Turner v First Secretary of State & Anor [2007] EWHC 2008 (Admin)

Case No CO/968/2006[2007] EWHC 2008 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 14th August 2007
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE OUSELEY
Between
DAVID ALAN TURNERClaimantv
Between
FIRST SECRETARY OF STATEDefendant&DefendantRUSHMOOR BOROUGH COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
The Claimant appeared in person and was not represented for in personMiss S-J Davies (instructed by The Treasury Solicitor) appeared for First DefendantMr A Ranatunga (instructed by Rushmoor Borough Council) appeared for Second Defendant
J U D G M E N T
[1]MR JUSTICE OUSELEY: This is a challenge by Mr Turner, acting in person, under section 23 of the Acquisition of Land Act 1981. He challenges the decision of the First Secretary of State (as he or she was then known) made on 15th December 2005 to confirm a compulsory purchase order ("CPO") under section 17 of the Housing Act 1985. This order relates to 30 Sycamore Road, Farnborough, Hampshire.[2]Section 17 of the Housing Act permits the acquisition by a local housing authority of houses or buildings which may be made suitable as houses. The purpose of the compulsory purchase order here was, according to the local authority, to enable a house which was uninhabitable to be repaired, made habitable and re-occupied. This would provide what is described as a qualitative and quantitative housing gain.[3]The freehold owner of the property is the claimant's father. He is not in a position to conduct his own affairs because in the summer of 2004 he suffered an illness which left him in a coma. A receiver has been appointed over his property. She did not object to the compulsory purchase order, indeed she supported it. There is no love lost between Mr David Turner, the claimant, and the receiver, against whom he makes many allegations and whose appointment he opposed and whose position he has sought to have changed.[4]Mr Turner, the claimant, points out that the property in question has been the family home for nearly 70 years. He claims to be the occupier of the property. I put it that way because there was an issue before the Inspector, who held an inquiry into Mr Turner's objection to the CPO, as to whether or not Mr Turner was in fact occupying the property at all. He concluded that, notwithstanding various applications for benefit that suggested he was not residing there, evidence supporting the conclusion that he did occupy the house might, on balance, outweigh any clear evidence that he did not. Nonetheless, he said, whether or not the claimant was now sleeping or eating at the order property or otherwise using it as a base, conditions there were such that, in his view, it could reasonably be concluded that no full, decent, safe or proper habitation was possible.[5]The Inspector's report, in the usual way, describes the order property. It describes the way in which the property was used. The rear garden was full of accumulated rubbish, including car bodies. The front garden contained various items, including a new front door in the process of being varnished. Much of the ground floor, from his inspection, including the front sitting room and rear kitchen, appeared to him unusable due to the large accumulations of furniture, personal property, building materials, miscellaneous items and rubbish. Part of the ground floor front window was not glazed. There was defective guttering and signs of water penetration. The Inspector was not able to go inside the house because the claimant refused to enable him to do so.[6]After describing the property, the Inspector set out the case for the local authority. The background to the occupation by the claimant's father and his partner, the receiver, and the time over which the problems of the accumulation of rubbish and other property, and the interaction between father and son had arisen, noted. The Council then set out the endeavours it had made to secure improvement and re-occupation, including various enforcement notices, Building Act notices and the discussions from March 2004 onwards with both the father and the claimant about what work might be done in order to obviate a compulsory purchase order. Eventually, an order was made in February 2005. The Council submitted that they had taken exhaustive steps to encourage voluntary restoration both with the claimant and his father, that the claimant and father knew that the Council was nearing, as it put it, the end of its tether, and no significant work had been undertaken.[7]The claimant put forward his objections. He said that this had been his main home, that he had lived there full-time from April 2004. He sought to regularise the various benefit positions. He had been trying to progress the improvement and repair work at 30 Sycamore Road, describing what he had done. He hoped in due course, according to what he told the Inspector, to rent out 30 Sycamore Road, even though that would mean he would then have to live at 23 West Road, which the claimant described as a bad and insecure living environment. He had a prospective tenant. He work had been hampered by the serious illness of his father. His aunt also gave evidence in opposition to the compulsory purchase order.[8]The witnesses that gave evidence for the local authority included the receiver for the claimant's father, and environmental, housing and planning officers.