COURT OF APPEAL.
Appeal of applicants from the judgment of
Mr. Justice Lyell dated 7th April, 1970.
B e f o r e :
LORD JUSTICE SACHS
LORD JUSTICE BUCKLEY.
IN THE MATTER of THE HOUSING ACT, 1957
IN THE MATTER of THE LONDON BOROUGH Of TOWER HAMLETS
SIDNEY STREET/CLARK STREET (AREAS Nos. 1 and 2) COMPULSORY PURCHASE ORDER 1967.
| COLEEN PROPERTIES LIMITED
|THE MINISTER OF HOUSING AND LOCAL GOVERNMENT
THE LONDON BOROUGH OF TOWER HAMLETS
Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London, W.C. 2.)
Mr. GORDON SLYNN (instructed by The Solicitor to the Ministry) appeared on behalf of the Minister of Housing and Local Government.
The Second Respondent, the London Borough of Tower Hamlets, was not represented.
Crown Copyright ©
THE MASTER OF THE ROLLS: This is an interesting case about compulsory acquisition. It concerns Clark House, which is in Tower Hamlets at the corner of Sidney Street and Clark Street. It is a first class property which was built in 1956, after the bombing. It has four shops on the ground floor and six self-contained flats on the two upper floors. The local authority desire to acquire it so that they can develop the area nearby. The question is whether they have any power to acquire it compulsorily.
Clark House is a good house but has very poor property next to it. On one side, along Sidney Street itself, there is a row of 25 houses, which are about one hundred years old. All of them are in a terribly bad condition, save for one in the middle of the row. On the other side, along Clark Street, there is a row of another 10 houses which are in equally bad condition. The Council of Tower Hamlets have proclaimed these two rows of houses to be two "clearance areas", which they propose to acquire compulsorily. They only occupy two-thirds of an acre altogether. But they want another quarter of an acre as "added land". This "added land" includes Clark House.
Those two streets are two sides of a rectangular block. The other two sides of the rectangle are Damien Street and Nelson Street. Those streets are not clearance areas. But the Council of Tower Hamlets are in a position to buy some of the properties there, because they are owned by the Greater London Council, who are willing to sell them to Tower Hamlets. The G.L.C. property is marked Yellow on the plan. In addition, within the rectangle, facing on to Damien Street, there is a Roman Catholic Secondary School which occupies a considerable area. There is no evidence that the Council of Tower Hamlets are proposing to buy it or are in a position to acquire it.
The whole area is zoned in the development plan for residential use. If the Council of Tower Hamlets acquire all the land they want, they propose to develop the sites by the erection of 114 dwellings. To do this, they will presumably pull down all the old houses, and also Clark House, and replace them with other buildings. The question is: are the local authority entitled to acquire Clark House? They rely on the Housing Act of 1957, particularly section 43(2), which says:
"Where the local authority determine to purchase any land comprised in the area declared by them to be a clearance area"
".......they may purchase also any land which is surrounded by the clearance area and the acquisition of which is reasonably necessary for the purpose of securing a cleared area of convenient shape and dimensions"......
"........and any adjoining land the acquisition of which is reasonably necessary for the satisfactory development or use of the cleared area."
On the 7th May, 1968, the Inspector held a public local inquiry and inspected the properties. The Council called witnesses to show that the old houses in the clearance areas in Sidney Street and Clark Street were in terribly bad condition. They called the Medical Officer of Health, the Housing Officer, and the Public Health Housing Inspector. But they did not call any witnesses as to the planning merits. They did not call an architect or a planning officer. They called no one to show that it was necessary to acquire Clark House. They merely asserted, through the mouth of their advocate, the Deputy Town Clerk, that "the acquisition of such properties (i.e. the added lands including Clark House) is reasonably necessary for the purpose of the satisfactory development or use of the clearance areas (i.e. the old houses)." In short, the Council relied on their own ipse dixit that Clark House fell within the section. The objectors, however, called a qualified surveyor and architect, Mr. Mallett, F.I.A.S., F.A.L.P.A., who could and did give evidence on planning merits.
"This is a first class property and I am of the opinion that its acquisition by the Council is not reasonably necessary for the satisfactory development or use of the cleared area."
So the Inspector recommended that it be excluded altogether from the compulsory purchase order. On the 25th October, 1968, the Minister gave his letter of decision. He rejected the Inspector's recommendation in these three sentences:
"The Minister disagrees with the Inspector's recommendation with regard to Reference No. 13 (i.e. Clark House). It appears to him that by the very nature of its position, the exclusion of this property must seriously inhibit the future redevelopment of the rectangular block of land between Sidney Street and Damien Street in which it stands. He has decided, therefore, that the acquisition of Reference 13 (Clark House) is reasonably necessary for the satisfactory development or use of the cleared area."
