. In these proceedings, brought pursuant to section 23(1) of the Land Acquisition Act 1981 (“the 1981 Act”), the Claimant challenges the validity of the Urban Regeneration (Edge Lane West, Liverpool) Compulsory Purchase Order 2005 (“the Order”), purportedly made by the Agency pursuant to powers conferred by section 162(1) of the 1993 Act. I understand that this is the first time that the Agency has used these statutory powers and the first time that their use has been challenged.

Section 23 (1) of the 1981 Act (as amended) provides that if any person aggrieved by a compulsory purchase order desires to question its validity on the ground that the authorisation of a compulsory purchase order is not empowered to be granted under either the 1981 Act or (inter alia) the 1991 Act, he may make an application to the High Court.

Section 24(2) of the 1981 Act provides as follows:

“(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.”

The Order in question is one in a series of Compulsory Purchase Orders that the Agency plans to make in deprived inner city areas. These areas are known as “Pathfinder” areas. I am told that there are about 250 other Pathfinder areas in the Midlands and the North of England and about 2.5 million people are and/or will be directly affected by the making of such orders.

The Order was made by the Agency on 10^th January 2005. A public inquiry was held between 11^th and 28^th October 2005 and the First Secretary of State’s Inspector issued a report dated 10^th January 2006 (“the Inspector’s report”, also referred to as “IR” for reference purposes). The First Secretary of State is the Defendant in these proceedings, although his functions in this field have now been transferred to the Secretary of State for Communities and Local Government. Hereafter I will refer to the Defendant as “the Secretary of State”.

In his report the Inspector recommended that the Order be confirmed without qualification. The Inspector considered that a compelling case in the public interest had been demonstrated and that this justified the interference with the human rights of those with an interest in the land affected (see IR, paragraph 503). The Inspector did not think that the inclusion of properties within the Order land which did not fall within the section 159 (1993 Act) descriptions (as to which, see below) should be fatal to the confirmation of the Order (see IR, paragraph 440), nor did he consider that his conclusions on the condition of the properties undermined the general contention of the need for regeneration (see IR, paragraph 460).

In a succinct decision letter dated 15^th February 2006 (hereafter referred to as “DL” for reference purposes), the Secretary of State confirmed the Order, having accepted the Inspector’s findings and agreed with his conclusions (see DL, paragraph 14).

The Claimant is the owner/occupier of 11 Adderley Street, Liverpool. This is a residential property named in the Order and is situated towards the edge of the Order area. The Claimant was also the principal organiser of BEVEL (Better Environmental Vision for Edge Lane), a group formed in June 2005 to oppose the confirmation of the Order and to give evidence at the Inquiry. Whilst BEVEL has no formal constitution, the group comprised members who were all statutory objectors. It should be noted that BEVEL and the other objectors accepted that there was a need for regeneration within the area generally (see IR, paragraphs 438 and 452, quoted below), although there was disagreement that certain properties needed to be acquired and demolished to effect the required regeneration: see IR, paragraph 452. As the Inspector stated, the question was not so much whether there should be regeneration, but the methods by which it should be achieved and, in particular, whether it was necessary to acquire the amount of land/property that was proposed: see IR, paragraph 452.

In her witness statement of 6^th April 2006, the Claimant describes her home, which is in good condition. The Claimant is disabled and her home has been adapted to help her to manage. The Claimant also describes her street, which is said to comprise old but good quality housing and is within walking distance of the City centre, and the local community. In paragraphs 59 to 63 of her statement, the Claimant says this:

“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. …”

It is therefore clear that the Claimant is a “person aggrieved” by the Order within the meaning of section 23(1) of the 1981 Act. I am therefore satisfied that she is entitled to make this application and I did not understand either Mr Maurici, on behalf of the Secretary of State, or Mr Cameron, on behalf of the Agency, to suggest otherwise.

Summary of the Grounds of Challenge. There are three grounds of challenge to the Order. The first ground is to the effect that the Defendant, the Secretary of State, erred in concluding that, in the circumstances of this case, the Agency had the necessary statutory power to make the Order in question. The second ground raises issues relating to the consideration of an individual’s rights under Article 8 of and Article 1 of the First Protocol to the European Convention on Human Rights (“the ECHR”) in the context of the making of a compulsory purchase order. The third ground raises issues under Article 6 of the ECHR relating to proper and effective representation at a compulsory purchase order inquiry.

The Statutory Framework. The Agency’s powers are contained in Part III of the 1993 Act entitled “Development of Urban and Other Areas”. As I have already indicated, section 158 provides for the establishment of the Agency.

Section 159 of the 1993 Act deals with the objects of the Agency in the following terms:

“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.

Section 160 of the 1993 Act sets out the general powers of the Agency, which include the following:

“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.”

Section 162 of the 1993 Act deals with the acquisition of land by the Agency in the following terms (inter alia):

“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.

…”

Section 167(1) of the 1993 Act provides as follows:

“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.

…”

Guidance was originally issued by the Secretary of State in 1994. However, Circular 06/2004 “Compulsory Purchase and the Crichel Down Rules” (“the Circular”) now applies and Appendix C specifically refers to compulsory acquisition orders made by the Agency under section 162(1) of the 1993 Act.

Paragraph 17 of the Circular states as follows:

“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.”

It is also helpful to refer to the following paragraphs of Appendix C to the Circular:

“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 Government has outlined a new role for EP (Parliamentary statement of the Deputy Prime Minister – 24^th 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.