[9]The Inspector concluded that there was a significant housing need in Farnborough and restoration of the order property to full residential use would help to reduce that need. As I have said, he took the view that evidence supporting a conclusion that Mr Turner occupied the house might outweigh the evidence that he did not, but concluded that no full, decent, safe or proper habitation was possible. He was satisfied that he had a reasonably clear view of the position as a result of his inspection of the property, limited by Mr Turner though that was. He took the view, and expressed it, that section 17 did not mean that, even if Mr Turner was living at the property, the compulsory purchase order should not be made, notwithstanding that the Council had taken the view that it was not occupied when making the CPO.[10]He then set out his conclusions on the Council's efforts to secure voluntary restoration of the property. He said that they had spent much time doing it but had had very little success. He was satisfied the order was made as a last resort. The claimant had had a period far in excess of that originally agreed with the Council and no significant progress had been made in the clearance of the ground floor rooms or gardens in the one year and seven months since the March 2004 meeting with the Council. He concluded that there was no explanation for the lack of progress between March 2004 and the inquiry in October 2005 other than "a lack of application or motivation on the part of Mr David Turner". The receiver had not helped, but the Inspector took the view that that was not surprising.[11]The proposals from the claimant for the property clearance and improvement were considered, but the Inspector took the view that considerable doubt existed as to his ability to achieve even the initial objectives of clearance and improvement within a short term period as he envisaged, or even a slightly longer period. This was because he had done little in the time which he had had; a great deal remained to be done; his voluntary actions suggested that the objective was not practically obtainable so long as Mr Turner was controlling the process; and, his endeavours to promote a tenancy might be frustrated because of a lack of support from those who actually owned the property, whether the father, who was in a coma, or the receiver, who opposed what Mr Turner was doing. The Inspector said:
"There is no clear understanding as to what works are necessary to be carried out to enable the order property to be fully and decently restored, because of the paucity of reliable evidence as to the present defects inside the house. In these circumstances there must be considerable doubt as to whether the resources Mr David Turner states are available to him would be sufficient to fund those works. There is no corroboratory evidence of the existence of such resources, and no firm evidence at the inquiry of financial or practical support from other members of the family, even if such matters had been discussed."
[12]The Inspector then turned to consider Article 1 of the First Protocol to the European Convention on Human Rights and concluded that, in view of the position of the owner, the action would not be disproportionate. Viewed as an occupier, there was no basis for concluding that Article 8 would be breached; the implementation of the order would not make him homeless because of 23 West Road. The Inspector then concluded overall that he was satisfied there was a compelling case in the public interest for the confirmation of the order. He said:
"Implementation of the Order would lead to a quantitative and qualitative housing improvement. The Council's proposals for the Order property are much more likely to result in the restoration of the Order property and its full occupation as a dwelling house to a decent standard within a reasonable period, than those of Mr David Turner. There appears to be no early prospect of the property being brought into proper residential use other than by the implementation of the Order."
He recommended its confirmation without modification.[13]After that the claimant sent a letter to the Secretary of State, emphasising matters which have been emphasised before me about his intentions to carry on with the work and various other matters that he had raised. The Secretary of State took those matters into account, but concluded that they did not alter the position as found by the Inspector and concluded that he would confirm the order as recommended by the Inspector.[14]Thereafter the claimant has brought a challenge which has raised a large number of points. These points have all been set out and considered carefully in the skeleton argument of counsel on behalf of the Secretary of State prepared for the hearing adjourned in October 2006. I make that point because Mr Turner is not represented. He said that he wished to have an adjournment so as to obtain legal representation. I refused that application in view of the lateness with which he raised the point, the past adjournment and the length of time which the case has been waiting. However, I have considered the points that he has raised in writing and the answers given to them in that skeleton argument. I agree with counsel's submissions in that document. I have to say that it is difficult to see, having read his material and the Inspector's report, what possible legal point a lawyer could have raised even if he had been instructed. Mr Turner was also hindered in his presentation of his case because he decided not to bring his papers with him to court because he considered that he was going to get an adjournment. The problems he faced as a result of the failure of that high risk strategy have been remedied through the kind assistance of counsel for the Secretary of State and the Rushmoor Borough Council.