Toblas William Hammersley Eckersley (Appellant) The Secretary of State for The Environment (1st Respondent) The Mayor, Aldermen and Burgesses of The London Borough of Southwark (2nd Respondent)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE BROWNE |
| Judgment Date | 28 June 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0628-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 June 1977 |
[1977] EWCA Civ J0628-4
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On Appeal from Order of Mr Justice Phillips.
Lord Justice Stephenson
Lord Justice Lawton (Not present) and
Lord Justice Browne
Mr DESMOND KEANE (instructed by Mr N.A.G. Haylor) appeared on behalf of the Appellant.
Mr GERARD RYAN (instructed by the Treasury Solicitor) appeared on behalf of the Respondents.
The Judgment of the Court has been prepared by Lord Justice Browne, and I shall ask him to read it.
This is an appeal from an Order of Mr Justice Phillips made on the 18th March, 1976, by which he dismissed an application by the Appellant, Mr Eckersley, and two others to quash either in whole or in part a Compulsory Purchase Order under Part III of the Housing Act, 1957, made by the Southwark Borough Council and confirmed by the Secretary of State. Of the three Applicants before Mr Justice Phillips, only Mr Eckersley appeals to this Court. Although the appeal is only against Mr Justice Phillips' Order of the 18th March, 1976, one of the grounds of appeal brings in question an earlier judgment and Order of Mr Justice Phillips of the 16th and 19th December, 1975.
The Appellant is the owner-occupier of a house at 50, Berryfield Road, Southwark, which is included in the London Borough of Southwark (Braganza Street) (No.5) Compulsory Purchase Order, 1973. The area covered by the Order is shown on a plan which is before us. It covers about 3 acres, containing 82 houses which wore built about 1885. About 200 people wore affected by the Order. Under the Order as confirmed, about 2£ acres consisted of houses found to be unfit for human habitation and three-quarters of an acre of houses which were not unfit, but were included as "added land"; several houses were transferred from the "unfit" to the "fit" category in the course of the proceedings. It was accepted throughout by the Council that the Appellant's house was a "fit" house, which was included only as "added land", and indeed the Inspector speaks very highly of it in his Report: (see Supplement 1, paragraphs 214 and 227 - Reference 12).
The history of the matter is helpfully set out in a summary produced by Mr Keane. On the 21st February, 1973, the Southwark Medical Officer of Health made an official representation concerning unfit properties, including those in the area of the Compulsory Purchase Order now under appeal. On the 14th March, 1973, Southwark resolved to declare a Clearance Area, including the area of the Order lands in this Compulsory Purchase Order; that is, the No.5 area. On the 9th May, 1973, Southwark resolved to purchase compulsorily (a) the unfit properties in the Clearance Area, and (b) lands surrounded by or adjoining that Clearance Area. On the 16th October, 1973, pursuant to the above resolutions, Southwark made the London Borough of Southwark (Braganza Street) (No.5) Compulsory Purchase Order, 1973. A large number of objections to this Order were lodged. They wore lodged in respect of 74 of the 77 pink houses and five out of six of the grey properties. In fact, all the owners or occupiers of the grey properties objected except the Electricity Board, one of whoso sub-stations was included. On the 12th and 13th February, 1974 a Public Local Inquiry was held concerning the objections and also concerning objections to another Compulsory Purchase Order made by Southwark under Part V of the Housing Act, 1957, and that was the London Borough of Southwark (Braganza Street) (No.6) Compulsory Purchase Order, 1973. The Inspector's Report in respect of both Orders was dated the 5th April, 1974. He recommended that certain of the pink properties should be re-classified as grey, but that otherwise both Orders should be confirmed. The Secretary of State's decision letter announcing his confirmation of both Orders was dated the 25th October, 1974. Thereafter, theAppellant and two others took the proceedings in the Queen's Bench Division which resulted in the Judgment of Mr Justice Phillips and the appeal from that to this Court.
The relevant statutory provisions are contained in Part III of the Housing Act, 1957, and the Third and Fourth Schedules. I do not propose to road out all the provisions, but the relevant ones to which I should wish to refer are as follows: Section 42 (1), (2) and (3), which incorporate the definition of "unfit for human habitation" in Section 4 of the Act, which applies both to Part II and to Part III, and the definition of "official representation" in Section 157. I also must be taken to refer to Section 43 (1) (b), subsection (2), sub-section (3) and sub-section (5); the Third Schedule, paragraphs 2(1)(b) and 3(3); and Schedule 4 - dealing with appeals to the High Court - paragraphs 2(ii) and 3.