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. …

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. …

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 now turn to deal with the parties’ submissions and my conclusions with regard to the three grounds of challenge.

Ground 1. The first ground of challenge is expressed in the following terms:

“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).”

As Mr McCracken pointed out, section 159(1) of the 1993 Act provides that the main statutory object of the legislation (i.e. to secure the regeneration of land in England) is to be exercised in respect of land that falls within one or more of the descriptions set out in section 159(2)(a)-(d) and which the Agency determines to be suitable for regeneration, having regard to the guidance and directions of the Secretary of State.

It is common ground that confirmation of the Order was sought only on ground (b) of section 159(2) of the 1993 Act (under-used and/or ineffectively used urban land). This was duly noted and emphasised by the Inspector in that part of his report in which he summarised the Agency’s case (see IR, paragraphs 18 to 190), in particular in paragraphs 18, 19, 20, 21, 26 and 27, which are in the following terms:

“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 …”

Having summarised the supporting submissions of Liverpool Vision (see IR, paragraphs 191 and 192), the Inspector then proceeded to summarise the Objections, commencing first with the case put forward by BEVEL (see IR, paragraphs 193 to 265). In paragraphs 267 to 426 of his report, the Inspector summarised the cases of the various statutory objectors and other objections and the Agency’s responses thereto, before moving on to his conclusions commencing at paragraph 427. In order better to understand the parties’ submissions with regard to the first ground of challenge, it is necessary to quote a significant amount of the Inspector’s conclusions, as follows:

“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.

Powers used

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.”

In paragraphs 444 to 488 of his report the Inspector then turned to and dealt with each of the matters specified in Appendix C to Circular 06/2004 as matters that the Secretary of State has indicated will, amongst others, be considered in reaching a decision as to whether to confirm an Order made under section 162(1) of the 1993 Act.

At paragraphs 452, 453, 459 and 460 the Inspector said this (inter alia), when considering whether the Agency had demonstrated that the land is in need of regeneration:

“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. …”

Having completed his consideration of the matters specified in paragraph 14 of Appendix C to the Circular (which included a consideration of alternative proposals: see IR paragraphs 462 to 471), the Inspector dealt with various other matters such as “Equality of Arms” (IR, paragraphs 493 and 494) and the effect on Human Rights (IR, paragraphs 495 to 497), before coming to his overall conclusions, which he expressed in the following terms:

“Overall conclusions

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.”

As I have already indicated, the Secretary of State’s letter of 15^th February 2006, whereby he confirmed the Order, was succinctly expressed. As Mr McCracken QC submitted on behalf of the Claimant, the crux of the Secretary of State’s decision is to be found in paragraphs 8, 9, 11 and 14 of the decision letter, which are in the following terms:

“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. …”

As Mr Maurici pointed out, there are three key points pleaded in relation to the first ground of challenge, which are as follows:

“(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.”

As to the first of these points (i.e. the initial part of the pleaded ground of challenge), Mr McCracken submitted that the Inspector had fallen into error in accepting the Agency’s case on this aspect of the matter: see IR, paragraph 22, where the Inspector repeats paragraphs 8 to 10 of the Agency’s closing submissions, as follows:

“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.”

Mr McCracken pointed out that the Inspector had acknowledged that he had 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 (see IR, paragraph 440). Mr McCracken submitted that the wording of section 159(2)(b) was perfectly clear and that for land to fall within that description, the whole of the land in question must be under-used or ineffectively used. It was his submission that, in order to come to a meaningful conclusion on such an issue in relation to Order land that consists of an area made up of a many different units of land in different ownership and subject to many differing uses, it was necessary to consider each of the units that go to make up the whole area and come to a conclusion with regard to each such unit as to whether it was under-used or ineffectively used. Mr McCracken stressed that this was not done in this case and that the only part of the Order land where the Inspector had carried out such an exercise was in relation to Edge Lane West itself (see IR, paragraph 437), where he concluded that congestion, parking problems and road safety issues demonstrated that the road was not effectively used.

Mr McCracken’s extreme position (reflecting the initial part of the pleaded ground) was to the effect that if only one of the individual units that made up the area of the Order land was found to be neither under-used nor ineffectively used, the area as a whole could not be properly described as being under-used or ineffectively used and that, therefore, the statutory requirements for compulsory purchase under section 159(2)(b) could not be satisfied. In the event, this extreme position assumed much less prominence in the course of the hearing as Mr McCracken developed his principal (and much more persuasive) submission on Ground 1 (the second point identified in paragraph 29 above, as to which, see below). However, before turning to Mr McCracken’s primary submission, it is necessary to dispose of this initial aspect of his submissions on Ground 1.

Both Mr Maurici and Mr Cameron submitted that section 159(2)(b) of the 1993 Act is part of legislative provisions that are aimed at urban regeneration on an area-wide basis, and that it is therefore appropriate when applying that provision to examine the question whether an area, taken as a whole, satisfies the statutory precondition for the exercise of the compulsory purchase powers set out in the statute. Mr Maurici and Mr Cameron pointed out that if Mr McCracken’s initial submission was correct, then the Agency would be confined to a piecemeal approach to urban regeneration, on a patchwork basis of compulsory purchase confined to those plots which individually could each be said to be under-used and/or ineffectively used.