[15]Various points have been raised in front of me. Mr Turner contended that he could be left homeless as a result of the sale of the property. This is because he takes issue with what the Inspector says about the availability of 23 West Road. Mr Turner refers to the bad living environment there, violence and harassment, which he raised before the Inspector, and to the lack of certain facilities there.[16]However, there is no error of law in what the Inspector reported and the Secretary of State decided. It was the case, and nothing that Mr Turner has said has sought to gainsay it, that he said that his ideal option would indeed be to let out 30 Sycamore Road and reside at 23 West Road, notwithstanding the problems there and the more secure and peaceful environment at Sycamore Road as described to the Inspector. The question of its facilities, if there is no longer gas and electricity available, is not a matter which can be used to show that the Secretary of State, in adopting the Inspector's recommendations, made any error of law at all. But, in any event, it is perfectly clear that the Inspector took the view that it was not necessary for the property to be empty in order for the CPO to be justified. So Mr Turner's assertions in relation to the ECHR and the availability of 23 West Road do not show an error of law on the Secretary of State's part.[17]The Inspector's conclusion in relation to occupation I have already referred to, and the implication of that was that, nonetheless, conditions were such that no decent or safe habitation was possible. So the basic ground for there being a CPO was made out.[18]Mr Turner also said that insofar as the house was thought of as empty by the Council, and that was their contention, that was their fault, as indeed was the delay in his improving the house or repairing it because of various actions they had taken.[19]Insofar as the Council's responsibility for the difficulties which Mr Turner claims is concerned, the Inspector's conclusions in paragraphs 67 to 72 onwards, under the heading of "Council's efforts to secure voluntary restoration or Order property", make it quite clear that whatever may have happened in the past, and the enforcement notices were seen as part of their endeavour to improve the situation of the property, the claimant, with his father, had had ample opportunity to do the work and had failed to do so. The Inspector rejected the suggestion that there was anything behind this other than a lack of will or ability on the part of Mr Turner, and so there was no point in any further time being given.[20]The refrain from Mr Turner has been that he is working on the property. The Inspector had the opportunity to hear the evidence about what had been done, to hear the history of the dealings between the Council and Mr Turner, and his conclusions in relation to Mr Turner's ability, will and resources is not one open to legal challenge.[21]Much of what Mr Turner has sought to do has been to refer to endeavours which he has made after the confirmation of the compulsory purchase order to bring the property into an appropriate condition. Whether or not any such acts lead to a negotiated solution with the Council, and that may have been part of the thinking behind Owen J's adjournment last October giving Mr Turner one last possible chance, Mr Turner's subsequent actions cannot possibly create a basis upon which an error of law by the Secretary of State in confirming the order can be alleged.[22]The position is that the Secretary of State has reached a decision which contains no error of law. Somewhat belatedly, Mr Turner inquires as to what would constitute an error of law. An error of law in relation to a decision of this sort constitutes, first of all, confirming an order which is outwith the powers of the Secretary of State, or failing to adhere to a procedural requirement which has caused substantial prejudice. Neither of those conditions are made out. It is often said that a Secretary of State or Inspector has ignored a material consideration or, alternatively, has taken into account an irrelevant consideration or has failed to give adequate reasons for his decision. Mr Turner may not have cast his points in precisely that way, but that is the basis upon which I have considered them to see if they do constitute an allegation that has something in it of an error of law. As I said at the outset, none of Mr Turner's points, either as he formulates them or as they might have to be formulated to constitute an error of law, can possibly succeed. There is no basis here for saying that there is an error of law or procedure by the Secretary of State.[23]I appreciate that this decision may come hard to Mr Turner, but he has to recognise that the Secretary of State, through his Inspector, has considered the points, the Inspector heard his evidence and at root lie two aspects: first, the condition of the property was that it was not habitable, the second was that there was no real prospect that Mr Turner would be able to make it habitable within any reasonable period of time. The fact that it is Mr Turner's family home, in the very broad sense, or that he might be occupying it does not mean that he has an arguable case at all, let alone succeeded in demonstrating that the Secretary of State has made an error of law. Accordingly this, application is dismissed.[24]THE CLAIMANT: I would like to make an application, I would like to appeal that decision.