The owners appealed to the High Court in accordance with Schedule 4, paragraph 2 of the Housing Act 1957, which enables an Order to be questioned if "it is not within the powers of this Act or that any requirement of this Act has not been complied with." Under that provision, it has been held in Ashbridge Investments Ltd. v. Minister of Housing and Local Government (1965 1 W.L.R. 1320) that:
"......the Court can interfere with the Minister's decision if he has acted on no evidences or if he has come to a conclusion to which on the evidence he could not reasonably come: or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa;; or has otherwise gone wrong in law. It is identical with the position when the Court has power to interfere with the decision of a lower tribunal which has erred in point of law."
Mr. Justice Lyell affirmed the Minister's decision, but I must say that he seems to have proceeded on grounds which were not warranted by the evidence, particularly as to the school. The owners appeal to this Court.
In my opinion the Minister was in error in reversing the Inspector's recommendation. The Minister had before him only the Report of the Inspector. He did not see the premises himself. To my mind there was no material on which the Minister could properly overrule the Inspector's recommendation. Clark House is a first class new property. It has shops with flats over. In order to acquire it compulsorily, the local authority must show that the acquisition "is reasonably necessary for the satisfactory development or use of the cleared area." In order to show it, the local authority ought to have produced some evidence to the Inspector as to what kind of development would be a "satisfactory development' of the area, and to show how the acquisition of Clark House is "reasonably necessary". I do not say that they ought to have produced a detailed plan of the proposed development.
I realise well enough that in many cases that may not be practicable. For instance, when an area is to be developed for industrial purposes, you cannot go into details until you have the business men wanting the factories. But, when an area is to be developed for residential purposes - for the Council's own housing plans - it ought to be possible to give an outline plan of the proposed development. I cannot myself see that the Council could get any more dwellings on to the site of Clark House than the 6 flats which are already there. The Council may desire to make a neat and tidy development of these two streets, leaving including Clark House, but this may well be possible whilst/Clark House standing. At any rate, I am quite clear that the mere ipse dixit of the Local Council is not sufficient. There must be some evidence to support their assertion. And here there was none.
Then there is the report of the Inspector. He was clearly of opinion that the acquisition of Clark House was not reasonably necessary. I can see no possible justification for the Minister in overruling the Inspector. There was no material whatever on which he could do so. I know that on matters of planning policy the Minister can overrule the Inspector, and need not send it back to him, as happened in Lord Luke's case (1968 1 Q.B. 172). But the question of what is "reasonably necessary" is not planning policy. It is an inference of fact on which the Minister should not overrule the Inspector's recommendation unless there is material sufficient for the purpose. There was none here. In my judgment the Minister was wrong and this Court should intervene and overrule him.
In the course of the argument before us there has been a discussion as to the meaning of "cleared area" at the end of section 43(2) of the Housing Act 1957. Does it mean only the clearance area (together with any pockets of land which are surrounded by it)? Or does it extend to the area which is to be cleared (including the adjoining land itself)? There are cases which show that it is not confined to the clearance area itself. It extends to other clearance areas and any land linking them. That appears from the decision of Mr. Justice Swift in 1935 in Burgesses of Sheffield v. Minister of Health (1935 52 T.L.R. 171), and from the recent unreported decision of Mr. Justice Ashworth in King v. Minister of Housing (15th January, 1970), And also to land providing access, and so forth, as appears from the recent unreported decision of Mr. Justice Bridge in Bass Charrington v. Minister of Housing (12th May, 1970). But I do not think it extends to any adjoining land which the local authority feel it is desirable to acquire. You have got to start with the clearance area of the bad old houses, because they have got to come down anyway. Then you take in such of the adjoining land which is reasonably necessary. But I do not think it gives an unlimited power to the local authority to take in any adjoining land which they feel they would like to have. Otherwise, I do not think it necessary to decide one way or the other as to the meaning of "cleared area". I would allow the appeal and reverse the Minister's decision.
It is perhaps convenient first to refer to the preliminary point of law which has been raised. It was submitted for the appellant that the phrase "any adjoining land the acquisition of which is reasonably necessary for the satisfactory development or use of the cleared area" should be taken as referring solely to the clearance area plus the surrounded properties: that is what has been described as the narrow view of that particular passage. The wider view is that the cleared area refers to all property close at hand and in particular to what might be described as "linked areas".
At the lowest in favour of the appellants it may be said that the passage in the context of section 42(3) as a whole is susceptible of at any rate two different meanings: if so, it is normally considered that the meaning should be adopted which is most in favour of the subject whose property is to be taken from him, so as to give him protection from such deprivation. Indeed such an interpretation would do little harm to local authorities. It would leave them free to make out their case under Part V of the Housing Act, 1957, with a view to exercising their powers under section 96.
