Michael & Ors v Secretary of State Fro the Communities and Local Government & Anor

For compulsory purchase powers under the Leasehold Reform, Housing and Urban Development Act 1993, the statutory description of the order land is assessed by considering the land as a unified and coherent whole. Land may fall within the description of under-used or ineffectively used land even though some part is occupied and used. Evidence that buildings on the site are vacant, poorly occupied, poorly maintained or inappropriate to their setting may support that conclusion. The effect of compulsory acquisition on affected businesses must also be considered proportionately by balancing the resulting hardship against the scheme’s beneficial effects.

The claimants sought permission to appeal from Goldring J’s dismissal of their statutory challenge to a compulsory purchase order made by English Partnerships concerning land in front of Lime Street Station, Liverpool. The order was made under the Leasehold Reform, Housing and Urban Development Act 1993. The site included an unoccupied office tower and shops, some of which were occupied by the claimants.

The inspector recommended confirmation of the order, and the Secretary of State accepted that the land was either vacant or, considered as a whole, under-used or ineffectively used. The central issues were whether the statutory description applied to the whole site, whether the acquiring authority had contributed to the alleged under-use, and whether the effect on the claimants’ businesses had been proportionately assessed.

1. Permission refused. The judge below had applied the correct legal test and made no error of law.
2. Section 159(2) of the Leasehold Reform, Housing and Urban Development Act 1993 identifies descriptions of land which English Partnerships may acquire compulsorily. Although the site was not wholly vacant, it could still satisfy section 159(2)(b), which concerns land in an urban area that is under-used or ineffectively used.
3. The order land was to be assessed as a unified and coherent whole, in accordance with Pascoe v Secretary of State [2006] EWHC 2356 Admin. Occupation and use of part of the site did not prevent the site as a whole from being under-used or ineffectively used. The vacancy of the tower and most shops, poor occupancy history, poor maintenance, shabby appearance and unsuitable accommodation were relevant evidence.
4. The Secretary of State’s use of the word “all” did not disclose an error of law. It meant that the land as a whole fell within the statutory description, rather than that every part was individually vacant or under-used.
5. The human rights issue required a proportionality assessment. The hardship caused by compulsory acquisition of the claimants’ businesses had to be balanced against the beneficial effect of the proposed regeneration scheme. The inspector and Secretary of State had undertaken that assessment, and their conclusion disclosed no legal error.
6. The allegation that English Partnerships had caused the under-use was rejected on the evidence and did not undermine the decision. The application for permission to appeal was refused.

• Court of Appeal (Civil Division): Application for permission to appeal refused. Tuckey LJ and Rix LJ; Rix LJ agreed with Tuckey LJ.
• Administrative Court, Queen’s Bench Division: Goldring J dismissed the statutory challenge to the compulsory purchase order.
• Inspector and Secretary of State: The inspector recommended confirmation of the order, and the Secretary of State accepted the recommendation.