England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th October 2012

Mr Justice Kenneth Parker :

Introduction

1. This is an application made by Charles James Braithwaite, the Claimant, under s.23(1) of the Acquisition of Land Act 1981, by which the Claimant seeks an order to quash the decision by the Secretary of State for Communities and Local Government, the Defendant, dated 13 October 2010, by which the Defendant confirmed a Compulsory Purchase Order ("the CPO") made by the London Borough of Enfield, the Interested Party, in respect of premises owned by the Claimant, namely, 22 Lakeside, Enfield, Middlesex EEN2 7NN.

Relevant Legislation and Policy

2. Section 17 of the Housing Act 1985 provides, so far as is material:

"(1) A local housing authority may for the purposes of this part–

(a) …

(b) Acquire houses, or buildings which may be made suitable as houses, together with any land occupied with the houses or buildings, …

(3) Land may be acquired by a local housing authority for the purposes of this Part by agreement, or they may be authorised by the Secretary of State to acquire it compulsorily."

3. The purposes of Part II of the Housing Act 1985 include the provision of housing accommodation. The power contained in Section 17 of the 1985 Act has been held to empower a local housing authority to acquire houses in need of repair and improvement with a view to improving them as housing accommodation. Joyce v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 2213 (Admin) at paras 18-20.
4. Ministerial Guidance has been given in relation to compulsory purchase orders, CPOs, in the form of a Circular from the Office of the Deputy Prime Minister, Circular 06/2004 dated 31 October 2004, headed "Compulsory Purchase and the Crichel Down Rules". Part 1 of the Memorandum to the Circular provides updated and revised guidance to acquiring authorities in England and Wales on the use of compulsory purchase powers. Circular 06/2004 was not issued under an express statutory power, but it was common ground on this application that an acquiring authority should follow the guidance given in the Circular. Paragraphs 17-19 of Part 1 to the Memorandum contain these important passages:

"17. A compulsory purchase order should only be made where there is a compelling case in the public interest. An acquiring authority should be sure that the purposes for which it is making a compulsory purchase order sufficiently justify interfering with the human rights of those with an interest in the land affected. Regard should be had, in particular, to the provisions of Article 1 of the First Protocol to the European Convention on Human Rights and, in the case of a dwelling, Article 8 of the Convention.

18. The confirming Minister has to be able to take a balanced view between the intentions of the acquiring authority and the concerns of those whose interest in land it is proposed to acquire compulsorily. The more comprehensive the justification which the acquiring authority can present, the stronger its case is likely to be. But each case has to be considered on its own merits and the advice in this Part is not intended to imply that the confirming Minister will require any particular degree of justification for any specific order. Nor will a confirming Minister make any general presumption that, in order to show that there is a compelling case in the public interest, an acquiring authority must be able to demonstrate that the land is required immediately in order to secure the purpose for which it is to be acquired.

19. If an acquiring authority does not have a clear idea of how it intends to use the land which it is proposing to acquire, and cannot show that all the necessary resources are likely to be available to achieve that end within a reasonable time-scale, it will be difficult to show conclusively that the compulsory acquisition of the land included in the order is justified in the public interest, at any rate at the time of its making. Parliament has always taken the view that land should only be taken compulsorily where there is clear evidence that the public benefit will outweigh the private loss. The Human Rights Act reinforces that basic requirement."

5. Appendix E to Circular 06/2004 deals with Orders made under housing powers, and at paragraph 4, under the heading "Circumstances in which powers may be used", states:

"The main uses of this power have been to assemble land for housing and ancillary development, including the provision of access roads; to bring empty properties into housing use; and to improve sub-standard or defective properties. Current practice is for authorities acquiring land or property compulsorily to dispose of it to the private sector, Housing Associations or owner-occupiers."

