“1. Full right and liberty for the Tenant and all persons authorised by him (in common with all other persons entitled to the like right) at all times by day or by night to go pass and repass over and along the Common Parts provided nevertheless that the Tenant shall not cause or permit the obstruction of any of the Common Parts by furniture vehicles or otherwise.”
“‘Common Parts’: The entrance porch corridors hallways buildings lifts and staircases (if any) and any other parts within the Block and vehicular and pedestrian ways forecourts or drives refuse bin stores gardens (if any) and any other areas inside or outside the Block but within the Estate which are not intended to remain private and which are to be enjoyed or used by the Tenant and occupiers of the Premises in common with the occupiers of the other flats in the Block or on the Estate but excluding the roads and footpaths (if any) which are or which become public roads and footpaths.”
“3.25. Upon any assignment subletting or underletting to obtain a direct Deed of Covenant (in a form prepared by the Solicitors for the time being of the Landlord) by the assignee sublessee or underlessee with the Landlord to observe and perform the covenants and conditions of this Lease and to pay the Landlord’s reasonable legal fees in connection therewith.”
“Structural Considerations: 4.3. In 1999/2000 the estate underwent major refurbishment funded through the Capital Challenge programme. By 2011 the homes were once again showing signs of failure. The individual boilers installed in 2000 now need replacing, the windows are ill fitting and draughty and many of the handles have broken. The roofs and patios leak badly particularly after heavy rainfall and the brick work and concrete are spalling and have cracks. The ends of each block cause dampness in flats from cold bridging and poor condition of the brick walls. 4.4. The 2011 stock condition survey indicated a unit cost of£40,000 -£50,000 would be needed to remedy these defects, which would have resulted in a chargeable cost to each leaseholder. Refurbishment was considered to be uneconomic. Moreover the majority of tenants were in favour of the estate being demolished and new homes built rather than another round of major repairs carried out that would not address the high heating bills or the inherent design defects of the estate that induce anti-social behaviour.”
“Subject: Planning Inspectorate - CPO - (Bacton Low Rise) [...] Please see the confirmation letter attached. Regards.”
“Subject: RE: Bacton Low Rise [...] Sorry but can you give me a ring sometime today please. Mr K phoned me this morning and the Inspector and myself just want to make sure we have all bases covered. Thank you.”
“Mr Kuznetsov’s application to adjourn the Inquiry due to him not being served with notice of the date of the Inquiry 5. The Inquiry was originally scheduled for10 May 2016 but was vacated at Mr Kuznetsov’s request due to him not being in the country at that time. Re-arranged dates of 15 and16 June 2016 were also vacated because the time limit for service provided for in Rule 7(1) was not complied with. Further re-arranged dates of 2 and3 August 2016 were also vacated when the notice addressed to Mr Kuznetsov, sent by special delivery, was returned by the Royal Mail. At the Inquiry on2 September 2016 Mr Kuznetsov applied for an adjournment on the basis that he had not been properly served. 6. The essence of Mr Kuznetsov’s application was that the notices had not been posted through his front door; that the door in the photographs exhibited to the Council Officer statutory declaration was not his; that he had not received any notice through the post because the post-man could not get access to his property; and that the notice was defective. 7. The Council, at the request of NPCU, had undertaken service of the notices on each of the objectors by posting them through the letter box at 150 Bacton and by posting letters by first class post and special recorded delivery addressed to each of the three objectors. Those sent by special recorded delivery had been returned as undelivered. A statutory declaration to this effect was made by Rebecca Ellis who also gave oral evidence to the Inquiry. In her oral evidence Ms Ellis said that, given that there was only access to No 150 via a fob-system on the entrance door to the dwellings, arrangements were made to give access to the post-man on a daily basis between specified hours. 8. There is an error in the letter dated20 July 2016 exhibited to the statutory declaration in that it refers to a statement having to be provided by6 June 2016 ; this was explained by Ms Ellis as an error in compiling the statutory declaration and she confirmed that the actual notice served on Mr Kuznetsov and the other objectors had been amended to the correct date. 9. I was satisfied that the photograph Mr Kuznetsov provided of his front door pictured the same front door as that in the exhibit to the statutory declaration. Although after the event, I noted on my visit that No 150 was the only front door in the whole of the block that had not been covered by a steel door. Taking the cases put by Mr Kuznetsov and the Council into account I was satisfied that all reasonable steps were taken to give notice to Mr Kuznetsov and the other two objectors of the dates of the Inquiry in accordance with Rule 10. Mr Kuznetsov’s application to dismiss the application for the CPO and/or to adjourn the Inquiry on the basis that the Council has failed to comply with the Rules and disclose relevant documents 10. Mr Kuznetsov has made a series of applications in similar terms dating back to May 2016. His main points are that he had asked the Council to disclose a large number of documents pursuant to theRules, the Freedom of Information Act 2000 and theData Protection Act 1998 but they had not been disclosed and that the Council had not complied with Rules in that, among other things, it failed to send the statement of case to each remaining objector within six weeks of the relevant date; the statement of case as filed was defective; and the documents were not available for inspection. 11. The Council’s submissions are in writing supported by a witness statement which sets out the requests made by Mr Kuznetsov and the numerous responses by the Council. The Council’s main points are that the requirements of Rule 7 with regard to the disclosure of documents it intends to rely on or put in evidence had been complied with; requests for disclosure under theFreedom of Information Act 2000 are not a matter for the CPO procedure; and many of the documents requested by Mr Kuznetsov were not necessary for a fair resolution of the matters in issue. 