Powell & Ors, R (on the application of) v Secretary of State for Communities & Local Government & Anor [2007] EWHC 2051 (Admin)

Case No CO/2224/2007[2007] EWHC 2051 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 22nd August 2007
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF JAMES POWELL AND OTHERSClaimantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendantSEFTON METROPOLITAN 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 claimants appeared in person via video link for in personMr James Maurici (instructed by the Treasury Solicitor) appeared for 1st DefendantMs Frances Patterson QC (instructed by Messrs Eversheds) appeared for 2nd Defendant
J U D G M E N T
[1]MR JUSTICE SULLIVAN: This is an application under section 23 of the Land Acquisition Act 1981 challenging the validity of the Sefton Metropolitan Borough Council (Queens Road and Bedford Road) Compulsory Purchase Order 2005 ("the CPO"). The CPO was made on 29th June 2005 for planning purposes under Section 226(1)(a) of the Town and Country Planning Act 1990. There were a number of objections to the order and so an inspector, Mr Ware, was appointed by the Secretary of State to hold a public inquiry into the objections. The Inspector held the inquiry on various dates between 23rd May and 9th June 2006. He reported to the Secretary of State on 10th October 2006 and his recommendation was that the order should be confirmed without modification. In a decision letter dated 12th January 2007, the Secretary of State agreed with the Inspector's recommendation and conclusions and confirmed the order, essentially for the same reasons as recommended in the Inspector's report.[2]The Inspector's report is a lengthy document; it runs to 353 paragraphs. It is in the conventional form. Having dealt with a number of procedural matters, the case for the acquiring authority is set out, then the cases for the objectors are set out. Finally, the Inspector set out his own conclusions, cross referencing back to the earlier paragraphs, between paragraphs 286 and 353 of the report.[3]The grounds for a challenge under section 23 are constrained; that is to say this hearing is not an opportunity to rerun the merits of the Compulsory Purchase Order, it is simply an opportunity to see whether there is any procedural or legal error in the process of confirmation. The details of the claimant's claim are set out in manuscript grounds. Although there was an application for an adjournment earlier this morning, I refused this application for the reasons given at that time. By way of background, I should mention that on 21st May this year I expedited the hearing of this challenge, and ordered that it be listed in August if possible and that it be heard by a planning judge. I am satisfied that that timescale did not prevent a proper challenge being made to the order or indeed the identification of any error of law, if error of law there was. It has to be borne in mind that the decision letter is dated 12th January 2007. There is, in the statutory framework, a short period, six weeks, within which to challenge the order. The underlying statutory purpose behind that short period for challenge would be frustrated if the court was to delay resolving a challenge. It is very important from everybody's point of view, including those who are not present in court but are affected for good or ill by the CPO, that these kinds of challenge are dealt with promptly by the Court.[4]The grounds were partially numbered but there were a number of sub-grounds and therefore, for the sake of convenience, what I propose to do is to adopt the numbering of the grounds that is set out in Mr Maurici's skeleton argument on behalf of the Secretary of State. Adopting that numbering, grounds 1 and 2 were withdrawn at the outset of the hearing. Ground 3 contends that the order is void in law because the resolution to make the order was made by the Council's Cabinet and the contention was that the Cabinet did not have jurisdiction in law to do that. That was an argument which was raised before the Inspector and not accepted by him. The Inspector was shown the Council's delegation arrangements. There is not the slightest doubt that a decision to make a Compulsory Purchase Order may be delegated by a full council and in the present case the Council's delegation arrangements have been produced and it is plain that the Council's Cabinet did have delegated authority to make Compulsory Purchase Orders. There is nothing unlawful in principle in such delegation and since it in fact happened in this case that really is the end of ground 3.[5]As set out in the grounds, ground 4 complained that the Secretary of State in confirming the order for the purposes of "the creation of a sustainable community through a better balanced housing market" failed to have regard to the requirements of her policy on housing and housing market failure and renewal. Various policy documents are referred to. It is not clear why some of them are said to be relevant to the present case since they deal with Compulsory Purchase Orders under the Housing Act but, in any event, the submission that the Secretary of State failed to have regard to her own policies is really a non-starter. There is no reason whatsoever to suppose, and the onus would lie on the claimants to establish, that the Secretary of State did fail to have regard to the relevant policies. Certainly there is nothing in the decision letter to suggest that there was any failure to have regard to them. In reality, as put by Ms Joyce, whom I permitted to speak on behalf of the claimants, the complaint under this ground appears to be rather more a challenge to the rationality of the Secretary of State's housing market renewal policy. The gist of the complaint, as it is now put, is that the policy effectively runs counter to other government's policies on affordable housing and therefore that the policy is irrational. I quite understand that the claimants may disagree with the Government's housing market renewal policy but it is really quite impossible to say that the policy itself is irrational, given the highly judgmental nature of housing policy generally. So it seems to me that ground 4, as now put, which is in essence a bald assertion that the housing renewal policy is irrational, is misconceived.