Michael, R (on the application of) v Secretary of State for Communities and Local Government & Anor [2008] EWHC 2646 (Admin)

[2008] EWHC 2646 (Admin)

Case No CO/3415/2007

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 3rd October 2008

Strand

London WC2A 2LL

B e f o r e:

ANTONY EDWARDS-STUART QC

Between

THE QUEEN ON THE APPLICATION OF MICHAEL MICHAELClaimant

Between

SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendant

SALFORD CITY COUNCILDefendant

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The Claimant appeared in person for in person

Mr Strachan and Mr Loveday (instructed by the Treasury Solicitor) appeared for First Defendant

for The Second Defendant was not represented and did not attend

J U D G M E N T

[1]DEPUTY HIGH COURT JUDGE: This is an application for judicial review of a decision by the Secretary of State for Communities and Local Government to confirm a compulsory purchase order relating to a plot of land at 212 Great Clowes Street in Salford, Manchester. The decision was made by a letter dated 1st March 2007, the original CPO having been issued in April 2005 and subsequently been the subject of a public inquiry in June and October 2006.

[2]The applicant, Mr Michael Michael, is the owner of the subject land, which he bought just under 10 years ago. The plot, 212 Great Clowes Street, stands on what is effectively an island site, bounded on the west by Great Clowes Street and on the east by Cornet Street. At the southern end of the site, numbers 208-210, was a building known as the Presidential Hotel, which runs the full width of the island between Great Clowes Street and Cornet Street. The next plot is Mr Michael's, 212, which also runs the full width of the island between Cornet Street and Great Clowes Street. It is important to note that the only vehicular access to Number 212 is from Cornet Street. There are then a further five to six properties to the north of Mr Michael's property, which cover the remainder of the island site, apart from one plot at the northeast corner, which is described as a works.

[3]At the outset of the hearing, I reminded Mr Michael of the nature of the exercise which an application for judicial review involves. I explained to him that it was not my opinion of the facts which mattered but rather whether the Secretary of State was entitled to take the decision she did on the material that was available to her. In particular, I explained that he must show that the decision was one that no reasonable Secretary of State could have taken on the material available. In other words, he would have to show either an error of law, or a consideration of irrelevant material, or a failure to take into account material that was relevant, or that it was so perverse that no reasonable Secretary of State could have made it, or that the reasons given were inadequate. Mr Strachan, who appeared for the Secretary of State, was content to accept this rather crude summary as adequate for the purposes of the present application.

[4]To turn back to the site, the remainder of it, apart from Number 212 and the works, were subsequently acquired by some developers Messrs Godliman and Watson ("G and W"). By early 2004, when they had acquired the land north of Number 212, they approached Mr Michael, who at the time lived in London. In the course of the following few months there were sporadic discussions, and G and W in fact offered to buy Mr Michael's site. However, he was not prepared to sell, because he wanted to develop it himself. I am entirely satisfied that his wish to develop it himself is an entirely genuine wish and that it is something which, if other considerations had not intervened, he would still wish to do.

[5]In October and November 2004, G and W wrote two letters, which were before the Inspector, and since they play a part in the story that is not unimportant and indeed one of them was strongly relied on by Mr Michael, I think it is right that I should read them. The first of the two, dated 14th October 2004, read as follows:

"Dear Michael 212, Great Clowes Street, Salford Further to our faxed offer of August I would be grateful if you could let me know one way or the other of your intentions for the site. I have tried on numerous occasions to speak to you and would hope we can resolve the situation. We intend to submit a planning application within the next fortnight which will differ depending on your decision. As you are well aware your site will complete the development and help lift the area. I hope you will respond to this letter and would appreciate the chance to sit down and discuss the site. Kind regards Iain Watson"

. About 3 weeks later, Mr Watson wrote again on 8th November 2004, in the following terms:

"Dear Michael... As you are well aware we are hoping to submit our planning application for the entire site and intend to proceed later this week. I appreciate you are busy with various other projects but would have hoped that you may have returned one of my numerous messages. I trust that a deal can still be done so I am including your site within our application. If we could arrange a meeting, as I have said before, it would appear the best way of moving this matter forward."