Mr Keane referred us to several authorities on the powers of the Court under paragraph 2(ii) of the Fourth Schedule. We think it is enough to quote what the Master of the Rolls, Lord Donning, said in Ashbridge Investments Ltd. v. Minister of Housing and Local Government, which was quoted by Mr Justice Phillips in his earlier judgment. That case is reported in (1965) 1 Weekly Law Reports, page 1320, and the passage I wish to road is at page 1326. Lord Denning said this: "Seeing that that decision is entrusted to the Minister, we have to consider the power of the court to interfere with his decision. It is given in Schedule 4, paragraph 2. The court can only interfere on the ground that the Minister has gone outside the powers of the Act or that any requirement of the Act has not been complied with. Under this section it seems to me that the court can interfere with the Minister'sdecision if he has acted on no evidence; or if he has come to a conclusion to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa; or has otherwise gone wrong in law. It is identical with the position when the court has power to interfere with the decision of a lower tribunal which has erred in point of law".
The Appellant's first ground of appeal is this:" (1) He" - that is Mr Justice Phillips - "erred in inviting the Inspector appointed by the Secretary of State for the Environment to hold a public local inquiry into the Compulsory Purchase Order to adduce affidavit evidence explaining the contents of paragraph 10 of his Report to the Secretary of State, and in so doing of his own motion, and/or without the consent of the parties".
Mr Keane concedes that if this was his only point, the Order could not be quashed, but we must say something about it, if only in fairness to Mr Justice Phillips, because we think the criticisms made of him quite unjustified. Paragraph 10 of the Inspector's Report says: "An analysis of the costs of repair and improvements under Part II Housing Act, 1957, the Housing Act, 1961, and the Housing Act, 1969, and a re-inspection of all the properties showed that the best course of action was demolition". Mr Eckersley took the view that this meant that the Inspector and the Secretary of State had soon some document or documents or other evidence which had not been made available to the objectors and that there had therefore been a broach of the principles of natural justice. He swore an affidavit to that effect (Document TE 10)which was before Mr Justice Phillips.
It is clear that this matter gave Mr Justice Phillips great anxiety, and that he was determined if possible to clear up Mr Eckersley's suspicions. He therefore adjourned the case, and asked the Inspector to explain "for the benefit of the Court and the parties to what he is referring when he speaks of an analysis of the costs and so on": (Judgment, page 7A-B; see also paragraph (1) of the Order of the 19th December, 1975 - Document TE 5 - which we do not think exactly carries out the judgment). The Inspector then swore an affidavit (Document TE 4), which made it clear that Mr Eckersley's suspicions wore unfounded.
No doubt the general principle is that in civil proceedings (unlike criminal proceedings) a Judge himself is not entitled to call a witness unless both parties consent: see In Re Enoch and Zaretzky's Arbitration, (1910) 1 King's Bench, 327; Fallon v. Calvert, (1960) 2 Queen's Bench, 201.
It would of course be entirely wrong on an application to the High Court to quash a Compulsory Purchase Order (or in any similar proceeding) for the Judge to ask the Inspector to make fresh or additional findings of fact. Further, where such an application depends on the construction of the Inspector's Report, any evidence from the Inspector about what he meant by his Report would of course be inadmissible, and it would be wrong to ask him to explain his moaning. It is clear from pages 5E-H and 6E-7B of his judgment of the 16th December, 1975 (Document TE 6) that; Mr Justice Phillips had those points fully in mind. But what he was concerned about was Mr Eckersley's suspicion that there had been a breach of the principles of natural justice, and it is clear that theobject of the Judge's Order was to make sure that there had been no such breach. The investigation of a possibility that there has been a breach of natural justice must nearly always involve receiving evidence outside the Inspector's Report and the Minister's decision letter. In this case, Mr Eckersley had sworn his affidavit (Document TE 10), raising the point and the Respondents had chosen not to answer it. Mr Eckersley was appearing in person, and it is clear that Mr Justice Phillips acted as he...
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