Elliott v Southwark London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JAMES,LORD JUSTICE MEGAW |
| Judgment Date | 24 February 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0224-5 |
| Date | 24 February 1976 |
| Court | Court of Appeal (Civil Division) |
In the Matter of the Selborne Road (No. 1) Compulsory Purchase Order, 1973, made by London Borough of Southwark
and
In the Matter of the Decision of the London Borough of Southwark refusing to make Rehabilitation Orders
and
In the Matter of the Housing Act, 1974, as amended:
[1976] EWCA Civ J0224-5
Lord Justice Megaw
Lord Justice James and
Lord Justice Geoffrey Lane
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Justice Willis - London)
Mr. Peter Boydell, Q.C., Mr. Desmond Keane and Mr. Patrick Crawford (instructed by Messrs. Jeffrey Gordon & Co.) appeared on behalf of the Appellants (1st, 2nd, 6th and 10th Plaintiffs).
Mr. Gerald Moriarty, Q.C. and Lord Colville (instructed by Mr. A.J. Allen, Deputy Town Clerk, London Borough of Southwark) appeared on behalf of the Respondents (Defendants).
The judgment which Lord Justice James is about to deliver is the judgment of the Court.
This is an appeal expedited by order of the Court from the judgment of Mr. Justice Willis of 2nd February, 1976, made on the hearing of an originating summons taken out on 22nd January, 1976. In that summons ten plaintiffs claimed declarations and injunctions against the defendants, the Mayor Aldermen and Burgesses of the London Borough of Southwark. Four of those plaintiffs are the appellants in this appeal. They are Mrs. A. Elliott, Mrs. K.L. Iwegbu, Mr. W.S. Davidson and Mrs. Lunette Hunte.
The background to the appeal is the introduction by legislation in 1974 of the concept of the rehabilitation of houses as an alternative to demolition, clearance and redevelopment. The relevant statutory provisions are the Housing Act, 1974, section 114, and the 10th Schedule to that Act as amended by the Housing, Rents and Subsidies Act, 1975. The 1974 Act received the Royal Assent on 31st July, 1974. Section 114 and the 10th Schedule in the unamended form came into force on 2nd December, 1974, and as amended on 11th March, 1975. It is the amended form which is relevant to this appeal.
Sub-section 1 of section 114 provides that the section shall apply to houses comprised in a clearance area under Part III of the Housing Act, 1957, which fall into any one of three categories The categories are widely defined and are likely to include many houses comprised in clearance areas.
Sub-section 2 is in these terms: "Where any house to which this section applies (a) was included in the clearance area by reason of its being unfit for human habitation, and (b) in the opinion of the local authority is capable of being, and ought to be, improved to the full standard, the local authority may makeand submit to the Secretary of State an order (in this section and Schedule 10 below referred to as a 'rehabilitation order') in relation to that house".
Sub-section 3 provides that a rehabilitation order "may, if the local authority think fit" apply to any other Part III land.
Sub-section 4 provides that Schedule 10 to the Act shall have effect in relation to rehabilitation orders.
By sub-section 5 the local authority is relieved of a duty to demolish or secure the demolition of buildings as from the date on which a rehabilitation order becomes operative. By sub-section 6, when the local authority is relieved of the duty to demolish a house included in a clearance area, being unfit for human habitation, "the authority shall take such steps as are necessary" to bring or secure that the house is brought up to "the full standard" for the purposes of the Act.
For the purposes of the present appeal it is necessary to refer only to paragraph 3 (2) of Schedule 10. That sub-paragraph reads; "Where the owner of a house to which section 114 above applies and which was included in the clearance area by reason of its being unfit for human habitation requests the local authority to make a rehabilitation order in respect of the house, and the authority refuse to make an order, they shall give him in writing their reasons for so refusing".