12. Rule 7(5) gives a discretionary power to the Inspector to require any person who has sent a statement of case to provide further information. I declined to exercise that discretion because many of the documents listed in Appendix 1 to Mr Kuznetsov’s document dated23 May 2016 were appended to the Statement of Case; were appendices to the various proofs of evidence; were not relevant to the issues in the CPO process; and other documents, such as the National Planning Policy Framework, the London Plan and the Council’s Local Development Framework were publicly available documents. Mr Kuznetsov’s submissions of unfair treatment before and at the Inquiry 13. Mr Kuznetsov set out a number of matters in his closing submissions about what he perceives to have been unfair treatment before and at the Inquiry. These include documents being returned to him; a limit on the time he was allowed to cross-examine the Council’s witnesses; not being able to cross-examine the makers of one witness statement and one proof of evidence; not being allowed to give oral evidence; being asked inappropriate questions by the Council; and his closing submissions being limited to 30 pages. 14. The Council in its closing submissions did not refer to the way in which I conducted the Inquiry but did comment that Mr Kuznetsov produced large volumes of detailed evidence which he sought to introduce without notice and almost all of which was introduced to the Inquiry as a concession to his lack of experience. The Council submitted that it and I strove to accommodate Mr Kuznetsov’s requests whilst keeping the volume of documentation manageable (and therefore fair to both Parties) and seeking to maintain the focus of the Inquiry on matters relevant to the decision that had to be made. 15. The Inquiry was scheduled for two days. A large number of documents had been submitted by Mr Kuznetsov prior to the Inquiry and some bundles, received on30 August 2016 , were returned to him by the Planning Inspectorate on the basis that they had been submitted too late but they had been sent to and received by the Council. I agreed with the Council’s suggestion on day one of the Inquiry that Mr Kuznetsov should produce a document outlining the relevance of the bundles and, depending on what that document said, a decision would be made which, if any, would be accepted. In the event, following receipt of the document, bundles D and E and extracts from bundle F were produced to the Inquiry. 16. With regard to the timings at the Inquiry, the opening and matters relating to service, including evidence by Ms Ellis, and other procedural matters took one and a half hours. Mr Kuznetsov had raised the question of English not being his first language on many occasions in the lead up to the Inquiry as had another objector, Ms Kuznetsova, therefore the Council had arranged for an interpreter to be present. During the first hour and a half of the Inquiry Mr Kuznetsov had been asked if he wanted the interpreter to remain but he said he did not. As Ms Kuznetsova was not present the interpreter left. From the discussions that took place it was evident to me that Mr Kuznetsov had no problems whatsoever either understanding or speaking English and the Council’s advocate and representatives confirmed that they had no difficulty in understanding his spoken English. I also had no difficulty in understanding Mr Kuznetsov. 17. After a short adjournment Mr Kuznetsov advised the Inquiry that he was withdrawing from the Inquiry but that he was not withdrawing his objection. Mr Kuznetsov left just before 12 noon. The Council called its first witness Mr Tucker, and about 10 minutes later Mr Kuznetsov returned. Mr Tucker’s evidence-in-chief lasted about 40 minutes and Mr Kuznetsov’s cross-examination took approximately one and three quarter hours. 18. Ms Araoye had provided a proof of evidence setting out her, and the Council’s, dealings with Mr Kuznetsov but she was unable to attend the Inquiry and her manager, Miss Farr, provided a statement and gave evidence to the Inquiry. Her evidence-in-chief took about five minutes and Mr Kuznetsov cross-examined her for forty minutes. Mr Bashforth’s evidence-in-chief took about forty minutes and cross-examination lasted for about an hour. 19. Day two of the Inquiry began at 09.30 with further procedural matters relating to the objectors who had not attended the Inquiry and at about 10.00 Mr Kuznetsov began to give his evidence. He had provided a document prior to the Inquiry called ‘summary’ which had five paragraphs on the first page, followed by 35 pages of text. I had said in the opening that I considered this to be Mr Kuznetsov’s proof of evidence and summary and he had not contradicted me. In the circumstances I asked him to read the summary, which he declined to do and produced another document of 53 pages headed ‘summary’. I advised him that this was not a summary and I would not let him read it. Mr Kuznetsov then produced the documents that are listed and there were discussions about whether they should be admitted or not. 20. The production of documents by Mr Kuznetsov took about one and a half hours and I considered that these documents formed his evidence and there was no need for him to give oral evidence given that he could not have introduced any further material. In addition, a considerable amount of his evidence was not based on fact as was borne out in cross-examination. Mr Kuznetsov was given the opportunity to read a summary of his case but he chose to amend his case to one which was much longer and if he had been permitted to read it, it would have caused considerable disruption to the timetabling of the Inquiry. As all the documents were available in written form I do not consider that Mr Kuznetsov was prejudiced in any way. I adjourned for originally one and a half hours but extended this period for a further 15 minutes at the Council’s request, for the Council to consider the documents. Mr Kuznetsov’s cross-examination was about two and a half hours. 21. The Inquiry had been scheduled for two days. Given my unavailability in the immediately following week; Mr Kuznetsov’s and the Council’s advocate’s unavailability in the following two weeks; my unavailability in the three weeks thereafter; and the delay that has occurred in the matter, I agreed to closing submissions being submitted in writing. I directed Mr Kuznetsov to provide his by 16.00 hours on Friday16 September 2016 and the Council by 12 noon on Monday19 September 2016 . Given the volume of documentation submitted by Mr Kuznetsov, and their repetitive nature, I limited Mr Kuznetsov’s closing submissions to 30 pages. Inspector’s Conclusions on procedural matters 22. As I advised Mr Kuznetsov throughout the Inquiry, it is a matter for the Secretary of State to decide whether the procedural matters and formalities, including the conduct of the Inquiry, were properly applied and carried out.”
