England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		1 February 2011

1. THE DEPUTY JUDGE: This is an application under section 23 of the Acquisition of Land Act 1981 challenging the validity of the Dorian Road, Inkerman Close, and St Lucia Crescent, Horfield, Bristol, Compulsory Purchase Order 2009 ("the CPO"). The CPO was made on 31 July 2009 under section 17 of the Housing Act 1985 by Bristol City Council. There were some 23 plots within the order land.
2. There were a number of objections to the CPO so that an Inspector, Mr Cookson, was appointed by the Secretary of State to hold a public inquiry into the objections. The inquiry was held on 2 February 2010, with a site visit the following day. The Inspector reported to the Secretary of State on 19 April 2010 with a recommendation that the CPO be confirmed with one modification, which was the exclusion of Plot 17, which was 28 Dorian Road. The Secretary of State accepted that recommendation in a decision letter dated 20 May 2010. The CPO was published on 24 June 2010.
3. Mrs Greenwood, the claimant, is the secure tenant of Plot 7, a prefabricated bungalow known as 60 Inkerman Close. Bristol City Council, the second defendant, owns the freehold of the property. Mrs Greenwood was one of those who objected to the CPO. Mrs Greenwood has represented herself in today's challenge and has done so with extreme competence.

Background

4. The CPO was made for the purpose of providing housing accommodation in accordance with Part 2 of the Housing Act 1985, including the erection of 300 dwellings with associated car parking. The order land is within the predominantly residential area of Horfield. It is an area of Bristol which in the immediate post-war period was developed as an estate of prefabricated bungalows.
5. In the Inspector's report at paragraphs 4 to 12, the Inspector set out the background to the Compulsory Purchase Order. In essence, some 2,700 prefabricated bungalows were built in Bristol after World War II. They were intended as a temporary answer to Bristol's housing crisis, as they were elsewhere in the country, and to last for a period of ten years. By 1996, 1,900 of the prefabricated bungalows had been demolished and redeveloped, either with local authority housing or private housing. By that time there were problems with poor foundations and asbestos panels within the structure of the bungalows. By 1997 the Council proceeded on a like-for-like replacement programme which escalated in cost, so that by 2004 it proved too expensive for the Council to implement. By that time, some 330 tenanted prefabricated properties were left across some 15 sites.
6. The local authority then commenced a programme of re-development in partnership with a developer, Bovis Homes, to remedy the loss of affordable housing in Bristol. The acquisition and re-development of the order land was to contribute to the discharge of the City Council's housing objectives and housing strategy during the period from 2005 to 2010.
7. Planning permission was granted in April 2008 for the re-development of the 'Horfield prefab site' for 300 new homes to be built as a mix of both privately owned and local authority properties. When the Compulsory Purchase Order was made, it included the claimant's interest. She objected to the CPO by letter dated 4 September 2009 and on 7 September 2009 through her then solicitors, Richard Buxton. Her grounds of objection were as follows. First, contrary to the Council's case, Plot 7 does in fact meet Decent Home Standards. Second, the use of Compulsory Purchase Orders would be discriminatory because the order does not include five privately owned prefabs in Inkerman Close. Third, there has not been an adequate environmental impact assessment.
8. The claimant did not attend the public inquiry at which the City Council gave comprehensive evidence as to the need for acquisition, including Plot 7. In particular, the City Council gave evidence through two main witnesses, Mrs Napper and Mr Pursey. The Inspector concluded in relation to Plot 7 in paragraphs 86 and 87 of his decision letter:

"In this regard the prefab bungalow on Plot 7 appears externally to be in a poor state of repair and maintenance. It does not seem to have been altered or improved to any noticeable degree, in the main retaining its original features. The proposed re-development scheme seeks to erect two dwellings on this plot and establish a new pedestrian link from the development to the sports ground to the east. Owing to the state of the dwelling its renovation would require radical works to be undertaken to bring it up to something approaching modern standards. Such works would, I consider, prove too costly compared to the provision of two new dwellings built to modern standards. The new link would also be a benefit to the community. To retain the property would be detrimental to the proposed scheme. I find, therefore, that there is a cogent case for the inclusion of the property on the Order.