[6]The situation at that time was that Number 212 was effectively derelict, having been badly damaged by two fires that occurred shortly after Mr Michael bought it. The surrounding area was very rundown and there was a lot of vandalism. Although Mr Michael had devoted considerable resources to refurbishing Number 212, or at least three of the flats in it, it was still empty at the time of the first fire, which occurred in April 2000. Unfortunately, it was a condition of his insurance that the house should have been occupied at the time, so, in the absence of any insurance recovery, Mr Michael did not repair it. In fact, a little later it was damaged by a further fire, which caused substantial damage to the roof.

[7]Mr Michael, in his courteous submissions to the court, readily accepted, both before me and throughout the proceedings, that Number 212 could not be developed in isolation from the adjacent properties, partly because there would have been no point in doing so when the rest of the island site was so rundown and prone to vandalism, and partly because the development of his site would have to fit in with the development of the adjacent properties.

[8]In November 2004, as the letter I read a moment ago indicated, G and W applied for planning permission for the whole site, by which I mean the land which they owned plus Number 212. Mr Michael says that he did not receive notice of this application, but in his report following the public inquiry the Inspector did not accept this. At paragraph 52 of his report, he wrote this:

"On the first matter I note there was a conflict of evidence between the Acquiring Authority and the objector. I have noted the documents submitted on behalf of the Acquiring Authority which include not only a copy of the Certificate B and Notice No.1 for notification of persons having an interest in the redevelopment site but also copies of correspondence and telephone call logs between the developer and the objector which clearly set out the intentions with regard to the submission of the relevant planning application. In the circumstances I am able to conclude that the statutory procedures relating to notification of the redevelopment application were, on the evidence, complied with. The objector was unable to offer any explanation as to why, out of all the documents he had received from both the Acquiring Authority and the developer, these documents did not appear to have been received by him. However, given the history of extensive contacts between the developer and the objector I conclude, on the balance of probabilities that the objector was not unaware of the redevelopment scheme in so far as it affected the Order Land."

So far as that last paragraph is concerned, it seems to me, from the material that I have seen, some of which was before the Inspector (all the material I have seen that is relevant to this point was before the Inspector), that the conclusion of the Inspector in that last sentence was entirely justifiable and I can find no basis for criticism of it.

[9]As I have already mentioned, the letter of 8th November 2004 from G and W to Mr Michael made it clear that they were proposing to put in a planning application for the whole site, including his property. On 17th February 2005 that application by G and W for planning permission was granted. On 29th April 2005 Salford City Council issued a CPO in respect of Mr Michael's property. It is that CPO which is the subject of these proceedings. Mr Michael objected to that CPO, as was his right, and so, as a result, there was a public inquiry. The Inspector was a Mr Keith Smith. The inquiry was held on 6th June and 3rd October 2006. The reasons for that are perhaps best explained in the words of the Inspector himself. He said, at paragraph 3:

"3. At the opening of the Inquiry one statutory objection was outstanding. Evidence in support of the objection was presented to the inquiry."

That was the objection by Mr Michael. He continues:

"4. The main grounds of objection were, in summary, a preference for the objector to retain ownership of the subject land and to arrange for redevelopment to be carried out on his own behalf. It was argued that there was insufficient justification for the exercise of compulsory purchase powers in the public interest in that the Acquiring Authority's purposes could be achieved by other means. 5. Following a short adjournment on the first day of the inquiry the Acquiring Authority and the objector requested an adjournment of the inquiry for a period of 3 months to enable the objector to enter into discussions with the Authority; prepare and submit for determination a planning application for an independent redevelopment of the subject land. I acceded to this request and adjourned the inquiry to resume on 3 October 2006. 6. After the close of the inquiry on 3 October 2006 I carried out an accompanied inspection of the Order Land, the adjacent redevelopment site and other sites in the surrounding locality, including the Presidential Hotel."

