Mohammed v Newcastle Upon Tyne & Anor [2003] EWHC 2816 (Admin)

Case No CO/4099/03[2003] EWHC 2816 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 11 November 2003
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
Between
MASRIQ MOHAMMEDClaimantIAN STEWART OFFORDClaimant-v-
Between
THE COUNCIL OF THE CITY OF NEWCASTLE UPON TYNEDefendantTHE FIRST SECRETARY OF STATEDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
for The Claimants did not attend and were not representedMR STEPHEN SAUVAIN QC (instructed by Legal Services, Civic Centre, Newcastle upon Tyne NE99 2BN) appeared for DEFENDANTMR DANIEL KOLINSKY (instructed by The Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London SW1H 9JS) appeared for 2nd Defendant
J U D G M E N T
[1]MR JUSTICE SULLIVAN: This is a challenge to a Compulsory Purchase Order. The Secretary of State's decision letter confirming the Compulsory Purchase Order is dated 5th June 2003. The Claimants contend in their claim form that:
"Development was not comprehensive. The Newcastle City Council are open about this fact. The Inspector has come to the decision in the wrong way. Existing businesses are in accordance with the Unitary Development Plan. The businesses could easily be redeveloped at a small cost. The rear elevations could be made compatible and disguised. They would be in keeping with landmark developments. The absence of detailed planning consent would mean there was a strong likelihood of the development not proceeding in a planned and comprehensive manner; indeed any appeal would sway the development's timetable. There is a right to peaceful enjoyment of property by reason of Article 1 of the First Protocol. The public interest (local business and residents) outweigh the need for the development. The Inspector had not used the right test in considering these issues. The CPO should be withdrawn at phase 4. The business should remain and be renovated."
It will be seen that those grounds do not on their face identify any error of law or procedure on the part of the Secretary of State in confirming the order.[2]The grounds are supplemented by a letter dated 2nd September 2003 saying that the joint Claimants, Mr Mohammed and Mr Offord, would be directly affected by the order. Mr Mohammed is the leaseholder/owner of Shop Unit 1A Sunderland Street and Mr Offord lives at Flat 1 Sunderland Street. Those properties are required for phase 4B of the Council's scheme. The letter continues:
"We feel the order is not justified; there is no single scheme, but a series of individual developments by different developers. The businesses, albeit respectively small scale, are currently existing and viable, which contribute to the existing character of the area and are consistent with the UDP mixed use allocation; they are compatible with the aims of the National Guidance in PPG13; they are compatible with the strategic objective of The Grainger Town Project. It is noted that the properties within phase 5 have now been refurbished as opposed to being compulsorily acquired, demolished and replaced. There is no reason why this approach cannot be taken at phase 4B. The Council's scheme is uncertain. The principle of comprehensive high quality development as expressed in the development brief has evaporated and has been replaced with a sequential but essentially individual phases. This is apparent of the development at Alfred Wilson House by London and Regional Properties. For the various reasons above the confirmation is not in the public interest, the acquisition of our properties is disproportionate and invalid and an unreasonable interference of our rights contrary to Article 1 of the First Protocol of the European Convention of Human Rights. We reserve the right to develop and/or amend any submissions at any High Court appeal."
[3]That is the sum total of the material comprising the claim. It will be seen that the arguments as further amplified in the letter are simply arguments as to the merits. It is plain, moreover, from reading the Inspector's report, that these arguments were deployed before the Inspector by the Claimants.[4]They were considered by the Inspector and were rejected by him and by the Secretary of State, who accepted the Inspector's conclusions. In particular the Secretary of State accepted that:
"... the proposed development is in accordance with the UDP and that there is a strong likelihood of the development proceeding in a planned and comprehensive manner and that it is, with the confirmed Compulsory Purchase Order, likely to be brought about."
Moreover, the Secretary of State considered whether the purposes for which the Compulsory Purchase Order was required sufficiently justify interfering with the human rights of the owners and lessees of the land to which it related and concluded that they did. The decision letter says in terms that the Secretary of State had considered Article 1 of the First Protocol to the Convention and was satisfied that a fair balance had been struck.[5]The joint Claimants, having failed to comply with the CPR and the Practice Direction, by failing to provide a paginated bundle containing, for example, the decision letter under question and the Inspector's report and by failing to produce a skeleton argument, requested an adjournment by letter dated 31st October. The adjournment was requested because of what was said to be the serious illness of Mr Offord. It was said that a new hearing could take place at any time after the week commencing 24th March 2004. A copy of a sick note was produced. It appears to have been prepared not on the basis of an examination, but on the basis of a written report. Mr Offord was advised that he should refrain from work for twenty weeks from 29th October due to alcohol related problems, depression and stress. The letter of 31st October, signed by Mr Offord and Mr Mohammed, said:
"... Mr Offord had been diagnosed with severe alcohol related problems together with deep depression and stress. Mr Offord is our main representative in person and not Mr Mohammed."
The Claimants were told by the Administrative Court office that an adjournment would not be granted. They returned to the matter in a dated 5th November, explaining that Mr Mohammed was relying on Mr Offord to represent him and speak on behalf of both appellants:
"Mr Offord has some legal knowledge and therefore would have felt comfortable in the given situation. Mr Mohammed has no legal knowledge and has tried to seek legal aid to help him in this matter (due to him not working). It appears no legal help is available, contrary to what the Council had told him."
[6]I am satisfied that it would not be right to grant an adjournment. While I am prepared to accept that Mr Offord is ill and unable to appear in person or to attend here in person, that does not apply to Mr Mohammed and there has been no adequate explanation as to why he is unable, as a property owner, to obtain legal representation before this court.[7]My approach to the matter might well have been different if there had been compliance with the CPR and the Practice Direction, if a skeleton argument had been served, and if the documents served by the Claimants had identified a possible error of law on the part of the Secretary of State. But, for the reasons given above, they do not. In essence the claimants seek to reargue the merits of making the Compulsory Purchase Order. The Inspector specifically considered the buildings owned/occupied by the Claimants. He concurred with the Council's view that they were not of townscape merit in themselves. He did not doubt their viability, but said that he had no reason to suppose that the businesses could not be equally successful in alternative premises. He specifically considered whether or not the development would be likely to proceed in a comprehensive manner and concluded:
"There are provisional development agreements in place which lead me to believe that the likelihood of the development proceeding in a planned and comprehensive manner is strong. I am satisfied the Council has shown that funding can be provided in order to bring that development. In any case, complete certainty is not required. The developments which have permission appear to me to comply with the objectives of the UDP ..."
[8]Thus the Inspector addressed all of the matters which are raised in the claim form and formed a planning judgment about them. Having heard the evidence, he was entitled to reach that judgment and, as I say, the claim discloses no possible error of law. For all of these reasons I am satisfied that it would not be right to grant an adjournment. I further observe that the Inspector mentioned in his report that there was a funding window which was important in terms of the realisation of the development: see paragraph 104 of his report. Thus, in addition to the general need to deal expeditiously with challenges such as this so that all land owners and occupiers, not merely the Claimants, can know where they stand and whether or not the order will be upheld, there is a particular need for dealing with the matter promptly in the case of this CPO. In addition, I am satisfied that the claim has raised no conceivably arguable error of law or procedure on the part of the Secretary of State. It is simply confined to the merits of making the order and therefore the claim must be dismissed.[9]MR KOLINSKY: I am grateful to your Lordship's judgment. My Lord, I am instructed to make application for costs. I have with me today a summary assessment. I draw attention to, and acknowledge, that I am not in compliance with the 24 hour requirement and that therefore my Lord can take that matter into account against me in the assessment of any costs. It is also fair to point out that this is a statement which will not have been seen by the Claimants.[10]MR JUSTICE SULLIVAN: Absolutely since they are not here. So the question is whether they should go for detailed assessment rather than summary assessment. But anyway you show it to me.[11]MR KOLINSKY: My Lord, yes. If I show you the figures involved. The total claim is for £2,560. It would be my submission that, given the sums involved and, as these things go, the relatively modest amount of the total amount claimed, the burden of detailed assessment would not be an appropriate one. If my Lord has doubts as to any of the figures then I would submit the appropriate approach would be to make assumptions against me but to summarily assess a figure that my Lord feels appropriate.