87. As to the question of the Environmental Impact Assessment regarding the planning application for the re-development of the Horfield estate, this is a matter outside the remit of the case."

9. In relation to the human rights position, the Inspector concluded at paragraphs 94 and 95:

"94. The statutory provisions governing the compulsory acquisition of property require the payment of compensation, including where necessary the provision of alternative accommodation. The courts have indicated that in these circumstances no human rights violation can be said to have occurred under Articles 1 and 8 of the Human Rights Act 1998. Any objections relating to the level of compensation are outside the remit of this inquiry.

95. I believe a fair balance has been struck here in the use of compulsory powers between the need to protect the rights of the individual and the public interest. Given the right to compensation, I believe interference with the objector's human rights is proportionate in the circumstances in pursuit of the provision of the development, re-development or improvement on or in the Order land."

10. The Inspector recommended that the Compulsory Purchase Order be confirmed with the modification that I have set out. The Secretary of State accepted his Inspector's recommendation.

Legal framework

11. The challenge, as I have said, is brought under section 23 of the Acquisition of Land Act 1981. The grounds of challenge are constrained, as Sullivan J (as he then was) said in the case of Powell and others v Secretary of State for Communities and Local government [2007] EWHC 2051 at paragraph 3:

"... this hearing is not an opportunity to rerun the merits of the Compulsory Purchase Order, it is simply an opportunity to see whether there is any procedural or legal error in the process of confirmation."

12. In short, the claimant has to show that the balance struck by the Secretary of State was one which was legally irrational or perverse or that there was some other error of law, before this court can intervene. It is well-established that Articles of the Convention do permit interference both with property rights and family rights in accordance with the law in appropriate cases, in particular where it is necessary to do so in the public interest.
13. In looking at the decision letter and the Inspector's report to ascertain whether there is any legal error, both should be construed in a flexible manner, to be read as a whole in good faith and, insofar as the giving of reasons is concerned, they need to follow the position as set out by Lord Brown in paragraph 36 of South Bucks District Council and another v Porter (No 2) [2004] 1 WLR 1953.

