Walker & Anor v Secretary of State for Communities and Local Government & Anor

In construing a regeneration funding agreement, wording describing buildings as intended for residential or mixed use may identify the buildings eligible for acquisition, demolition, conversion or improvement. It need not require the cleared site ultimately to be used for residential or mixed purposes. The word “demolition” and the clause’s grammatical structure are important. Recitals and policy material forming part of the agreement’s context may confirm a broader regeneration purpose, including education and other public services. An interpretation imposing a damaging restriction on regeneration uses, without support in the wording, gives no realistic prospect of a successful appeal.

Blackburn with Darwen Borough Council made a compulsory purchase order on 24 October 2006 to assemble and clear a site for a city academy. Following a public inquiry, the Inspector recommended confirmation and the Secretary of State confirmed the order on 3 October 2007.

The applicants applied under section 23 of the Acquisition of Land Act 1981 to quash the order and also sought judicial review. Wilkie J dismissed both claims on 24 January 2008. Permission to appeal was refused on the papers, and the applicants renewed the application on one ground, the Funding Point.

The issue was whether clause 8.1(i)(b) of the Market Restructuring (Implementation) Agreement permitted funding for acquiring and demolishing buildings intended for residential or mixed use where the cleared land was to be used for a city academy rather than residential or mixed development.

1. Application refused. The renewed application for permission to appeal was refused. The Funding Point had no realistic prospect of success.
2. Construction of clause 8.1(i)(b). The clause concerned the character of the buildings eligible for acquisition, demolition, conversion or improvement. The words “intended for residential or mixed use” identified the buildings themselves. They did not prescribe the ultimate use of the cleared land. The reference to “their” acquisition, demolition and other works, together with the presence of “demolition”, supported that construction. By contrast, clause 8.1(i)(a) expressly referred to redevelopment “for the purpose” of residential or mixed use.
3. Context. The recitals and policy documents were relevant context and aided construction of the Agreement. They showed a broad regeneration purpose, addressing poor-quality or surplus housing and making areas more attractive places to live. Regeneration could include non-residential uses, including improved schools and other public services. The proposed construction would impose a surprising and damaging restriction unsupported by the Agreement’s wording.
4. Separate reasoning of Pill LJ. Although the clause was grammatically capable of the applicants’ reading, the word “demolition” could not be ignored. The policy background did not support the applicants’ interpretation. A further argument concerning the limiting effect of the Inspector’s construction might arise in another case, but it did not make this proposed appeal arguable.

• Court of Appeal (Civil Division): On 6 March 2008, the renewed application for permission to appeal was refused: [2008] EWCA Civ 328.
• High Court of Justice, Queen’s Bench Division: Wilkie J dismissed the application under section 23 of the Acquisition of Land Act 1981 to quash the compulsory purchase order and dismissed the associated judicial review claim on 24 January 2008.
• Secretary of State: The compulsory purchase order, made under section 226(1)(a) of the Town and Country Planning Act 1990, was confirmed on 3 October 2007 following the Inspector’s recommendation.