British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
If you found BAILII useful today, could you please make a contribution?
Your donation will help us maintain and extend our databases of legal information. No contribution is too small. If every visitor this month donates, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Jindal, R (on the application of) v Birmingham City Council [2001] EWCA Civ 1889 (27 November 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1889.html
Cite as: [2001] EWCA Civ 1889
[New search] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
(THE ADMINISTRATIVE COURT)
Strand London WC2 Tuesday, 27th November 2001 |
||
B e f o r e :
____________________
| THE QUEEN ON THE APPLICATION OF HARI DEV JINDAL | ||
| and | ||
| BIRMINGHAM CITY COUNCIL |
____________________
Smith Bernal Reporting Limited,
190 Fleet Street,
London EC4A 2AG
Telephone No: 020-7421 4040
Fax No: 020-7831 8838
Official Shorthand Writers to the Court)
MR I COLVILLE (instructed by Birmingham City Council Legal Services Department) appeared on behalf of the Defendant.
____________________
Crown Copyright ©
- LORD JUSTICE TUCKEY: This is an application for permission to appeal from the order of Burton J made on 2nd August 2001 in which he refused the applicant's renewed application for leave to apply for judicial review. The application for judicial review is not among the papers with the court, but put shortly it challenges a number of the decisions of the respondent council starting with their decision in September 1999 which led to the council compulsorily acquiring the property at 486 City Road, Edgbaston, a property which the applicant, Mr Jindal, claims was formerly owned by him or the company of which he is the managing director and beneficial owner, that is to say, Hemcomp Limited.
- The history of the ownership of this property is complicated, to put it mildly. It appears that the property was first acquired by Hemcomp and/or the applicant on 26th January 1967. Since that time its condition has been a cause of considerable concern to the council who have served various statutory notices in respect of its state of disrepair. This culminated in the council setting in train the compulsory purchase machinery following a resolution of the housing committee on llth June 1998.
- At some time, however, before February 1999 a gentleman called Mr Saghir and/or companies with which he was connected claimed that they were the owners of the property. Mr Jindal says this occurred in the hiatus created by the fact that Hemcomp was struck off the register which resulted in the property becoming vested in the crown so he had no control over the company's assets.
- Be that as it may in February 1999 Hemcomp was restored to the register and its ownership of the property was registered with the land registry. This was unknown to the council when on 3rd September 1999 they made the Compulsory Order in question and served it on Mr Saghir, whom they believed to be the owner, and on the leaseholder, Mrs Sumner.
- The Compulsory Purchase Order made under the statutory machinery was confirmed on 23rd December 1999 by the Secretary of State. Notice of confirmation was served on Mr Saghir on 14th January 2000. Those who had notice of the confirmation order had a right to appeal within six weeks. So time for appealing expired on 25th February 2000.
- In that six week period the council learnt for the first time that of Hemcomp's interest from a letter written to them by Hencomp's solicitors, Messrs. Lincoln-Lewis & Co. It follows that Hemcomp (Mr Jindal) knew of the making of the order within the time in which it could have been appealed at a time when they had legal advice. One obvious ground of appeal was that the true owner of the property, Hemcomp limited, had not been served with the relevant orders in the preceding steps which led to the making and confirmation of the Compulsory Purchase Order.
- However, no such appeal was made and the council say that on 17th February (within the statutory period) they asked for Hemcomp's comments on its intentions in respect of the property, to which they received no reply. Mr Jindal says that he did not receive this letter. I do not think it is possible to resolve any conflict about that, but of course if he did not receive the letter which asked him for his intentions in respect of the property, he had no reason whatsoever to think that he should not pursue an appeal against the orders which had been made, which he could still have done at that time.
