Hayes (R) v Secretary of State for Communities & Local Government
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CHARLES |
| Judgment Date | 06 November 2009 |
| Neutral Citation | [2009] EWHC 3520 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 November 2009 |
| Docket Number | CO/7802/2006 |
[2009] EWHC 3520 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Charles
CO/7802/2006
MR V DE MAYNARD (McKenzie friend) appeared on behalf of the Claimant
MR D BLUNDELL (instructed by the Treasury) appeared on behalf of the Defendant
MR R BHOSE (for Clapham Homes Limited) the second interested party
: The decision challenged in these proceedings for judicial review was conveyed by a letter dated 23 June 2006. It was a decision to grant consent for the transfer of the Clapham Park estate to Clapham Park Homes Limited who are the second interested party in these proceedings. In very general terms, the background to the transfer is something called a new deal for communities, which was a programme introduced by the government in, I think, 1998, and its aim was to promote the regeneration of deprived neighbourhoods. An aim of the programme is to eliminate the different causes of deprivation in the community and it takes a multi-pronged approach.
The estate was selected as an estate to which that approach should be applied, and, for example, in the original planning document, the present position at that stage was said to be that the estate was perceived by many to have declined through decades of neglect, reaching a critical state about three years previously, relating both to issues of the quality of the housing provided, and neighbourhood concerns such as policing, problems in the estate, et cetera.
The claimant before me, Mr Hayes, has lived on the west side of the estate for a great number of years, as has his family before him. The west side of the estate has a residents' association of which he has been an active member. Before me, he has appeared in person with the assistance of a gentlemen, Dr De Maynard, who lives on the estate, and who himself has put in written objections in the history of the matters leading up to the transfer. He has taken a role which goes beyond that of a McKenzie friend, and has effectively acted as the claimant's advocate. That, to my mind, quite rightly, has not been objected to by any of the other parties. It is plain that the document that the claimant relies on, and this was confirmed I think in a hearing before Mr Justice Blair, has had considerable legal input. The skeleton argument that is relied on reflects the very closely revised grounds which are put in, and as Dr De Maynard informed me, it had been prepared by people who know about these things, which he does not.
I turn to the statutory scheme and framework. It is in fact helpfully and succinctly described by Lord Justice Wilson in his judgment in the Queen on the application of Swords vs the Secretary of State for Communities and Local Government and others which is reported at 2007 BLGR 757. However, I propose at this stage also to go to the source material, and to refer to various sections to be found in the Housing Act 1985. Section 9 deals with the provision of housing accommodation by the local housing authority. The most relevant sections are Section 32, which finds a mirror in Section 43. Section 32 provides in sub-section 1 that:
“Without prejudice to the provisions of part 5, the right to buy, a local authority has the power by this Section and not otherwise to dispose of land held by them for the purposes of this part.”
Sub-section 2:
“A disposal under this section may be effected in any manner, but, subject to sub-section 3, should not be made without the consent of the Secretary of State.”
Sub-section 3 does not apply in this case, and I don't think I need read other sub-sections. Section 34 provides and relates to consent under Sections 32 and 33. Sub-section 1 provides:
“This section applies in relation to the giving of the Secretary of State's consent under Section 32 or 33. Sub-section 2 provides that consent may be given (a) either generally to all local authorities, or to a particular authority or a description of authority; (b) either in relation to particular land or in relation to land of a particular description.
“(3) consent may be given subject to conditions.
“(4) consent may particularly be given subject to conditions as to price, premiums or rents to be obtained on the disposal, including conditions as to the amount by which on the disposal of a house by way of sale or by the grant or asylum to be released at a premium, the price or premium is to be or may be discounted by the local authority.”
4A provides, and provided at the time, it having been introduced by amendment in 1988, as follows:
“The matters to which the Secretary of State may have regard in determining whether to give consent and if so, to what conditions consent should be subject, shall include; (a) the extent, if any, to which the person to whom the proposed disposal is to be made, in this sub-section referred to as 'the intending purchaser' is, or is likely to be, dependant upon, controlled or by, or subject to influence from the local authority making the disposal or any members or officers of that authority; (b) the extent, if any, to which the proposed disposal would result in the intending purchaser becoming the predominant or a substantial owner in any area of housing accommodation let on tenancies or subject to licences; (c) the terms of the proposed disposal; and (d) any other matters whatsoever which he considers relevant.”
I pause there to indicate that to my mind sub-section 4 gives an indication of the matters the Secretary of State is concerned with. That is reflected when one turns to 4A, (a) and (b). As far as (c) is concerned, as I understand it from circumstances of this case, the terms of the proposed disposal include a wide range of matters, because here, as was pointed out to me, the proposal in the relevant master plan takes on a contractual element as and when a transfer takes place, in that the purchaser is bound contractually with the local authority housing body to carry out the relevant redevelopment, refurbishment, demolition, et cetera, and the planned decanting of people from place A to place B. So the whole scheme is brought in in respect of those terms, as are then:
“(d) any other matters whatsoever which the Secretary of State considers to be relevant.”
I don't think I need Section 43 for the purposes of this review. I turn to schedule 3A which is headed:
“Consultation before disposal to private sector land rule.”
It provides in paragraph 1:
“This schedule applies to the disposal of our local authority of an interest in land as a result of which a secure tenant or an introductory tenant of the authority will become the tenant of a private sector landlord. For the purposes of this schedule, the grant of an option, which if exercised, would result in a secure tenant, or an introductory tenant, of a local authority becoming the tenant of a private sector landlord shall be the treated as a disposal of the interest which is the subject of the option.
“(3) where a disposal of land by the local authority is in part a disposal to which this schedule applies, the provisions of this schedule apply to that part as to a separate disposal.
“(4) in this paragraph 'private sector landlord' means a person other than an authority or body within Section 80 (the landlord condition for secure tenancies).”
Then paragraph 2.1:
“The Secretary of State shall not entertain an application for his consent to a disposal to which this schedule applies, unless the authorities certify either; (a) that the requirements of paragraph 3 as to consultation have been complied with; or (b) that the requirements of that paragraph as to consultation have been complied with, except in relation to tenants expected to have vacated the dwelling-house in question before the disposal:
“And the certificate shall be accompanied by a copy of the notices given by the authority in accordance with that paragraph 2.”
I don't think I need read 2. Paragraph 3 provides:
“(1) the requirements as to consultation referred to above are as follows.
“(2) the local authority shall serve notice in writing on the tenant informing him of; (a) such details of their proposal as the authority consider appropriate, but including the identity of the person of whom is the disposal is to be made; (b) the likely consequences of the disposal of the tenant; and (c) the effect of the provisions of this schedule, and (in the case of a secure tenant) of Sections 171A to 171H (preservation of right to buy on disposal to private sector landlord),And informing that he may, within such reasonable periods as may be specified in the notice, make representations to the authority.
“(3) The authority shall consider any representations made to them within that period and shall serve a further written notice on the tenant informing him; (a) of any significant changes in their proposal; and (b) that he may within such period as is specified (which must be at least 28 days after the service of this notice) communicate to the Secretary of State his objection to the proposal,
“And informing him of the effect of paragraph 5 (consent to be withheld if majority of tenants are opposed).
“(4) When a notice has been served under sub-paragraph 3, the authority shall arrange a ballot of the tenants in accordance with sub-paragraph 5, to establish whether or not the tenants wish the disposal to proceed.”
I pause to comment that that part of the sub-paragraph was not in play when these proceedings took place. But that amendment reflects the...
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