“Subject: Bacton Low Rise A very brief outline of the events of Friday: Mr K turned up at 9.58 with his trolley of files. I had to ask him several times to wait with his application while I completed the formalities of opening. He then made his application to adjourn and produced a photograph of his front door which was so obviously the front door shown in the Council’s photographs that if it hadn’t been so time-wasting it would have been laughable. I refused his application after hearing his submissions and evidence from Ms Ellis who had made the stat dec and who I asked to confirm that in addition to posting through the door the notice had also been posted by special delivery (returned by the Royal Mail) and by first class post - not returned and the postman has access to the flat every day between 10.00 and 11.00. I refused his application for further disclosure as the documents he wanted were not relevant to the matters I had to report on. I tried to find out whether there were any other occupiers of the flat and he said he had tenants but did not name them, he confirmed they had tenancy agreements but when I asked to see them he said they were in a safe in Moscow. Mr K then said he was at a disadvantage because he didn’t have legal representation, to which I replied there was nothing I could do about that save to do my best to assist him as far as I could, and then he said he was also at a disadvantage because English was not his first language. I pointed out that he seemed to be managing all right so far but if he had any difficulty there was an interpreter present to assist him. He then said he did not need or want an interpreter so she left on the understanding that she could be contacted should anything arise. The Council had no objection to me seeing the three bundles sent in and returned provided Mr K produced a note of which documents were relevant and why - he has until 5.00 on Monday to produce this to give the Council’s barrister time to consider it given her commitments. As they are Mr K’s documents it seems to me reasonable that he should know why he wants me to see them and the point they make. When I asked the Council’s barrister to open her case Mr K said he was withdrawing from the Inquiry. By then it was 11.30 so I said I would adjourn for 10 minutes for him to think about it. He did but decided to leave. We arranged a site visit at 5.00 that afternoon and he left. Very unfortunately he came back 10 minutes later. His so called cross-examination was awful; it was more like submissions than questioning and he kept repeating things, especially irrelevant things, as I kept telling him, so in the end I had to time limit him. There is a fine line between him being allowed to have his say and the Council complaining that I gave him too much leeway and extended the time of the Inquiry unnecessarily. The Council eventually finished its case at 6.10 (all had agreed that they were happy to carry on save for a very half-hearted attempt by Mr K at 5.15 to say he wasn’t feeling well...). The site visit is going to take place at 5.30 on Wednesday and the Inquiry is resuming at 9.30 on Thursday. I plan to give Mr K until about 12.00 to give his evidence, then cross examination. I may, unusually, allow closing in writing - it depends on what Mr K and the Council say. Then I go on holiday to return to write it up.”
“32. In 1999/2000 the Estate underwent major refurbishment funded through the Capital Challenge programme. By 2011 the homes were once again showing signs of failure and the 2011 stock condition survey indicated expenditure of£40,000 -£50,000 per unit would be needed to remedy defects which included replacement boilers, replacement windows, roofs and patio leaks, spalling brick work and concrete exposing the steel reinforcement rods, and dampness from the poor condition of the brick walls. The costs of remedying the defects would have been chargeable to each leaseholder and the majority of tenants were in favour of the Estate being demolished and new homes built rather than another round of major repairs that would not address the high heating bills or the inherent design defects of the Estate, especially those that contribute to anti-social behaviour. The Council therefore considered it was uneconomic to attempt to refurbish the existing properties. 33. In addition, the outcome of a housing needs survey undertaken in February 2011 showed that residents liked the space standards of their homes; they liked living in Gospel Oak; they liked their neighbours; and they liked the strong sense of community on the Estate but they had complaints about water penetration, damp, mould growth, anti-social behaviour, the cost of heating and draughty windows. Older residents had problems with the number of stairs inside their homes which ranged from four flights for a two-bedroom maisonette to five flights for a three-bedroom maisonette. Of the 68% respondents to the survey, over 80% were in favour of demolition and new build and the Tenants and Residents Association worked closely with the Council to develop the Scheme. 34. The overall Scheme seeks to provide 294 residential units split across market, intermediate and social rent tenures with the aim of facilitating a mixed and balanced community in accordance with Local Plan Policy, the housing needs of existing tenants and financial viability considerations. The Scheme represents an uplift of 195 homes beyond the existing 99 homes (87 social rented and 12 leaseholder units). The number and mix of the approved Scheme of 60% private and 40% social units is likely to be varied by the proposed planning application which will include an additional 20 homes. [...] 40. The Council is committed to the Scheme and funding will be through the use of its own funding and borrowing. The Council’s Cabinet approved a budget for the Scheme in September 2012 which includes the costs of leaseholder acquisition. The Council has the funds to acquire the remaining interest and has agreed funding to demolish the building once it is vacated as per the contractor’s programme. The Council has funds to develop the Estate and carry out the redevelopment. The structure of the funding is based on developing sites that the Council owns to re-provide the existing number of units to be demolished and to sell enough additional units to cross-subsidise the cost of providing the units for social rent, with the aim of maximising social housing within the balanced budget of the Scheme. The Scheme is designed to break-even but Mr Tucker explained that the financial backup is available should there be any difficulty. The Greater London Authority has granted the project£1.5m towards the units for social rent in Phase 1 and a similar amount in Phase 2 conditioned on the units completing within a specified time frame. Phase 1 is almost completed and the Council is satisfied that there are no fundamental impediments to the implementation of the Scheme and that the Scheme is likely to proceed and be completed if the CPO is confirmed.”
