Singh v The Secretary of State for the Environment and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KERR |
| Judgment Date | 10 November 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J1110-8 |
| Date | 10 November 1988 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/1093 |
[1988] EWCA Civ J1110-8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(MR JUSTICE MANN)
Royal Courts of Justice,
Lord Justice Kerr
Lord Justice Neill
Sir Dents Buckley
88/1093
CO 479A986
In the Matter of the Housing Act 1974 and the Acquisition of Land Act 1981
and
In the Matter of the London Borough of Hackney (West Bank Housing Action Area) (No. 3) Compulsory Purchase Order 1984
and
MR B. PAYTON (instructed by Messrs. Clinton Davis & Co.) appeared on behalf of the Appellants.
MR N. PUSHING (instructed by the Treasury Solicitor) appeared on behalf of the Respondents.
This is the judgment of the Court on an appeal from a judgment given by Mann J. (as he then was) on 8th December 1987, whereby he rejected an application under section 23 of the Acquisition of Land Act 1981 to quash the confirmation by the Secretary of State of a Compulsory Purchase Order (CPO) made by the London Borough of Hackney pursuant to section 43 of the Housing Act 1974. The Council was not represented below or before us.
The applicants claim that the confirmation of the CPO was invalid in the light of favourable findings in an Inspector's report, following a Public Inquiry held pursuant to section 13(2) of the 1981 Act. It was said that these demonstrated that the owner's proposals for the conversion and repair of the property would achieve the Council's objectives better and more economically in terms of public money than the acquisition of the premises under a CPO. Accordingly, given the draconian nature of a CPO, it was said that the onus of justifying the necessity for it had not been discharged, and that its confirmation was invalid. There were also other issues about the effect of undertakings given by local authorities not to enforce a CPO so long as the necessary work is done by the owner to its satisfaction; in particular, these were said to be unrealistic in the face of the problem of borrowing the necessary funds for doing the work on the security of a property which is subject to a CPO.
In 1982 the Hackney "West Bank Housing Action Area" was declared pursuant to section 36 of the 1974 Act. On 25th July 1984 the Council resolved to make a CPO covering six dwelling houses in the area. The present proceedings concern No. 2, Holmdale Terrace, N. 16. In September 1984 the applicants agreed to purchase the property, and completion took place on 6th November 1984. They say that they were then aware that it was situated in a Housing Action Area (HAA), but that they were unaware of the resolution for the CPO covering it, since this was only sealed and published on 18th June 1985, as the London Borough of Hackney (West Bank Housing Action Area) (No. 3) Compulsory Purchase Order 1984.
Following objections to the CPO, a Public Inquiry was held by Mr R.G. Bromiley BArch, A.R.I.B.A., on 30th and 31st October and 1st November 1985. His report to the Secretary of State was dated 2nd December 1985 and recommended confirmation of the CPO in relation to all the properties covered by it. That recommendation was accepted by the Secretary of State in a decision letter dated 17th February 1986. The present application to quash the CPO, which Mann J. rejected, relates solely to No. 2 Holmdale Terrace. This is a three-storey, double-fronted house in multiple occupation, of which non is self-contained. It is common ground that the property has been in a dilapidated state for a long time, that substantial repairs are urgently needed, and that it should be sub-divided into two or three self-contained units.
We must then set out the relevant statutory provisions, beginning with Part IV of the Housing Act 1974. This has since been consolidated in Part VIII of the Act of 1985, but nothing turns on this.
"35 Declaration of housing action areas
"(1) Where a report with respect to an area consisting primarily of housing accommodation is submitted to the local authority within whose district the area lies by a person or persons appearing to the authority to he suitably qualified (whether or not that person is or those persons include an officer of the authority) and, upon consideration of the report and of any other information in their possession, the authority are satisfied that, having regard to—
-
(a) the physical state of the housing accommodation in the area as a whole, and
-
(b) social conditions in the area,
the requirement in subsection (2) below is fulfilled with respect to the area, the authority may cause the area to be defined on a map and by resolution declare it to be a housing action area.