- To complete the story, on 14th April 2000 the general vesting declaration, which is the penultimate act in the compulsory purchase process, was served on the affected parties including the secretary of Hemcomp Limited at its registered address. The result of the declaration was that the property vested in the council on 15th May 2000 and they then applied to the land registry for the register to be rectified to reflect the fact that the property had vested in them under the compulsory purchase procedure. Hemcomp were obviously still on the case because on 24th July 2000 they objected to the respondent's application to register their interest.
- Procedurally the next thing that happened is that eight months or so later, on 13th March 2001, the applicant filed his application for permission for judicial review.
- When the matter came before Burton J he refused the application on the ground of delay and his judgment makes it clear that he did not think there was any basis for challenging the compulsory purchase by way of judicial review procedure.
- I have allowed Mr Gopee to speak on behalf of the Applicant today and I am very grateful to him for the clear and helpful way in which he has developed what are effectively the three points raised by the applicant's grounds of appeal to this court.
- The first point is that the judge erred in saying that the application for judicial review was out of time because he should have held that the time limit did not start to run until the date on which negotiations between the Applicant and the council broke down.
- As a matter of law that is incorrect. The time limit for judicial review starts when the decision in question is made. Now the decisions under challenge in this case go back to September 1999 and culminate, I suppose, one could say, with the general vesting declaration in April 2000. Judicial review proceedings must be taken promptly and, in any event, within three months and it is only in the most exceptional circumstances that an application for judicial review will be entertained at any later time.
- The need for speed is underlined in a compulsory purchase case where there is a statutory right of appeal with a tight timetable. The reason for such a tight timetable is that the compulsory purchase procedure does affect people's rights so everyone should know where they stand within a short time of any order being made and there should be no uncertainty about the ownership of any particular property whilst protracted legal proceedings take place.
- So as a matter of law the date on which negotiations come to an end is not, in any sense, determinative of the time in which judicial review proceedings should be taken. Although as a matter of fact in this case there is very scant material to support the assertion that there were continuing negotiations.
- I was shown a letter from the council to the Applicant's local counsellor written in January 2001 in which the Applicant was invited to let the author of the letter have a schedule of work which he intended to carry out to bring the property back into use and some evidence from him that he had the necessary funds and a contractor lined up to complete the work. I was told that the Applicant had provided such information to the counsellor, although I note that the letter asks that he should provide it to the author of the letter, that is to say, Mr Hobbs, the business manager for the council's director of housing.
- Apart from this letter there is scant information to suggest that there was any continuing negotiation. From the council's perspective the material they have put before the court suggests that so far from being in continuing negotiation or responding to their requests for some indication that the Applicant would put the property back into proper condition, they heard little, if anything, from him.
- So I am not in any way persuaded that what happened in the time when any application for judicial review should have been made excuses the failure to apply timeously in this case.
- The second point is that the judge erred in considering the statutory timetable relating to compulsory purchase, because the Compulsory Purchase Order was a nullity as it was not served on the freehold owner of the property, the Applicant or his company, Hencomp.
- The answer to that is that such an objection is one which can and should be taken by way of statutory appeal and on the facts of this case such an appeal could and should have been made by the Applicant when his solicitors became aware of what had happened. It is no answer now to say that the whole procedure was a nullity because he was not served. Such a failure does not render the whole process invalid. Its validity is to be tested within the statutory procedure laid down by the Act.
- The third point is that the effect of what has happened has been to deprive the Applicant of his rights under Article 1 of Schedule 1, Part II to the Human Rights Convention, that is to say, his property right, and that in some way a judicial review should be available to him despite his failure to act promptly. There is no substance in this point. The Compulsory Purchase Order was clearly made in the public interest, that is to say, to bring empty property back into use and proper repair and so the exception, which is contained in Article 1 of Schedule 1, Part II of the 1990 Act, applies to this case and to the Compulsory Purchase Order procedure.
- At the end of the day I am afraid that Mr Jindal's delay in dealing with this matter is fatal to any prospect of judicial review of the Compulsory Purchase Act procedure which has been followed in this case. This application for permission to appeal must therefore be refused.