Ostreicher v Secretary of State for the Environment
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SHAW |
| Judgment Date | 03 March 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0303-4 |
| Docket Number | SJ/246/76 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 March 1978 |
[1978] EWCA Civ J0303-4
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Queen's Bench Division
(Sir Douglas Frank, Q.C.)
The Master of The Rolls: (Lord Denning)
Lord Justice Shaw and
Lord Justice Waller
MR. B. PAYTON (instructed by Messrs. Harold Benjamin & Collins, Solicitors. South Harrow) appeared on behalf of the Applicant (Appellant).
MR. H. WOOLF and MR. D. LATHAM (instructed by the Treasury Solicitor) appeared on behalf of the First Respondent.
MR. A. DINKIN (instructed by the Solicitor to the London Borough of Hackney) appeared on behalf of the Second Respondents.
We are here concerned with slum dwellings in Hackney. The houses were built nearly 100 years ago on 99 year building leases. They opened straight on to the pavements and had very small back yards. They did not have inside sanitation. They were very poor dwellings by modern standards. In 1974 the London Borough of Hackney determined that it should be designated as a slum clearance area. They thought that the houses should be demolished and replaced by housing of today's standards.
The freeholders of eight of these houses were Sarah and Jacob Ostreicher. Their houses were Nos. 16 to 30 (even numbers) Rushmore Road in Hackney. They had let them on long leases.
Mr. and Mrs. Ostreicher wanted to get as much compensation as possible for their houses. It depended on their condition. If the houses were unfit for human habitation and not capable of being made fit at reasonable expense, they would be included in a "pink" area: and the council would only have to pay the site value for them. If the houses were in such condition that they would be able to be made fit at reasonable expense, they would be put in what is called a "grey" area. They might have to come down in order to develop the whole area satisfactorily; but the owners would get the market value of the houses as they stood and not merely the site value.
Now Sarah and Jacob Ostreicher are devout Jews. They observe the Sabbath in accordance with the Fourth Commandment in the Book of Exodus; and in accordance with the Talmud which is their holy book. They likewise observe other holy days: and these include the seventh day of the Passover. In accordance with the injunction in their holy book, they do no manner of work themselves, not do they permit any of their servants to work "nor any stranger within thy gates". That is their religious beliefNo doubt many other people in Hackney share it. It is an area in which there is a large Jewish community.
Mr. and Mrs. Ostreicher instructed their surveyors to look after the matter for them. They were the firm of Philip Fisher & Co. These surveyors put in objections. So did the owners of the other properties in the area. The Minister for the Environment decided to hold a public inquiry. It is provided for by schedule 3 of the Housing Act 1957. The Minister had to fix a day. Reading between the lines, it is pretty plain what happened. The men at the ministry looked at their diaries. This was in January 1976. They had to give at least six weeks' notice to all objectors (that is provided for by the rules). They had to give notice to the public by advertisements and so forth 14 days before the hearing. So they had to arrange the day of the hearing some considerable time ahead.
In this particular case they decided to give 10 or 11 weeks' notice in advance of the inquiry. Looking at their diaries in January 1976, they decided that April would be a suitable month in which to hold the inquiry. Mid-April would not be suitable because Good Friday fell on the 16th April, 1976 and Easter Monday would be on the 19th April. Those dates not being suitable, the men at the ministry decided that Wednesday, 21st April, 1976 would be a. suitable day. Most people would think that would be a very suitable day for an inquiry, the Wednesday after the Easter bank holiday. He doubt the ministry consulted Hackney Council about it. The council did not think the date was unsuitable. So that date was chosen. All the objectors were notified that the inquiry was to be held on the 21st April. A room was booked at Hackney Town Hall.
On the 8th March (some weeks before the inquiry) the local council sent to the surveyors for Mr. and Mrs. Ostreicherparticulars about the houses which were unfit. Having received those particulars, the surveyors started their preparations. But, lo and behold, just three weeks before the inquiry was to be held, the surveyors for Mr. and Mrs. Ostreicher, no doubt on their clients' instructions, said that Wednesday, 21st April, would not suit them because it was the seventh day of the Passover; and people of the Jewish faith were not allowed to work on that day: and no one was allowed to do anything on their behalf. On the 1st April, the surveyors wrote to the Secretary of State. They referred only to one of the eight houses, 16 Sushmore Road, and they said:
"Dear Sir, We would inform you that having been in communication with our Clients and their solicitors that due to religious reasons they are totally unable to attend the hearing in respect of the proposed C.P.U." - Compulsory Purchase Order - "of the above property". Then they put in a paragraph dealing with the site value, and went on to say: "Our Clients request, therefore, that they have a special hearing at a time, and place to be arranged as they should not be penalised for not being able to attend through religious reasons".
