England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM YORK COUNTY COURT
(HIS HONOUR JUDGE WOLSTENHOLME)

		Royal Courts of Justice Strand London WC2 Tuesday, 12th February 2002

Tuesday, 12th February 2002

1. LORD JUSTICE SCHIEMANN: Lord Justice May will give the first judgment.
2. LORD JUSTICE MAY: This is an appeal by Mr Nanette Ingle, the claimant, against the decision and order of His Honour Judge Wolstenholme, sitting at the York County Court on 12th June 2001. The judge himself gave permission to appeal by a subsequent order on 28th July 2001. Miss Ingle was one of a large number of tenants of the defendants, Scaraborough Borough Council, who were rehoused in the context of a redevelopment of the Edghill Estate in Scarborough. She claimed a home loss payment from the defendants under section 29 of the Land & Compensation Act 1973. There are apparently other tenants who may wish to make similar claims if this claim is successful.

Part 3 of the Land Compensation Act 1973 provides, in certain circumstances, a payment of compensation to tenants of a local authority who have to move home because the local authority wants to carry out improvements to their home or to redevelop the land on which it is built. Miss Ingle's claim was made under section 29(1)(c) of the 1973 Act. This provides for the making of a home loss payment:

"(1) Where a person is displaced from a dwelling on any land in consequence of -

(c) where the land has been previously acquired by an authority possessing compulsory purchase powers or appropriated by a local authority and is for the time being held by the authority for the purposes for which it was acquired or appropriated, the carrying out of [any improvement to the dwelling or of] redevelopment on the land."

3. In the present case the home loss payment would be £1,500 (see section 32 of the Act). Miss Ingle also claimed a disturbment payment under sections 37 and 38 of the Act, but that claim was not pursued.
4. Section 29(3) shows that it is not a necessary condition for the entitlement to receive a home loss payment that the local authority has to require the tenant to give up occupation and a dwelling. It is not necessary that the tenant has been served with a notice to quit. As the judge put it in his reserved judgment in the present case:

"The essential issue for the court to determine is whether the claimant has as a matter of fact been displaced from her dwelling in consequence of the carrying out of redevelopment of the land."

5. He said that case law shows that the correct test is whether the tenant has vacated the dwelling voluntarily or as a result of actions by the landlord or persuasion by the landlord. He referred to Caplan v Greater London Council (1980) HLR at page 104 and Follows v The Peabody Trust (1983) 10 HLR at page 62, both decisions of this court.
6. The judge heard evidence from the claimant, Miss Ingle, and on behalf of the defendants from their principal housing officer, a Mr Adamson, and a housing projects officer, Miss Dawson. He made findings of fact which, for practical purposes, Mr Luba QC, on behalf of the claimant, does not seek to challenge. He does, however, challenge some of the judge's inferences. It is convenient to quote the judge's findings of fact in full, starting on page 2 of his judgment. He said this:

"The Edghill Estate, for which the defendants as a local housing authority are responsible, was developed in the 1930s and comprised 406 houses and flats. By November 1998, 350 of these were owned by the defendants, 23 were owned by the Sanctuary Housing Association and 33 were in private ownership, having been purchased from the defendants under the 'right to buy' provisions of the Housing Act 1980. The evidence of Mr Adamson was that the estate, particularly the 'top area',

'suffered from a negative image for many years and is generally perceived as hampered by crime, vandalism and anti-social behaviour. Because of the estate's poor reputation very few housing applicants, who did not live there already, were willing to consider moving to the top area. In November 1998, for example, in the top area there were 38 vacant houses which no one wished to occupy...'

The defendants developed a strategy to alter the estate for the benefit of the residents and the locality generally. They proposed a scheme which included demolition of 245 homes in the top area and their replacement with new homes both for sale and for rent from the Sanctuary Housing Association, in an improved layout. The defendants undertook widespread local consultation on their proposals. 70% of the 92% of tenants who responded said that they were in favour of the redevelopment. 46 tenants of the 245 homes proposed for demolition had already registered applications for transfer. On 27 November 1998, an outline bid for funding from Central Government under the Single Regeneration Budget ('SRB') was submitted to the Department of Environment. The bid included the favourable views of the great majority of the residents. In May 1999 it was announced that the bid was successful.

During the consultation process, the defendants gave an undertaking to all tenants in the top area that if the SRB bid were successful, they would be rehoused in an area and type of accommodation of their choice.