[6]I move on, adopting the numbering, as I say, in the Secretary of State's skeleton argument. Ground 5 was an allegation that the Secretary of State failed to take into account the Inspector's findings. That has not been pursued in argument, in my judgment for good reason, because it is quite obvious from the face of the decision letter that the Secretary of State did indeed take into account the Inspector's report. One might have somewhat more concern in a case where the Secretary of State was disagreeing with an Inspector's recommendation or conclusions. One might then look quite closely to see the extent to which the Secretary of State had properly taken on board what the Inspector was saying, but this is not such a case. Effectively, the Secretary of State endorsed the conclusions of the Inspector and so really there is no warrant for the suggestion that the Inspector's report was not considered.[7]Ground 6 was an aspect of ground 4, that is to say the alleged irrationality of the housing market failure and renewal policy. Again, the merits of that argument were put at the inquiry and not accepted by the Inspector. As a rationality challenge, at this stage it is bound to fail. The principal arguments advanced during the course of this hearing by Ms Joyce fell under ground 6 and, in broad terms, what the objectors are saying is that they did not have a fair hearing before an independent and impartial tribunal in accordance with Article 6. Although it is said on their behalf that the Alconbury decision can be distinguished, it is plainly the starting point and it establishes the proposition that the system is in principle fair. Of course, in individual cases there may be unfairness but overall the system of having inquiries conducted by an independent inspector reporting to the Secretary of State whose decision is subject to legal challenge in the court is a fair one, so one has to look to see why it is said that there might have been unfairness in the circumstances of the present case.[8]The reasons, as I understand them, were principally these. First of all, it was contended that the Inspector should have been required to make findings of fact and it seemed to form a substantial part of the objectors' case that there had been a change in the relevant inquiries procedure rules from requiring the Inspector to make findings of fact and recommendations requiring him to make conclusions and recommendations. That criticism of the change in the rules is wholly misconceived. The change in the rules reflected the reality in planning and Compulsory Purchase Order inquiries and other inquiries of a similar kind. It is very difficult to disentangle straightforward findings of fact from matters of judgment or opinion and thus one very often sees findings of fact and conclusions and opinions mixed up. Thus, whether a site is a particular acreage or not is a question of fact; whether it is unduly prominent, whether it is run down, why it is run down, those are matters of opinion, and judgment. Thus it is that conclusions are required from an Inspector and those conclusions will embrace both matters of fact and matters of opinion or judgment on which the Inspector will ultimately make his or her recommendation. If it can be demonstrated that in reaching his or her conclusions the Inspector has omitted to make an essential finding of fact, not a matter of disputed judgment, then that may form the basis of a legal challenge, because if the Inspector has not found an essential fact then neither the Inspector nor the Secretary of State would have been able to take it into account as a relevant consideration. So the rules first of all reflect the reality, that is to say the difficulty of distinguishing between fact and opinion in cases like this but, secondly, they do not preclude the possibility of a legal challenge upon the basis that it was necessary to find a particular fact and that fact was not found.[9]The question in this case, in any event, is academic because there is no proper evidential basis for the assertion that the Inspector failed to find particular facts. It is said that certain matters were or were not established during cross-examination. There is no proper evidence to that effect. It is well established that if a claimant in such a case wishes to challenge the accuracy of an Inspector's report, then the challenge must be set out in a witness statement so that the Inspector will have a proper opportunity to respond and the acquiring authority. That has not been done and I have to say that a number of the "facts" that it was said were established in evidence were rather more matters of judgment than fact.[10]Allied to this complaint was the complaint that there were preclusive clauses which in certain circumstances enable the Secretary of State to disregard objections when confirming a Compulsory Purchase Order if those objections are made on certain bases, for example if they amount to an objection to the development plan. This criticism, which refers to section 245(1) of the Town and Country Planning Act and rules 13 and 17 of the inquiries procedure rules, is beside the point in the present case because, if one looks at the decision letter, it is obvious that the preclusive provisions were not applied by the Secretary of State. Indeed, the gist of the arguments about why it was that the properties within the Order lands were in the state that they were is set out in the Inspector's conclusions. Between paragraphs 293 and 305, he dealt with the "causes of the current condition of the area" and he set out the claimant's arguments, which were, in very brief summary, that the current condition of the area was due to the Council's own policies, which the Compulsory Purchase Order sought to perpetuate. The Inspector did not say that he was not prepared to consider those arguments. He considered them on their merits and it is plain that he rejected them if one reads, for example, paragraphs 304 and 305 of the report. I simply read the relevant passages in those paragraphs:
"304. Similarly the Council's alleged failure to maintain the quality of the public realm, contested by the authority, was suggested as playing a part in the state of the area. The experience of some residents is that refuse and other services are inadequate, and a range of failings were similarly alleged in relation to policing and security. This evidence, presented to the Inquiry by a number of objectors, was largely anecdotal but nonetheless convincing. However, this comes nowhere near to demonstrating that, contrary to the Council's evidence, housing market failure is not the underlying cause of the acknowledged problems of the Order Lands. 305. The concept of housing market failure is widely accepted. In relation to the Order Lands, the evidence persuasively demonstrates that housing market failure has occurred. Even taken together, the matters raised by objectors could have had the effect of aggravating an already depressed situation."