Mr Maurici submitted (correctly, in my view) that this would be an unsustainable approach to the construction of the broad urban regeneration powers of which section 159(2)(b) forms part. The purpose for which the statutory compulsory purchase power has been granted in the 1993 Act is, as it seems to me, clear – namely securing area-wide regeneration. In this case, the regeneration is to be secured through the provision of new housing and commercial properties on a coherent and integrated basis and through the related development and improvements to Edge Lane West. Moreover, I agree that the concept of land being “under-used” or “ineffectively used” in section 159(2)(b) expressly contemplates that some of the land to be acquired is being used, if it were not then it would be land that was unused and hence would fall within section 159(2)(a). Parliament made express provision for a power to acquire land that was unused and land that was under or ineffectively used.

I accept Mr Maurici’s submission that, in practical terms, the regeneration of a complete area will often require the regeneration authority to take over the entire area, in order to implement a coherent and effective plan of redevelopment for regeneration. I accept the submission that Parliament cannot plausibly have intended to restrict the powers of the regeneration authority to a piecemeal or patchwork acquisition of individual plots of land in a regeneration area and I reject Mr McCracken’s submissions to the contrary effect.

As I have already indicated, the Agency sought to rely on section 159(2)(b) of the 1993 Act as the basis for the making of the Order. Accordingly, I am satisfied that what the Inspector and the Secretary of State were required to do was to reach a view as to whether the Order land, when considered as a unified and coherent whole, fell within the description “land which is situated in an urban area and which is under-used or ineffectively used”. The Agency maintained that certain parts of the Order land were also vacant, unused, derelict, neglected and/or unsightly. Those matters were relied on as evidence supporting the Agency’s principal contention that the Order land as a whole was under-used and/or ineffectively used. In my view that was a perfectly sound approach and one that the Inspector understood (see IR, paragraph 435).

The numbers of vacant, unused, derelict, neglected and unsightly properties within the Order land were established: see IR, paragraphs 15, 38 and 438. Thus 178 properties were considered to be vacant and unused, almost 270 neglected, 227 unsightly and over 160 derelict. There was apparently no challenge to this categorisation (see IR, paragraph 438) and the Inspector took the view (a perfectly reasonable one, in my view) that this “supports the general contention that the Order land is under-used or ineffectively used” (see IR, paragraph 438).

However, it was Mr McCracken’s submission that the Inspector did not come to the conclusion that the Order land (considered as a whole) was under-used and/or ineffectively used – rather his conclusion was that it was predominantly so, a conclusion that Mr McCracken characterised as involving an impermissible watering-down of the statutory test. Mr McCracken submitted that such is clear from the wording of paragraphs 440, 453 and 501 and that the Secretary of State went on to make the same mistake in his decision letter (see, particular, paragraph 8).

I have given this aspect of the matter much anxious thought. I am very aware that the Inspector’s report and the Secretary of State’s decision letter must be read as a whole, in a reasonably flexible manner and without applying the exacting and precise standards that are applied to a contract or a statute. I am also very conscious of the point made so forcefully by Mr Cameron, namely that the Inspector clearly understood and recorded the Agency’s case correctly (which does not contain any “impermissible watering down”) and gave no indication or sign at any stage of having any intention of departing from that case. Nevertheless, I find myself driven to the conclusion that both the Inspector and the Secretary of State fell into error in the manner submitted by Mr McCracken on this aspect of the first ground of challenge.

In paragraph 440 of the Inspector’s report the crucial sentence is as follows, “However, there is sufficient evidence to support the view that the Order land falls predominantly within the defined categories and (emphasis added) that it is under-used or ineffectively used”. I accept that it is arguable that the word “and” in that sentence is disjunctive and that it is then followed by a finding of fact that the Order land is under-used or ineffectively used. However, in my view, the sentence can also be read as meaning that the Order land is under-used or ineffectively used to the extent that it falls predominantly within all three defined “categories”. In my view, it would be consistent with this latter interpretation to go on to describe the Order land subsequently as “predominantly under-used or ineffectively used”, which is precisely the expression used by the Inspector in paragraphs 453 and 501 of his report and by the Secretary of State in paragraph 8 of his decision letter (as to which, see below).

As it seems to me, paragraph 453 of the Inspector’s report is perfectly clear. In that paragraph the Inspector states unequivocally “It is established that the Order land is predominantly under-used or ineffectively used urban land.” In my judgment, the Inspector made a clear statement in that paragraph as to what he considered had been established by the evidence, namely that the Order land was “predominantly under-used or ineffectively used urban land.” I agree with Mr McCracken that such a finding does not accord with the statutory requirements of section 159(2)(b) of the 1993 Act (i.e. the section relied on as empowering the Agency to compulsorily acquire the land in question), namely that the land is “under-used or ineffectively used.” I agree with Mr McCracken that the Inspector’s finding involves an impermissible watering down of that statutory requirement.

As it seems to me, the fact that the Inspector fell into error is made even more apparent by the opening words of paragraph 501 of his overall conclusions, where he said this:

“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 paragraph 14 of his decision letter, the Secretary of State accepted the Inspector’s findings and agreed with his conclusions without any qualification or modification. It follows that the Inspector’s conclusions as to whether and to what extent the Order land was under-used or ineffectively used were adopted by the Secretary of State without modification. This was made doubly clear by paragraph 8 of the decision letter in which the Secretary of State expressly stated as follows:

“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.”