"(2) The requirement referred to in subsection (1) above is that the living conditions in the area are unsatisfactory and can most effectively be dealt with within a period of 5 years so as to secure—
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(a) the improvement of the housing accommodation in the area as a whole, and
-
(b) the well-being of the persons for the time being residing in the area, and
-
(c) the proper and effective management and use of that accommodation,
by declaring the area to be a housing action area."
"43. Acquisition of land in housing action areas
"(1) Where a local authority have declared an area to he a housing action area then, for the purpose of securing or assisting in securing all or any of the objectives specified in paragraphs (a) to (c) of subsection (2) of section 36 above,—
-
(a) they may be authorised by the Secretary of State to acquire compulsorily any land in the area on which are situated premises which consist of or include housing accommodation; and
-
(b) to the extent that they could not do so apart from this subsection, they may acquire any such land by agreement."
The other relevant provisions are to be found in the Acquisition of land Act 1981, as follows:
"13 Confirmation of order.
(1) If no objection is duly made by any such owner, lessee or occupier as is mentioned in section 12 above, or if all objections so made are withdrawn, the confirming authority, upon being satisfied that the proper notices have been published and served, may, if the confirming authority things fit, confirm the order with or without modifications.
(2) If any objection duly made as aforesaid is not withdrawn, the confirming authority shall, before confirming the order, either cause a public local inquiry to be held or afford to any person by whom any objection has been duly made as aforesaid and not withdrawn an opportunity of appearing before and being heard by a person appointed by the confirming authority for the purpose, and, after considering the objection and the report of the person who held the inquiry or the person appointed as aforesaid, may confirm the order either with or without modifications.
"23 Grounds for application to High Court.
(1) If any person aggrieved by a compulsory purchase order desires to question the validity thereof, or of any provision contained therein, on the ground that the authorisation of a compulsory purchase thereby granted is not empowered to be granted under this Act or any such enactment as is mentioned in section 1(1) of this Act, he may make an application to the High Court.
(2) If any person aggrieved by—
-
(a) a compulsory purchase order, or
-
(b) a certificate under Part III of, or Schedule 3 to, this Act,
desires to question the validity thereof on the ground that any relevant requirement has not been complied with in relation to the order or certificate he may make an application to the High Court.
(3) In subsection (2) above 'relevant requirement' means—
-
(a) any requirement of this Act, or of any regulation under section 7(2) above, or
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(b) any requirement of the Tribunals and Inquiries Act 1971 or of any rules made, or having effect as if made, under that Act.
"24 Powers of the court.
(1) On an application under section 23 above the court may by interim order suspend the operation of the compulsory purchase order or any provision contained therein or of the certificate, either generally or in so far as it affects any property of the applicant, until the final determination of the proceedings.
-
"(2) If on the application the court is satisfied that—
-
(a) the authorisation granted by the compulsory purchase order is not empowered to he granted under this Act or any such enactment as is mentioned in section 1(1) of this Act, or
-
(b) the interests of the applicant have been substantially prejudiced by any relevant requirement (as defined in section 23(3) above) not having been complied with,
the court may quash the compulsory purchase order or any provision contained therein, or the certificate, either generally or in so far as it affects any property of the applicant."
At the Public Inquiry the parties represented before the Inspector were the Council, the tenants in occupation, and the applicants who also occupied the property, together with members of their family. The Inspector made a full and detailed report which set out the relevant matters with great clarity. On behalf of the applicants, Mr Payton relied exclusively on some of the passages headed: "Findings of Pact" relating to this property (paragraphs 63 (7) to (19)), and on some of the passages headed "Conclusions" relating to this property (paragraphs 64 and 65). He then criticised the recommendation in the following paragraph (66), to confirm the order in the light of these passages. In our view such an analysis of the Inspector's report is too truncated and selective.
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