Mr Adamson's evidence was that no tenants indicated an unwillingness to move, provided that the defendants were able to offer suitable alternative accommodation. Some tenants wanted to move away from the estate altogether, some wished to move into the new rented housing, some agreed to move temporarily on the basis that they would move back when the new houses had been built, and others wanted to stay in the general locality. All these preferences were accommodated.

Mr Adamson said that there had never been any compulsion on any tenants to move, as a result of the scheme. No deadlines were imposed and everything proceeded on the basis of agreement. The defendants, under a 'voluntary re-housing programme' approved by local community representatives during the consultation, undertook to meet all removal and associated costs of the tenants, in addition to paying £250 plus £20 for each year of a tenancy.

The position at the time of trial is that out of the 245 flats and houses to be redeveloped, 24 are still occupied by tenants who have said that they wish to stay on the estate or in the locality. They are waiting either for the new rented houses to be built or for accommodation to become available in the bottom area. Demolition of the empty properties in the top area started on 30 July 2000 and is proceeding in phases.

The claimant has been a secure tenant of the defendants since 1981, commencing a tenancy of 91 Newcoln Road, on the top area of the Edghill Estate on 11th May 1987. She lived there with her three children. Her evidence was that conditions in the property were not good, and she was anxious to move elsewhere. She had been on the waiting list for a transfer, when in August of 1998 she received a letter from the defendants telling her that they were reviewing the transfer waiting list. She indicated that she still wanted a transfer, for a change, but was in no great need. She was told that there was a long waiting list for a move to her areas of choice. This application not prompted by the defendants' plans for redevelopment, which were not at that stage finalised.

At about that time, the claimant did hear about the proposed redevelopment of the estate, and attended an exhibition run by the defendants. She became aware that the redevelopment involved demolition of her house and adjoining properties. In her statement of evidence, the claimant said that in common with her neighbours, she was delighted to hear that the Edghill Estate was going to be redeveloped.

On 24 November 1998 the claimant was interviewed by housing officers about her transfer application, and as part of the consultation exercise on the proposed redevelopment. She has recorded as saying 'If the Council stuck by its original policies then this would not be necessary. I will be fighting the proposals.' However, the claimant's evidence, which I accept, was that she was 'probably being mouthy' and was in fact in favour of the regeneration scheme, even though her house was to be demolished. In answer to the question 'how soon would you prefer to move?' the claimant replied 'as soon as a suitable property becomes available'.

In January 1999 the claimant took advice, and as a result on 7 January she wrote to the defendants, saying 'I wish to claim the home loss payment, because the council requires me to move from my present home, so the area in which I live can be redeveloped.' The defendants replied, contending that the statutory home loss payment scheme did not apply, because no order under the housing legislation had been made. They referred to the widespread approval of their proposals as revealed by the consultation exercise, and gave details of payments they would meet, 'as and when it is possible to rehouse a resident in response to their wishes': in the claimant's case, the sum would be £450. The claimant was in arrears with rent due to overpayment of housing benefit. The defendants advised the claimant that the fact that her rent account was in arrears was 'a serious obstacle to the council granting your wish to be rehoused as soon as a suitable house becomes available.'

The defendants decided to suspend their normal housing transfer policy so that rent arrears were not an obstacle, and that those wishing to move from the houses earmarked for demolition were then given priority.

On 24 March 2000 the claimant was offered a secure tenancy of 30 Springhill Lane, which was in one of the areas she had chosen as suitable for relocation. She accepted the offer, and became the tenant on 8th May 2000. She was paid £510 'compensation', and various removal expenses amounting to a further £843.47. Her evidence is that she likes the house, which is in a better area than the one she left, and has nice neighbours on either side.

On 14 April 1999 a further letter was written to the defendants on the claimant's behalf by the North Yorkshire Housing Resource Project. It refuted the defendants' contention that the statutory home loss payment scheme did not operate unless the council had made an order under the housing legislation, and set out the correct test, namely whether the tenant was moving as a result of actions or persuasion by the landlord. The letter usefully posed the question, 'Are the tenants moving voluntarily or because they believed displacement is inevitable?' The defendants' reply stated, 'As the scheme at Edghill is proceeding on the basis of voluntary agreements without any element of compulsion, the council takes the view that the provisions of Part III of the Land Compensation Act 1973 do not apply.'"