[10]Mr Michael takes issue as to whether the Inspector was correct to report that the local authority also agreed or requested the adjournment, but in my judgment nothing turns on that matter of detail. What is perhaps more important is the reason for the adjournment, or the request for the adjournment, as put forward by Mr Michael in his statement to the inquiry. What he said was this:

"I hope one can see from my above statement how unfairly I have been treated by the Council and the developers in the last 18 months or so and that I have a genuine grievance. As I said previously, my aim still remains to develop my site and I would like to say I am still fully prepared to cooperate with both Salford City Council and the developers in order to develop my site at 212 Great Clowes Street to the benefit of all involved with time scales etc. After all my confusion which I explained above and my unfair treatment, in my opinion, by both the council and the developers, I have at last managed to find out, through my solicitor and my planning consultant, my rights and where I stand as far as my site is concerned. As I know now I should have the right to enter my property by vehicle from the rear at Cornet Street and therefore able to build, I am putting forward to the Public Enquiry the following: 1. Strict time scales to be imposed on me for developing my site so that both the Council and the developers have confidence that the development of my site will move forward fast and not remain a derelict building impeding the general development of the block (if these time limits are not kept then the Inspector of the Public Enquiry to have the right to impose the CPO). 2. High standards and specifications of the development to be guaranteed (references may be obtained by the environmental offices of the council). 3. Within 2-4 weeks and with consultation with the council and the developers full building plans to be submitted by my planning consultant and architects to the planning development of Salford City Council for approval (In the past I even proposed to Mr Simpson, if required, I can use the same architects as the ones used by the developers). 4. Within 4-6 weeks to arrange to demolish my derelict building, remove the debris and clean and tidy my site so it doesn't downgrade the development going on at the moment. 5. Once the building plans are approved by the planning offices and within 4-8 weeks myself to secure the finances with my bank for the development (my bank needs full approved building plans, valuations of properties etc before they release finances). At present my bank, which I am a customer with for the last 16 years, has mortgaged five properties of mine, three in Manchester and two in London, worth... over 1.7 million. 6. Within 4-8 weeks after the building plans are approved to organise the builders who can be approved by the council. 7. An agreement to be made between the council and myself (and the developers if required) regarding the projected dates when the building work will begin and finish. The above time scales are an example and can still be discussed and negotiated between the parties involved, if required. In this way I believe both Salford City Council and the developers will have more confidence in the fast development of 212 Great Clowes Street and with high specifications and standards."

So it was to those proposals that the Inspector acceded when he granted the adjournment to 3rd October 2006.

[11]Unfortunately, things did not work out quite so smoothly. It seems that the council lost the developers' plans. So there was some short delay before Mr Michael was able to obtain them and therefore to proceed with his own plans. However, he was able to make an application for planning permission, which was subsequently granted. What the Inspector had to say about that application was this, at paragraph 59 of his report:

"I consider that there is little between the two schemes in terms of their contribution to the regeneration and redevelopment of the area. The townscape impact would be similar and the quality of design and layout comparable. However, I am in no doubt that there are a number of uncertainties regarding the ability of the objector to carry out or implement his own scheme for redevelopment of the Order Land. The first relates to the uncertainty with regard to access to the Order Land for the purposes of demolition, redevelopment and then servicing the completed development. Currently there appears to be no legal entitlement to access from the stopped up length of Cornet Street. The prospect of successful legal challenge to the Stopping Up Order appears uncertain, on the evidence before the inquiry. Although the adjacent developer indicated that a temporary access for the purposes of demolition of No.212 might be available this would not extend to a permanent means of access to the Order Land. The second relates to the availability of finance and engagement of a contractor to carry out the necessary demolition and redevelopment. Neither had been secured by the objector at the date of the resumed inquiry. No evidence was given to the resumed inquiry, other than an intention to comply with a strict timetable, of the objector's ability to overcome these constraints."

What clearly emerges from this was that the Inspector was concerned about two matters, either of which, if justified, would have been fatal to any development by Mr Michael.