“46. Mr Kuznetsov has also referred to five businesses which occupy No 150 as part of an arrangement whereby their employees stay at No 150 when they are visiting the United Kingdom. These businesses have played no part in the CPO process at all. 47. Mr Kuznetsov provided no documentary evidence about these occupiers, said he had not spoken to them about the CPO process and also said that although they had tenancy agreements the actual documents were in a safe in Russia and could not be produced. He also said that none of the occupiers were entitled to notice to terminate their occupation.”
“49. The CPO was made on the assumption of non-existing reports and surveys; the Councillors have been misled to believe that the Scheme complies with the adopted policies. The decision to demolish the existing Estate and rebuild as opposed to renovate without demolition was made by the Cabinet based on a belief that the renovation costs total£5m for the Estate and£40,000 -£50,000 per house. This belief was based on the assumption that a report prepared on a stock condition survey in 2011 ‘indicated expenditure of£40,000 -£50,000 per unit would be needed to remedy’ existing defects. Given that national and local planning policies as well as statutory acts state that the demolition is a measure of last resort, the reliance on the existence of the report in question was a material consideration. However, as was revealed subsequently, the survey has not been undertaken and the report the decision makers relied on has never existed. 50. This is confirmed by the evidence which was submitted at the Inquiry. First, an email from Julia Farr to Jennifer Lunn and Tayo Araoye dated11 May 2016 confirms that ‘no further expense was incurred on undertaking a condition survey of stock that was destined for demolition and new build’. Second, an email sent by Jennifer Lunn to Adam Tucker and Julia Farr on20 May 2016 in which it is admitted that the Council is not going to disclose the viability report. Third, an email from Jed Young stating ‘I am not sure if this was a specific survey for Gospel Oak as part of capital challenge or an extract of a whole borough survey’. [...] 63. The number and size of social rented houses will be considerably lower than the present and the Scheme therefore fails to deliver the alleged goal of the CPO of maximising affordable housing. Contrary to Policy H7, only 28 homes are expected to be ‘large homes’, as defined by the Council in the Local Plan. This is less than 50% of the large homes in the estate owned by the Council on behalf of the general public at present (60 homes). [...] 65. Mr Tucker confirmed that Phase 1 of the Scheme does not depend on the outcome of the CPO application. The Statement of Case also confirms that the affordable housing units in Phase 1 have been allocated to social tenants while market sale units will be available for sale on the market from June 2016. This confirms that any benefits of Phase 1 do not depend on the CPO and, therefore, shall be disregarded when assessing whether the CPO powers have to be approved. [...] 69. Special parliamentary procedure. Pursuantto s.183-184 of the Secretary of State CPO Guidance, the Bacton CPO is subject tothe special parliamentary procedure required unders.19 of the Acquisition of Land Act 1981 which clearly states that the special parliamentary procedure is required when the CPO includes ‘rights over land which is, or forms part of, a common, open space, or fuel or field garden allotment’. 70. Clause 2 of the lease gives the lessee the right to use the open spaces and public gardens located at the Bacton Estate and rights over common parts. The lease specifically includes in the meaning of common parts, gardens and any other areas inside or outside the block but within the Estate which are not intended to remain private. The lease, however, does not deprive members of the general public from using the open spaces at the Estate. 71. Since the CPO affects the rights over such open spaces and gardens, the Special Parliamentary Procedure has to be complied with, unders.19 of the Acquisition of Land Act 1981 , unless the Secretary of State gives a certificate on one of the three statutory grounds. Since none of the grounds applies, no certificate has been issued by the Secretary of State. [...] 76. Failure to sell as well as consider selling the Estate to a third party. The Council received offers from at least two potential buyers and at least one of the offers was£40 million . The Council had a duty to consider the offers and sell the Estate to the buyers if the benefits of the consideration offered exceeded the benefits of the proposed Estate demolition. It is argued that the sale would have allowed the Council to achieve a considerably higher increase in the affordable housing stock compared with the Scheme. It was unreasonable and contrary to the public interests to disregard the offers to buy the Estate, especially since the result would be materially superior to the outcome of the suggested demolition Scheme. The key parameters of the offers as well as some (but not all) benefits from selling the estate are present in Letters from [Mr Kuznetsov] to the Council dated28 June 2016 and4 July 2016 . [...] 90. Failure to serve the planning application notices. The Council has made at least 3 planning applications: The original planning application was submitted in 2012, followed by two minor material amendment applications which were submitted in 2014 and 2015. If this was the case, the evidence of such notices would be included in the response to Mr Kuznetsov’s Subject Access Request (SAR) since they have to be individually addressed and served. But none of the 3 or more notices required by law is present in the response to the SAR confirming his personal observation that the notices about the applications for planning permissions have not been served to the affected leaseholders, including Mr Kuznetsov. 91. The issue of the lack of notices is further exacerbated by the evident conflict of interest in the instant case since the Council has been acting as (i) the applicant for the planning permission; (ii) the body reviewing and approving such permissions; (iii) the body setting the policies and the party on both sides of the s.106 shadow agreement.”