7. The judge then recorded briefly the submissions on behalf of the claimant as being that the crucial question was whether the claimant had been displaced as a result of the defendant's scheme - not whether the scheme commanded widespread support. It was submitted that the claimant did not have the choice of remaining in her home once the defendants were determined to proceed with their scheme which involved demolition of her home and the homes of others. It was submitted on behalf of the defendants that their proposals were welcomed by the claimant and the other affected tenants and that the claimant vacated her home entirely voluntarily.
8. The judge accepted that the crucial question was whether the claimant vacated the dwelling voluntarily. She had wanted to transfer to another council house for a long time, being dissatisfied with her accommodation and the conditions on the Edghill Estate generally. It might well have been that but for the redevelopment scheme the claimant would not have been rehoused. But the judge regarded it as abundantly clear that the claimant wanted to be rehoused, and welcomed the proposals. He was satisfied that she moved voluntarily. He accepted that she was allowed to move in consequence of redevelopment but he could not accept that she was "displaced". The judge then made some general remarks to the effect that the scheme would not have proceeded without widespread support. He did not accept that the tenants were deprived of any real choice. His view was that the scheme proceeded on the basis of voluntary relocation rather than displacement. Accordingly, the judge found Miss Ingle was not entitled to a home loss payment and he dismissed her claim. It is against this decision that she now appeals.
9. Mr Luba accepts that, if she is entitled to a home loss payment, the voluntary compensation figure must be set-off against it. He advances on her behalf a number of grounds of appeal. The first submission is that the judge misdirected himself as to the legal test to be applied. The correct test for eligibility to a home loss payment is whether she was displaced from her dwelling in consequence of redevelopment. The judge wrongly substituted a test whether she vacated the dwelling voluntarily. There is no dispute but that the respondents were undertaking redevelopment. The only dispute relates to whether in moving home Miss Ingle was displaced from her dwelling. That question is to be determined objectively, Miss Ingle's own view of matter not being relevant. The judge should have looked at the objective reasons why Miss Ingle moved from 91 Newcoln Road, not at her personal wishes. Did she have a choice to stay? You should look, submits Mr Luba, at when she moved and ask why she moved. The judge found that in a causal sense she moved in consequence of redevelopment. It is submitted that the judge only considered her wishes and did not apply the test approved in Follows v The Peabody Trust.
10. Mr Luba's second submission is that under the statutory provisions a person may be displaced from their home and eligible for a home loss payment even if they give up possession in a sense voluntarily. This would be so, if they gave up possession as a result of the actions or persuasion of the authority who wanted to redevelop the land. It is not necessary for the local authority to obtain a possession order. If it were, section 29(1)(c) would be redundant in the light of section 29(1)(e). The judge specifically made this point at the outset of his judgment, and Mr Baker, on behalf of the respondents, does not submit otherwise.
11. Mr Luba submits that these statutory provisions in combination are designed to ensure that tenants who move as a result of redevelopment before proceedings are issued are not in a worse position than those who are intransigent. He asks: "What sort of action or persuasion by the redeveloping authority is sufficient to constitute displacement rather than a genuinely voluntary move?" He points out that in Caplan the tenant had not wished to move, and wrongly believed that she did not have a choice. There was no possession order against her. She was displaced for the purposes of the Act. The authority's action or persuasion consisted of informing her "you will be asked to move". In Follows the tenant did not want to move and repeatedly said he was moving because he had no option. He said that he was told that it was inevitable and he would have to move. His act of moving is described as a reluctant act of cooperation. The court concluded that he had held a reasonable belief that he had to go, however reluctantly he cooperated, and no possession proceedings were issued. He was held to have been displaced.
12. Mr Luba also refers us to a decision of His Honour (the late) Judge Stannard in the Liverpool County Court in a case called Bulger. In that case tenants had long-standing transfer applications on the grounds that dwellings were damp or otherwise unsanitary. Others applied for transfers because they were aware of the landlord's impending plans for demolition. The judge was satisfied in each case that the tenant left because of the impending demolition. He did not distinguish between those tenants who had long-standing transfer applications and those who had not. He held that they were all displaced.
13. Mr Luba submits that there is displacement if there is somehow an element of action or persuasion by the redevelopment authority sufficient to amount to an objective assessment that the tenant had no choice but to move. He submits that, on the judge's findings of fact in the present case, the actions of the respondent were sufficient to constitute action or persuasion in the context of their plans to demolish the homes on the estate so as to amount, in the case of Miss Ingle, to displacement. The respondent deliberately suspended its policy so that rent arrears did not prevent her transfer, and gave priority to those, including Miss Ingle, who wanted to move from houses which they wanted to demolish.