I quite understand that the objectors do not accept that assessment but it is impossible to contend that the merits of their contentions were not considered by the Inspector and rejected by him on the merits.[11]I move on to the complaint that there had been a breach of Article 8 and Article 1, Protocol 1 of the European Convention on Human Rights. The complaint is put in very general terms in the claimant's grounds. It is clear, however, that both the Secretary of State and the Inspector expressly considered the issue of human rights. The Inspector did so between paragraphs 347 and 349 of his Inspector's report and the Secretary of State did so on the last page of her decision letter, saying:
"The Secretary of State has also carefully considered whether the purposes for which the compulsory purchase order was made sufficiently justifies interfering with the human rights of the landowners and objectors and she is satisfied that such interference is justified since, for the reasons given below, she is satisfied that there is a compelling need in the public interest for the land, the subject of the compulsory purchase order, to be compulsorily acquired. In particular she has considered the provisions of Article 8 of, and Article 1 of the First Protocol to the European Convention on Human Rights. The Secretary of State agrees with the Inspector's conclusion that given the general decline in the housing market and in housing conditions, and the poor general environment in the Order lands, there is a compelling need to rectify those conditions which justifies the interference. She agrees that the compulsory purchase of the Order lands is a necessary course of action to deal with that situation since previous interventions in the area have not been successful. She is satisfied that the Order strikes an appropriate balance between the public interest of achieving worthwhile long-term regeneration and the private interests of the owners."
[12]I appreciate that the claimants vigorously disagree with that assessment and one of them, for example, Mr Gittins, made a very eloquent plea to me in respect of his property in particular. The difficulty they face is that this is a court of law. It is not for me to decide whether the right balance was struck. That issue was a matter for the Secretary of State and it is only if it can be said that her view as to the balance was irrational or perverse that this court can intervene. Given that in this case the Secretary of State was actually agreeing with the recommendations of her inspector, that is an almost impossible task for the claimants to surmount. It is well established that those articles of the Convention do permit interference both with property rights and family rights in accordance with the law in appropriate cases, in particular where it is necessary to do so in the public interest. The Secretary of State was satisfied that that was the case here and it cannot be said that her conclusion was wrong.[13]That, I think, leaves one other matter which was raised. It was said that there was not a fair trial because effectively the outcome was a foregone conclusion because there was a "prior approval" of the Compulsory Purchase Order as a result of the various agreements that were entered into between the Secretary of State and the local authority and others prior to the Compulsory Purchase Order. In particular, there was a Marketing Restructuring (Implementation) Agreement dated 31st March 2004. Now, there is no doubt that under those agreements the Council was offered financial support under the regeneration of pathfinder areas programme and that certain targets were set for the acquisition of properties, the demolition of properties and so forth, and funding was provided upon the basis that those targets would be met. However, the answer to this point is to be found in both the skeleton argument of Mr Maurici and in the skeleton argument of Ms Patterson QC on behalf of the local authority. Clearly there cannot be any dispute that the Secretary of State does have a policy of encouraging the regeneration of pathfinder areas in the manner proposed by this council and, that because there is such a policy, funding is provided for its implementation. But that is a very long way from saying that the outcome of any particular compulsory purchase order or the fate of any particular property in a compulsory purchase order is effectively a foregone conclusion. As the Franklin case (Franklin v Minster of Town and Country Planning [1948] AC 87) demonstrates, while there may in principle be unlawful pre-determination, it exists only if the Secretary of State has forejudged any genuine consideration of objections to a Compulsory Purchase Order and simply does not genuinely consider the objections that have been made. One only has to read the Inspector's report for it to become perfectly obvious that the Inspector did very carefully consider all of the points made in respect of each individual objector, and reached conclusions in respect of them. I accept that the objectors do not agree with those conclusions, but the conclusions were open to the Inspector on the evidence. The Secretary of State has accepted those conclusions. Thus there is no evidential basis for the claim that there was in some way prior approval.