[12]I turn first to the stopping up order. This was made by the Secretary of State for Transport on 18th August 2005. It was made under section 247 of the Town and Country Planning Act, which empowers the Secretary of State to make a stopping up order if he is satisfied that it is necessary in order to enable development to be carried out in accordance with a granted planning permission. Curiously, a notice of a stopping up order does not have to be served on any landowners affected by it. It has to be published in a local paper and the London Gazette, and a notice must be displayed prominently at each end of the highway to be stopped up. As to this, the Inspector said, at paragraph 53 of his report:

"On the second matter legal submissions made by the Acquiring Authority referred to the making and confirmation of the Stopping Up Order. The objector argued that he had been unaware of the making of the Stopping Up Order and that his legal interest in the Order Land had been adversely affected by a lack of opportunity to submit representations. The evidence submitted to the inquiry on this matter was far from definitive. Although the interest of the objector was not included on the application form as submitted to the Government Office in support of the application for the Stopping Up Order there is no indication before me that the proper procedures for publicity of that application were not complied with. The conflicting contentions with regard to the implications of non-notification of the objector as a means of challenging the validity of the Stopping Up Order may well be a matter of law on which I can reach no conclusion. However, it does appear to me that it would be a matter for determination outside the scope of the present inquiry, subject to the Secretary of State's consideration of the effects upon the ability of the objector to implement the alternative redevelopment scheme."

[13]Mr Michael complained then, and complains now, that the application for the stopping up order, which I presume was made by G and W, said that written consent had been obtained from everyone who had an interest in the land. The form continued by saying, "If 'Yes', please attach these consents." No consents were attached. Although the requirement for consent was unnecessary under the terms of the statute, it would obviously have been preferable if Mr Michael had been notified of the intention to make this stopping up order. In these circumstances, I can well understand why he feels very aggrieved, but it appeared to the Inspector, as it appears to me, that the notice requirements had in fact been met. There is indeed a fax from the Government Office to Mr Michael, which I assume may have been shown to the Inspector, which says:

"Notices were put up on site between 31st March and 28th April 2005 and again from 18th August and 29th September 2005. The stopping up was also advertised in the Salford Advertiser and London Gazette on 31st March and 18th August 2005. The stopping up Order was made on 18th August 2005 and the 6 week appeal period ended on 29th September."

[14]As I understand the legislation, that order could only be challenged if the statutory appeal procedure was invoked within 6 weeks, namely by 29th September 2005, as the fax records. As it turned out, there was no challenge to that order either by Mr Michael or by anyone else. In these circumstances, it seems to me that the Inspector's concerns about Mr Michael's inability to gain access to his site in order to carry out the development were entirely justified and, accordingly, the Secretary of State was entirely justified in accepting that there was no viable alternative to the development of the site other than the scheme proposed by the developers.

[15]The Inspector concluded, at paragraph 62 of his report:

"I consider that the exclusion of the Order Land from the adjacent redevelopment would not be detrimental to the locality provided there was a feasible alternative which would secure equivalent regeneration benefits. The objector's redevelopment scheme would represent such an alternative provided the Secretary of State could be assured that there was a reasonable prospect of the objector having the legal and financial ability to bring about an independent redevelopment of the Order Land. I was not persuaded, on the evidence, that this would be the case. No other alternatives to confirmation of the Order were put forward at the inquiry. Again it was of significance that the objector accepted the confirmation of the Order would be justified if he could not meet the strict timetables offered at the opening day of the inquiry."

Finally, at paragraph 64, which I have already read but I will just read the last four lines again, the Inspector concluded:

"... there are real and unresolved limitations on the objector's ability to progress his own scheme in terms of legal ability and finance. No other alternatives were advanced at the inquiry. In the circumstances I reach the conclusion that all feasible and foreseeable alternatives to acquisition of the Order Land have been fully considered at the inquiry."

[16]In a letter dated 1st March 2007, it was written on behalf of the Secretary of State that she had:

"8... given careful consideration to the Inspector's report and the submissions of the parties. She agrees with the Inspector's findings and conclusions and takes the view that there is a compelling need in the public interest for the Compulsory Purchase Order."

In these circumstances, and given the salient facts as I have recorded them in this judgment, the outcome of the inquiry was, in my view, virtually inevitable, and the confirmation of the CPO by the Secretary of State was a decision that she could reasonably and properly have taken. It is not open to challenge.