“110. Whether the CPO should be subject to Special Parliamentary Procedure. Mr Kuznetsov relies ons.19 of the Acquisition of Land Act 1981 . However, firstly, s.19 applies to the purchase of land which is open space as defined (or of new rights over such land), whereas the land it is sought to acquire is No 150 which is a flat within a building and therefore not the purchase of open space on any possible definition. S.19 does not apply merely because the scheme behind the acquisition involves the development of open space, nor does it apply when the effect of acquisition is to extinguish existing rights over such land. 111. Secondly, although the Estate contains open areas which function as communal amenity space laid out for the benefit of the residents of the Estate and their visitors, and that Mr Kuznetsov has a right in common with those other residents to make use of that amenity space, and even if members of the public make use of one of those squares despite the controls on entry, the land within the Estate does not meet the s.19(4) definition of open space for these purposes which is ‘any land laid out as a public garden, or used for the purposes of public recreation, or land being a disused burial ground.’ 112. Whether alternatives to the CPO should be pursued. Mr Kuznetsov submits that the Council should have adopted alternative means to achieve the stated objectives of the CPO. Firstly, Mr Kuznetsov relies on references to the potential acquisition of the entire Estate by a third party for a price of£40m . It is said that with this capital receipt the Council could acquire a large number of properties and use them for the provision of a larger number of affordable housing units than will be provided in the scheme underlying the CPO. However, the documents relied upon by Mr Kuznetsov himself make clear, the Estate is not for sale. Even if the Council did sell there is no scheme indicating what might become of the Estate and to do so would be to let down those many individuals who are looking forward to the regeneration of the Estate pursued by the Council. 113. Secondly, Mr Kuznetsov says that there is encouragement given in policy to make good use of unused buildings for housing purposes, particularly commercial buildings of which there is said to be a plentiful supply. There is no need for the Council to show that its Scheme is the only way of meeting the regeneration objectives but since these include the need to address the problems of the Estate itself it would not be possible to meet all the Scheme objectives on a different site. 114. Thirdly, an alleged claim that alternatives to demolition, for example, refurbishment of the existing buildings were not considered. The Council relies on the Statement of Reasons at paragraphs 4.1-4.4 and the Cabinet report referred to, both of which provide clear evidence of the basis upon which the Council decided to demolish in preference to refurbishment. Ms Lunn explains as far as possible that the£40,000 -£50,000 estimate per dwelling for the Estate’s refurbishment was derived from a Borough wide survey in 2011-12 and that updates to it suggest the cost now would be even higher. This does not mean that the figure is an average for the Borough as a whole; Mr Kuznetsov may have misunderstood this evidence. The source of the figures for the unit costs of refurbishment (one of several reasons for preferring redevelopment over refurbishment) has been difficult to trace but is described and provided, so far as possible, by Ms Lunn. 115. The planning applications. Mr Kuznetsov disputes the significance of the 3 planning consents which authorise the scheme underpinning the CPO, claiming not to have been served with notice of them so as to enable him to participate in the process. The Council’s response contained within Mr Bashforth’s statement is a complete answer to this point. [...] 119. The development within Phases 2 and 3 consists of the following: Demolition of the buildings within the Estate (99 flats of which 87 are for social rent); the construction of 140 dwellings (including 71 affordable dwellings) in the southern part of the new development (Phase 2); and the construction of 87 market dwellings and three business units in the northern part of the new development (Phase 3). 120. Mr Kuznetsov submits that the Secretary of State should ignore the benefits of Phase 1 of the scheme given that its delivery is not dependent on the CPO. He cites in support of this submission, two legal authorities which confirm that ‘unconnected’ benefits should not be taken into account in confirming a CPO. The legal proposition is not in doubt but it is submitted that Phase 1 is very closely connected to the Estate such that it forms part of the same project. 121. The detailed officers’ report recommending the grant of planning permission addresses the whole scheme (Phases 1-3). It describes the Estate proposals; and sets out the phasing/decanting strategy, demonstrating the close interrelationship of the three Phases. In addition, there is a funding relationship between Phases 2 and 3 and Phase 1 in that the first phase effectively enables the Estate to empty in readiness for the more commercially viable redevelopment of the Estate. Thus, Phase 1 is directly connected to and is indeed part of the scheme which is facilitated by the CPO. It is therefore only proper that the justification for the CPO is closely related to the justification for the scheme given planning permission in 2013 (and varied since). 122. Mr Kuznetsov disputes the public benefits of the scheme in planning terms, relying in particular on the NPPF and the Camden Local Plan, on the following grounds: Firstly, the number and mix of affordable housing units. Mr Bashforth sets out the proposed number of affordable housing units at table 3.1 of his proof which takes into account all permissions to date. As he confirmed orally under cross-examination the scheme accords with affordable housing policy despite not meeting the 50% target. As he put it ‘the Council has maximised affordable housing’ which is the policy objective and the committee report itself addresses the mixture of sizes within the social rented units and the reasons for the chosen mix which was in accord with the Local Lettings Policy. As Mr Tucker explained there is provision within the planning consent and shadow s.106 for an increase in affordable housing should viability permit and the Council is seeking to provide as much affordable housing to meet needs as it can. Not only this, unlike a commercial developer it does not take a profit on the regeneration scheme.”