I am therefore satisfied that the Secretary of State also fell into error in concluding that the requirements of section 159(2)(b) had been met. In order to meet the requirements of section 159(2)(b) it was necessary to establish that the Order land, when considered as a whole, was “under-used or ineffectively used”. In my view, for the Order land to be found to be “predominantly” under or ineffectively used plainly involves the application of a less stringent standard than that required by section 159(2)(b): see the similar decision reached by Sullivan J in Meyrick Estate Management Ltd. ~v~ Secretary of State for Environment, food and Rural Affairs (2005) EWHC 2618 (Admin). I therefore accept Mr McCracken’s submission that both the Inspector and the Secretary of State fell into error by engaging in an impermissible dilution of the statutory requirement that had to be satisfied before the Agency was empowered to acquire the land in question compulsorily in order to secure its regeneration.

Finally, in the alternative, Mr Maurici contended that if (contrary to his primary submissions) the Secretary of State has decided that the Order land is predominantly under or ineffectively used (as, in my view, he has), then it follows that the Secretary of State has also accepted that some of the Order land is not under or ineffectively used (i.e. that some of the Order land falls outside the terms of section 159(2)(b): for convenience, hereafter referred to as “the non-qualifying land”). It is important to note that neither the Inspector nor the Secretary of State was able to indicate what proportion of properties within the Order land fell into any of the specified descriptions (see IR, paragraph 459). As it seems to me, it is therefore not possible to say what proportion of the Order land consists of non-qualifying land.

So far as concerns the non-qualifying land, Mr Maurici referred to and sought to rely on sections 160(1)(a), 160(4) and 162(1) of the 1993 Act and submitted that, since the non-qualifying land was required as part of the Order land for the purpose of the Agency achieving its objects or for purposes incidental to that purpose, section 160(4) and section 162(1) empowered the Agency to acquire the non-qualifying land compulsorily, on being authorised to do so by the Secretary of State, notwithstanding that it did not come within the terms of section 159(1). Mr Maurici submitted that by having recourse to section 160(4) in respect of the non-qualifying land the Secretary of State’s overall decision-making could be rendered lawful and the confirmation of the Order would thus be valid. He therefore submitted that, since the otherwise ultra vires decision-making could be rendered lawful in this straightforward way, I should exercise my discretion against making a quashing order. In my view, to take such a course would be exceptional: see Berkeley v Secretary of State for the Environment and another (2001) 2 AC 603 at page 616, per Lord Hoffman.

However, as Mr McCracken pointed out, the Agency had made it perfectly clear, in both opening and closing its case at the Inquiry, that its case was that the objects of the Agency would be furthered by the compulsory acquisition of the Order land because the whole of it came within the description specified in section 159(2)(b). He submitted (correctly, in my view) that it would be wrong for me to uphold the Order on what would be, in effect, a different basis (i.e. that part of the Order land came within the description specified in section 159(2)(b) and that the balance (including the Claimant’s property) could be acquired under section 160(4)) because such an approach (i) would involve a degree of usurpation of the function of the specialist decision maker and (more importantly, in my view) (ii) would deprive the Claimant and other objectors of the opportunity to challenge the new basis for the Agency’s intervention and to present evidence upon it.

Given the nature and condition of the Claimant’s property and its location at the very edge of the Order land, it seems to me that a successful challenge to the argument that its compulsory acquisition was for the purpose of achieving the Agency’s objects or for purposes incidental to that purpose cannot be dismissed as fanciful, particularly if its immediate neighbourhood also consists of land that is not unused or ineffectively used. It is important to bear in mind that, in this context, the Claimant’s land (and possibly some of the neighbouring land) does not itself form part of an area (i.e. the Order land) that has been found to be under-used or ineffectively used.

For those reasons I prefer Mr McCracken’s submissions on this aspect of the matter and I reject the arguments put forward by both Mr Maurici and Mr Cameron. In my view, the error made by the Secretary of State in confirming the Order in respect of Order land that had only been found to be “predominantly under-used or ineffectively used” cannot properly be remedied by recourse to section 160(4) of the 1993 Act. It therefore follows that, for the foregoing reasons, this first ground of challenge succeeds.

Ground 2. The second ground of challenge is pleaded in the following terms:

“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.”

Article 8 of the ECHR provides as follows:

“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.”

Article 1 of the First Protocol to the ECHR is in the following terms:

“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.”

It was common ground that the Order does constitute an interference with the Claimant’s rights under both Articles since it deprives her of her home. It was also common ground that the onus is on the public authority to justify that interference with the Claimant’s rights.

I accept Mr McCracken’s submission that if (as I have held to be the case) the Secretary of State did err in confirming the Order for the reasons given above when dealing with the first ground of challenge, it follows that the interference in question is not in accordance with the law, is therefore not justified and constitutes a breach of section 6(1) of the Human Rights Act 1998. Thus, in consequence of my conclusion on the first ground of challenge, this second ground of challenge must also succeed on that basis in any event. Accordingly, in the paragraphs that follow I propose to set out my analysis and conclusions on this second ground of challenge on the assumed basis that I was wrong to uphold the first ground of challenge for the reasons that I did.

Although Article 8 and Article 1 of the First Protocol are differently worded in terms of justification, I accept that the effect of each is very similar: see Chapman ~v~ UK (2001) 33 EHRR 18 (“Chapman”). Article 8 requires any interference to be necessary in a democratic society in the interests of a number of listed aims that include “the economic well-being of the country” and “the protection of the rights and freedoms of others”. The latter has been held to include the preservation of the environment and the giving effect to environmental policy more generally: see Chapman at paragraphs 80-82.

