Pascoe v Secretary of State for Communities & Local Government & Ors

MR JUSTICE OUSELEY: Elizabeth Pascoe ("the claimant") owns her house within an area covered by the Urban Regeneration Agency (Edge Lane West, Liverpool) Compulsory Purchase Order (No 2) 2007. She objected to the making of this CPO in both her capacity as a statutory objector and as chairman of a group of objectors known as "Better Environmental Vision for Edge Lane" or "BEVEL".

The objectors were heard at a Public Inquiry in January and February 2008, but, in his report of 3rd July 2008, the Inspector appointed to hold the inquiry recommended confirmation of the CPO without modification. The Secretary of State for Communities and Local Government accepted his conclusions and recommendations and, after considering post-inquiry representations, confirmed the CPO in a decision letter dated 29th September 2008.

The claimant challenges that decision under section 23(1) of the Acquisition of Land Act 1981, on the grounds that authorisation was not empowered under that Act because a material consideration, namely post-inquiry representations, had been ignored, and because relevant procedural requirements, that is the giving of legally adequate reasons, had not been complied with, to her substantial prejudice.

The Urban Regeneration Agency, which merged with the Commission of New Towns to operate as English Partnerships, made this CPO under section 162 of the Leasehold Reform, Housing and Urban Development Act 1993. This was the second CPO for this area, because the decision of the Secretary of State on the previous Compulsory Purchase Order had been held to be flawed, which meant that the CPO itself was quashed.

Although English Partnerships is referred to by that name in the Inspector's report, English Partnerships is now the Homes and Communities Agency, and has been since the beginning of December 2008, under the Housing and Regeneration Act.

Section 162 of the 1993 Act permitted the Urban Regeneration Agency to acquire land compulsorily for the purpose of achieving its objects which, by section 159, included making effective use of land which was vacant or unused or underused, or land which was derelict or neglected. There is no dispute but that the areas within the CPO satisfy that criteria in general, albeit that parts, including the claimant's house by itself, did not. There is no challenge here to the lawfulness of the coverage of the CPO.

The regeneration or development underlying this CPO has two interrelated components. First, the widening of Edge Lane, the east-west link from the M62 into Liverpool City Centre, which is a designated freight route. This, as part of the proposals, would involve the demolition of property as well, mostly on the south side of Edge Lane. The second component of the regeneration proposal is the redevelopment of a substantial area of land on either side of the improved Edge Lane, extending to some 8.8 hectares in total, to be used for new housing and employment.

The Order Land, aside from Edge Lane itself, is a mix of primarily residential uses, with some commercial and community uses in a mix of ages and designs, including suburban Victorian dwellings. The Inspector described the Order Lands in this way:

BEVEL's objections centred on its alternative vision for Edge Lane, known as Plan B. This, simplifying it, involved, first, a lesser degree of widening of Edge Lane with narrower lanes and with cycle tracks, in part to reduce the impact of the road on the built environment, and in part to enable much more of the existing property alongside it to be retained. The second component involved much less demolition in the hinterland on either side of Edge Lane and a rolling programme of refurbishment and renovation for many of the properties, but still with the same aim of regenerating the area, the need for which was common ground.

In understanding the submissions made by BEVEL to the Inspector, and to this court, the policy in ODPM Circular 06/2004 "Compulsory purchase and the Crichel Down rules" is relevant, in particular paragraph 17. This says:

On 15th September 2005 Liverpool City Council granted detailed permission for the Edge Lane widening part of the scheme and outline planning permission for the rest. An application for the approval of reserved matters under the outline planning permission for an area wholly to the south of Edge Lane was submitted to the City Council at around the time of the Inquiry, and was made available to the Inspector. These planning applications did not arrive out of the blue; precursor documents included the supplementary planning document of 2005, approved by the Commission for Architecture and the Built Environment (CABE), statutory advisers to the Government on areas indicated by its name, and a master plan.