[14]I should just mention that part of the case in support of the argument that there was prior approval appeared to be based on Section 90(1) of the Town and Country Planning Act 1990, which enables central government in certain instances to effectively deem that planning permission is granted if it is giving authorisation for projects under other enactments. That provision has absolutely nothing to do with this case. This is not a case where the decision letter deems the grant of planning permission. Any planning permissions granted in respect of the Order lands were granted by the planning authority in the normal way and all that this decision letter does is to confirm the Compulsory Purchase Order. So if that was the basis of suggesting that there was in some way prior approval, I have to say that that was entirely misconceived. It does seem to me that, more generally, this objection confuses the ability of Government to have policy preferences, and therefore obviously to agree in principle funding for carrying forward those policies, for example the construction of new highways or whatever, and the question of whether a decision on a particular compulsory purchase order, or a particular property in a compulsory purchase order, is in some way a foregone conclusion as a result of that process. It is not and the objections plainly were carefully considered by the Inspector.[15]That deals with the grounds that were presented to me in argument by Ms Joyce. Insofar as the claimants, through Mr Powell, made it clear to me that they did not want their challenge to be withdrawn and wanted it considered, I should make it clear that I have considered all of their written grounds and I have considered the response to those written grounds set out in Mr Maurici's skeleton argument and in Ms Patterson's skeleton argument. As I indicated to Mr Powell at the outset, those responses having been made, it was really up to the objectors to persuade me that there was some legal error in those skeleton arguments in response and I have to say that they have not done so. If there is anything that I have not covered in this judgment, for example because it was not raised in oral argument but has been raised in writing, then I would simply adopt the response given on behalf of the Secretary of State and the Council in their skeleton arguments; not, I hasten to add, because of some defence to the parties on whose behalf they were submitted, but because I am quite satisfied that the answers are cogent and correct.[16]So for those reasons, whilst I understand the very strong feelings of the claimants, I am quite satisfied that as a matter of law there are no procedural or legal defects in the confirmation of this order which would justify me making a quashing order under section 23 of the 1981 Act. So for those reasons the application is dismissed.[17]Thank you.[18]MR MAURICI: My Lord, in addition to an order dismissing the claim, I do ask for an order for the Secretary of State's costs. I do not know if your Lordship has seen a summary assessment of the costs. It would have been last week.[19]MR JUSTICE SULLIVAN: I have not, I do not think. Is it in the bundle prepared by the Treasury Solicitor? If it is, I have, but I certainly have not caught up with that, I am afraid.[20]MR MAURICI: I understand it was also sent last week to the claimants, last Friday to the claimants. So the total you will see is 8,240, although you will notice that that is based on five hours attendance and I think we are probably looking at two and-a-half, so I am prepared to take £400 off, which would be 7,840, on my calculation. Other than that, I ask for an order summarily assessing the amount of £7,840.[21]MR JUSTICE SULLIVAN: It is on the high side but that, I suspect, partly is because of the manner in which the points were put and the fact that effectively the Treasury Solicitor has been almost having to marshal the arguments to find out what they are and then respond to them.[22]MR MAURICI: Very much so, my Lord, yes.[23]MR JUSTICE SULLIVAN: Mr Powell, what do you want to say about that? Or indeed Ms Joyce? There is an application for costs. The normal order would be that an unsuccessful claimant would be ordered to pay the costs. Just in case Ms Patterson is minded to make an application, the normal order would be for the Secretary of State's costs only and exceptionally only for the Council's costs, but we can deal with that in a moment, if we have to. Is there any reason why you should not pay the Secretary of State's costs?[24]MS JOYCE: If I can put some words first, and James Powell on behalf of others may wish to say something. Sir, 8,000, or 7,840, the court indicates is a bit high. We do not know what is high or low, all we know is that 7,840 is an awful lot of money for people who are losing their homes at valuations which are, as JRS(?) has found out, 30 to 50 per cent lower than the market, when they have no homes to go to and where all of them are either in low income jobs or in no jobs at all. It seems to me an utter disgrace that the Secretary of State takes away the livelihoods and takes away the homes, demands that you appear at an Inspector's incompetent hearing and then is inviting the High Court and then she charges you for the privilege of doing it. These people have got nothing because your judgment takes away everything that they had. They can make a small contribution but that is the limit. We have desperately over the last two years tried to assist each other in photocopying and all of the costs associated. It seems to me, and I do not have Mr Maurici's costs in front of me, but it does seem to me it did not take very long, it was not very onerous. All of these extraordinary hours of TSol preparing and being with counsel do seem onerous and wholly unnecessary, sir. But more important than that is that these people have nothing and could not afford whatever variety around 8,000.[25]MR JUSTICE SULLIVAN: Well, even the Treasury Solicitor cannot get blood out of a stone and whether or not you can actually enforce costs is another matter. All this court is concerned with at this stage really is whether there is any reason not to adopt the normal practice, which would be awarding costs against the unsuccessful party. Whether the Treasury Solicitor chooses to enforce the costs and, if she does, whether she is going to be successful, that is quite another matter. That is a matter for another day. Anyway, is there anything else you want to say on the amount?[26]MR POWELL: Sir, as in the costs. My name is James Powell.