6. Under the heading "Information to be included in Applications for confirmation of orders", paragraph 6 states:

"The authority should also provide information about its proposals for the land or property it is seeking to acquire. Where, as will normally be the case, it proposes to dispose of the land or property concerned, the authority should submit where possible information regarding the prospective purchaser; the purchaser's proposals regarding the provision of housing accommodation; and when these will materialise. Information regarding any other statutory consents required for the proposals will also be relevant. It is recognised that in some cases it may not be possible to identify a prospective purchaser at the time a compulsory purchase order is made. Negotiations may be proceeding or the authority may propose to sell on the open market. In such cases the authority should submit information about its proposals to dispose of the land or property; its grounds for considering that this will achieve the provision of housing accommodation; and when the provision will materialise. Where the authority has alternative proposals, it will need to demonstrate that each alternative is preferable to any proposals advanced by the existing owner."

7. In May 2003 the office of the Deputy Prime Minister consulted specifically on Empty Homes. The Summary of the Consultation document stated the problem as follows:

"An empty home is a wasted asset from the point of view of:

• The owner who could receive income from selling or letting it;

• People in need of housing; and

• Local residents who have to put up with any problems that it creates.

The Government considers that:

• It is vital to minimise the number of empty homes in order to ease pressure on the housing stock and reduce the necessity to develop on greenfield land.

• Reducing the number of empty homes reduces opportunities for petty crime and vandalism, arson and anti-social behaviour.

The number of empty homes in England has declined steadily since a high point of 869,000 in 1993 to 732,000 in 2002. Despite this trend, there remains a significant and long-standing problem of empty homes, particularly those in the private sector, which accounts for over 80 per cent of all empty homes. About half of these have been vacant for more than 6 months.

The need to reduce the number of empty homes has been widely recognised in recent years, mainly through the campaigning of organisations such as the Empty Homes Agency. In response, the Government has introduced, or is in the process of introducing, a series of measures aimed at encouraging the reuse of empty homes."

8. The Summary continued:

"Despite these measures, there remains significant public concern about the impact of empty homes on local communities and the waste they entail in terms of housing supply.

…

This consultation paper considers the scale and impact of empty homes in England. It considers existing approaches to tackling the problem and considers the case for giving local authorities new statutory powers to take over the management of some private sector empty homes. The Government is keen to seek views on these issues from a wide cross-section."

9. Other enforcement powers were described, as follows:

"48. There are a number of enforcement powers that local authorities can use where it is not possible to secure the co-operation of owners. Various powers can be used to address an immediate problem associated with an unoccupied dwelling. These powers are summarised in annex 6. These powers alone may not result in the property actually being brought back into use, but may help to address any immediate risk posed.

49. There are two principal statutory powers that can be used to achieve re-occupation. These are compulsory purchase and enforced sale. They work by forcing owners to sell their property either to the authority itself or to someone else who is in a position to bring it back into occupation. The use of these procedures is considered in annex 7.

50. There is anecdotal evidence to suggest that these powers at present do not provide an effective means of securing the reuse of empty homes. They involve complicated legal procedures that are resource intensive and time consuming for local authorities to invoke. It can be a long period of time before a property is returned to occupation. For example, a compulsory purchase can take up to two years or longer where an appeal is entered. In addition, the fact that these powers require a change of ownership may result in further delays before a property becomes occupied.

51. The Government is of the view that forcing a change of ownership may not always be the best means of securing re-use of empty homes. But where voluntary measures have failed, at present, compulsory purchase or enforced sale are the only enforcement powers available to local authorities. The Government believes that these powers may be over-prescriptive in circumstances where a permanent change of ownership is not essential."

Empty Dwelling Management Orders ("EDMOs")

10. Following the consultation, the Housing Act 2004, enacted in December 2004, empowered local authorities to take over the management of empty homes for a limited period and to bring them into occupation. The relevant enabling provision came into force only in 2006, at the same as necessary subordinate legislation was introduced to give effect to the statutory purposes.
11. Section 133 of the 2004 Act empowers a local authority to make an interim EDMO in respect of a dwelling if it is one to which that section applies and a residential property tribunal authorises them to do so. The purpose of such orders is "securing that a dwelling becomes and continues to be occupied" (Section 132(2)). Under Section 134 before making such an order the tribunal must be satisfied that:

i) The case does not fall within a prescribed exception from the EDMO regime.

ii) The dwelling has been wholly unoccupied for at least six months.

iii) There is no reasonable prospect that it will become occupied in the near future.

iv) If an order is made there is a reasonable prospect that it will become occupied.

v) The authority has made reasonable efforts to notify the proprietor that they are considering making an order and to ascertain what steps he has taken or proposes to take to bring the property into occupation.

vi) Any other prescribed requirements have been complied with.

