David Foley v The County Council of the City and County of Cardiff
| Jurisdiction | England & Wales |
| Judge | Jarman |
| Judgment Date | 07 August 2020 |
| Neutral Citation | [2020] EWHC 2182 (Admin) |
| Date | 07 August 2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5057/2019 |
[2020] EWHC 2182 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Cardiff Civil and Family Justice Centre
2 Park Street, Cardiff CF10 1ET
HIS HONOUR JUDGE Jarman QC
Case No: CO/5057/2019
Mr Adam Corbin (instructed by Michelmores LLP) for the claimant
Mr Robin Green instructed by the defendant
Hearing dates: 20 July 2020
Approved Judgment
HH JUDGE Jarman QC:
Introduction
The claimant challenges the making by the defendant council (the council) of a compulsory purchase order (the order) of a dwelling owned by him at 1 Cyril Crescent, Roath, Cardiff (the property). It is an end of terrace two storey property in a popular location about one mile from the city centre and close to local amenities, but has stood empty since 1994. In 2016 the council adopted The Cardiff Housing Strategy 2016–2021 (the strategy) which indicates that there are about 5000 people with a local connection in urgent, high, or medium need for accommodation. On page 25 it is stated that where a co-operative approach to bringing empty dwellings back into beneficial ownership fails, consideration will be given to compulsory purchase.
The order was made pursuant to statutory powers under Parts I and II of the Acquisition of Land Act 1981 and section 17 of the Housing Act 1985. It is well established that a compulsory purchase order should only be made where there is a compelling case in the public interest and where the purpose of making such an order sufficiently justifies interfering with the human rights of those with an interest in the land affected (see for example, Margate Town Centre Regeneration Company Ltd & Ors v Secretary of State for Communities and Local Government and Anor [2103] EWCA Civ 1178 at [17]).
In the statement of reasons accompanying the order, the council's case for making the order included observations that the property had stood empty since 1994, that it was unsuitable for occupation and deteriorating though lack of maintenance, that it was causing a nuisance to neighbouring properties, that complaints had been received regarding the vacant status and poor condition, and that it was considered to be detrimental to the amenities of the area. Reference was also made to the growing demand for housing in Cardiff and the number of homeless households in temporary accommodation in Cardiff being the highest in Wales. The council intends to auction the property for refurbishment as a residential property.
The claimant's challenge is brought under section 23 of the Acquisition of Land Act 1981 as a person aggrieved by the making of the order. The validity of it may be questioned under subsection (1) on the ground that the authorisation of the order is not empowered to be granted, and under subsection (2) that any relevant requirement has not been complied with. Section 24(2) provides that if the court is satisfied that the authorisation was not empowered or that the interests of the applicant have been substantially prejudiced by any relevant requirement not having been complied with, the court may quash the order.
The essence of the claimant's challenge is that in deciding to make the order, the council did not properly take into account that he has been suffering from chronic depression and anxiety for several years. The medical evidence filed in this appeal shows that this means he has low energy levels and has difficulty in dealing with day to day activities, difficulties with concentration and social functioning, and needs help to manage his affairs. It is not in dispute that he has suffered with these conditions over such a period and that they amount to protected characteristics within the meaning of sections 4 and 6 of the Equality Act 2010 (the 2010 Act).
The claimant submits therefore that the council is in breach of its duties under the 2010 Act, that the decision to make the order was irrational and disproportionate, was procedurally unfair and/or in breach of the claimant's rights under the Human Rights Act 1998.
Background
The background to the matter can be summarised from a report dated 27 April 2018 (the report) by Lucy Marley, a neighbourhood services officer employed by the council on behalf of the council's head of housing enforcement, who had engaged with the claimant on the issue of the property over a number of years. The report was addressed to the council's director of communities, housing and customers services and requested that the order be made in respect of the property.
An officer first visited the property in late 2008 and in the spring next year wrote to the claimant setting out various options for returning the property into beneficial occupation and asking for his proposals. In his response by telephone he said that he had purchased the property a few years beforehand and was renovating it little by little but that he had family problems which hindered progress. He said that he intended to convert the property into two flats.
On a further visit in the spring of 2012 it was noted that internal walls were hacked back to stone and uPVC windows had been installed on the first floor. Subsequent letters in the summer and autumn of that year brought no response. After a further visit in December when no further progress was noted, the council wrote again informing the claimant that it intended to commence a compulsory purchase procedure early in the new year and enclosed an application pack for a Welsh Government scheme (the scheme) known as ‘Houses into Homes’ which included loans on favourable terms to fund refurbishment of empty house with a view to beneficial occupation. The claimant telephoned again in response to say that he had suffered significant problems including the death of his parents and a close friend which had hindered progress.
The claimant returned the scheme application the following spring but without supporting documentation, and, despite being chased by the council for these throughout the summer the documentation was not forthcoming. By telephone in August 2013 he informed the council that his depression was hindering progress, and was told that the scheme would help to complete the refurbishment, but matters could not go on indefinitely without formal action being taken. Despite further emails and phone calls, and agreement that a local councillor should liaise between the council and the claimant to help with the scheme application, no substantial progress was made until the spring of 2014.
In April 2014, the council served an improvement notice in relation to the side boundary wall and blown render on the side elevation of the property. There were further telephone conversations between the parties in which the claimant raised his problems already discussed. An inspection in July 2014 revealed that the blown render had been hacked off and removed but the boundary wall remain in the same condition. Further inspections were made between then and January 2017, and a chasing letter sent, but there was no further progress on the renovations. Accordingly, in that month the council wrote to inform the claimant that the compulsory purchase procedure would be commenced which prompted a meeting of the parties at the property the following month.
A new floor and ceiling joists had been fitted by the time of the meeting and further building materials were on site. The claimant explained that he had personal and financial issues which had delayed progress. His plan now was to convert the property into six units of accommodation, for which he needed planning permission, and to apply to a local housing association for an empty property loan. Subsequent enquiries revealed that association did not provide such loans, and that by August 2017 the claimant had not made applications for planning permission or for a loan under the scheme. A further meeting took place between the claimant, Ms Marley and another officer of the council at its offices in October 2017. The claimant discussed his mental health and financial issues. The meeting ended with the officers indicating that progress had to be demonstrated, particularly in relation to the scheme loan. The council contacted the scheme administrator who confirmed that an application pack had been sent to the claimant but further inquiries early in the new year revealed that no application had been made for the scheme loan or for planning permission.
Again, the council sent letters indicating that a compulsory purchase procedure would be commenced and in an e-mailed response in March 2018 the claimant stated that he had been unwell but was recovering. In reply the council stated that the procedure would be proceeded with but could be held in abeyance if notable progress was made.
The claimant made an application for a scheme loan, but did not include in that application the requisite planning permission or building regulation approval or costs estimates. The officer dealing with that application emailed Ms Marley on 3 April 2018 to inform her of that, to ask how long the property had been empty, and to say she would be kept in the loop with the application. It was said that the claimant had stated that he would apply for these approvals when the loan had been agreed, but it was pointed out to him that the loan would not be authorised until he had the relevant approvals.
Ms Marley emailed a response the same day, which included the following passages:
“He came into the offices for a meeting…and we made it clear then that he has to submit all that before he...
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