MR JUSTICE SULLIVAN: I cannot remember; did you produce the documents or was it the Council?

[13]MR KOLINSKY: My Lord, it says on the face of it "the second defendant"; I think that is an error. The Council produced it. So I suspect "time on documents" is effectively internal Treasury Solicitor time and also obviously the burden of instructing myself.[14]MR JUSTICE SULLIVAN: Yes. That is quite a lot of time spent on documents and there are not actually that many documents, given the amount of the claim, I am bound to say, although I suspect there was a careful perusal of the report. Yes, thank you very much.

JUDGMENT ON COSTS

[15]MR JUSTICE SULLIVAN: There is no possible reason why the claimant should not pay the First Defendant's costs. Given the amounts involved I think it is sensible, even though the particulars have not been served upon them, to summarily assess them. I am slightly concerned about the amount of time spent on documents given the vestigial nature of the documents produced by the Claimants. I think, therefore, a modest reduction in the overall figure to £2,250 would be appropriate. But since the Claimants have not been here, they may make representations, simply on the questions of costs, within a period of 7 days. If they do so, I will take them into account. That is not to be enforced for 7 days subject to those representations.[16]Yes, Mr Sauvain?[17]MR SAUVAIN: I have a similar application, appreciating that in this type of case the court would normally only make one order for costs.

MR JUSTICE SULLIVAN: It would.

[19]MR SAUVAIN: The special interest that my clients have, of course, is that it is their order; that the timing is important to them and that it was essential, from their point of view, to make sure that the case was brought on as quickly as possible and addressed as quickly as possible. Hence we prepared the bundle; we prepared our skeleton within the time required by the rules and we have appeared to add whatever weight we can to the application to resist the adjournment and to argue also on the merits if we had to do so. My Lord, I similarly have a schedule that has not been served.[20]MR JUSTICE SULLIVAN: I think I have seen a schedule, which is very much more substantial. But I think, Mr Sauvain, I do not want to put you to the trouble of handing in the schedule because first of all you will have to persuade me that it is appropriate in this case to make two lots of the costs, and frankly, given the vestigial nature of the claim -- I quite understand and of course it was quite proper for the Council to be concerned. Effectively it had to get the thing on the road because the Claimants had not produced the documents. But it was obviously, with respect to the Claimants, on the form pretty much a no hoper anyway. Whilst it is very nice to see leading counsel such as yourself here, I think it might be suggested that it is slightly over the top. It is understandable from the Council's point of view; it is very important that this thing goes ahead and is not tripped up. Is there anything else you want to say to me as to why there should be two lots of costs?[21]MR SAUVAIN: My Lord, as I say the only real substantial reason I can put forward is that it was more important to us that it should not be adjourned than it was to the Secretary of State.[22]MR JUSTICE SULLIVAN: Yes, I think that may well very often be the case. But, even so, I do not think it is a proper case for two lots of costs. It is very nice to have seen you, but I am afraid it is just part of the burdens of office for Newcastle City Council to have to pay for the costs of seeing off this challenge. At least they can be comforted that their order has been upheld. Thank you both very much indeed.