Pascoe v First Secretary of State, Urban Regeneration Agency and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 08 March 2007 |
| Neutral Citation | [2007] EWHC 1024 (Admin),[2006] EWHC 2356 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 March 2007 |
| Docket Number | CO/3114/2006 |
[2007] EWHC 1024 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Sullivan
CO/3114/2006
MR P STINCHCOMBE (instructed by Messrs Davies Gore Lomaz) appeared on behalf of the CLAIMANT
MR D ELVIN QC AND MR R WALTON (instructed by Messrs Berwin Leighton Paisner LLP) appeared on behalf of the DEFENDANT
MR T BULEY (instructed by Messrs Eversheds LLP) appeared on behalf of the INTERESTED PARTY
Since I propose to discharge the order made by Grigson J but to grant permission to apply for judicial review and to grant interim injunctive relief until the substantive hearing is dealt with, but also to expedite the substantive hearing, I shall give my reasons at slightly greater length than usual in a permission case. I do so out of deference to the arguments that have been put before me and in recognition of the importance of the issues for the parties.
There are a number of applications before the court. The first is an application by the defendant, supported by the interested party, to discharge a without notice injunction granted to the claimant by Grigson J on Saturday 17th February 2007. The injunction restrains the demolition "of properties on Edge Lane until either a Compulsory Purchase Order for the scheme that the properties are affected by is granted, or further Order of the court."
The second application is an application by the claimant for permission to apply for judicial review of the defendant's decision to demolish properties in the Edge Lane area of Liverpool in advance of consideration being given by the Secretary of State to a Compulsory Purchase Order and to an alternative scheme. That application, which was served on the defendant's solicitors on 6th March, also contains an application for interim injunctive relief restraining demolition in the Edge Lane West area pending confirmation of a compulsory purchase order, or further order, save for action which is necessary to make the properties in that area safe. The claimant's application is opposed by the defendant and the interested party.
There is no dispute that the interim injunction which was obtained by the claimant herself in person should be discharged. There is a dispute as to whether (a) permission should be granted to apply for judicial review and, if so, (b) interim relief should be granted. This morning I heard submissions from Mr Stinchcombe on behalf of the claimant, Mr Elvin QC on behalf of the defendant and Mr Buley on behalf of the interested party. There is no dispute that the properties which the defendant wishes to demolish, 30 to 36, 50 to 60 and 62 to 64 Edge Lane, are owned by the defendant and that it has the necessary planning permissions to demolish them under the Town and Country Planning (General Permitted Development) Order 1995. Planning permission in respect of 30 to 36 and 58 to 60 was granted on 13th October 2005 and planning permission in respect of 62 to 64 was granted on 21st February 2007. In such circumstances, it is common ground between the parties that there would be nothing to prevent a private landowner from demolishing his property for whatsoever reason he might wish. However, the claimant submits that as a public body the defendant does not have such freedom of action, and that the defendant's decision to demolish the properties is irrational.
The background to the challenge is briefly summarised as follows. I would emphasis that this is, of necessity, a very brief summary and full details are contained in the witness statements of Mr Culkin on behalf of the defendant and to a somewhat more limited extent in the claimant's own witness statement.
The multiple economic social and housing problems of Liverpool's inner core are well-known. One of the nine "Pathfinders" under the Government-led Housing Market Renewal Initiative ("HMRI") is Newheartlands Pathfinder in Merseyside. Because the inner core of Liverpool is a very large area, four Zones of Opportunity have been identified. The properties in question are in the Wavertree Zone of Opportunity which in turn contains a number of neighbourhood renewal areas. The properties in question are in the Kensington Neighbourhood Renewal Area, which contains six neighbourhoods, one of which is the Edge Hill intervention area.
On 10th January 2005, the interested party made the Urban Regeneration Agency (Edge Lane West Liverpool) Compulsory Purchase Order 2005. Following a public local inquiry in October 2005, the Inspector recommended that the order should be confirmed and, in a decision letter dated 15th February 2006, the Secretary of State confirmed the order. On 26th September 2006, Forbes J decided that the confirmation of the order was unlawful. He invited submissions from the parties as to the form of the final order and, having received those submissions, on 16th November 2006 he quashed the Compulsory Purchase Order.
In a letter received by the claimant on 26th February 2007, the interested party told affected property owners in the area that:
"English partnerships and its partners remain committed to delivering this important regeneration scheme.
Your property lies within the area affected by this proposal and, in order to deliver the comprehensive regeneration scheme, English Partnerships will therefore need to acquire the property. English Partnerships is resolved that it may make a CPO for the purposes of acquiring the property interests which are required within this defined area."
In a nutshell, Mr Stinchcombe submits that, since the properties proposed to be demolished by the defendant were required to be demolished in order to implement the comprehensive regeneration scheme which was to be delivered by the first Compulsory Purchase Order, there is no good reason to demolish them now when it is not certain that that comprehensive scheme will be able to proceed. Until it is decided whether or not the second Compulsory Purchase Order should be confirmed, the only practical result of demolition would be that one would have two cleared sites along the Edge Lane frontage, certainly for months, perhaps for years. He further submits that an intention to frustrate the Secretary of State's consideration of alternative approaches to regeneration of the area at any future inquiry into the second Compulsory Purchase Order would not be a proper reason for demolition. Both the defendant and the interested party disavow any such intention but, Mr Stinchcombe submits, that would be the only practical effect of demolition at this stage.
On the material presently available to the court, I see a great deal of force in that submission. Although the defendant (supported by the interested party) contends that the properties were acquired for demolition and that regeneration is not, or not wholly, dependent upon the exercise of compulsory purchase powers, there is no doubt that demolition of these properties has never been an end in itself. Thus, in November 2004, when the Kensington Renewal Area was declared following a detailed renewal assessment, it was said in respect of the Edge Hill neighbourhood:
"The NRA has recognised that the condition of the housing within the central core of the Edge Hill area is such that it should be dealt with as a priority. The NRA therefore recommends that the area between Marmaduke Street and Durning Road and Arnside Road to be redeveloped. This should be achieved through a phased programme of demolition and redevelopment involving a range of house types and phasing which is sensitive to residents' wishes for rehousing either within or outside Edge Hill;"
The September 2004 Assessment had referred to public support in the Edge Hill neighbourhood for:
"… the proposals for the creation of a 'Regeneration Corridor' involving the clearance and redevelopment of commercial, industrial and residential property frontages to Edge Lane and adjacent areas. This scheme will deliver significant economic benefits for the local community and will provide a new 'Boulevard' along Edge Lane to both enhance the area and improve the route into the city centre."
A plan in the mass of documentation before the court identifies the Edge Lane "regeneration corridor".
In October 2005 the NRA Delivery Plan for the Edge Hill neighbourhood said:
"Durning Road to Marmaduke Street (including Arnside Road)
The proposal is for clearance and redevelopment on a phased basis."
and there followed a table, under headings "Action", "Aim", "Expected results", "Partners" and "Lead Agency". In the "Action" column there is "Demolition of selected properties". The aim is described as "Demolish unsustainable housing". The expected result is "Cleared sites for new build" and then the partners under the agency are given.
On the information presently available to the court, the need to redevelop these particular properties in Edge Lane would appear to be closely linked to the road proposals for Edge Lane, which are shown on a plan at page 79 of the bundle. The impression that demolition is intended to be followed in the case of these properties by comprehensive redevelopment is reinforced by the evidence of Mr Lewis-Ward, the Area Director of the interested party at both the inquiry into the Compulsory Purchase Order and in his evidence in response to the High Court challenge that was heard by Forbes J. In his evidence to the inquiry, he said this in...
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