If left to make up my own mind unaided by past decisions, I would have found it a matter of considerable difficulty to decide which was the correct interpretation. This point has, however, been consistently decided in favour of the Minister over a long series of cases, the first of which was some 35 years ago - the Sheffield case to which my Lord has referred. It was a decision of Mr. Justice Swift upon precisely the same phraseology in section 3 of the Housing Act, 1930. That decision has, therefore, stood for a very long time and has been acted upon in accordance with its tenor. In these circumstances I prefer not to express any concluded view on that preliminary point since this appeal can be disposed of on the main submission made by Mr. Dawson.
That submission raised the question as to whether there was any evidence before the Minister upon which he could properly come to a conclusion which would enable him to exercise the powers that stem from the provisions of Part III of the 1957 Act -clearance and redevelopment: was he entitled to reverse the finding contained in paragraph 37 of the Inspector's Report to the effect that it was not reasonably necessary for the satisfactory development or use of the cleared area to acquire the property at the corner known as Clark House. The need for evidence to be available to a Minister before he can act has been the subject of earlier decisions. The question before him was not, to my mind, one of policy; it was in essence a question of fact that had to be established as a condition precedent to the exercise of the powers to take away the subject's property. It was no less a question of fact because it involved forming a judgment on matters on which expert opinion can and indeed ought to be given. (I rather doubt whether there is much material difference between the view I have just expressed and that of Mr. Slynn who has argued that the question was simply a matter of planning judgment which had to be based on evidence.) As long ago as the Sheffield case Mr. Justice Swift said at page 173 of the report to which reference has been made: "It is for the Court, if the matter is brought before it, to say whether there is any material on which the Minister could have come to the conclusion that it was reasonably necessary. If the Court comes to the conclusion that there is no such material, then it will not hesitate to quash the Minister's order." That passage coincides with those passages in the judgment of my Lord, the Master of the Rolls, in the Ashbridge case to which he has referred.
The Minister, therefore, cannot come to a conclusion of fact contrary to that which the Inspector found in this case unless there was evidence before the latter on which he (the Minister) could form that contrary conclusion. Upon the inquiry, an Inspector is, of course, entitled to use the evidence of his own eyes, evidence which he as an expert, in this case he was an architect, can accept. The Minister, on the other hand, can only look at what is on the record. He cannot, as against the subject, avail himself of other expert evidence from within the Ministry - at any rate, without informing the subject and giving him an opportunity to deal with that evidence on the lines which are set out in regard to a parallel matter in the Compulsory Purchase by Local Authorities (Procedure) Rules, 1962. Whilst the Inspector, even if not an architect, may well be looked on as an expert for the purpose of forming an opinion of fact, the Minister is in a different position. It is by no means intended as a criticism to say with all respect that no Minister can personally be an expert on all matters of professional opinion with which his officers deal from day to day.
Before turning to the Report and examining the evidence, there is a further observation to be made. When seeking to deprive a subject of his property and cause him to move himself, his belongings and perhaps his business to another area, the onus lies squarely on the local authority to show by clear and unambiguous evidence that the order sought for should be granted.
What then is the state of the evidence here? Mr. Slynn has properly pressed us to look at plan B. This we have done with care. It is, of course, clear that the premises in question are at the corner of a rectangular island: moreover, for what I am about to say it matters not whether that island does or does not include St. Bernard's School or the properties which belong to that school. From that plan it is quite plain that when developing the rectangle it may well be convenient to have the corner site included in the development, so as perhaps to make it more homogenous. It is plain that to get possession of it and include it in the development may well be "a tidy idea" according to the canons of Whitehall. It may be that it is better from the point of view of looks. But all that is not enough. It must be reasonably necessary for the satisfactory development or use under consideration.
The nature of the development or use under consideration in this case is to be found in paragraph 20 of the Report, which refers to "the area zoned in the Development Plan for residential use" and again in the Minister's own phraseology in his letter of the 25th Octobers "The Council proposed to redevelop the two clearance areas for housing purposes." That then is the object of the proposed development and uses but what materially serious obstacle to that objective is constituted by the existence of Clark House, a first class property reconstructed in 1956 at public expense and described in paragraphs 29 and 36 as containing, inter alia, 6 self-contained flats with 4 shops?
On the evidence there is no material on which to suggest that there was any material, far less a materially serious obstacle. There is no evidence that the demolition of Clark House would result in even a single extra family being housed. There is no evidence that any addition to the costs of the redevelopment scheme because Clark House was not acquired would approach or exceed the value of the buildings. There was no evidence that some amenity to the community to be housed on the redeveloped site would be lost: thus there was no question of any gardens of Clark House being needed to such purpose - so far as I can see, it had none. There is no suggestion that Clark House or any portion of the area it occupied was needed for road widening: indeed the contrary was established. Thus there was no evidence whatsoever establishing that Clark House fell within the ambit of section 42(3).
