R (Mortell) v Secretary of State for Communities & Local Government

JurisdictionEngland & Wales
JudgeMr Justice COLLINS
Judgment Date12 December 2008
Neutral Citation[2008] EWHC 3022 (Admin)
Docket NumberCase No: CO/10883/2007
CourtQueen's Bench Division (Administrative Court)
Date12 December 2008

[2008] EWHC 3022 (Admin)

Before:

Mr Justice Collins

Case No: CO/10883/2007

Between:
Gerald Mortell
Claimant
and
Secretary of State For Communities and Local Government
and
Oldham Metropolitan Borough Council
Defendant
and
Acquiring Authority

Mr Robert McCracken, Q.C. (instructed by Public Interest Lawyers) for the Claimant

Mr John Litton (instructed by the Treasury Solicitor) for the Defendant

Mr Stephen Sauvain, Q.C. (instructed by the Solicitor to the Authority) for the Acquiring Authority

Hearing dates: 29 – 30 October 2008

Mr Justice COLLINS
1

This claim seeks to quash a Compulsory Purchase Order (CPO) entitled the Oldham (Derker Area Phase 1 Regeneration) Compulsory Purchase Order 2006. The Secretary of State accepted by letter dated 4 October 2007 the recommendation of an inspector to confirm the CPO. The inspector presided over an inquiry held over 13 days between 6 February and 3 April 2007. The claim is brought pursuant to section 23(1) of the Acquisition of Land Act 1981, which entitles a person aggrieved by a CPO to apply to the High Court if he desires to question its validity on the ground that it was not within the power conferred by the Act.

2

The claimant is a resident of a dwelling which is to be acquired under the CPO. He is thus a person aggrieved for the purposes of s.23(1) and was what is known as a statutory objector to the CPO. Thus he and other residents who objected to the CPO were entitled to attend and be heard at the inquiry: see Section 13(2) of the 1981 Act. There are two separate aspects to this claim. First, it is alleged that the inspector acted in a manner which was unfair in various respects to the claimant and led him and others to believe that he was biased in favour of the acquiring authority. Secondly, it is said that there were a number of errors of law in the inspector's and defendant's approach to reaching their conclusions which should lead to the quashing of the CPO.

3

Research in the early 2000s was undertaken to identify and to seek to ascertain the causes of low demand for housing in particular areas of the country. This research sought to differentiate between low demand and unpopular housing, the former being areas where there was a shortfall of demand relative to existing supply and the latter being housing in particular neighbourhoods which were less desirable or attractive within the context of a local housing market. Demand in particular neighbourhoods was not surprisingly linked to matters such as the poor reputation of an area, anti-social behaviour problems, empty properties, low house prices and a poor quality environment. A national analysis showed that the problem was most acute in the North West. Areas particularly concerned were those affected by a decline in demand for social housing and movement out of areas of high levels of such housing especially by working families. Areas at risk in Oldham were identified as being multi-tenure located close to the town centre. There was thus said to be a need for a radical restructuring of such areas which would include selective clearance, and development based on a long term approach.

4

The Government's response was to announce a policy aimed at housing market renewal in order to address problems of low demand. Housing policies should be integrated with programmes and initiatives to address matters such as crime, education, health and social inclusion and should be designed to promote a partnership between the community, those who lived in the area or had an interest in ensuring its vitality and the private sector. Nine housing market renewal areas were identified under the title Pathfinder. One of these was Oldham / Rochdale. Relevant policies were set out in RPG 13, the planning guidance for the North West. This applies the Pathfinder approach. The Government's objectives in planning for housing was set out in its draft policy statement in 2005 thus:-

“The Government's key objective for planning for housing is to ensure that everyone has the opportunity of living in a decent home, which they can afford, in a community where they want to live. To achieve this objective, the Government is seeking to:

(a) ensure that a wide choice of housing type is available, for both affordable and market housing, to meet the needs of all members of the community;

(b) deliver a better balance between housing demand and supply in every housing market and to improve affordability where necessary; and

(c) create sustainable, inclusive, mixed communities in all areas. Developments should be attractive, safe and designed and built to a high quality. They should be located in areas with good access to jobs, key services and infrastructure.”