The Inspector gave careful consideration to Plan B, a considerable development from that which the objectors had provided at the first CPO Inquiry. He was impressed by the way in which its alternative highway proposal had been thought out and applauded its traffic management techniques. It was superior to EP's proposal, because it included provision for cyclists. He said at paragraph 610 that it would have the potential to perform almost as well as the EP scheme in terms of traffic management and flow. Nonetheless, it had disadvantages. The carriageway and lanes were narrower and he noted the risk of conflict between the wing mirrors of large vehicles passing each other on a designated freight route. He said in paragraph 614 that the design of the road, as widened, had to take account of its function as a freight route, and that which was put forward by BEVEL did not comply with the relevant design manual. Nonetheless, he said:

The Inspector cross-referred to earlier parts of his report as the basis for this conclusion, which drew upon his record of EP's case. At paragraph 190 he recorded that Plan B showed a benefit to cost ratio (BCR) of between 0.625 and 1.450. The Department for Transport guidance showed this to fall, at the lower point of the range, in an area of "poor value for money", where it was policy not to fund such highway works. At the upper end of the range, it fell within the area of "low value for money", where policy was to fund very few such highway works. In his conclusions, the Inspector clearly accepted the points made by EP in that respect.

The Inspector then turned to wider aspects:

He considered the built environment as follows:

He said by way of summary:

After making various criticisms of the road proposals put forward by EP, the Inspector concluded:

His overall conclusions included this:

The first ground upon which the claimant challenges the Order concerns post-inquiry representations. On 7th March 2008 CABE wrote to Liverpool City Council in response to its consultation on Bellway Homes' application for approval of reserved matters for the development to the south of Edge lane, pursuant to the outline planning permission granted in September 2005. It appears that CABE sent copies of its letter to the Government Office for the North West and to the Department of Communities and Local Government. However, a copy of the letter was also sent by a witness for BEVEL to the Secretary of State for Communities and Local Government for the Secretary of State to consider as a post-inquiry representation. It was given an inquiry reference. I infer that it was one of those considered by the Secretary of State and referred to in paragraph 13 of her decision letter.

The procedural consequences of the receipt of post-inquiry representations may vary according to their significance. There is no doubt but that the Secretary of State was obliged to, and I infer did, take it into account. The procedural obligations, as submitted by Mr Maurici, correctly, thereafter, are contained in Rule 17(4) of the Compulsory Purchase by Non-Ministerial Acquiring Authorities (Inquiries Procedure) Rules SI 1990/512. This provides that:

The Secretary of State and EP, now HCA, as an interested party, say that the Secretary of State was not disposed to disagree with the Inspector in consequence of the post-inquiry representation sent to it, and so there was no need to permit representations to be made or to re-open the inquiry. That, in reality, is not the gravamen of the claimant's point.

The CABE letter declared this was to be its formal response to the planning application made by Bellway Homes for approval of reserved matters. It said that this was the first time that it had reviewed the proposals for Edge Lane West and the application "represents one element of a complex programme of measures" within the area. Under the heading "Highway widening and existing housing stock", the letter noted that in principle the regeneration aspirations were supported, but it then added this:

The claimant contended that the substance of this letter was material to key issues of the acceptability, in urban design terms, of the widening of Edge Lane. It contained a fundamental objection to the scheme and contradicted what the Inspector had said in paragraph 626 (above) to the effect that the proposal followed CABE guidance. Mr Stinchcombe for the claimant submitted that it could not have been properly understood and was therefore ignored, in view of the absence of any reference in the Secretary of State's conclusion to the significance of the letter. Alternatively, no legally adequate reason had been given for any conclusion which had been reached in relation to it, or as to why it failed to cause disagreement with the Inspector's conclusions or a need for re-opening the inquiry.

Mr Cameron submitted that the first two paragraphs of the letter which I have cited were providing a context for the comments on the application for approval of reserved matters which followed, and that those passages which could be regarded as containing a more fundamental objection should be seen merely as setting the context for what was to follow.