The challenge

14. The claimant raised two grounds of challenge in her claim form. Ground 1 was that there was no evidence to support the Inspector's conclusion that the property did not meet the Decent Homes Standard and that the local authority failed to provide reasons as to why it did not. This afternoon, Mrs Greenwood, in essence, repeated that challenge.
15. I reject that ground of claim for the following reasons. First, the Inspector had before him clear evidence from Bristol City Council, through Mrs Napper, who was the Priority Stock Programme Manager, and Mr Pursey, who is the Prefab Re-development Project Manager, at the public inquiry. Both submitted proofs of evidence and gave oral evidence. Their evidence was that the property at 60 Inkerman Close was in a poor state of repair and would required radical works to bring it up to something approaching modern standards. As a result, it fell short when measured against the Decent Homes Standard.
16. In the circumstances, it was perfectly open to the Inspector to reasonably come to the view that the evidence that he heard from the City Council, absent any other evidence from Mrs Greenwood, was sufficient to enable him to conclude that the property failed to meet the appropriate standard.
17. Second, the Inspector carried out his own site inspection. In relation to No 60 that was external only, but it was sufficient to enable him to reach his own conclusions based on his own observations as to the external condition of the property. In fact, it is clear today that Mrs Greenwood herself accepts that at the time of the inquiry her property was in a shabby condition because of unfortunate experiences, she says, with a nearby neighbour.
18. Third, the prefabricated bungalows were built over 50 years earlier and with the intention that they would last for a ten-year period.
19. Fourth, the claimant did not attend the public inquiry and so did not give any evidence, or arrange for evidence to be given on her behalf, to counter that given by Bristol City Council.
20. In all the circumstances, I find that there is nothing in this ground of claim.
21. Second, the claimant says that the Secretary of State erred because of the disproportionate effect of the acquisition upon her. Certain of the properties to be acquired were identified as key properties. Plot 7, namely the claimant's property, was one of those. In relation to the key properties, the evidence given by Mrs Napper was that "without these properties the scale and density of development would be lessened and the proper design and layout of the new development would be prejudiced".
22. Mr Pursey said that not to secure Plot 7 would have a major adverse effect on the re-development. To exclude it would mean the loss of a minimum of two Council bungalows, and would mean a re-design of the scheme in that area, with an adverse effect on the proposed re-development. Further, the repair of the bungalow on Plot 7 would be too costly compared with the construction of two bungalows to modern standards.
23. The Inspector's conclusions in relation to paragraph 86 I have set out. He accepted the evidence of the City Council and went on to note also that the removal of Plot 7 from the order would prevent a new pedestrian link being constructed through the development to the sports ground, which would be to the benefit of the community. Mrs Greenwood contended today, in addition, that the footpath design was in fact flawed, and that although it was said the footpath gave access to the sports ground, it in fact gave no direct link and that her property bordered a field.
24. The Inspector had the plans before him. He carried out a site inspection. From both of those sources, the finding that the new footpath link was of benefit to the community and therefore in the public interest was a finding which was clearly open to him.
25. Insofar as Mrs Greenwood raised the issue of alternative accommodation, three offers of alternative accommodation have been made by the City Council to Mrs Greenwood, and another offer, I was told this afternoon, is about to be made. It is clear that the City Council are making appropriate endeavours to secure appropriate re-housing so far as the claimant is concerned.
26. Insofar as Mrs Greenwood adds that there are factual errors in relation to Mr Pursey's statement, the ones that she has drawn my attention to are not major and do not go to the heart of the points that she raises, or indeed raise any concerns about the legal soundness of the Inspector's report which, with its conclusions, was accepted by the Secretary of State.
27. I can and do sympathise with the claimant for fighting to save her home. Such attachment is understandable, and has an emotional base which is greater than any logical base. Regrettably though for the claimant, whilst I can understand that fully, I am quite satisfied that there are no legal defects in the confirmation of the order that would justify the quashing of this CPO under section 23. Accordingly, this application is dismissed.
28. Now, Mrs Greenwood, would you like your photographs and your statement back?
29. CLAIMANT: I don't know whether you want to keep them for the files, no? I have copies myself. (Pause)
30. MR MORSHEAD: My Lady, I am grateful. I invite your Ladyship to dismiss the claim with an order that the claimant pay the Secretary of State's costs. If your Ladyship is minded to make an order in that form, I would invite your Ladyship also to assess them summarily. Schedules have been served. A schedule was served before the adjourned hearing in January. It has been updated slightly in light of the adjournment and a fresh copy was provided to Mrs Greenwood this afternoon.