As pleaded in paragraph 50 of the Grounds, it is accepted by the Claimant that the Agency’s legitimate aim is to regenerate the Edge Lane Area. In my view, that is an aim that is clearly encompassed by the expression “the economic well-being of the country” and I also accept that the regeneration of Edge Lane would give effect to numerous environmental policies. It is beyond argument that both the Inspector and the Secretary of State fully understood that the purpose of the Order was to achieve the regeneration of the Edge Lane area. I therefore do not accept Mr McCracken’s submission that neither the Secretary of State nor the Inspector identified which legitimate aim was relied upon for the purposes of Article 8 (see paragraph 51(2) of Mr McCracken’s written skeleton argument).

Mr McCracken submitted further that for an interference to be “necessary in a democratic society”, the interference must be proportionate to the aim pursued. It was Mr McCracken’s submission that the word “necessary” in the context of Article 8 does not have the flexibility of meaning of such expressions as “useful”, “reasonable” or “desirable, but implies the existence of a “pressing social need” for the interference in question: see Dudgeon ~v~ UK (1981) 4 EHRR 51.

Central to his submissions on this ground of challenge was Mr McCracken’s contention that it is well established that the means used must be no more than that which is necessary to accomplish the objective: i.e. in this case, in order to be necessary the means used to achieve the legitimate aim of the regeneration of the Edge Lane area must be the least intrusive of the Claimant’s Convention rights that can be devised in order to meet that aim.

In support of that submission, Mr McCracken referred to and relied on R (Daly) ~v~ Secretary of State for the Home Department (2001) 2 AC 532 (“Daly”), Samaroo ~v~ Secretary of State for the Home Department (2001) UKHRR 1150 (“Samaroo”) and R (Edith Baker) ~v~ First Secretary of State (2003) EWHC 2511 (Admin) (“Baker”).

In the course of his speech in Daly, Lord Steyn said this at paragraph 27:

“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.”

In his judgment in Samaroo, Dyson LJ put the matter in this way (see paragraphs 19 to 20):

“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.”

Mr McCracken submitted that Dyson LJ’s formulation in Samaroo was clearly consistent with the principle enunciated by Lord Steyn in Daly and hadbeen expressly followed by Nicholas Blake QC, sitting as a Deputy High Court Judge, in Baker. On the issue of proportionality, Nicholas Blake QC posed the question:

“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.”

Mr McCracken submitted that neither the Inspector nor the Secretary of State had properly applied the proportionality test in respect of the interference with Convention rights in this case nor, for that matter had there ever been a proper consideration of the human rights issues by the Agency, the Inspector or the Secretary of State. Mr McCracken referred to the Agency’s Board Minutes for 22^nd September 2004 (see paragraphs 49 to 51 of the Minutes) and suggested that there had been only a cursory consideration of the human rights issue in this case. He submitted that the section in question consisted of nothing more than a mere recital of the most basic principles and the bald conclusion that any interference with human rights was considered to be justified in order to secure the desired regeneration and the public benefits that the regeneration proposals would bring and that the proposed compulsory purchase order would strike a fair balance between the public interest and private rights. Mr McCracken suggested that the Agency appeared only to have considered the area as a whole and that it had made no assessment of any individual human rights and that the Agency’s Statement of Reasons and Statement of Case were similarly deficient.

Mr McCracken referred to the Inspector’s report and to the Secretary of State’s decision letter and submitted that treatment of the human rights issue by both the Inspector and the Secretary of State had also been very cursory and consisted of little more than bald statements to the effect that the interference would be proportionate and that a fair balance would be struck between the public interest and the private interests. Mr McCracken argued that neither had engaged with the issue of whether the legitimate aim could be achieved by less intrusive means and submitted that, as a result, both had failed to apply the proportionality test properly. In short, he submitted that the Order had been made without any, or any adequate analysis of the interference with the Claimant’s Convention rights (a further important aspect of which was the exclusion of the Claimant from the housing market that it is said will result from the inadequacy of compensation for property in this area of housing market failure: see paragraphs 70 and 71 of Mr McCracken’s written skeleton argument) and that the interference was disproportionate and not justified.

I agree with Mr Maurici’s observation that, so far as concerns the second ground of challenge, the real focus or the central point of the Claimant’s case is the alleged lack of proportionality that the interference with the Claimant’s rights under both Articles gives rise to. I also agree with Mr Maurici’s submission that the Claimant’s case on this aspect of the matter rested on the following three main points: (i) that less intrusive alternatives were not considered; (ii) that there had been a failure to consider properly the human rights issues; and (iii) that compensation will be inadequate. However, before turning to consider each of these matters, it is necessary to refer first to four key points made by Mr Maurici (and adopted by Mr Cameron) with regard to the relevant legal context.

(1) Mr Maurici submitted first that the policy requirement that a CPO will not be confirmed unless there is a compelling case in the public interest (see also paragraph 17 of the Circular quoted in paragraph 18 above) fairly reflects the necessary element of balance required in the application of Article 8 and Article 1 of the First Protocol to the ECHR: see London Borough of Bexley and Sainsbury’s ~v~ Secretary of State for the Environment (2001 EWHC Admin 323, paragraphs 33-48. Accordingly, there is no requirement to set out in a formulaic way the extent to which rights are interfered with. The Inspector’s report and the Secretary of State’s decision letter should be read as a whole in order to determine whether the necessary balancing exercise has been properly carried out. I accept that submission as correct.

(2) Mr Maurici’s second key point was that there is a wide margin of appreciation in relation to both Articles in terms of proportionality: see, for example, James ~v~ UK (1986) 8 EHRR 123 and Bleric ~v~ Croatia (2005) 41 EHRR 13. Again, I agree with that submission.