“133. Although the Council confirmed that all statutory formalities have been complied with the objector, Mr Kuznetsov, disputed this [4]. Mr Kuznetsov had made a number of procedural applications and had submitted a large volume of documentation prior to the Inquiry as well as making procedural applications at the beginning of the Inquiry. I had considered these procedural applications before the Inquiry opened and on that basis earlier dates for the Inquiry were not effective. I re-considered Mr Kuznetsov’s procedural points at the beginning of the Inquiry and was satisfied that, apart from the question of service of notice of the Inquiry, he had not raised any new points [10-12]. With regard to the service of the notice, I was satisfied on the evidence that Mr Kuznetsov, and the other remaining objectors had been properly served and the correct time period had been given [5-9]. I was also satisfied that Mr Kuznetsov had been provided with all the relevant documentation by the Council and that the Council had acted in accordance with the Rules. I also take the view that Mr Kuznetsov was given every opportunity to present his case, both in writing and orally, and that he was only prevented from raising matters that were not relevant to the Inquiry or those that would have prolonged the Inquiry unnecessarily. In doing so I was aware that the production of new documentation and evidence at this late stage would have been prejudicial to the Council [13-21]. [...] 136. The Scheme would involve the comprehensive redevelopment of the existing Estate to provide 294 dwellings (177 market, 10 intermediate and 107 social rented units) and three employment units (Class B1) in buildings ranging between two and eight storeys, new and altered public realm, landscaping and vehicular and pedestrian links/accesses. The residential units will comprise 11 town houses, 42 maisonettes and 241 flats. The Scheme results in an additional 195 homes, of which 30 are affordable, as well as increased housing standards, quality and associated open space [29 and 34]. 137. The Development Plan at the time the planning applications were considered included The Camden Core Strategy, Development Policies, the Local Plan and the London Plan. The purpose for which acquisition of the Order Land is sought accords with the adopted development plan [39]. Planning permissions, which would allow the delivery of the Scheme have been granted [38]. The minor alterations application and variation of the mix of housing that will shortly be made will not substantially affect the Scheme [27]. Following community engagement, the Council has a clear, well-documented support for the Scheme [32-33]. There would be an overall 40% affordable housing provision within the Scheme which is supported by Council Policy, the Council decision to approve the Scheme and the GLA [34, 122 and 129]. 138. The Estate now represents a poor quality urban residential environment. It has fundamentally remained unaltered since the blocks were built in the 1960s. The blocks are generally of poor quality and do not meet up-to-date housing standards, in that among other things they suffer from water penetration, damp, mould growth, anti-social behaviour, and draughty windows. [32]. Older residents had problems with the number of stairs inside their homes which ranged from four flights for a two-bedroom maisonette to five in a three-bedroom maisonette [33]. They are at the end of their economic life and refurbishment is not an option [32 and 33]. There is a great need for all types of housing, particularly affordable housing, in the borough [36] and the Estate is included in the Council’s overall Community Investment Programme which is a long term programme bringing together a range of work considering how best to use the Council’s assets to improve, shape and transform key places and services within Camden, whilst simultaneously addressing a critical capital funding gap. The programme is and will continue to make an important contribution to the delivery of objectives within the Local Plan, particularly harnessing the benefits of economic growth, tackling inequality, and investing in communities to ensure sustainable neighbourhoods and delivering value for money [36]. 139. The objections raised by Mr Kuznetsov are wide ranging and voluminous. It is relevant that, despite the length of time in which this matter has been proceeding, Mr Kuznetsov had not read the report to Committee in respect of the scheme or the planning approvals that had been granted [102]. The objections made by Mr Kuznetsov were not based on factual evidence in that, among other things, he had no professional evidence to substantiate his claim that the refurbishment costs would not be the amount cited by the Council [114]; he had not obtained any professional advice about the value of his property [109]; his submissions about the funding of the Scheme were based on a misunderstanding of the Council’s position [40, 65 and 120]; similarly, Mr Kuznetsov’s concerns about what he perceived to be insufficient provision of affordable housing were also based on a misunderstanding of Council policy. [63 and 122] 140. The Scheme underlying the CPO would achieve substantial public benefits and these would outweigh any disadvantage to Mr Kuznetsov’s interests in No 150 [36, 37, 118-129]. The Council has gone to considerable lengths to attempt to negotiate with Mr Kuznetsov [109]. There are resources available for the CPO and for the delivery of the Scheme [40]. From the information before me there is no good reason to believe otherwise. [...] 144. Overall, from the evidence presented, I am satisfied that there is no feasible alternative to confirming the CPO for the comprehensive implementation of the Scheme, and the Council has made reasonable efforts to acquire the leaseholders’ interests by consent. 145. There were some procedural irregularities at the beginning of the inquiry process with regard to the timing of the inquiry and the service of notice but these were resolved and the inquiry proceeded in accordance with the Rules. There was no infringement of Mr Kuznetsov’s human rights with regard toArticle 6(1) of the European Convention on Human Rights either during the inquiry process or the Council’s approval of the Scheme. [...] 148. In my opinion the pressing need to promote and improve the economic, social and environmental well-being of the borough through its Community Investment Programme and increase in the amount of housing justifies this interference. The CPO is therefore a necessary course of action to deal with the situation, and strikes an appropriate balance between the public interest of achieving long-term regeneration and the private interests in the affected land. There is clear evidence that the public benefit would significantly outweigh the private loss and, consequently, there is a compelling case in the public interest for confirming the CPO.”
