McCabe & Ors v Secretary of State for Communities and Local Government & Anor

For compulsory acquisition under section 159(2)(b) of the Leasehold Reform, Housing and Urban Development Act 1993, the relevant land may be assessed as a unified and coherent whole. The authority need not establish that every individual plot is separately under-used or ineffectively used. It must, however, show that the land as a whole satisfies the statutory description. A finding that the land is merely predominantly or mainly under-used is insufficient. Occupied parts must be considered, but vacant or neglected parts may provide evidence of ineffective or under-use. Whether the statutory test is met is a question of fact. Adequate reasons need not address each individual plot separately where the decision-maker has considered the whole site and explained the conclusion.

The claimants were lessees of three businesses in a complex outside Lime Street Station, Liverpool. They challenged the Urban Regeneration Agency’s compulsory purchase order for approximately 0.49 hectares made under section 162(1) of the Leasehold Reform, Housing and Urban Development Act 1993. The Secretary of State confirmed the order following a public inquiry.

The claimants argued that each part of the order land had to fall within section 159(2)(b), that occupied shops could not be acquired, and that the inspector and Secretary of State had failed to give adequate reasons. They also raised human rights objections. The central issue was whether the statutory condition could be assessed by reference to the building complex and land as a whole.

1. Claim dismissed. The Secretary of State was entitled to confirm the Urban Regeneration Agency (Lime Street Gateway, Liverpool) Compulsory Purchase Order 2005. The claimants were ordered to pay the Secretary of State’s agreed costs of £8,156.
2. Section 159(2)(b) required consideration of whether the order land, viewed as a unified and coherent whole, was under-used or ineffectively used. It did not require a separate statutory finding for every individual plot or shop. The court approved the reasoning in Pascoe v Secretary of State (Urban Regeneration Agency and Another, Interested Parties) [2006] 4 All ER 1240 that area-wide regeneration could require acquisition of an entire coherent site.
3. A finding that land was merely predominantly or mainly under-used would not satisfy the statutory test. The inspector in Pascoe had applied the wrong test, but the present inspector was entitled to find that the complex as a whole was under-used or ineffectively used.
4. The inspector was entitled to consider both occupied shops and the vacant tower. The tower’s vacancy, the majority of vacant shop units, prolonged poor occupancy, lack of further interest, shabby appearance, poor maintenance and the inadequacy of the premises for a key city-centre location together constituted evidence capable of supporting the statutory conclusion. An impression of neglect and unsightliness was relevant evidence, although insufficient by itself.
5. The inspector’s reasons, including his cross-references to the inquiry evidence, were adequate. The Secretary of State was entitled to rely on them. References in the decision letter to vacant or dilapidated land did not invalidate the decision because the statutory question had, in substance, been addressed under section 159(2)(b).
6. It was unnecessary to determine the scope of section 162(1) concerning purposes incidental to regeneration. The Secretary of State was also entitled to conclude that interference with the claimants’ property rights was justified and proportionate in light of the public benefits of the scheme.

The claim was a first-instance judicial review challenge to the compulsory purchase order. The Secretary of State had confirmed the order on 6 October 2006 after considering the inspector’s report and the parties’ objections.

Permission to appeal was refused, but the time for filing an appellant’s notice was extended to 21 days from delivery of the transcript.