14. Mr Luba's third submission was that the judge misdirected himself that it was material and in his view determinative that Miss Ingle had applied for a transfer before redevelopment proposals were approved. He suggests that housing estates which are most likely to be candidates for redevelopment are those whose conditions are unsatisfactory so that tenants are likely to apply to be transferred elsewhere. A tenant's wish to be transferred cannot by itself be sufficient to make it a voluntary move in the context of redevelopment. The question is whether in all the circumstances the move arose because the tenant wanted to move or because of some action or persuasion of the redevelopment authority. An unsatisfactory housing estate is bound to have a higher proportion of tenants who have applied to transfer than a satisfactory estate. It would be wrong if tenants on unsatisfactory housing estates were deprived of home loss payments merely because they had previously indicated a wish to move. Similarly, Mr Luba submits that the judge misdirected himself that it was material and determinative that Miss Ingle and others welcomed the proposal for redevelopment even though it involved demolition of their homes. This again would produce unsatisfactory differences between tenants and might induce some tenants to disagree with sensible proposals for redevelopment simply to obtain home loss payments.
15. Mr Luba submits that on the findings of fact made by the judge he could not reasonably have found other than that Miss Ingle's move from the estate constituted displacement in consequence of the redevelopment scheme. The estate was decanted by offers of transfer. He submits that on the judge's findings, although Miss Ingle had applied for a transfer, the reality was that in August 1998 she had little likelihood of obtaining a transfer because she was in arrears of rent and there was a long waiting-list for the areas of her choice. The change in November 1998 was a result of the respondent's decision to redevelop the top area. He has referred us to documents showing her reapplication for transfer in August 1998: a routine visit in September 1998; a letter saying that the Council was intending to make a bid to the Government; her apparently unenthusiastic response to consultation, which the judge described in words of her own evidence, as probably being "mouthy". As a result of this, her preferred places to move were amended. She was given any area of choice. The council suspended their policy on rent arrears and gave priority to tenants of the houses earmarked for demolition. The property to which she moved became available in consequence. She was also financially assisted. The council budgeted in total £140,000 for tenant relocation. Miss Ingle may in a sense have moved voluntarily, but objectively she was displaced in consequence of the redevelopment. She did not have a choice of remaining.
16. Mr Baker, on behalf of the respondents, submits that, not only did Miss Ingle leave voluntarily, but she did have a real choice. A tenant who wants to leave and is enabled to do so voluntarily is not displaced. He emphasises certain of the judge's findings of fact. There was no compulsion on any tenant to move as a result of the scheme. Mr Luba suggests this was not a finding of fact but part of the judgment in which the judge was simply setting out the evidence of Mr Adamson. I am satisfied that this was indeed part of the evidence which the judge accepted as part of his findings of fact.
17. Mr Baker emphasises that the judge found that no deadlines were imposed and everything proceeded on the basis of agreement. This was a voluntary rehousing program approved by the local community representatives during consultation. The respondents undertook to meet all removal and associated costs and to pay graduated compensation. Miss Ingle wanted to move and was delighted to hear that the estate was going to be redeveloped. She was in favour of the scheme. When she was asked in November 1998 how soon she would prefer to move, her reply was "as soon as suitable property becomes available." In March 2000 she was offered and accepted the property in one of the areas she had chosen. She liked the house which was in a better area than the one she had left. Mr Baker submits that the judge correctly directed himself in law. He correctly addressed the question whether Miss Ingle vacated the dwelling voluntarily because that was the test preferred to by Cumming-Bruce LJ in Follows at page 69.
18. In Follows the tenant, who had been there for 41 years, did not want to move and was being presented with no choice. The key question in Caplan was, submits Mr Baker, whether the tenant realised that she had a choice. He submits that the judge in the present case clearly applied an objective test. He did not consider the matter purely from the point of view of Miss Ingle's wishes. He considered whether she and other tenants exercised her choice. A tenant who leaves voluntarily is not displaced. Evidence may show that a person has not acted voluntarily as in Follows itself, where the tenant left because he had been told he had to go and because his departure was inevitable.
19. Mr Baker submits that the facts in Follows were very different from those in the present case. Here there had been prior consultation with the tenants who strongly supported the proposed scheme. There was no indication of unwillingness to move. Policy adjustments were made to facilitate tenants moving. Their preferences about new accommodation were not met. There was no compulsion and no deadlines. The scheme proceeded on the basis of agreement, and the tenants, he says, had a real choice. The appellant herself had wanted to the move and was happy with her new accommodation in a better area. He submits that Miss Ingle's wish to move out of her previous accommodation manifested by her transfer application was a relevant consideration which the judge was entitled to take into account. The transfer application had predated the proposal for the redevelopment. Equally, the fact that Miss Ingle and the other tenants supported the development was a relevant consideration. It was a fundamental requirement of the scheme that it should proceed by agreement as opposed to being pushed through by the respondents. Mr Baker accordingly submits that the judge made no error of law and that his finding that on the facts Miss Ingle was not displaced should not be regarded as wrong. If, however, this court considers that the judge's conclusions required reconsideration, Mr Baker submits that this court could not properly substitute different findings and there would have to be a retrial.
20. It is necessary, and I think helpful, to refer at slightly greater length to the cases of Caplan and Follows. In Caplan v The Greater London Council [1985] HLR page 104, the county court judge held that in the circumstances of that case, including the tenant's unwillingness to move, an original instruction to do so had not adequately been countermanded by a subsequent letter. It was a case where a home loss payment was claimed and had originally been offered by the first letter. A subsequent letter changed the Council's policy and intention and the question was whether the second letter had countermanded the first. In the judgment of Brandon LJ at page 109, there is this:

"The learned judge formulated the question which he had to decide in this way. He said:

'One must look at the section objectively and it seems to me, and I so hold, that a person is displaced if he or she is told to go or that he or she will have to go and if that statement is not countermanded.'"

21. I pause simply to point out that that question of countermanding was specific to the facts of the case. Brandon LJ then went on:

"Mr Myers, who has argued the case before us on behalf of the defendants, accepted that that was a correct direction in law. I would not wish to say that a person can only be displaced in the circumstances there stated by the learned judge; it seems to me that there may be displacement in other circumstances, but I would accept that formulation of displacement for the purposes of this particular case where the only kind of displacement that it is suggested is displacement by being told that you have to go."

22. Then in a passage on top of page 110 Brandon LJ said this:

"It seems to me that one thing is absolutely clear and that is that the plaintiff did not understand the letter as having that effect. That seems to me to be inherent in the learned judge's finding that when she moved she did so extremely unwillingly. If persons are aware that they have an option to stay, then it is reasonably to be supposed that they would not move if they are exceedingly unwilling to move, so I infer that, whatever the letter ought to have conveyed to the plaintiff, it did not in fact convey to her that she was free either to stay in her previous flat or to move from it voluntarily, if she wished."

23. In Follows v The Peabody Trust [1983] 10 HLR 62, the facts were as follows. The tenant had lived in a flat on an estate since the 1930s. In 1972, the estate was purchased by the landlords. As vacancies arose, no new tenancies were granted on the estate, in view of its condition. In 1977, the landlords applied for outline planning permission, to redevelop the estate, and permission was granted in 1979. Demolition of three buildings, including that next to the building in which the tenant lived, also took place in 1979. In the same year, there was an application to the GLC for funding for the proposed redevelopment, and at the same time arrangements were put in hand for the demolition of three further buildings. One of those buildings included the flat in which the tenant had formerly been living.
24. The tenant was initially told in 1978, by the housing manager who dealt with the estate, that he might be moved within the forthcoming two years, and that his building would be pulled down to make way for rebuilding. In March 1979, he received a letter informing him that demolition work on the neighbouring property was to commence. In the same month, he saw the housing manager again, and she informed him that she expected to rehouse him at about the end of the year, although work would not begin on his property until March 1980.
25. Subsequently, the tenant was invited to look at a property in Dartmouth Park Hill. He went to see it and returned to the landlords' office. He said that he did not want to move, and did not like the property that he had seen. He refused the offer, and no threat of eviction was made. After this, however, the tenant was casually informed by an "odd job man" working on the estate that another flat was available, who suggested that he go and look at it. The tenant did so, returned to the estate office and said that he wanted the flat. He was given the keys, to take a further look around, and went back and repeated that he wanted it, although he also repeated that he was only moving because he had no option. At this, he was informed that he would inevitably have to move, as the whole site was to be pulled down.
26. The judgment of Cumming-Bruce LJ includes this as the definition of the issues on page 66:

"So in the proceedings the plaintiff had first to prove that he had been displaced, secondly that the defendants were at the relevant time carrying out redevelopment on the land, and thirdly that the displacement was in consequence of that redevelopment."