“Procedural issues 4. The Secretary of State notes from the Inspectors report (IR 5-21) that the objector Mr Alexander Kuznetsov made a number procedural applications with regard to i) not being served with notice of the date of the Inquiry; ii) the Council has failing [sic] to comply with the Rules and disclose relevant documents; and iii) unfair treatment before and at the Inquiry. 5. The Secretary of State also notes the Inspectors comments (IR 145) that there were some procedural irregularities at the beginning of the inquiry process with regard to the timing of the inquiry and the service of notice, these were resolved and the inquiry proceeded in accordance with the Rules. 6. With regard to the procedural applications, the Secretary of State has carefully considered the evidence and agrees with the Inspectors conclusions at IR 22, that the procedural matters and formalities, including the conduct of the Inquiry, were properly applied and carried out. [...] Post-inquiry representations 9. The Secretary of State has taken account in reaching his decision of a number of post-inquiry representations made by Mr Kuznetsov. These were not seen by the Inspector at the Public Inquiry. The correspondence is listed at Annex A to this letter. The Secretary of State has concluded that the information provided by Mr Kuznetsov is similar and comparable to the representations made at the public inquiry, and while they have been considered, no reason is seen to disagree with the Inspectors finding and conclusions. Decision 10. The Secretary of State for Communities and Local Government has carefully considered whether the purposes for which the compulsory purchase order was made sufficiently justify interfering with the human rights of the qualifying persons under section 12(2A) of theAcquisition of Land Act 1981 and he is satisfied that such interference is justified. In particular he has considered the provisions of Article 1 of the First Protocol to, and Article 8 of, the European Convention on Human Rights. In this respect the Secretary of State is satisfied that in confirming the compulsory purchase order a fair balance would be struck between the public interest and interests of the owner and occupants.”
“226. Compulsory acquisition of land for development and other planning purposes. (1) A local authority to whom this section applies shall, on being authorised to do so by the Secretary of State, have power to acquire compulsorily any land in their area (a) if the authority think that the acquisition will facilitate the carrying out of development, redevelopment or improvement on or in relation to the land.” (a) if the authority think that the acquisition will facilitate the carrying out of development, redevelopment or improvement on or in relation to the land.”
“11. Notices in newspapers. (1) The acquiring authority shall in two successive weeks publish a notice in the prescribed form in one or more local newspapers circulating in the locality in which the land comprised in the order is situated. (2) The notice shall– (a) state that the order has been made and is about to be submitted for confirmation (b) describe the land and state the purpose for which the land is required (c) name a place within the locality where a copy of the order and of the map referred to therein may be inspected, and (d) specify the time (not being less than twenty-one days from the first publication of the notice) within which, and the manner in which, objections to the order can be made. 12. Notices to owners, lessees and occupiers (1) The acquiring authority shall serve on every qualifying person a notice in the prescribed form- (a) stating the effect of the order, (b) stating that it is about to be submitted for confirmation, and (c) specifying the time (not being less than twenty-one days from the service of the notice) within which, and the manner in which, objections to the order can be made. (2) A person is a qualifying person, in relation to land comprised in an order, if (a) he is an owner, lessee, tenant (whatever the tenancy period) or occupier of the land, or (b) he falls within ss.(2A).” (a) state that the order has been made and is about to be submitted for confirmation (b) describe the land and state the purpose for which the land is required (c) name a place within the locality where a copy of the order and of the map referred to therein may be inspected, and (d) specify the time (not being less than twenty-one days from the first publication of the notice) within which, and the manner in which, objections to the order can be made. (a) stating the effect of the order, (b) stating that it is about to be submitted for confirmation, and (c) specifying the time (not being less than twenty-one days from the service of the notice) within which, and the manner in which, objections to the order can be made. (a) he is an owner, lessee, tenant (whatever the tenancy period) or occupier of the land, or (b) he falls within ss.(2A).”
“23 Grounds for application to High Court. (1) If any person aggrieved by a compulsory purchase order desires to question the validity thereof, or of any provision contained therein, on the ground that the authorisation of a compulsory purchase thereby granted is not empowered to be granted under this Act or any such enactment as is mentioned in section 1(1) of this Act, he may make an application to the High Court. (2) If any person aggrieved by– (a) a compulsory purchase order, [...] desires to question the validity thereof on the ground that any relevant requirement has not been complied with in relation to the order or certificate he may make an application to the High Court. (3) In subsection (2) above ‘relevant requirement’ means– (a) any requirement of this Act, or of any regulation under section 7(2) above, or (b) any requirement of theTribunals and Inquiries Act 1992 or of any rules made, or having effect as if made, under that Act. [...] 24 Powers of the court. [...] (2) If on the application the court is satisfied that– (a) the authorisation granted by the compulsory purchase order is not empowered to be granted under this Act or any such enactment as is mentioned in section 1(1) of this Act, or (b) the interests of the applicant have been substantially prejudiced by any relevant requirement (as defined in section 23(3) above) not having been complied with the court may quash the compulsory purchase order or any provision contained therein, or the certificate, either generally or in so far as it affects any property of the applicant.” (a) a compulsory purchase order, [...] desires to question the validity thereof on the ground that any relevant requirement has not been complied with in relation to the order or certificate he may make an application to the High Court. (a) any requirement of this Act, or of any regulation under section 7(2) above, or (b) any requirement of theTribunals and Inquiries Act 1992 or of any rules made, or having effect as if made, under that Act. (a) the authorisation granted by the compulsory purchase order is not empowered to be granted under this Act or any such enactment as is mentioned in section 1(1) of this Act, or (b) the interests of the applicant have been substantially prejudiced by any relevant requirement (as defined in section 23(3) above) not having been complied with the court may quash the compulsory purchase order or any provision contained therein, or the certificate, either generally or in so far as it affects any property of the applicant.”