MR JUSTICE OUSELEY: Yes, I will deal that in a moment.

[26]THE CLAIMANT: Right.[27]MISS DAVIES: My Lord, I do have an application for costs to make. Has a statement of costs reached your Lordship?[28]MR JUSTICE OUSELEY: I have seen something. I have a statement for the 25th and I thought I had seen one with your name on it as well.[29]MISS DAVIES: I can hand another copy up to your Lordship.[30]MR JUSTICE OUSELEY: Here it is, yes. What are you seeking?[31]MISS DAVIES: I am seeking that your Lordship makes an order for the Secretary of State's costs, summarily assessed at that figure at the end of that schedule, which is £10,491. My Lord, that includes the costs of this hearing and the costs of the adjourned hearing in October, and your Lordship sees in particular at the end of the statement there is a box referring to Mr Phillpot's work, that comes into "other expenses". The fees that were incurred in instructing previous counsel who was unable to do today's hearing are included at the end, so that statement does cover the previous hearing and today's hearing as well.

MR JUSTICE OUSELEY: Is there any duplication through the change of counsel?

[33]MISS DAVIES: I have endeavoured not to include any duplication, my Lord. Your Lordship of course has seen that I have not produced, for example, another skeleton argument. There will of necessity be some overlap in my reading the papers and Mr Phillpot reading the papers, but your Lordship sees the number of hours that have been recorded, or the amount that is recorded for each counsel at an hourly rate of £100 an hour, so that duplication would I hope be very minimal.

MR JUSTICE OUSELEY: Have you seen this, Mr Turner?

[35]THE CLAIMANT: No, I haven't.[36]MISS DAVIES: A letter was written to Mr Turner at 30 Sycamore Road on 7th August by those who instruct me, including this statement of costs.

MR JUSTICE OUSELEY: Did you get that letter, Mr Turner?

[38]THE CLAIMANT: No, I haven't, no. You can hand me a copy if you want now.

MR JUSTICE OUSELEY: So you did not get it?

[40]THE CLAIMANT: No, no.[41]MISS DAVIES: The previous statement for the October hearing was sent to Mr Turner before the last hearing, and, as I have indicated, this was sent by post on 7th August.

MR JUSTICE OUSELEY: Do you have a copy for him?

[43]MISS DAVIES: I can hand Mr Turner my own copy.

MR JUSTICE OUSELEY: Do you want to just have a look at that?

[45]THE CLAIMANT: Sorry?

MR JUSTICE OUSELEY: Do you want to just have a look at that, they are asking for £10,491 costs.

[47]THE CLAIMANT: Here it says they are encouraging me to seek legal advice.

MR JUSTICE OUSELEY: Yes.

[49]THE CLAIMANT: Right, so what question am I asked?[50]MR JUSTICE OUSELEY: The Treasury Solicitor is seeking an order that you pay the costs of today and that you pay the costs of the adjournment, where Owen J reserved the costs, a decision on the costs occasioned by that adjournment, to today. So there are two issues: one, do you have anything to say as to why you should not pay those costs, and, two, do you have anything to say about the amount of those costs?[51]THE CLAIMANT: Right. I obviously think they're massively inflated and not called for, not even in the slightest. To who would I be owing that amount of money?[52]MR JUSTICE OUSELEY: That is the costs that the Treasury Solicitor say they have incurred, both their own internal costs and the costs of counsel.[53]THE CLAIMANT: Right. I don't agree that I owe that.