(3) Mr Maurici’s third key point was, as it seems to me, a crucial one in the context of this particular ground of challenge. It was Mr Maurici’s submission that a measure can be proportionate even if it is not the least intrusive means possible. In order to make that point good, Mr Maurici referred to a number of European and domestic authorities, to the main ones of which I now turn before expressing my conclusion with regard to this particular point.

James ~v~ UK (1986) 8 EHRR 123 (“James”)is a case that concerned an alleged violation of Article 1 of the First Protocol in the context of leasehold enfranchisement legislation. The European Court of Human Rights (“the ECtHR”) held that the State enjoys a wide margin of appreciation when deciding upon social and economic measures (see paragraph 46). The applicant argued that the expropriation of property could only satisfy the requirements of Article 1 of the First Protocol if there was no “other less drastic remedy” to resolve the problem at which the legislation was aimed. That argument was rejected by the ECtHR in the following terms (see paragraph 51):

“… 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.”

In Handyside ~v~ UK (1976) 1 EHHR 737 (“Handyside”) the ECtHR observed that, in the context of Article 10(2) of the ECHR, “… the adjective “necessary” … is not synonymous with “indispensable” (see paragraph 48). The court compared the position with that arising under Article 6(1), where the words are “strictly necessary”, and Article 2(2), where the words are “absolutely necessary”. As the Court of Appeal observed in R (Clays Lane Housing) ~v~ Housing Corporation (2005) 1 WLR 2229 (“Clays Lane Housing”: as to which, see below), it was these more rigorous tests that were rejected by the ECtHR in James in the context of Article 1 of the First Protocol.

Handyside was cited and applied by the European Commission in X ~v~ UK 28 DR 177 at page 184 in the context of rejecting a complaint of an alleged violation of Articles 8 and Article 1 of the First Protocol by reason of a CPO of a house under the Housing Act 1957. In Howard ~v~ UK (1987) 52 DR 198, the public interest (including the rights of future homeowners) was found to be capable of outweighing the interests of existing homeowners where the land was to be acquired for redevelopment.

In R (Fisher) ~v~ English Nature (2004) 1 WLR 503 (“Fisher”), Lightman J said that, in the light of James, “The fact that there may be other even better methods of achieving the same ends does not necessarily mean that any particular measure is disproportionate under Article 1”(see paragraph 46). Lightman J’s formulation was cited with approval by the Court of Appeal in Clays Lane Housing at paragraph 13 and his judgment was upheld on appeal (see (2005) 1 WLR 147).

I accept Mr Maurici’s submission that the intensity of review depends upon the particular context in question in a given case. I also agree that the Samaroo approach is not one of universal application. Thus, in the subsequent case of Lough ~v~ First Secretary of State (2004) 1 WLR 2229, the Court of Appeal made it clear that the Samaroo approach was not applicable in the context of decision making in the planning field. At paragraph 55 of his judgment in that case, Keene LJ put the matter in this 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.”

Similarly, in Clays Lane Housing, the Court of Appeal distinguished Samaroo and made it clear that the approach adopted in that case was not one of universal application. Like the present case, Clays Lane Housing involved the compulsory expropriation of property, i.e. the compulsory transfer of land from one registered social landlord to another in the light of mismanagement. I agree with Mr Maurici that all the relevant case law in this area is very fully analysed in Clays Lane Housing. After making it clear that it was now established that Samaroo approach was not one of universal application (see paragraph 21), Maurice Kay LJ stated as follows at paragraph 25:

“… 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.”

I therefore reject Mr McCracken’s submission that the means used to achieve the regeneration of the Edge Lane area must be the least intrusive of the Claimant’s convention rights. The Samaroo approach is not one of universal application and I approach the matter on the basis of the law as stated in Clays Lane Housing, in particular in paragraph 25 quoted above.

(4) Mr Maurici’s fourth key point was that, other than in exceptional circumstances, compensation is required in cases involving the deprivation of property. However, he submitted (correctly, in my view) that the Strasbourg case-law shows a marked reluctance to entertain allegations that the quantum of compensation is inadequate, unless the method for its calculation is manifestly without any reasonable foundation: see James at paragraphs 53 to 55.

I now turn to consider the three main points on which the Claimant’s case on this ground of challenge rested (see paragraph 65 above).

1. The failure to consider less intrusive alternatives. Mr Maurici submitted that this complaint should be rejected for the following reasons: (i) this matter was, in fact, considered by both the Inspector and the Secretary of State and (ii) in any event, rejection of a less intrusive alternative does not of itself mean that there is a lack of proportionality.

Turning to the first of these points, I accept that the Inspector did give extensive consideration to the issue of whether the regeneration aims underlying the Order could be achieved by other means (see IR, paragraphs 462 to 484) and that he concluded that there were no “realistic existing alternative proposals capable of implementation”. I am satisfied that this was a conclusion that the Inspector was entitled to come to on the evidence that he heard and considered. As for the Secretary of State, in paragraph 9 of his decision letter, he expressly agreed with the Inspector’s conclusion and went on to say:

“… 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.”

In my view, the following extracts from the Inspector’s findings are of particular importance on this aspect of the matter:

“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.”