“It is evident that an inquiry of this kind and magnitude is quite unlike any civil litigation and that the inspector conducting it must have a wide discretion as to the procedure to be followed in order to achieve its objectives. These are to enable him to ascertain the facts that are relevant to each of the objections, to understand the arguments for and against them and, if he feels qualified to do so, to weigh their respective merits, so that he may provide the Minister with a fair, accurate and adequate report on these matters. Proceedings at a local inquiry at which many parties wish to make representations without incurring the expense of legal representation and cannot attend the inquiry throughout its length ought to be as informal as is consistent with achieving those objectives. To ‘over-judicialise’ the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair. It would, in my view, be quite fallacious to suppose that at an inquiry of this kind the only fair way of ascertaining matters of fact and expert opinion is by the oral testimony of witnesses who are subjected to cross-examination on behalf of parties who disagree with what they have said. Such procedure is peculiar to litigation conducted in courts that follow the common law system of procedure; it plays no part in the procedure of courts of justice under legal systems based upon the civil law, including the majority of our fellow member states of the European Community; even in our own Admiralty Court it is not availed of for the purpose of ascertaining expert opinion on questions of navigation–the judge acquires information about this by private inquiry from assessors who are not subject to cross-examination by the parties. So refusal by an inspector to allow a party to cross-examine orally at a local inquiry a person who has made statements of facts or has expressed expert opinions is not unfair per se. Whether fairness requires an inspector to permit a person who has made statements on matters of fact or opinion, whether expert or otherwise, to be cross-examined by a party to the inquiry who wishes to dispute a particular statement must depend on all the circumstances. In the instant case, the question arises in connection with expert opinion upon a technical matter. Here the relevant circumstances in considering whether fairness requires that cross-examination should be allowed include the nature of the topic upon which the opinion is expressed, the qualifications of the maker of the statement to deal with that topic, the forensic competence of the proposed cross-examiner, and, most important, the inspector’s own views as to whether the likelihood that cross-examination will enable him to make a report which will be more useful to the minister in reaching his decision than it otherwise would is sufficient to justify any expense and inconvenience to other parties to the inquiry which would be caused by any resulting prolongation of it.”
“First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal’s reasoning.” (5). A s.23 application can be based on the adequacy of the reasons in the inspector’s report or the Secretary of State’s decision. In judging whether the reasons are legally adequate, the court will apply the following principles: (a) The documentation is to be read in a straightforward manner with its purpose as a piece of administrative decision-making, as opposed to it being a statute or some sort of legal instrument, in mind: see Clarke Homes v Secretary of State(1993) 66 P & CR 23 per Sir Thomas Bingham MR at 261-272, and De Rothschild per Slade LJ at 342. (b) The decision should be read as a whole bearing in mind it is addressed to a well-informed audience. The findings of the inspector should be examined broadly, not forensically dissected sentence by sentence: see Save Britain’s Heritage v Secretary of State(1990) 60 P & CR 539 at 547-8 cited in Stewart v Secretary of State for the Environment and Vale Royal DC(1991) 62 P & CR 135 at 147-8; see also ELS Wholesale (Wolverhampton) Limited v Secretary of State(1987) 56 P & CR 69 at 78-9. (c) It is not necessary for a decision maker, in stating his reasons, to deal with every single material consideration involved in the decision. The decision maker must have regard to every material consideration but need not mention them all. What the reasons must address are the principal controversial issues: see Bolton MDC v Secretary of State(1995) 71 P & CR 309 per Lord Lloyd at 313-314. (d) The law in this area was definitively summarised by Lord Brown in South Bucks District Council v Porter (No. 2)[2004] UKHL 33 ;[2004] 1 WLR 1953 at para.36 of his judgment in the following terms: “36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
“14. I have tried to locate further information in relation to how the Council derived the unit cost of£40,000 -£50,000 if it were to refurbish the estate to remedy defects (as referred to in paragraph 4.4 of the Council’s Statement of Case). However I have been unable to locate a single report or collection of documents that are still held by the Council to explain how the 2011 figures were derived. I have been informed by the Council’s Finance Department that the Council’s stock condition survey is held on a live database which is updated over time. The last major refresh of the stock condition database took place in 2011/12 as part of the borough-wide survey, and updates are made to the database as works are completed or assets amended. As such, the data quoted in relation to the 2011 stock condition survey has been updated and the original data is no longer held. The current workbook showing the current stock condition data and estimated costs is attached at Appendix 1. This indicates that an expenditure of approximately£57,431 per unit is required (not including internal works). 15. The Council’s position is that this document is of very peripheral relevance to the issues. It is not relied upon by the Council in support of its case for confirmation of the Order. I emphasise this because I do not know precisely why the average cost of refurbishment is now higher than in 2011. In addition, the Council went through a very through consultation process spanning several years in relation to options for the estate and a large majority of residents supported the proposal to demolish the existing buildings and build new homes, rather than carry out another round of major repairs.”
“20. I confirm that a lease agreement has been signed with Braginzuk LLC in November 2014 and the tenor of the lease is from5 February 2015 until5 December 2021 . In fact, this was the very reason for the termination of the holiday let agreement referred by the Council at the enquiry. In fact, not being legally trained, I contacted the Land Registry at the end of 2014 to check what needs to be done to register the lease. I have been advised that not only the leases under 7 years don’t have to be registered but, in fact, cannot be registered in the Land Registry even if the parties wish to do so. As confirmed at the inquiry, I have a written lease agreement with Braginzuk LLC but my original copy had disappeared after my shed B8 had been broken on9 April 2016 (this was reported to the police and the Local Authority). However, as was confirmed at the enquiry, the Braginzuk LLC has the original copy of the agreement and I have also obtained a copy.”