Mr Maurici for the Secretary of State did not go quite so far, but argued that on a proper analysis of the letter it raised nothing beyond what had already been dealt with, and so required no further reasons for any conclusion which might have been reached, nor did it create any need for further representations to be sought from objectors. There is no evidence that any responses, countering what CABE said, were sent to the Secretary of State, although it is clear that its letter generated annoyance amongst EP, the Northwest Regional Development Agency and Liverpool City Council.

The Inspector had the application for approval of reserved matters as one of his Inquiry documents, and reached his conclusions and recommendations aware of its contents. He commented in paragraphs 642-643:

That was a perfectly correct stance for him to take. CABE had not participated at the inquiry in any way and did not send this letter to the Secretary of State for purposes related to the confirmation, or refusal to confirm, of the CPO. Its origin is Bellway Homes' application for approval of reserved matters on part of the Order Lands, and Liverpool City Council's consultation process. It describes itself as "the formal response to that application". But, true though those points are, they cannot of themselves determine the real scope of the comments made by CABE. Once it is before the Secretary of State, as it was, and once it is taken into account, as it was, the Secretary of State has to understand its contents correctly. Although I note that it says that this is the first time that CABE has reviewed the proposals, the letter makes points which go to the heart of the highway issues, as proposed, in the first substantive paragraph of the letter, urging an exploration of alternatives to the proposed widening. The dualling, it says, should be designed to minimise disruption, particularly to existing houses facing demolition. I do not accept Mr Cameron's submission that this should be seen as mere context for subsequent design comments. I note in passing, though not as an aid to its interpretation, that English Partnership, the Northwest Regional Development Agency and Liverpool City Council all saw it as more fundamental than that and wrote to CABE in strong terms about the opportunity for judicial review its allegedly ill-thought-out words had created and demanding retractions which were not forthcoming. That material was not before the Secretary of State.

The letter points out in the next paragraph, the second paragraph under the heading "Highway widening and existing housing stock", that the demolition of the houses would be a loss to the townscape and buildings better than those lost would be required in order to replace them. I accept Mr Maurici's point that this can be seen as both a commendation of the existing buildings and as setting the design context, or standard, for the replacement dwellings, which were the subject matter of the application for approval of reserved matters. The rest of the letter, up to the conclusions, is clearly dealing with the application for approval of reserved matters, severely and generally damning though the CABE comments are. The conclusion can then be seen as both a general rejection of the proposal underlying the CPO and of the proposed reserved matters.

Mr Maurici, in my judgement, however, correctly submits that the first paragraph under the heading "Highway widening and existing housing stock" is dealing with highway issues by way of asking for alternatives to be examined because of the objectionable nature of that which EP was proposing. It is also clear that that paragraph, and indeed the whole letter, was written without any knowledge of what had transpired at the Inquiry. The Secretary of State, however, did know what had happened at the Inquiry because she had the Inspector's report and she did know that an alternative had been considered and rejected by the Inspector after analysis. It is clear, also, that the alternative put forward in Plan B came from much the same wellspring of urban design as that which commended itself, in general terms, to CABE in its letter of 7th March 2008. CABE, in that letter, was doing no more than expressing in general terms its dislike of the proposal and a request for consideration of alternatives. That request had in fact already been complied with, unbeknownst to CABE, through the Inquiry process. The alternative, very much along the lines CABE wanted considered, had indeed been considered by the Inspector but then rejected. It follows that there is nothing in that paragraph of the letter which could require more reasoning from the Secretary of State than the adoption of the Inspector's reasoning. The Secretary of State did not need to ask anybody, let alone an objector, for a response.

Mr Stinchcombe is right to say that the CABE comment went to the heart of the scheme and to the heart of one of the principal controversial issues, but in my judgement he is wrong to say that every comment upon it, every consideration relevant to that principal controversial issue, required to be dealt with by reasons explicitly devoted to it for analysis of the issue to be lawful.

In my judgment, Mr Maurici is also right in his analysis of the second paragraph of the letter. No Secretary of State comment was required, insofar as the second paragraph provided only a context for the assessment of the application for approval of reserved matters. Insofar as there was a wider comment by way of opposition to demolition, the Inspector had already reached his own view on an analysis of the townscape role and quality of buildings in the Order Land and did so in agreement with the views of the previous inspector, which were summarised in paragraph 621, which I have already set out. The view of CABE is relevant, but what it adds is not new material or a different judgment; it only adds the weight of its own judgment, admittedly more authoritative than that a local resident, to that which has already been considered.