The Proceedings in This Case

12. On 11 November 2009 Enfield resolved to make the CPO.
13. On 25 November 2009 the Claimant wrote to the Government Office for London setting out his proposed objection to the CPO and his provisional non-exhaustive grounds of objection. Among other points, the Claimant at pages 2 and 3 of the letter made two points concerning EDMOs. First, he argued that "empty property" for the purposes of the regime operated under Section 17 of the Housing Act 1985, leading to a CPO, had to be interpreted consistently with Sections 132 to 134 of the Housing Act 2004, including the 2006 Order (see page 2, last two paragraphs). Secondly, he argued that to make a CPO when an EDMO would not be allowed would ipso facto be disproportionate (see page 3, third paragraph).
14. In the Statement of Reasons for the CPO Enfield set out its purpose for securing the property, namely:

"The purpose of seeking this CPO is to facilitate the return of the Property to residential use and therefore achieve a quantitative housing gain to the local authority by onward sale to a Registered Social Landlord (RSL) or offered for disposal to the private sector at auction."

15. On 14 January 2010 the Claimant notified the Defendant that the letter of 25 November 2009 should stand as his objection to the CPO, and this was accepted. The matter then proceeded to an enquiry before Mr David Rose as Inspector.
16. In its Statement of Case made under Rule 7 of The Compulsory Purchase (Inquiries Procedure) Rules 2007, Enfield dealt relatively briefly with the EDMO arguments, as follows:

"19. Mr Braithwaite contends that the council should take into account the statutory provisions applying to "empty homes" under sections 132-134 of the Housing Act 2004 and the Housing (Empty Dwelling Management Orders) (Prescribed Exceptions and Requirements) (England) Order 2006. His case on this point appears to be that 22 Lakeside could not lawfully be made subject to an EMDO and so should not be subject to compulsory purchase.

The Council firstly observes that the statutory provisions relating to compulsory purchase orders and EDMOs are not interchangeable. Secondly, there is clear evidence the land has been unoccupied for a period of well over 6 months, which is the minimum period for making an interim EDMO."

17. The Claimant instructed Irwin Mitchell and leading counsel, Mr Edwards QC, for the enquiry. In the Statement of Case for the Claimant, settled by Irwin Mitchell, there is no reference to the 2004 Housing Act or EDMOs. Nor does it appear that the 2004 Housing Act or EDMOs featured at the Inquiry itself. In a letter dated 10 October 2012 the Treasury Solicitor, having consulted the Inspector, indicated that EDMOs did not form part of the Claimant's case as set out at the inquiry and, importantly, was not referred to at all by Mr Edwards QC in his closing submissions. In a recent witness statement the Claimant alleges that he was asked about EDMOs in cross-examination, but the Inspector had no note of any such questioning, and no note of evidence made by Mr Edwards QC at the hearing, or any written outline of his closing submissions was produced by the Claimant in this court. In these circumstances, I am entitled to conclude that the 2004 Housing Act and EDMOs did not feature in the proceedings at the inquiry.
18. The Inspector produced a full and careful report dated 8 September 2010, running to 16 pages. In his conclusions he said this concerning the property as an empty property:

"75. Section 17 of the Housing Act 1985 empowers local housing authorities to compulsorily acquire land, houses or other properties for the provision of housing accommodation. Acquisition must achieve a quantitative or qualitative housing gain. Here the Order is pursued on the basis that confirmation would provide a quantitative housing gain.