MR JUSTICE OUSELEY: Yes.

[55]Is it possible to discern, Miss Davies, from that which are the costs of today and which are the costs of the adjournment, just the £2,075, is it?[56]MISS DAVIES: There will be some other costs from attendances by Treasury Solicitor. If you would allow me, my Lord, to take some instructions on that.[57]MR JUSTICE OUSELEY: While instructions are being taken, Mr Ranatunga, are you making any application?[58]MR RANATUNGA: My Lord, I am not instructed to seek costs.[59]MISS DAVIES: One way of looking at it, my Lord, is that the costs up to and including the previous hearing, as set out in the previous statement of costs, were £5,139. The costs incurred since that date take us up to the figure of £10,491. Of course, there will be some costs, for example costs of the minute of advice that is written, that would pre-date the first hearing.

MR JUSTICE OUSELEY: Yes.

[61]I am going to make an order for costs in this matter. The claimant brought these proceedings, decided for himself what allegations he was going to make and pursue, and decided that he would not incur the costs of legal advice, which would probably have been not to cause a risk of payment by him through proceeding with a misconceived case. On the other hand, Owen J was persuaded that an adjournment should be granted, although there is clearly room for a dispute between the parties as to whether what Owen J envisaged being done during that period has remotely been attempted. Rushmoor Borough Council, in its letter of 29th May 2007, paint an alarming picture -- no doubt, Mr Turner would dispute it -- and they say the applicant has not done anything or been in touch. Nonetheless, as Mr Turner sought the adjournment and it was granted, I have some reluctance to make the entirety of the costs of the adjournment or associated with it payable by him. By that stage some £5,000 in costs had been incurred, by now some £10,000 have been incurred. Some of the costs incurred before the last adjournment will be relevant to these proceedings.[62]Doing the best I can not to put the costs of the adjournment onto Mr Turner, notwithstanding the unresolved debate about what he may or may not have done during the period of grace which the judge granted, but otherwise to impose a reasonable liability, the total would appear to be, taking the figures at face value, some £7,500, allowing for part of the costs before the adjournment to be necessary for these proceedings. Mr Turner, not being represented, may not be in a good position to take issue in a way which others might have been able to with the work done in terms of hours and the valuation of those. Some allowance ought to be made for that and I conclude that, in the round, the sum of £6,000 with VAT to be added to it should be paid by Mr Turner. So there will be an order for costs in favour of the Treasury Solicitor in the sum of £6,000 plus VAT.[63]Now, Mr Turner, you asked about leave. You can ask me for leave to appeal. Do you want to say anything about why you should have leave to appeal?[64]THE CLAIMANT: I think my human rights are being violated and I think I should have the right to appeal.

MR JUSTICE OUSELEY: Yes.

[66]THE CLAIMANT: And to get legal representation next time, conduct my case a bit better.[67]MR JUSTICE OUSELEY: I am going to refuse you leave to appeal because you do not have a remotely arguable case and the problems are problems of your own creating. The next step for you if you want to take it further, and it is my advice you listen to what I said about the nature of the problems you face, but the next step for you would be to seek leave to appeal from the Court of Appeal.[68]THE CLAIMANT: Within how many days?[69]MR JUSTICE OUSELEY: I will have to check that myself. 14, is it? I am being told that it is seven days but I will give you an extension --[70]THE CLAIMANT: Where is the Court of Appeal?[71]MR JUSTICE OUSELEY: Wait a moment, Mr Turner. I will give you 21 days from today in which to seek permission from the Court of Appeal. Where you go to and how you do that, I cannot help you with.[72]THE CLAIMANT: Right, okay.

MR JUSTICE OUSELEY: It is not that I am unwilling, I just do not know.

[74]THE CLAIMANT: I can make my own enquiries on that. So that's it.

MR JUSTICE OUSELEY: That is it.