27. On page 69, having considered the judge's judgment, Cumming-Bruce LJ said this:

"I would hold that he [that is counsel] was right when he submitted that the test whether there is a displacement is an objective test. If he went voluntarily, as the defendants submit, then he was not displaced."

28. Cumming-Bruce LJ then referred to Caplan and quoted parts of the judgment of Brandon LJ, to which I have referred. Cumming-Bruce LJ then said on page 70:

"I would approach the facts of the instant appeal, recognising that the plaintiff was never told to go, by considering whether, on the facts, he was sufficiently told that he would have to go."

29. Having considered the evidence on page 73 Cumming-Bruce LJ said:

"On that evidence the learned judge held that on the facts which he had found, which I have supplemented from the evidence which the judge appears to have accepted, he was compelled to infer that the plaintiff was displaced from the dwelling, as he expressed himself. The initiative, said the judge, for moving the plaintiff came from the defendants and he summarised the matters to which I have referred. The judge concluded:

'I cannot find that he left Junction Road on his own initiative merely because he discovered and accepted another flat of the defendants which he preferred to the one they were offering him at the time. The conduct of the defendants must have led Mr Follows to believe that he had no alternative but to leave 136 Junction Road.'"

30. Cumming-Bruce LJ went on:

"For my part there was abundant evidence before the judge to found that conclusion. The facts may be summarised as proving that when he left 136 and accepted the offer of a new tenancy elsewhere it was because he had been told that he would have to move. In a narrow sense he was a volunteer. Nobody evicted him. But, accepting the way in which it was put by the judge at first instance in the Caplan case as approved in this court, he went because he had been told he had to go."

31. Sir Denys Buckley on page 79 has these two short relevant additional passages. He said this:

"But, in my judgment, the test in such a case must be whether the allegedly displaced tenant had vacated his dwelling by his own choice or as a result of actions by the landlord, or persuasions by the landlord."

32. Of the facts in that case Mr Denys Buckley said on the same page:

"Mr Follows' offer to move to St John's Road seems to me to have been a reluctant act of co-operation in relation to what he reasonably considered to be a firm decision on the part of the defendants which he was in no position to resist.

In those circumstances I think that the judge was fully justified in holding that the conduct of the defendants must have led Mr Follows to believe that he had no alternative but to leave 136 Junction Road and that accordingly he was 'displaced' from his home there."