31. THE DEPUTY JUDGE: I do not think I have got the fresh copy, have I? I have the one that was handed in before the adjourned hearing.
32. MR MORSHEAD: Let me give your Ladyship a new copy. It includes, as I understand it, no extra solicitor's time. I think the changes are referable to counsel's involvement, and, your Ladyship, doing a compare and contrast, looking at the old schedule there is a fee for advice of £480 and a fee for the hearing of £2,760. I think that had got a bit muddled up and some correction has happened in this version. You will see that the fee for advice was in fact £1,680.
33. THE DEPUTY JUDGE: And the fee for the hearing is £1,890.
34. MR MORSHEAD: And that is for both hearings.
35. THE DEPUTY JUDGE: So the fee for the hearing has gone down. There has been a redistribution, basically.
36. MR MORSHEAD: Yes. So far as the balance of the schedule is concerned, appalling though these numbers look when you add them together, it is actually quite difficult to see, in my submission, at what point less could have been done. Work on documents is often a candidate, but here we are only looking at 8.7 hours. I merely draw those points to your attention, recognising that you would wish to apply judgment to it.
37. THE DEPUTY JUDGE: Yes, thank you. Just one moment, Mr Taylor, I take it that you are not applying for costs?
38. MR TAYLOR: I am not.
39. THE DEPUTY JUDGE: Right, Mrs Greenwood, costs are within my discretion, but ordinarily they follow the event. There may sometimes be reasons why it is not appropriate to award them or they may be excessive. The itemisation of the claim here in terms of all the various items claimed compared with ones I have seen in other cases is not in fact excessive. Now, what do you say, if anything, about the payment of these costs?
40. CLAIMANT: I am only on pension credit, which is minimal, and this has just come out of the blue, this minute. I didn't even know that I would be liable for costs. I have never heard a word. I was not expecting anything like this.
41. THE DEPUTY JUDGE: Did you get the other schedule that was submitted to the court before the previous hearing?
42. CLAIMANT: No, I have received nothing, and I was not warned when I first started this action that there would be these costs.
43. THE DEPUTY JUDGE: So what is your source of income; it is just pension credit?
44. CLAIMANT: That's all. I haven't got any savings. The fact that I was going to buy the prefab, the family were going to club together for that. I haven't got any money.
45. THE DEPUTY JUDGE: Right. Just so that I am clear, you are saying you have got no money. You have told us your source of income, and you would find it very difficult to pay.
46. CLAIMANT: £7,000?
47. THE DEPUTY JUDGE: Yes, in broad terms, £7,000.
48. CLAIMANT: That's why I don't not have a barrister; that's why I don't have counsel. I couldn't afford it. They want so much money. I had to try and fight this on my own. I wasn't warned either that I would be liable for this. This has come out of the blue, because if I'd been warned I might have thought I will not pursue it. I would have had a choice.
49. THE DEPUTY JUDGE: Right. Anything to say to that, Mr Morshead?
50. MR MORSHEAD: I cannot speak for what advice Mrs Greenwood has received.
51. THE DEPUTY JUDGE: No, I was not expecting you to.
52. MR MORSHEAD: I can show you a copy of the letter of 14 January under cover of which the schedule of costs was served.
53. THE DEPUTY JUDGE: This is the letter to Mrs Greenwood?
54. CLAIMANT: I haven't received it.
55. MR MORSHEAD: Well, there we are. It is the letter under cover of which was also sent the skeleton argument.
56. THE DEPUTY JUDGE: Yes.
57. MR MORSHEAD: I suppose all I would add is that the submissions of Mrs Greenwood do not disclose a ground for departing from the general rule, in my submission.
58. THE DEPUTY JUDGE: Thank you very much.
59. I am going to order that the claimant do pay the costs of the first defendant in a sum not to exceed £7,000.
60. CLAIMANT: Are you saying that I have got to pay £7,000?
61. THE DEPUTY JUDGE: A sum not to exceed that amount, yes.
62. CLAIMANT: I can't. I was not warned that I would have -- that this would happen. Why didn't somebody tell me? Why did they do it on 14 January and not when I started these proceedings? Please, £7,000, I can't. I have got nothing. How can I pay that? I would have to make myself bankrupt.
63. THE DEPUTY JUDGE: The Treasury Solicitors' Department will doubtless be writing to you, and if you enter into correspondence with them about how matters can be accommodated -- but in terms of the order of the court, that is the order of the court.
64. CLAIMANT: If the Council re-houses me, I am entitled to £4,000 -- something like that -- home loss. The Council are already threatening to take money out of that. So in the end I don't get anything. I am surprised at your Ladyship, considering this was the first I have heard of it. The letter of 14 January I haven't received. But when I first started this action, that's when I should have been made aware. Okay, I don't have to pay court fees, but I would be liable for the Secretary of State's fees and then I would have had the choice of abandoning the idea. Could you not reconsider please?
65. THE DEPUTY JUDGE: No, I am afraid not, that is the order of the court.