The Inspector, in agreeing with the previous inspector, recognised that the built environment to Edge Lane had certain qualities. He accepted that:

Insofar as it offered a context for the appraisal of the reserved matters, the Inspector was entitled to assume, as he did, that Liverpool City Council would seek to ensure "that details approved will provide a fitting gateway to the city".

Accordingly, in my judgment, this paragraph also required no further reasoned comment from the Secretary of State. Nor did the conclusion to the CABE letter require any further comment. It was either drawing on specific areas, which themselves required no specific response for the reasons which I have given, or it was dealing specifically with the application for approval of reserved matters, which it was not for the Secretary of State directly to rule on in her letter. I do not think, therefore, that Ground 1 contains any error of law, nor any legally inadequate reasons. Certainly no substantial prejudice has been shown. On the contrary, the HCA demonstrated that no substantial prejudice was in fact caused.

A letter of 10th February 2009 from CABE to the Liverpool City Council, on revisions to the application for approval of reserved matters made in response to CABE's detailed comments, makes it abundantly clear that its objections to, or doubts about, the scheme, expressed in its 7th March 2008 letter, have been dispelled with words of applause, congratulations and welcome for the proposed scheme and the way the design shows promise of the "long-term transformational change" required for the "Housing Market Renewal agenda". It is plain that, were the CPO to be quashed, and a new one made, as it would have to be, and a new Inquiry held, CABE would not provide opposition to the proposal in line with what might have been hoped by the claimant from parts of its letter of 7th March 2008 and the Inquiry would be a rerun of the one just concluded, which led to the decision under challenge.

For the same reasons, namely the inevitability of the same outcome, I would have refused relief in the exercise of my very limited discretion if I had concluded that the first CABE letter had been misunderstood and, therefore, a material consideration had been ignored. The consideration had ceased to be material. Accordingly, Ground 1 fails.

Ground 2 seeks to challenge the Inspector's conclusion that Plan B was not deliverable, although he found much in it to be of value. Mr Stinchcombe focused on the Inspector's conclusions in paragraphs 615, 617 and 621, material parts of which have been set out already.

To the extent that Mr Stinchcombe's argument drew upon what CABE said in its letter of 7th March 2008 as confounding what the Inspector said in paragraph 626, namely that the redevelopment followed CABE guidance, there is nothing to be gained from the letter itself for the reasons already given. The real point of the CABE guidance can be taken from these two paragraphs:

Mr Stinchcombe argued that the Secretary of State had ignored the fact that if Plan B was preferable, its deliverability should be examined on the basis that a public authority's powers and resources would be directed to its achievement and that the public authorities would not simply sulk in their tents until they got their own way. I accept that if the Inspector's conclusion had been based on such a stance, there would have been at least a good case for arguing that there had been a legal error on his part, and on the Secretary of State's part in confirming the CPO.

Mr Cameron described it as an unattractive stance and I think it may be worse than that. However, the Inspector's approach was not that, when fairly judged. He considered the alternative in Plan B in light of the guidance in the Circular to which I have already referred. It is true, as a fact, that Plan B does not have planning permission, either for the highway part, or for the other parts of the development, nor does it have listed building consent, as would be required. It is true, as a fact, that the Highway Authority would oppose the particular highway in Plan B. However, that would be for good reasons, as the Inspector, overall, plainly concluded in the parts from his report which I have cited, relating to the function of the road as a designated freight route and the problems for that which would be created in safety and capacity terms by the narrow lanes and carriageway, as well as the problems for pedestrians, who would have to cross five lanes in one fell swoop.

The view that it was a proposal unlikely to achieve funding drew upon Department for Transport policy criteria for the benefit to cost ratio, rather than some selfish restriction on public funds. Mr Stinchcombe emphasises that that policy did not mean that a proposal which had a BCR in excess of one was necessarily precluded, but it is quite clear that a bucket of cold water is thrown over its prospects, in policy terms.

