Pascoe v The First Secretary of State

Compulsory purchase powers for area-wide regeneration may be exercised by assessing the designated land as a unified and coherent whole. Individual parcels need not each independently satisfy the statutory description. However, the statutory requirement must still be met: a finding that land is only predominantly under-used or ineffectively used is insufficient where the statute requires the land to be under-used or ineffectively used.

A decision cannot normally be upheld on a materially different statutory basis that was not advanced before the specialist decision-maker. In compulsory purchase cases, proportionality requires a compelling public-interest case and a fair balance. It does not invariably require adoption of the least intrusive alternative. An inquisitorial compulsory purchase inquiry may satisfy Article 6 where the objector has a reasonable opportunity to present the case.

The claimant challenged the confirmation of a compulsory purchase order made by the Urban Regeneration Agency, operating as English Partnerships, for an area of Liverpool intended for highway, housing and commercial regeneration.

The challenge alleged that the Agency lacked statutory power under the Leasehold Reform, Housing and Urban Development Act 1993, that the interference with the claimant’s Convention rights was unjustified, and that the inquiry was unfair because public funding for legal representation was unavailable.

The Secretary of State had accepted the Inspector’s report and confirmed the order. The central issues were whether the statutory land description had been satisfied, whether the order was proportionate, and whether the claimant had received a fair hearing.

1. Ground 1 succeeded. Section 159(2)(b) of the Leasehold Reform, Housing and Urban Development Act 1993 permits an area-wide assessment. The relevant question is whether the order land, considered as a unified and coherent whole, is under-used or ineffectively used. Parliament did not intend to confine regeneration powers to piecemeal acquisition of individually qualifying plots (paras [34]-[37]).
2. The Inspector and the Secretary of State nevertheless erred by finding only that the order land was “predominantly” under-used or ineffectively used. That wording diluted the statutory requirement and did not establish that the order land as a whole satisfied section 159(2)(b) (paras [39]-[44]).
3. The error could not be cured by relying on sections 160(4) and 162(1) to acquire allegedly non-qualifying land for purposes incidental to the Agency’s objects. That would substitute a new statutory basis for the case advanced before the inquiry, usurp the specialist decision-maker’s function, and deny objectors a proper opportunity to challenge the new basis (paras [45]-[49]).
4. Ground 2 succeeded to the limited extent arising from Ground 1. Since the compulsory acquisition was not in accordance with law, the interference with the claimant’s rights under Article 8 and Article 1 of the First Protocol was unjustified under section 6(1) of the Human Rights Act 1998 (para [54]). On the assumed alternative basis, the challenge failed. Proportionality required a compelling public-interest case and a fair balance, but not invariably the least intrusive means. The Inspector and Secretary of State had considered alternatives, human-rights impacts and compensation adequately (paras [66]-[89]).
5. Ground 3 failed. Article 6 was engaged, but the claimant had not exhausted the available route for seeking discretionary inquiry funding and had been given a reasonable opportunity to present her case. The inquiry was inquisitorial, assistance had been provided, and the circumstances did not require publicly funded representation (paras [100]-[111]).

The court concluded that the challenge succeeded on Grounds 1 and 2 to the limited extent stated and would hear further submissions on the appropriate order.

This was a first-instance judicial review challenge to the Secretary of State’s confirmation of the compulsory purchase order. No prior appellate decision is stated in the judgment.