QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
B e f o r e :
(Sitting as a Deputy Judge of the High Court)
|THE QUEEN ON THE APPLICATION OF EDITH BAKER||(CLAIMANT)|
|FIRST SECRETARY OF STATE||(DEFENDANT)|
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MR T MOULD (instructed by THE TREASURY SOLICITOR) appeared on behalf of the DEFENDANT
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"i) The external walls have become damaged by the effects of fire and subsidence of the foundations.
(ii) The external walls should be regarded as weak by virtue of their form of construction and condition.
(iii) It may be possible to repair the concrete framework around the window and door openings but the infill blockwork is likely to be beyond reasonable repair. The most economic solution is likely to be total demolition with new construction on strengthened or new foundations."
He made other recommendations for works to be done in the light of those principal recommendations.
"The Secretary of State has carefully considered whether the purposes for which the compulsory purchase order is required sufficiently justify interfering with the human rights of the owner and he is satisfied that they do so. In particular he has considered the provisions of Article 1 of the First Protocol to the European Convention on Human Rights. In this respect the Secretary of State is satisfied that, in the use of compulsory purchase powers in this case, a fair balance has been struck between the need to protect the fundamental rights of the individual and the public interest."
There was a similar recital by the inspector at paragraph 42 of his decision that I need not repeat in this judgment.
"Compulsory purchase orders submitted for confirmation are considered on their merits both in the light of any objections received and the general policy, set out in [previous guidance] that proposals for compulsory purchase should not be made unless there is a compelling case in the public interest."
That paragraph is contained in the introductory provisions of this circular.
"Compulsory purchase of sub-standard properties may also be justified as a last resort in cases where a clear housing gain will be obtained; the owner of the property has failed to maintain it or bring it to an acceptable standard; and other statutory measures, such as the service of statutory notices, have not achieved the authority's objective of securing the provision of acceptable housing accommodation. In considering whether to confirm a compulsory purchase order the Secretary of State will wish to know what are the alleged defects in the order property; what other measures the authority has taken to remedy matters; the outcome; and the extent and nature of any works carried out by the owner to secure the improvement and repair of the property. The Secretary of State will also wish to know the authority's proposals regarding any tenants of the property".
"The Secretary of State would not expect an owner-occupied house, other than a house in multiple occupation, to be included in a compulsory purchase order unless the defects in the property adversely affected other housing accommodation".
"(1) A clearance area is an area which is to be cleared of all buildings in accordance with the following provisions of this Part.
(2)... The local housing authority shall declare an area to be a clearance area if they are satisfied -
(a) that the... [buildings] are unfit for human habitation... [and that the other buildings, if any in the area, are, for a like reason,] dangerous or injurious to the health of the inhabitants of the area, and
(b)... that the most satisfactory [course of action] is the demolition of all the buildings in the area."
I have omitted words which do not appear to be material to the present dispute.
"I accept the submission of Mr Howell that, in deciding what proportionality requires in any particular case, the issue will usually have to be considered in two distinct stages. At the first stage, the question is: can the objective of the measure be achieved by means which are less interfering of an individual's rights?".
"At the second stage, it is assumed that the means employed to achieve the legitimate aim are necessary in the sense that they are the least intrusive of Convention rights that can be devised in order to achieve the aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons?"
"Hence, as the Court observed in [the earlier case of] Buckley, 'insofar as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation', although it remains open to the Court to conclude that there has been a manifest error of appreciation by the national authorities. In these circumstances, the procedural safeguards available to the individual applicant will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, it must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8".
"In the second place, in exercising its supervisory jurisdiction, the Court cannot confine itself to considering the impugned decisions in isolation, but must look at them in the light of the case as a whole; it must determine whether the reasons adduced to justify the interferences at issue are 'relevant and sufficient'".
That was the test used to determine whether any interference in that particular case was necessary in a democratic society, which is part, of course, of the approach in Article 8(2) as to whether any interference is justified.
"It is the view of Environmental Health Officers that the service of a 'repair' notice under section 189 of the Housing Act 1985 is not appropriate where demolition and rebuild is what is required. In the event that such a notice were to be served, it is probable that the Council would have to rebuild in Miss B's default and there is real concern as to the level of her co-operation and interference during this process. Whilst the cost of works in default be registered as a charge on the property, such charges have been subject to challenge and there must be an element of risk associated with placing a charge in excess of £100,000 against a property for a significant period."
"The order property is in a predominantly residential area where redevelopment for housing would appear to be in line with local planning policy... Miss Baker says that she has significant financial resources but they fall significantly short of the sums needed to redevelop the site at current costs with no firm indication of how someone of her age and situation would find the balance... Although there is some recent interest in helping her redevelop the property, she took no action to remedy its state in the 2 years between the fire [that was in 1998] and the declaration of the clearance area despite having financial resources [and, again, there was no such information before the inspector in 2003, some four and a half years later]... She did not take advantage of the Council's decision to take no action on the compulsory purchase order there was [no] progress with the work... The Council has the resources to achieve clearance and redevelopment in one way or another... In my view the compulsory purchase order provides much greater certainty that the land would be cleared and redeveloped within a reasonable time."