QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HAYES||Claimant|
|SS COMMUNITIES AND LOCAL GOVERNMENT||Defendant|
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
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(Official Shorthand Writers to the Court)
MR D BLUNDELL (instructed by the Treasury) appeared on behalf of the Defendant
MR R BHOSE (for Clapham Homes Limited) the second interested party
Crown Copyright ©
"Without prejudice to the provisions of part 5, the right to buy, a local authority has the power by this Section and not otherwise to dispose of land held by them for the purposes of this part."
"A disposal under this section may be effected in any manner, but, subject to sub-section 3, should not be made without the consent of the Secretary of State."
"This section applies in relation to the giving of the Secretary of State's consent under Section 32 or 33. Sub-section 2 provides that consent may be given (a) either generally to all local authorities, or to a particular authority or a description of authority; (b) either in relation to particular land or in relation to land of a particular description.
"(3) consent may be given subject to conditions.
"(4) consent may particularly be given subject to conditions as to price, premiums or rents to be obtained on the disposal, including conditions as to the amount by which on the disposal of a house by way of sale or by the grant or asylum to be released at a premium, the price or premium is to be or may be discounted by the local authority."
"The matters to which the Secretary of State may have regard in determining whether to give consent and if so, to what conditions consent should be subject, shall include; (a) the extent, if any, to which the person to whom the proposed disposal is to be made, in this sub-section referred to as 'the intending purchaser' is, or is likely to be, dependant upon, controlled or by, or subject to influence from the local authority making the disposal or any members or officers of that authority; (b) the extent, if any, to which the proposed disposal would result in the intending purchaser becoming the predominant or a substantial owner in any area of housing accommodation let on tenancies or subject to licences; (c) the terms of the proposed disposal; and (d) any other matters whatsoever which he considers relevant."
"(d) any other matters whatsoever which the Secretary of State considers to be relevant."
"Consultation before disposal to private sector land rule."
"This schedule applies to the disposal of our local authority of an interest in land as a result of which a secure tenant or an introductory tenant of the authority will become the tenant of a private sector landlord. For the purposes of this schedule, the grant of an option, which if exercised, would result in a secure tenant, or an introductory tenant, of a local authority becoming the tenant of a private sector landlord shall be the treated as a disposal of the interest which is the subject of the option.
"(3) where a disposal of land by the local authority is in part a disposal to which this schedule applies, the provisions of this schedule apply to that part as to a separate disposal.
"(4) in this paragraph 'private sector landlord' means a person other than an authority or body within Section 80 (the landlord condition for secure tenancies)."
"The Secretary of State shall not entertain an application for his consent to a disposal to which this schedule applies, unless the authorities certify either; (a) that the requirements of paragraph 3 as to consultation have been complied with; or (b) that the requirements of that paragraph as to consultation have been complied with, except in relation to tenants expected to have vacated the dwelling-house in question before the disposal:
"And the certificate shall be accompanied by a copy of the notices given by the authority in accordance with that paragraph 2."
"(1) the requirements as to consultation referred to above are as follows.
"(2) the local authority shall serve notice in writing on the tenant informing him of; (a) such details of their proposal as the authority consider appropriate, but including the identity of the person of whom is the disposal is to be made; (b) the likely consequences of the disposal of the tenant; and (c) the effect of the provisions of this schedule, and (in the case of a secure tenant) of Sections 171A to 171H (preservation of right to buy on disposal to private sector landlord),And informing that he may, within such reasonable periods as may be specified in the notice, make representations to the authority.
"(3) The authority shall consider any representations made to them within that period and shall serve a further written notice on the tenant informing him; (a) of any significant changes in their proposal; and (b) that he may within such period as is specified (which must be at least 28 days after the service of this notice) communicate to the Secretary of State his objection to the proposal,
"And informing him of the effect of paragraph 5 (consent to be withheld if majority of tenants are opposed).
"(4) When a notice has been served under sub-paragraph 3, the authority shall arrange a ballot of the tenants in accordance with sub-paragraph 5, to establish whether or not the tenants wish the disposal to proceed."
"(5) the authorities shall; (a) make arrangements for such persons as they would consider appropriate to conduct the ballot in such a manner as that person considers appropriate; or (b) to conduct the ballot themselves."