Just consider the Ministry's position. The inquiry had been fixed for the 21st April. The local council had been making their preparations. The other objectors and the lessees and so on had been making their arrangements. The Ministry felt that, after making all those preparations, they could not change the date of the inquiry. Accordingly, on the 7th April, 1976 the Department sent this reply to the surveyors: "Unfortunately it is not possible for the Department to consider either a deferment of the current inquiry date or any form of special hearing into a compulsory purchase order at this stage. In the event of your client not appearing at the inquiry arranged for 21 April 1976you may be assured that the Department's Inspector will take full account of your written objection before submitting his findings to the Secretary of State for consideration. Should your clients deem it necessary they are open of course to arrange to be represented at the inquiry in their absence".
In that letter the Ministry referred to the "written objection" which the surveyors had already submitted: and told them that they would be taken fully into account: and added that Mr. and Mrs. Ostreicher could be represented if they wished. That seems to me to be a very sensible suggestion so as to solve the problem.
Unfortunately the surveyors did not reply to that letter at all. The 21st April arrived. The inspector went to the town hall. Many of the objectors were represented there. The inspector held the inquiry. He had Mr. and Mrs. Ostreicher's papers before him stating their case. He noted down that no one was there to represent them. He made a note in his report that "owing to reasons of religion" Mr. and Mrs. Ostreicher "were unable to appear at the inquiry to enlarge upon their written grounds of objection" which he summarised. He inspected the premises. He eventually made his report wivh his various recommendations. He recommended that the order should be affirmed with some variations as to individual hcises. One of Mr. and Mrs. Ostreicher's houses came out well. It was No. 16 Rushmore Road. That house was lifted up. Instead of being taken at site value, that house was found to be in a sufficiently good condition for the inspector to recommend that it be put into, the grey category and taken at market value. But as to the rest of the houses, he recommended that they were unfit for human habitation and should be purchased at site value.
The inspector rnade that report to the Minister on the 26thOctober, 1976. In November 1976 the Minister wrote his decision letter confirming the order and carrying out the inspector's recommendations.
When that decision was received by the surveyors of Mr. and Mrs. Ostreicher, they took objection. They made two complaints: first, that the inspector went ahead with the inquiry without Mr. and Mrs. Ostreicher being represented: and secondly that the inspector had made manifest errors. A notice of motion was launched under the provisions of the 4th schedule of the Housing Act 1957 whereby a person aggrieved can apply for the order to be quashed either generally or in so far as it affected the property of Mr. and Mrs. Ostreicher. When that decision was received by the surveyors of Mr. and Mrs. Ostreicher, they took objection. They made two complaints: first, that the inspector went ahead with the inquiry without Mr. and Mrs. Ostreicher being represented: and secondly that the inspector had made manifest errors. A notice of motion was launched under the provisions of the 4th schedule of the Housing Act 1957 whereby a person aggrieved can apply for the order to be quashed either generally or in so far as it affected the property of Mr. and Mrs. Ostreicher. When that decision was received by the surveyors of Mr. and Mrs. Ostreicher, they took objection. They made two complaints: first, that the inspector went ahead with the inquiry without Mr. and Mrs. Ostreicher being represented: and secondly that the inspector had made manifest errors. A notice of motion was launched under the provisions of the 4th schedule of the Housing Act 1957 whereby a person aggrieved can apply for the order to be quashed...
To continue reading
Request your trial
-
Cortina Villas v Planning Appeals Trib
...for Civil Service, [1985] A.C. 374; [1984] 3 All E.R. 935, dicta of Lord Diplock applied. (2) Ostreicher v. Environment Secy., [1978] 1 W.L.R. 810; [1978] 3 All E.R. 82, distinguished. (3) R. v. Home Secy., ex p. DoodyELR, [1994] 1 A.C. 531; sub nom. Doody v. Home Secy., [1993] 3 All E.R. 9......
- Re Niles (No 2)
-
Co-operative Retail Services Ltd v Secretary of State for the Environment
...the objections that were being put: but I bear in mind the authority which Mr. Latham has cited to us, the Ostreicher case, reported in 1978 1 WLR, 810, and what in particular the Master of the Rolls has said at page 816 of that report: "……there is a distinction between an administrative i......
-
Minister for Immigration and Multicultural Affairs v Bhardwaj
... [1972] 1 All ER 314 at 322; R v Thames Magistrates' Court, Ex parte Polemis [1974] 1 WLR 1371; [1974] 2 All ER 1219; Ostreicher v Secretary of State for the Environment [1978] 1 WLR 810 at 815–816 per Lord Denning MR; [1978] 3 All ER 82 at 26 See Re Refugee Review Tribunal; Ex parte Aala......