Case No: C1/2007/1049
Neutral Citation Number: [2007] EWCA Civ 960
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
QUEEN’S BENCH DIVISION
(MR JUSTICE GOLDRING)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 6th September 2007

Before:

LORD JUSTICE TUCKEY
and
LORD JUSTICE RIX
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Between:

MICHAEL AND ANIS McCABE & Ors
	
Appellant	
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THE SECRETARY OF STATE FRO THE COMMUNITIES AND LOCAL GOVERNMENT & Anr

Respondent	

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(DAR Transcript of 
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THE APPELLANT APPEARED IN PERSON, WITH McKENZIE FRIEND.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment

Lord Justice Tuckey:

1.	This is a renewed application by the four claimants in these proceedings for permission to appeal from the decision of Goldring J, dismissing their statutory challenge to the making of a compulsory purchase order.  That order was made by the Urban Regeneration Agency, better known as English Partnerships, under the provisions of the Leasehold Reform, Housing and Urban Development Act 1993, which gave it powers to acquire land by compulsory purchase in certain circumstances.  
2.	The 0.49 hectares of land in question lies in front of Lime Street Station in Liverpool, on which there is now a 13-storey 1970s concrete office block, which is completely unoccupied, and 13 small single-storey shops, 6 of which are occupied by various retailers, including the applicants.
3.	English Partnerships’ view, which the inspector and the Secretary of State accepted, is that the existing buildings obscure the station’s architecture, restrict access from it to the city centre, and project the wrong image of a city in the process of revitalising itself by being “inappropriate to the historic, architectural and townscape context of the area”.  The development proposed by English Partnerships involves demolition of the existing buildings, enhanced access facilities for the station as part of an open area of striking contemporary design, and retail office and residential units set in a landmark 27-storey tower.
4.	The 1993 Act only empowers English Partnerships to acquire land of one or more of the descriptions mentioned in Section 159(2).  The relevant ones for present purposes are sub-section (a) land which is vacant or unused; and sub-section (b) land which is situated in an urban area and which is under-used or ineffectively used.  It is now at least, common ground, based on the decision of Forbes J, in Pascoe v Secretary of State [2006] EWHC 2356 Admin, that to decide whether the order land meets one or other or both of these descriptions, one must consider it as a unified and coherent whole.
5.	Although in this case parts of the land in question were vacant or unused, the whole of it was not, if only for the reason that the applicants occupied and used part of it.  So the question in this case was whether the land fell within the description contained in sub section (b).  The applicants contended that it did not and so the compulsory purchase order was not empowered.  They took this and other points before the inspector at a public enquiry.  The inspector concluded that “A clear case can be made from the enquiry evidence that the land and buildings within the order site are vacant, underused or ineffectively used”. He recommended that the compulsory purchase order should be confirmed.  In her decision letter, the Secretary of State concluded that “…all the land to which the Order relates is either vacant or situated within an urban area and underused or ineffectively used in accordance with a 1993 Act”, and accepted the inspector’s recommendation.  
6.	The judge, in the course of a long and careful judgment, accepted that both the inspector and the Secretary of State had applied the right test.  The land did not meet the sub section (a) description because it was not vacant, but the fact that the tower and the majority of the shop units were vacant was clear evidence of under or ineffective use to be taken into account under sub section (b).
7.	In their well prepared and carefully thought out written submissions and in the oral submissions made to us this morning, by Mr McCabe, the applicants take a number of points about the conclusions reached by the inspector, the Secretary of State and the judge, to which I have referred.  Firstly they say that the inspector referred to “land and buildings”, when the statute only refers to land. This was not a point taken before the judge when the applicants were represented by counsel and it is not, I think, a good point either.  Sub section (b) is concerned with the use to which the land is being put; buildings stood on part of it which were being under or ineffectively used.   So therefore was the land.
8.	The next point is use of the word “all” by the Secretary of State.  This, it is said, discloses an error because, self-evidently, all the land was not vacant, under or ineffectively used.  The applicants themselves were occupying some of it and using it.  Quite so, but the Secretary of State could not have meant this; all she was saying is that the land as a whole fell within this description; and that accords with the test approved in Pascoe. 
9.	The grounds of appeal also raise a point taken before the inspector that English Partnerships, who bought the freehold of the buildings in 2002 and 2004, had allowed them to become under or ineffectively used.  But this allegation was rejected by the inspector.  The judge summarised his conclusions on this aspect of the case at paragraph 59 of his judgment, where he said:
“ What the evidence found by the inspector comes to is this.  The tower is vacant.  The majority of the shops are empty.  The area is in decline.  It has been for some time.  The building was poorly maintained before EP acquired the freehold.  No enquiries have been made to occupy further shops or the tower (other than temporarily).  There has been a lengthy history of poor occupancy and a high turnover of tenants.  The appearance is shabby.  The quality of accommodation and services to be expected of modern commercial premises in such a key location are not offered by the tower.  The environment created by the nature and appearance of the building complex is poor for Lime Street Station.  Whilst not sufficient on its own, an impression of neglect and unsightliness is, in my view, some evidence of under or ineffective use.  EP’s decision not to enter into any new lease agreements may have been a small contributory factor, as the inspector found.”

10.	In the face of those conclusions it does not seem to me that the point made by the applicants takes them very far.  
11.	This morning, Mr McCabe said that the inspector and the Secretary of State had not properly considered the human rights aspects of the effect of this compulsory order upon his and the others’ businesses, but it is quite clear from the inspector’s report and the Secretary of State’s letter that they did take this into account.  The question was one of proportionality.  The hardship which would be created by compulsorily acquiring these applicants’ business had to be balanced against the beneficial effect of the scheme.  I can see nothing wrong in the way the inspector and the Secretary of State struck this balance.
12.	Finally, it is said that a different judge might have taken a different view of this case; I doubt that very much, but that is not a ground of appeal. The question is whether this judge made any error of law in reaching his decision.  Like Waller LJ, who refused permission to appeal on the papers, I do not think he did.  For those reasons I would refuse permission to appeal.
Lord Justice Rix:
       13. I agree.

Order: Application refused.