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Pascoe v Secretary of State [2006] EWHC 2356 (Admin)

DATE: 27 Sep 2006

The High Court (Mr Justice Forbes) has held that the Secretary of State's confirmation of the Urban Regeneration (Edge Lane West, Liverpool) Compulsory Purchase Order 2005 ("the Order") made by English Partnerships under s. 162(1) of the Leasehold Reform, Housing and Urban Development Act 1993 ("the 1993 Act") was ultra vires.

The scheme underlying the Order involves the widening and realignment of Edge Lane and the wider regeneration of the Edge Lane West area. The Edge Lane West area lies within one of the Housing Market Renewal Pathfinder areas.

The confirmation of the Order was held to be ultra vires on the basis that the Inspector and the Secretary of State had concluded that the land within the Order was "predominately underused or ineffectively used" and that this was not a sufficient finding to satisfy the requirements of s. 159(2)(b) of the 1993 Act. The learned Judge found this to be an impermissible watering down of the statutory test.

Having reached that view the learned Judge also held that the Order was not in accordance with the law for the purposes of Article 1, Protocol 1 of the Convention but he rejected the Claimant's submissions that the Order was disproportionate. The judgment confirms that the Samaroo (2001) UKHRR 1150) principle that a measure is only justified if it uses the least intrusive means to achieve its aim was not applicable in the context of compulsory purchase (applying James v UK (1986) 8 EHRR 123; Lough v First Secretary of State (2004) 1 WLR 2229 and R (Clays Lane Housing) v Housing Corporation (2005) 1 WLR 2229).

The learned Judge rejected submissions that the Claimant was deprived of a fair hearing contrary to Article 6(1) of the Convention or because of the unavailability of public funding for legal representation. He applied the decisions in R (on the application of Hadfield) v SSTLGR (2002) EWHC 1266 Admin and R v Secretary of State for the Environment, Transport and the Regions, ex parte Challenger (2001) Env LR 12.

Katherine Olley appeared (as junior counsel) on behalf of the Claimant. James Maurici appeared on behalf of the Secretary of State Neil Cameron appeared on behalf of English Partnerships Sasha Blackmore represented Liverpool City Council.