The respondents declared in April, 1968, a development area known as "Selborne Road Development Area". In March, 1973, they made a clearance order under Part III of the Housing Act, 1957, in respect of that area and in Hay, 1973, resolved to effect the clearance by the exercise of the compulsory purchase powers. On 12th October that year the respondents submitted a compulsory purchase order to the Secretary of State for confirmation. At that date there were 157 dwelling-houses within the area. Of those, 72 had already been purchased by the respondents by agreement with theOwners. Of the other 85 dwelling-houses, 70 were included in the proposed order on the ground that they were unfit for human habitation. The four appellants are owner-occupiers of 4 of those 70 houses. They and many other owners and occupiers of houses to which the order applied objected to the making of the order. Some disputed the alleged unfitness of the house. Many urged that defects could be remedied and improvements made so that the house would conform to the required standard. Many had done work of maintenance and repair. None wanted to leave. All wanted to preserve the existing community. Whatever compensation is payable, many suffer considerable distress when their homes are taken from them by compulsory purchase and they are forced to leave familiar surroundings and start afresh in a strange and sometimes less convenient area. This was expressly recognised in the White Paper "Better Homes, The Next Priorities" presented to Parliament in 1973. We feel great sympathy with persons who-find themselves in the position of the appellants and the other occupiers of houses within the order. The Secretary of State directed that a local public inquiry be held. The inquiry extended over the period of two days in January, 1974, and the inspector reported to the Secretary of State on 22nd April, 1974. The Inspector recommended that with certain modifications, not relevant for present purposes, the compulsory purchase order be confirmed. On 2nd December, 1974, the Secretary of State wrote his letter of decision confirming the order which is known as The London Borough of Southwark (Selborne Road) (No. 1) Compulsory Purchase Order, 1973. That was the same day as that on which section 114 of the 1974 Act came into effect. On 17th March, 1975, the respondents served notices to treat. On 8th and 9th May many of those who had objected to the making of the order and who had advanced their objections at the public local inquiry wrote to the respondents letters making application for "a Rehabilitation Order to be madein respect of houses which are the subject of the above-mentioned Order" (the Order in question in this appeal). It may perhaps he worth noting that this request is for an order to be made in respect of "houses", in the plural. The letters were all in the same terms and expressly suggested that the appropriate reply to the application "is either to accept it or give reason for refusing it". Each letter referred to the property or properties in which the signatory had the necessary interest as owner. The applications were considered by a sub-committee of the Housing Committee and the Housing Committee of the Borough Council. The recommendation of those committees was accepted by the Council, who resolved on 16th July, 1975, to refuse the application. On 21st July by their Deputy Town Clerk the respondents wrote to each applicant in these terms (the only variant being that "property", in the singular, was substituted for "properties" in the plural, where appropriate): "With reference to your application dated 8th May, 1975, for the Council to make rehabilitation orders in respect of the above properties, in accordance with the provisions of section 114 and Schedule 10 of the Housing Act, 1974, I write to inform you that the Council, at their meeting on 16th July, resolved to refuse the application for the reason that the properties should be demolished and the sites used for the erection of new housing accommodation". It is the wording of that letter which is the nub of this appeal.
On 12th January, 1976, demolition pursuant to the order commenced. Discussions and negotiations had not succeeded in bringing about any compromise or modification save to the extent that a number of occupiers of houses had left and been rehoused. Those who remained were constant in their desire to save their homes and to save the existing community. The Borough Council remained unshaken in the opinion that their duty lay in the implementation of the order and the clearance of the area bydemolition in order to facilitate redevelopment. So the appellants and six others joined as plaintiffs in the originating summons in which the following relief was sought against the respondents: "1. A declaration that the defendants have failed to carry out their statutory duties under the Housing Act, 1974, to consider, determine and give reasons for their decision upon requests for rehabilitation orders by the plaintiffs. 2. A declaration that the defendants' decision of the 16th July, 1975, to refuse the plaintiffs' requests to make rehabilitation orders in respect of the houses subject to the Selborne Road (No. 1) Compulsory Purchase Order is invalid. 3. An injunction ordering the defendants to reconsider and determine the plaintiffs' rehabilitation order requests according to law. 4. An injunction restraining the defendants their...
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