33. Mr Luba submits, in particular by reference to those cases, that the present case was one of which it could be said of Miss Ingle that it was a "you will have to go" case. He submits that she had no real choice, there was no question of her having an opportunity to stay.
34. I am not persuaded that the judge applied a wrong test to determine whether Miss Ingle was displaced, nor that he judged that question solely by reference to her subjective view of it. The case of Follows puts the question in terms of whether the tenant left voluntarily. The judge was, in my view, plainly applying that test, as can be seen from his reference to Follows and Caplan at the outset of his judgment.
35. In my judgment the word "displaced" has overtones of compulsion. This is an overtone which the words "where a person is displaced" in the section intrinsically bear in their context. The short context, it seems to me, is self-evident. The other sub-subsections of section 29(1) all have an element of possible compulsion, for example sub-subparagraph (a) the compulsory acquisition of an interest in the dwelling.
36. There are also other uses of the word "displaced" in subsequent parts of section 29, for example in 29(6), which do not detract from the overtone and I think in some instances confirm it.
37. It is not necessary, for section 29(1)(c) to apply, to have the compulsion of a possession order because that is the subject of section 29(1)(e). This also appears in general from the provision of section 29(3), although that specifically refers to displacement in consequence of compulsory acquisition. For section 29(1)(c), the overtone of compulsion is also, I think, to be derived from case law. As indicated in Follows, displacement has to involve at least some sufficient action or persuasion by the local authority landlord. I understand Mr Luba to accept this. It is not just a question of the tenant being displaced in a physical spatial sense. The statutory provision with which we are concerned has three elements as Cumming-Bruce LJ and Sir Denys Buckley both said in Follows. The two of these directly relevant to the present case are "redevelopment" and "displacement" in consequence of it. Redevelopment alone is not enough for an entitlement to a home loss payment. Some tenants who move in the context of redevelopment will not be displaced - others may. For example - and it is only an example not referable to the facts of this case - some tenants may get to learn of a proposed redevelopment and may take an entirely voluntary decision to move elsewhere. At the other end of factual possibility, other tenants may still be in their original homes much closer to a redevelopment which is obviously going to take place soon, and with persuasive encouragement from the local authority they bow to the inevitable.
38. Those examples do no more than illustrate that the question whether under this legislation a tenant is displaced is a question of fact. There is a factual line to be drawn. Some cases will fall on one side of the line, and others on the other. There is no definition of principle, I think, which will draw the line in a particular case. That is a decision of fact for the Tribunal.
39. It follows, in my view, that each case will depend on its own facts. In the present case the judge's findings of primary fact in relation to Miss Ingle are clear and, as it seems to me, unusually favourable to the respondents' submission. They are, for instance, substantially different from those in Bulger v Knowsley Borough Council (1989) JLA 25, which Judge Stannard decided.
40. In the present case, as I say, I do not consider that the judge misdirected himself in law. He explicitly directed himself to the essential issue for the court to determine which was whether the claimant had, as a matter of fact, been displaced from her dwelling in consequence of the carrying out of redevelopment of the land. He correctly derived the question whether Miss Ingle moved voluntarily from the authorities to which he referred. On the facts he had what was not an easy task of deciding which side of the factual line this case fell. In the circumstances that the redevelopment was dependent on government money, which was itself dependent on the scheme having general support, the claimant did have a choice in her willingness to move. The judge found in any event that there was a choice. The events leading up to and including November 1998 antedate the application for the regeneration grant. There is, contrary to Mr Luba's submission, no evidence or finding that Miss Ingle was told that she had to go. On the contrary, the judge found that she left because she wanted a transfer to another council house in an area she preferred. There is, as Schiemann LJ suggested in discussion, a difference, perhaps, between a tenant who is willing to move in circumstances where he or she regards it as inevitable, and the tenant who positively wants to move to better accommodation. Miss Ingle, on the judge's finding, was in the latter position. I do not consider that a tenant, who positively wants to move and who gets a transfer that she wants, can properly be said to have been displaced. I consider that the judge was entitled to reach the factual conclusions that he did essentially for the reasons articulated by Mr Baker to which I have referred. It was open to him to find, by reference to Follows, that Miss Ingle moved to other accommodation voluntarily without action or persuasion of the respondents. He did not, as I read his judgment, base his decision on one or more points of fact erroneously taken into account. He plainly did not base his decision only on the fact that she had previously applied for a transfer. It was relevant that she had wanted to move from a time before the redevelopment scheme matured and had already applied for a transfer; and it was relevant that she and others supported the scheme and welcomed it. I understand intellectually Mr Luba's submission that the judge's conclusion might encourage people to be intransigent to promote their claim for home loss payment. But I am not impressed that this is likely in practice to be a problem. I am not persuaded that the facts which the judge found must have led him to the conclusion that she was displaced. On the contrary, I consider that his finding of fact that she was not was not only open to him, but that it is not amenable to disturbance by this court.
41. For these reasons I would dismiss this appeal.
42. LORD JUSTICE JONATHAN PARKER: I agree.
43. LORD JUSTICE SCHIEMANN: I also agree both that the appeal should be dismissed and with my Lord's reasoning.
44. The Land Compensation Act 1973 had as one of its purposes to make new provision for the benefit of persons displaced from land by public authorities. In the present case the facts that have weighed with me most are the appellant's evidence, which the judge accepted, that conditions in her property were not good and she was anxious to move elsewhere; and her answer to the question: "How soon would you prefer to move?" She replied: "As soon as suitable property becomes available."
45. Such a property did become available. She moved there. The judge directed himself correctly. He was entitled to conclude that she was not displaced. While I accept that but for the redevelopment she would not have moved - because a number of prerequisites were necessary before she could move - that does not mean that she was displaced.
46. I, also, would dismiss this appeal.
(Appeal dismissed; Appellant to pay Respondents' costs of the appeal, such costs to be determined by a costs judge; application for permission to appeal to the House of Lords refused).