The architect Inspector came to his conclusion after an inspection. His conclusions are certainly no help to the submission on behalf of the Minister that this site did fall within the subsections on the contrary, on the facts of this particular case one would have thought that his opinion - the only expert opinion - was almost conclusive the other way. Having already made plain that the Minister was not entitled in this case to find as a fact that the premises were reasonably necessary for the purpose mentioned except on evidence before the Inspector, and it being clear that there was no such evidence, he had no power to sake the order, and in my judgment the appeal should be allowed.
The crucial consideration here I think is whether there was material before the Minister in this case which justified him in the course which he took of declining to accept the recommendations of the Inspector and of confirming the compulsory purchase order extending to the whole of this property including Clark House. Mr. Slynn, appearing before us on behalf of the Minister, has submitted that that decision is a matter of planning judgment; but he concedes that the judgment must be based upon some evidence. That evidence must be, I take it, evidence of a kind which would justify a reasonable man in reaching the conclusion which the Minister reached. Now the material upon which reliance is placed for saying that the Minister had sufficient evidence before him to justify the course he took is to be found within the four comers of the Inspector's Report read in the light of the siteplan which has been called plan B, which is before us. The site plan shows that Clark House is a rectangular block in the north-eastern corner of the area in which the rest of the land which it is proposed to clear and develop lies. Clark House stands on the junction of Clark Street and Sidney Street, and the main area to be cleared and developed also lies between the arms of Clark Street and Sidney Street. The material in the Report upon which Mr. Slynn has placed reliance is material which shows that the area including all the land is not in excess of about 1¼ acres, that it is zoned for residential purposes, that the local authority propose to redevelop it by erecting upon it 114 dwellings, and that the Inspector considered that other land which like Clark House is coloured green on the site plan and adjoins but is not comprised in the actual clearance areas was land which was appropriate to be included in the compulsory purchase order; and he also relied upon the fact that in paragraph 29 of the Report the Inspector records the fact that the local authority submitted to him that Clark House was reasonably necessary for the purpose of the satisfactory development or use of this site. This, however, is a mere assertion by the local authority and not evidence. The Inspector, however, had the advantage, of which it is common ground that he availed himself, of seeing the site on a view. The Minister had not got that advantage. The only material that the Minister had before him was the material to which I have referred. He reached the conclusion which he expressed in these words: "The Minister disagrees with the Inspector's recommendation with regard to Reference No. 13." That is a reference to Clark House. "It appears to him that by the very nature of its position, the exclusion of this property must seriously inhibit the future development of the rectangular block of land between Sidney Street and Damien Street in which it stands." I think that sentence is open to the comment that the rectangular block, the land there referred to, is not the relevant land for the purposes of section 43(2), for the land which is the subject-matter of the compulsory purchase order and the land which it is presently proposed to clear and redevelop is not a rectangular block and does not include a considerable area of land which is enclosed within the rectangular block bounded by Clark Street, Sidney Street, Nelson Street and Damien Street, and is the site of St. Bernard's Roman Catholic Secondary School. There appears to be some possibility that at some unspecified date in the future the local authority may be in a position to negotiate a purchase of the site of that school and then to proceed to develop it in conjunction with the land that lies around it; but at present that is no part of the subject-matter of discussion, and the reason given by the Minister is therefore in my view open to the comment, at any rate, if it is not a criticism, that the Minister appears to have applied his mind to the merits of developing in some particular way the whole island site lying within the four roads, whereas what the section requires to be considered is whether the inclusion of this particular land is necessary for the satisfactory development or use of the land which it is proposed to include in the compulsory purchase order. But ignoring that part, the Minister has not expressed any particular reasons for his opinion; and, for the reasons which I have indicated, I think that he had no sufficient material before him upon which to arrive at the view upon which he purports to base his decision - a decision which was in conflict with the view of the Inspector who was actually better able to form an opinion because he had the evidence of his own eyes to rely upon, which was not evidence of a kind available to the Minister. As I think that the Minister had no sufficient material upon which to reach the decision which he did reach, it follows that he acted ultra vires the section and that his decision is one which should not be permitted to stand. I therefore agree that this appeal should be allowed.
Appeal allowed; compulsory purchase order quashed so far as it relates to Sidney Street and Clark Street. No compulsory acquisition of Clark House. Costs in Court of Appeal and in the Court below against the Minister of Housing and Local Government. No order against the London Borough of Tower Hamlets.