In accordance with the guidance in Appendix C to the Circular, the Inspector also considered whether the proposed regeneration was, on balance, more likely to be achieved if the land was acquired by the Agency, including consideration of the contribution that acquiring the land was likely to make to stimulating and/or maintaining the long-term regeneration of the area (see IR, paragraphs 472 to 484. In this regard, the Inspector’s key findings were:

I accept Mr Maurici’s submission that, on the whole, the “alternatives” listed in the Claimant’s Grounds as providing a less intrusive means of achieving the necessary regeneration merely repeat “ideas” that were floated and rejected at the Inquiry as not practicable. On this aspect of the matter, I am satisfied that the Inspector and the Secretary of State made appropriate findings of fact and planning judgments as to the alternative “proposals” and concluded that there were no realistic existing alternatives. I accept Mr Maurici’s submission that those findings and judgments cannot be said to be Wednesbury unreasonable or “manifestly without reasonable foundation” (the relevant Convention test in this context: see James supra). Accordingly, I am satisfied that the Inspector’s assessment (accepted in due course by the Secretary of State) that there were, in fact, no less intrusive alternatives to the proposed scheme was properly made. I reject Mr McCracken’s submissions to the contrary effect.

Turning to the second point made by Mr Maurici on this aspect of the matter, I also agree that, even if a practical and less intrusive alternative means of achieving the required regeneration had been available, the rejection of such an alternative in favour of the confirmation of the Order does not, of itself, mean that there is any lack of proportionality. The case-law cited above and, in particular, James and Clays Lane Housing make it clear that proportionality in this context does not compel the decision-maker to show that he has adopted the “least intrusive” alternative. As it seems to me, the views expressed by the Court of Appeal in Clays Lane Housing (see the passage from paragraph 25 of the judgment, quoted above) are very apposite in relation to CPOs aimed at delivering regeneration schemes such as the present. I am therefore satisfied that the balancing exercise carried out by the Inspector and the Secretary of State in this case was sufficient to meet the requirement of proportionality.

2. The failure to consider the human rights issues properly. The Claimant’s case is that the Order will have significant effects on her personally and on her community that are not justified by its purported benefits. It was Mr McCracken’s submission that neither the Inspector nor the Secretary of State had given adequate consideration to the Claimant’s human rights and he emphasised the brevity of the specific references to that issue, describing its treatment by each as “cursory”.

As I have already indicated (see paragraphs 66 and 67 above), I accept that there is a margin of appreciation and that there is no need for a formulaic approach to the human rights balancing exercise, because the ordinary test of a compelling case in the public interest necessarily encompasses that exercise. I also agree with the following submissions made by Mr Maurici in the light of those propositions.

I am therefore satisfied that the human rights issues were properly considered by both the Inspector and the Secretary of State. I reject Mr McCracken’s submissions to the contrary effect.

3. The inadequacy of compensation. This can be taken very briefly. There is no doubt that compensation is payable. The amount payable will be determined in accordance with the Compensation Code applicable to all persons displaced from their homes as a result of a CPO. This compensation includes the market value of the house, a disturbance allowance and a home loss payment.

The Compensation Code has been held to comply with Article 8 and Article 1 of the First Protocol: see Howard ~v~ UK Application 10825/84, Decision dated 18^th October 1985. Although it appears that the amount of the compensation will be adversely affected by the local housing market failure phenomenon, this does not of itself constitute an infringement of Article 8 and/or Article 1 of the First Protocol because the compensation will be for the value of what is taken (i.e. the market value). In addition, there are elaborate procedures in this case for assistance and additional compensation beyond that which is payable under the Code. I am therefore satisfied that there is no substance in this particular point.

Accordingly, other than on the limited basis set out in paragraph 54 above, I have come to the conclusion that this ground of challenge fails for the reasons expressed in paragraphs 55 to 88 inclusive.

Ground 3. The third ground of challenge is pleaded in the following terms:

“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.”

Article 6(1) of the ECHR provides as follows:

“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.”

I accept that the compulsory purchase procedure is a determination of the Claimant’s civil rights: see R (Alconbury Developments Ltd ~v~ Secretary of State for the Environment, Transport and the Regions (2003) 2 AC 295, per Lord Slynn at paragraph 41. Article 6 is therefore engaged in this case.

Mr McCracken submitted that Article 6 guarantees a right of “effective” access to court and that, therefore, compliance with the Convention can require the provision of legal aid for an individual in an appropriate case. In support of that submission he referred to and relied on two cases: Airey ~v~ Ireland 2 EHRR 305 (“Airey”) and Steel and Morris ~v~ United Kingdom (2005) 41 EHRR 22 (“Steel and Morris”).

Airey involved divorce proceedings that had to be prosecuted in the High Court by means of a lawyer. The ECtHR found that the applicant did not enjoy an effective right of access to the court (see paragraph 28). The court pointed out that the absence of an express provision in the text of Article 6 requiring the provision of legal aid in civil cases means that any implied obligation will be less extensive that the (express) right to legal aid in criminal cases. The court recognised that there may be occasions when appearing before a civil court in person would meet the requirements of Article 6(1) and that there may be occasions when that possibility secured adequate access “even to the High Court” (see paragraph 26). However, the court noted that “ … much must depend on the particular circumstances” and went on to state as follows:

“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.”

In Steel and Morris the principal complaint under Article 6(1) was that the applicants had been denied a fair trial because of the lack of legal aid. The trial itself involved particularly heavy and notorious libel proceedings brought by the well-known fast-food chain “McDonalds” against the two litigants in person. The proceedings achieved the dubious distinction of having been the longest ever civil trial in English legal history. The ECtHR held as follows:

“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-à-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 …”

The essence of the Claimant’s case under this ground of challenge is that the compulsory purchase inquiry was so complex, lengthy and technical that she should have received funding for legal representation and the services of professional witnesses at the inquiry, particularly in view of the fact that the Agency was represented by experienced Leading and Junior Counsel and a large and well resourced firm of solicitors. It is said that the need for funding was heightened by the importance of what was at stake for the Claimant (namely, her home) and that the lack of sustained legal representation prevented the Claimant from presenting her objections practically and effectively to the Inspector, as compared with a well resourced acquiring authority and thus contributed to an inequality of arms in breach of Article 6.