The Oldham Metropolitan UDP adopted in July 2006 contains policies linked to that objective with particular reference to Pathfinder. The key principles of the housing market renewal programme are as follows:-

•An holistic approach to address weaknesses in the economy, the environment and housing at a sub-regional level;

• A long-term commitment of 15 years to address housing market weakness;

•A strategy and a programme of intervention tailored to local circumstances designed to solve permanently the causes of decline;

• Integration with other programmes and initiatives in relation to the economy, crime, education, health and social inclusion;

• Remodelling of neighbourhoods and the housing supply to meet a target population based upon economic and demographic change and aspirations to create sustainable communities;

• A provision of a range of housing in terms of both type and tenure, coupled with investment in the existing stock, the environment and neighbourhood management;

• Partnership working with the community, stakeholders and the private sector; and

• A more competitive housing market, which does not display the symptoms of low demand, that is, low property prices, vacant properties, high turnover and transient communities.”

5

The Pathfinder identified two areas of intervention in Oldham. These were Derker, with which this claim is concerned, and Werneth / Freehold. A combination of demolition, refurbishment and associated social and environmental initiatives were to create a balanced housing market providing a choice of housing in terms of size, type and tenure in neighbourhoods in which people would want to live.

6

The major problem in both the areas in Oldham has stemmed from the existence of a large number of small terraced houses built to house workers in the adjacent cotton mills. Industrial decline has meant the closure of the mills but there has been very little newer or larger housing or diversity. Demand for small terraced houses is likely to continue to decline. There has been an increase in purchases by private landlords and this coupled with a failure in some cases to manage the properties properly has increased the outward migration. The value of houses is significantly lower than those in other parts of the borough.

7

The Council has endeavoured to purchase houses on a voluntary basis. To this end it has implemented a scheme known as House Xchange which provides a mechanism for those who wish to stay in the area to move to a similar property. This includes what is called an equity loan package whereby a house owner can move to a more expensive property with the help of an interest free loan in the form of an equity share in the property. Voluntary move has not been attractive for those such as the claimant who have lived most if not all their lives in their house which, after years of hard work, they own with no outstanding mortgage. They understandably do not want a move from a community in which most know and help each other, particularly if that move will require that they will enter into an arrangement which means they can no longer deal with their property as they wish since others may acquire an interest in wherever they move. I should say that many of the objectors of whom the claimant is representative are elderly.

8

The Council concluded that what it regarded as necessary development in order to improve the quality of the area could not take place unless a CPO was obtained. The power to make such a CPO is contained in s.226 of the Town and Country Planning Act 1990. This provides:-

“A local authority … shall, on being authorised to do so by the Secretary of State, have power to acquire compulsorily any land in their area

(a) if the authority think that the acquisition will facilitate the carrying out of development, redevelopment or improvement in relation to the land …

(1A) But a local authority must not exercise the power under paragraph (a) … unless they think the development, redevelopment or improvement is likely to contribute to the achievement of any one or more of the following objects:

(a) the promotion or improvement of the economic well being of the area;

(b) the promotion or improvement of the social well being of this area;

(c) the promotion or improvement of the environmental well being of this area …”

The test that must be applied by the defendant if she is to approve a CPO is whether there is a compelling case in the public interest for it to be made. And it must, of course, be able to achieve one or more of the objectives set out in s.226(1A) of the 1990 Act.

9

There is no doubt that the compulsory acquisition of his property will engage a person's human rights, in particular Article 8 of the Convention and Article 1 of the First Protocol. Equally, his civil rights are in issue so that the procedure engages Article 6,...

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