"(6) After the ballot has been held, the authority should serve a notice on each tenant whether or not he voted in the ballot informing him (a) of the ballot result; and (b) if the authority intend to proceed with the disposal that he may, within 28 days after the service of the notice, make representations to the Secretary of State, or as the case may be, the Welsh ministers."
"The Secretary of State may require the authority to carry out such further consultation of their tenants and to give him such information as to the results of that consultation, as he may direct."
"(1) The Secretary of State shall not give his consent if the result of the ballots under paragraph 3.4 shows that a majority tenants of the dwelling-houses to which the applications relate who voted in the ballot, do not wish the disposal to proceed. This does not affect his general discretion to refuse consent on grounds relating to whether a disposal has the support of the tenants or on any other ground. In making this decision, the Secretary of State may have regard to any information available to him, and the local authority shall give him such information as to the representations made to them by tenants and others, and other relevant matters as he may require."
"(6) The Secretary of State's consent to a disposal is not invalidated by a failure on his part or that of the local authority to comply with the requirements of this schedule."
"(1) The Secretary of State shall not give his consent if it appears to him that the majority of the tenants of the dwelling-houses to which the application relates do not wish the disposal to proceed."
"Paragraph 5.1 is particularly important in that it relates to the Secretary of State's discretion, because he cannot give his consent if it appears to him that the majority of the tenants do not wish the disposal to proceed. The necessary majority is, of course, not of the tenants who choose to take part in any ballot conducted by or on behalf of the local authority, but rather all the tenants subject to the proposed disposal."
"Although the initial presentation on behalf of the Secretary of State in these proceedings betrayed confusion in this regard, said by Mr Wolfe to afford significant window into the unlawfulness of her procedure, (2) is now common ground that that is made amply clear by paragraph 2.3, and a reference in paragraph 5.1 to the Secretary of State's general discretion to refuse consent is not an introduction of some fresh or additional discretion, but a reference back to the discretion confirmed by Sections 32 and 43 of the Act."
"It is not an issue pursuant to the statute. That was the position now and at the time of this transfer. Thus no statutory requirement (inaudible) to have regard to it, but, of course, it is not (inaudible) that the contents of the manual have no legal significance. They may, for example, represent statements of policy in which it would be unlawful for the Secretary of State to depart, save for good, express reason. They may engender legitimate expectation on the parts of tenants and others which, if frustrated, may require the court to intervene."
"Mr Howell then submitted that no reasonable Secretary of State would consider giving his consent to a disposal without having regard to the views of the secured tenants. I am not persuaded that one can impose a common law duty to consult alongside the statutory duty. Even if there were such a duty, it seems to me that Parliament has in effect enacted that a consent is not to be invalidated by a failure by the council or the Secretary of State to have regard to the views of tenants."
"In order to ensure that a ballot reflects the views of the tenants and residents at the time of transfer, the authority shall seek to minimise the time between ballot and the transfer. Ideally, it should be six to twelve months. In cases where the period between the ballot and completion of the transfer extends to twelve months or beyond, which may be the case in some of the more complex urban transfers (such as mixed community developments) the Secretary of State will take a view on whether the original ballot reflects the views of current tenants, or whether further consultation or further evidence is required. This will involve consideration of local circumstances; for example, the number of re-lets and whether all tenants, particularly new tenants, have been kept informed about the transfer proposal, and have been given an opportunity to make their views known to the authority and the department."
"Other points are made to the effect that there are inconsistencies in the council's own records and documents relating to the various procedures adopted, not least as regards to the meeting of 13 February 2006. Overall, the applicant says that the respondent's evidence involves deliberate falsehoods. I have to say there is simply no basis for so grave an accusation. I suspect though without oral evidence, one cannot be sure that what happened here is that the accelerated procedure adopted after the guillotine led to misunderstandings by members of the public attending the meeting, many of whom no doubt felt and feel very strongly about this project. One respects that, but as it seems to me, what is clear is that there was a resolution to seek the Secretary of State's consent. No complaint was made to the Secretary of State to the effect that there had been such procedural defects as are now asserted. The Secretary of State's grant of consent does not itself form the subject of these proceedings, and even if it did, I cannot see how arguments about the precise events of 22 February 2006 could possibly affect the legality of that consent."
"(1) the defendant's consideration and reasoning; and (2) the defendant's failure to give reasons in her policy as required in paragraph 10.41 of the Housing Transfer Manual, in a case where more than twelve months had elapsed since the original ballot."