[17]I can well understand Mr Michael's concerns and resentment at the manner in which the stopping up order came to be issued, but his remedy, and the remedy available to any other citizen, was to challenge it within the specified period in the manner prescribed by the statute. He either failed or was unable to do so. Once the validity of the stopping up order was not open to challenge, the Inspector's concerns about Mr Michael's ability to finance and construct the development became largely academic. However, on the evidence before him, I consider that his concerns were not unreasonable and the Secretary of State could reasonably have thought so too.

[18]I have dealt with Mr Michael's concerns about the lack of notification of the developers' application for planning permission. In my judgment, it makes no difference to the issues before me but, for what it is worth, I consider that the Inspector was justified in reaching the conclusions he did and in finding that Mr Michael was aware that an application was being made that involved his property.

[19]Mr Michael also raised other points about inaccuracies in some aspects of the information presented to the Inspector by the local authority, such as the length of time his property had been empty and the course of previous discussions between him and the neighbouring owner, but in my judgment these are matters of detail that were not reflected in the Inspector's report in any way that was prejudicial to Mr Michael. I can understand his concerns but they are not justified.

[20]Mr Michael also raised understandable, and seemingly valid, concerns about trespass to his property by the developers. From what I have heard, he has a lot to complain about, but these complaints are wholly irrelevant to the validity of the Secretary of State's decision to confirm the compulsory purchase order. I am sure that Mr Michael has remedies, but they lie elsewhere.

[21]For these reasons, this application for judicial review must fail and is therefore refused.

[22]I mentioned the question of costs. What I suggest, in the absence of Mr Strachan, is that if there is to be any application, it should be made in writing to me, with notice to Mr Michael, so that he can then comment on it. Whilst not prejudging any application, I have to say that in the unfortunate history of this particular case, although I appreciate it is not the Secretary of State who is responsible, it might be unfortunate if Mr Michael, to add insult to injury, found himself having to pay the costs in circumstances where undoubtedly he has some legitimate grievances, even if they are not appropriately directed at the Secretary of State. But, as I say, it is for the Secretary of State to decide what steps she wishes to take, if any, about costs. Without prejudging any application, I merely make those observations.

[23]I do not think there is anything else that I have to deal with, is there?

[24]MR LOVEDAY: That is all, my Lord.

[25]DEPUTY HIGH COURT JUDGE: Very well.

[26]THE CLAIMANT: Can I ask you something?

[27]DEPUTY HIGH COURT JUDGE: Yes.

[28]THE CLAIMANT: Do I have a right of appeal, if I want to, provided I bring other evidence, things like that?

[29]DEPUTY HIGH COURT JUDGE: I think, Mr Michael, you will get nowhere with other evidence, because the position, as I explained at the beginning, is that this has to be looked at as at the position of the Secretary of State when she is deciding whether or not to confirm the order. Therefore, it is only the material that was available to her that the court is able to consider. So producing further evidence is, I fear, not going to assist. As I told you right at the beginning, it is not my opinion which matters, and nor is it any other court's opinion; it is simply a question of whether what the Secretary of State decided was reasonable on the information that was available to her at the time. That, essentially, was the Inspector's report. So I do not think further evidence of any sort is going to assist.

[30]THE CLAIMANT: What about the human rights aspect?

[31]DEPUTY HIGH COURT JUDGE: Mr Michael, I think the human rights aspects were not raised explicitly in your grounds but, given that this is a case where you did not live in the property or enjoy it in any sense as an amenity -- it was only an investment -- I think any interference with your private life or rights to property under the European Convention would almost certainly be met by an argument that the remedy of compulsory purchase in this instance was proportionate. I am afraid you would have to seek advice about that, but that, I think, is likely to be the outcome.

[32]You have heard what I have said about the stopping up order, although I would not rule out the possibility of some challenge to it, from what I have seen it does not look very promising, because there is a statutory procedure that you have to comply with.

[33]THE CLAIMANT: Have you checked the law and definitely that is --

[34]DEPUTY HIGH COURT JUDGE: It is for you to take legal advice, but on the basis of the information before the Inspector, and as it seems to me he was justified in the conclusions he reached, that stopping up order was effectively fatal to your position. The trouble is that the seeds of the problem for you were sown at that time, I think. As I have said in my judgment, I appreciate your concerns about the way that order was obtained.