The recognition of the difficulties of obtaining listed building consent for the alteration to St Cyprian's Church is correct, but the question of how much weight is given to that is for the Inspector. I do find his comment that Plan B would require the use of CPO powers a little odd as an objection to an alternative scheme — he was well aware of the full extent of public ownership of Order Lands already — but it is fair to say that the process of compulsory purchase and objection would not be eliminated, as can sometimes happen, by an alternative scheme. He also made his position very clear in paragraphs 615, 617 and elsewhere about the financial problems of a rolling, and in parts self-financing, programme of refurbishment. There was no evidence of anyone willing to undertake it at Edge Lane, nor of anyone having done so in the past, in such circumstances, or on such a scale. The process was one which would have to draw upon private investment if it was to replicate that which underpins the financing of the EP scheme, rather than merely on public resources.

In the end I have concluded that Mr Stinchcombe's submissions on Ground 2 are effectively precluded by the careful reasons and conclusions of the Inspector. In reality, his submissions were arguing the merits of the compulsory purchase order, rather than, in substance, an error of law. Accordingly, Ground 2, and the challenge with it, Mr Stinchcombe's persuasive advocacy notwithstanding, fail.

MR MAURICI: My Lord, I would ask for an order that the claimant pay the Secretary of State's costs, subject to its community legal funding, because Ms Pascoe has the benefit of a legal aid funding certificate.

MR CAMERON: I do not make any application, my Lord. I hope it assists, there are two very minor points on your Lordship's judgment.

MR JUSTICE OUSELEY: Yes, please.

MR CAMERON: I think your Lordship may have inadvertently referred to CABE as the Commission for Archeology and the Built Environment. They are the Commission for Architecture and the Built Environment.

MR JUSTICE OUSELEY: They are indeed.

MR CAMERON: Another very minor point, your Lordship referred to EP's application for approval of reserved matters. It matters not for the judgment, but it was not actually EP's application, it was Bellway Homes. (Pause).

MR STINCHCOMBE: My Lord, I cannot resist the application for costs. I do, however, seek permission to take this matter to the Court of Appeal. I understand, of course, the trenchant terms in which the judgment was delivered, and also the argument in respect of discretion, but nonetheless, in my respectful submission, the two points are clearly of profound importance, not least to my client, but also to the proper assessment of the CPO's impact with a scheme such as this, and the CABE letter is amenable to an alternative construction. My Lord, for those reasons I seek permission to take this further.

MR JUSTICE OUSELEY: I am not going to give you permission. You can take it, Mr Stinchcombe, that I am well aware of the distress that the CPO creates for those whose land is to be taken. The construction which I gave to the CABE letter was as favourable to your case as it could be. The discretion point, I think, is the least of your hurdles. Although I did not think it was particularly trenchant — I hesitate to think what it would be like if I thought it was trenchant — I do not think you have any reasonable prospects. So there will be an order for the payment of the Secretary of State's costs, subject to the usual rules.

Your client is legally aided?

MR STINCHCOMBE: Legally aided, my Lord.

MR JUSTICE OUSELEY: With a nil contribution?

MR STINCHCOMBE: Yes, my Lord.

MR JUSTICE OUSELEY: Can you tell me what the usual order is?

MR MAURICI: My Lord, I understand that there is a usual order that the Administrative Court uses. It is to do with detailed assessment under the community legal --

MR JUSTICE OUSELEY: That is a different issue. In terms of the order for costs, not to be enforced without the leave of the court. Your costs will be subject to detailed assessment.

MR STINCHCOMBE: My Lord, I am told we also need a legal aid order as well.

MR JUSTICE OUSELEY: You should be legally-aided already.

MR STINCHCOMBE: My Lord, unless it has already been covered, it is simply this, that we do need an order for publicly funded costs to be assessed on a detailed basis.

MR JUSTICE OUSELEY: That is the detailed assessment.