"The claimant was to be permitted, however, to submit an amended version of the paragraphs in the grounds that are set out, and then importantly as far as the challenge is restricted to allegations that the Secretary of State failed to take into account the alleged disparate impact of the proposals on residents living in Clapham Park West, that does not relate to the conduct of the ballot."
"The Secretary of State acted contrary to the Human Rights Act 1998, by failing to take into account the alleged disparate negative impact of the proposal on residents living in Clapham Park West."
"There were numerous complaints that west estate homes were being demolished to make way for private homes and businesses, and in essence were being sacrificed to allow east estate homes to be refurbished, whilst west estate residents who were in a minority overall on the estate had no realistic chance of affecting the outcome."
"It was asserted that according to the local primary care association, the proposals would have resulted in the premature deaths of 10 to 30 per cent of elderly and vulnerable west estate residents, possibly rising to 50 per cent. See the further complaints about increased mortality."
"The master plan underwent seven, then eight, then eleven changes after the ballot took place."
"(1) I refer to your application on behalf of the London Borough of Lambeth and the Secretary of State's consent for proposed plans for related correspondence and the engrossment of the Principal Agreement ("the Agreement") between the Council and Clapham Park Homes ("the Company") appended to this letter.
"(2) The Secretary of State is satisfied that she is not precluded by paragraph 5.1 of Schedule 3A to the Housing Act 1985 from giving consent to the disposal. In considering whether or not to give consent she has had regard to the requirements of Schedule 3A, the views of tenants liable as a result of the disposal to cease to be secure tenants or introductory tenants, all representations made to her and all relevant matters. She is satisfied that it is appropriate to give consent to the disposal."
"The majority of secure tenants affected by the proposed transfer are not opposed to it."
"The time interval between the ballot and transfer has exceeded the one year mark due to the complexity of the transfer. Firstly, the planning approval issue had to be resolved with the outline planning approval being given by the planning committee in March 2006. Further negotiations on the fundability of the plan also had to be addressed to ensure the viability of the business plan. We are, however, satisfied that the tenants were kept informed, and the majority of tenants still support transfer. New tenants were kept informed of the transfer through newsletters and door to door consultation."
"I note that 504 residents of the NDC [that is the new deal for communities] also have similar concerns to myself, and signed a petition to ask the London Borough of Lambeth to postpone the transfer of any assets, pending a full investigation into the use of public funds by and the accountability of Clapham Park Project and Clapham Park Homes. This should be weighed heavily by your organisation. Many residents have not been able to obtain minutes, supporting documents and the meetings and the AGMs of both organisations are poorly advertised and attended. Also the board of CPP do not publish the full results of elections to their board."
"Any petitions or representations will be considered by ODPM before ministers take the final decision. However, the ballot result does hold considerable weight as a gauge of residents' opinion."
"Increased mortality rates on Clapham Park West are due to the threat of demolition. There have been three premature deaths to my knowledge over the last nine months. All occurred to local residents who were 'worried sick' over the Clapham Park Project (CPP), Masterplan. I also understand that national statistics show that 30 per cent of elderly people die before a planned move, and that this increases to 50 per cent within six months of moving."
"Certainly, the categories of cases in which reasons are required are not closed, but it remains that there is no general duty to give reasons for an administrative decision."
"Lord Clyde there contemplated the future possibility that upon direct application of the Human Rights Act 1998, it might become appropriate to have a wide-ranging review of the position at common law."
"There is a trend towards an increased recognition of the duty upon decision makers of many kinds to give reasons. But the trend is proceeding on a case by case basis, and the law does not at present recognise a general duty to give reasons for administrative decisions. There are exceptions to this for individuals and classes of individuals, and there may be a trend for the exceptions to become the norm and the cases where reasons are not required may appear to be exceptions. But the general rule has not been departed from, and Stefan was not an appropriate case to explore such a departure."
"This was not a situation, as was that in which Ermakov itself, in which the statute required the decision-maker to give reasons for the decision, or even to identify the matters which had to be taken into account in reaching it."
"In order to ensure that a ballot reflects the view of tenants resident at the time of transfer, an authority should seek to minimise the time between ballot and the transfer. Ideally, it should be six to twelve months. In cases where the period between the ballot and completion of the transfer extends to twelve months or beyond, which may be the case in some of the more complex urban transfers ... "
" ... such as mixed community developments. The Secretary of State will take a view on whether the original ballot reflects the views of current tenants, or whether further consultation or further evidence is required."