MR JUSTICE SULLIVAN: Yes, Mr Powell.

[28]MR POWELL: As of the costs and what not, what you have been going on about there, I am in the other way, as in the Council have not even given me enough money to buy a house. They are going to throw me out of my own house, from my home now, and they are not even offering enough money to go and buy another house. So I think what they are asking for, if they want to, they can take it out of whatever compensation they give me but, as far as I am concerned, as of when the CPO comes out, I am out on the streets. I cannot even afford to get another house, which I already own a house, the house what I have now I own outright, and now I have to give all that up, all the working I have done for the last 30-odd years to buy this house, I have to give all that up just because someone wants to make money out of my house where I live now. Someone is making money out of it. I am certainly not. As I am going to be out on the streets whenever this CPO comes out and, I am not being funny, but I think they have a cheek asking because it is they that have caused this situation, not us. We have not caused the demolition and the situation. So for them to go asking costs off us, I think they have a cheek and they are not even offering us the money to go out and get another house. So I think the costs and the compensation what we are asking for is down to the Council. They caused the argument, they should settle it.

MR JUSTICE SULLIVAN: Thank you very much, Mr Powell.

[30]MR POWELL: The Secretary of State, whoever is trying to get the costs out of us, if I could give them I would give them but I think for anyone to be asking us for money after what happened here today, I think it is very unfair. I feel like I have been bullied out of my house. I know it is the law and that and I am not disputing the law. It is the way the things have gone about it that I do feel bullied about getting letters off the Council and I feel totally bullied our of all this and I feel like I cannot do anything. So whatever you say today, I feel like I have to go home and put up with that.

MR JUSTICE SULLIVAN: Thank you very much.

[32]MR POWELL: Thank you, sir.[33]MR JUSTICE SULLIVAN: The question whether it is appropriate to actually enforce an order for costs is a separate one from the one as to whether an order for costs is appropriate. I have to say there are not any good reasons why the claimants as unsuccessful litigants should not be ordered to pay the Secretary of State's costs. Those costs, in a summary assessment of £7,840, are on the high size for a one day CPO case but they are on the high side because the Treasury Solicitor, and counsel instructed by the Treasury Solicitor, had effectively to organise the material to identify the grounds so that they could then be answered, so that it has to be said that the way in which the case was presented to the Secretary of State necessarily involved, for the assistance of the court, the Treasury Solicitor doing a considerable amount of extra work. That said, what I am going to do is to trim the costs to £7,000, so I summarily assess those costs in the sum of £7,000. I merely say this: obviously it is a matter for judgment for the Secretary of State as to whether she wishes to try to enforce the order for costs or whether it might be thought that would simply add an insult to injury and make the Council's task in generally regenerating the area rather more difficult than easier, but that is entirely a matter for the judgment of the Treasury Solicitor and the Secretary of State.[34]I have assumed Ms Patterson that, due to your sitting tight, that you are not going to be making an application for costs.[35]MS PATTERSON: I am not.[36]MR JUSTICE SULLIVAN: No. Right. Thank you very much.[37]Thank you all very much indeed. I am sorry to have kept you a little longer but it is better to have disposed of it in one go rather than make everybody come back after lunch. Thank you.

Cited in 7 later judgments