Mr Maurici accepted that ordinarily Community Legal Funding (“legal aid”) is not available in respect of inquiries. However, exceptionally funding is sometimes provided: see, for example, what was said about this by Harrison J in R ~v~ Secretary of State for the Environment, Transport and the Regions, ex parte Challenger (2001) Env LR 12 (“Challenger”).

It appears that the Claimant applied for but failed to obtain legal aid. The Claimant then asked the Inspector at a pre-inquiry meeting to make an order on behalf of the Secretary of State for the Agency to pay her, and the other statutory objectors, a reasonable amount to cover her legal costs. This was referred to as a “pre-emptive application for costs”. The subsequent history relating to this application, its outcome and the way the matter was dealt with by the Inspector in his report is accurately summarised in paragraphs 96 to 101 of the written skeleton argument prepared on behalf of the Secretary of State, as follows:

“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.”

In short, the Inspector declined to make the order and suggested that the application should be addressed directly to the Secretary of State and provided the correct details to enable that to be done. It appears that no application was actually made to the Secretary of State in the event.

Mr Maurici submitted (correctly, in my view) that there are three reasons of principle that support a restrictive approach to examining any obligation to provide legal aid in civil cases.

First, as the ECtHR observed in its judgment in Airey, the absence of an express provision in the text of Article 6 requiring the provision of legal aid in civil cases means that any implied obligation will be less extensive than the (express) right to legal aid in criminal cases.

Second, where there is no express obligation to provide legal aid in civil cases, the Convention leaves Contracting States with a free choice of means of ensuring that there is an effective right of access to court: see Airey at paragraph 26. It is relevant that the tribunal conducting a hearing takes steps to ensure that the individual is not disadvantaged in presenting his or her case effectively and goes into matters in care and detail to ensure that the case is understood. This will be particularly relevant as a factor in the context of an inquisitorial procedure such as applies in a planning inquiry, in which the task of the Inspector is to get to the real facts and form his own judgment in the light of his own inquiry: see the observations of Sullivan J in R (on the application of Hadfield) ~v~ SSTLGR (2002) EWHC 1266 Admin (“Hadfield”) at paragraphs 50 and 51.

Third, as the ECtHR and the Commission have recognised, Contracting States do not have unlimited resources to fund legal aid systems for civil cases, and therefore measures to allocate the available resources to where they are most needed are in principle legitimate: see, for example, Winer ~v~ UK (1986) 48 DR 154.

Mr Maurici submitted that neither Airey nor Steel and Morris was analogous to the present case. I agree. The High Court proceedings in Airey required the presence of a lawyer and Steel and Morris was a quite exceptionally heavy case by any standards. Both cases involved civil litigation of the conventional, adversarial kind, in contrast to the inquisitorial approach of the Inspector in the present case. The difference for the purposes of Article 6 between inquisitorial and adversarial procedures was rightly and helpfully emphasised by Sullivan J in Hadfield at paragraph 50: see also the decision of Harrison J in Challenger.

In my view, Challenger is a case with similarities to the present case. In Challenger a complaint of inequality of arms was raised in the context of a forthcoming inquiry concerning, inter alia, compulsory acquisition relating to the Thameslink 2000 rail project. At the pre-inquiry meeting, third party objectors argued that the issues to be determined were so complex and technical that they should be given funding for representation. The Inspector indicated that he would go to great lengths to assist those unfamiliar with the process or those who were not represented to the same degree as the principal parties. The Inspector also suggested that the objectors either apply to the Legal Services Commission or write to the Chief Planning Officer or the Secretary of State to request funding. An application was made to the Legal Services Commission and it was refused. However, no request was made to the Chief Planning Officer or to the Secretary of State. The applicants sought permission to apply for judicial review on the basis that the denial of legal funding was a breach of Article 6(1).

Harrison J dismissed the application, holding that even in the absence of legal funding the claimants would have a reasonable opportunity to present their case given the duty of the inspector to facilitate the participation of the public: see paragraph 50. Airey was distinguished as the “high water mark of Strasbourg jurisprudence”, in which its “nature and facts” was to be distinguished from Challenger: see paragraph 47.

I have come to the conclusion that this third ground of challenge fails for two reasons.

First, in my view the Strasbourg case law upon which the Claimant relies does not cover the circumstances of the present case for the following reasons.

Second, looking at the “nature and facts” of the present case, I am satisfied that the Claimant was in fact given a “reasonable opportunity to present her case”, which is the essence of the requirement of “equality of arms”: see Dombo Baheer BV ~v~ The Netherlands (1993) 18 EHHR 213 at paragraph 33. I reach that conclusion based on the following principal facts.

I therefore accept that the Inspector’s own assessment of the “equality of arms” issue is both fair and accurate: see paragraph 494 of his report, which is in the following terms:

“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.”

Accordingly, for those reasons, I am satisfied that the third ground of challenge fails.

Conclusion. For the reasons already given, I have come to the firm conclusion that this challenge succeeds on both Ground 1 and Ground 2 (to the limited extent indicated in paragraph 54 above). I will hear further submissions from Counsel as to the appropriate form of Order and with regard to any consequential applications.