76. The history of the property before 2000 is unknown with only circumstantial indication that the owner had not been seen for some two years. It is, however, known that Mr Braithwaite did not live in the property for three years, between 2000 and 2002, and he did not even visit the property to pick up mail.

77. During 2003 and for the first half of 2004 Mr Braithwaite says that he resided at 22 Lakeside before spending most of his time at his late mother's house in Norwich until business interests required him to return to Enfield between April 2005 and May 2006. However, that has not been corroborated in any meaningful way and a neighbouring resident's recollection is materially different. Thereafter Mr Braithwaite's principal residence has been in Norwich with intermittent and short duration visits to the Order property.

78. Although the owner's periods of absence can be explained, and it is not uncommon for individuals to be absent from their home, perhaps for lengthy spells, due to work or family commitments, Mr Braithwaite has done little or nothing over a period of ten years to maintain the property and to arrange for its supervision or management in any tangible way.

79. During the same period the house has fallen into disrepair as a result of lack of basic and routine maintenance. Externally, it exhibits general disrepair to window and door frames and several windows are broken and boarded. Internally, despite intermittent occupancy, the house does not provide a safe and healthy environment for day-to-day living.

80. The overgrown gardens have been subject to periodic statutory notices in 2002 and 2008 with the Council carrying out the works in default. Although formal action was avoided in the early part of 2009, following the owner's co-operation, the condition of the gardens had reverted to an over-grown and untidy state which necessitated formal action in May 2010.

81. Whilst my site visit showed progress in clearing operations, the pace has been slow, much remains to be tackled and weeds are returning in some of the cleared areas. Notwithstanding Mr Braithwaite's intentions to undertake the works required by the Council, very significant efforts will be needed in order to achieve the necessary improvements by 30 September 2010 and within the extended period for compliance with the notice.

82. Mr Braithwaite maintains that 22 Lakeside is his home; but that is not proof as to whether the property is occupied. To my mind his use of the property over the last ten years has been sporadic and intermittent; and more in the nature of circumstances or convenience as opposed to his usual place of residence. The appearance of the house, and its internal condition, has deteriorated and it does not come close to providing a reasonable standard for day-to-day living. The condition of its gardens also contributes towards its atmosphere of neglect and its appearance of vacancy.

83. Appendix E, paragraph 9, to Circular 06/2004 does not define an "empty property". However, it uses the language of encouraging "the owner to restore the property to full occupation"; "to bring it to acceptable use"; and asks "what works have been carried out by the owner towards its re-use for housing purposes".

84. It is clear that the property is not in "full occupation"; there are material defects in the property and its current condition is inconsistent with "acceptable use"; and the owner has not undertaken any works which would provide "re-use for housing purposes" in the everyday sense of what constitutes a dwelling.

85. Against this background, I conclude that the Order property is, as a matter of fact and degree, an "empty property" for the purposes of section 17 of the Housing Act 1985."

19. The Inspector then considered the Claimant's intentions and summed up as follows:

"94. Mr Braithwaite was slow to co-operate with the Council in providing details of his intentions and his overall position appears to have become more deep-rooted. In my view, very little confidence can be attached to his proposals given that little effort has been made, even under the threat of the potentially serious implications of a Compulsory Purchase Order, and with the offer of a cross-undertaking agreement, to take reasonable steps to return the property to appropriate residential use."

20. As regards Enfield's proposals, after considering in detail what Enfield had in mind, the Inspector found:

"101. The test to be applied in accordance with Appendix E, paragraph 6, to Circular 06/2004 is whether the authority has demonstrated that its intentions are preferable to any proposals advanced by the existing owner. In acknowledging that there is no reasonable prospect of any interest from a Registered Social Landlord, the comparison rests on open market disposal. Whilst fully acknowledging the uncertainties that would introduce, I consider that significantly more reliance should be placed on the Council's well-defined intentions than on Mr Braithwaite's unsupported proposition."

21. As to overall balance, the Inspector stated:

"107. Compulsory purchase would interfere with Mr Braithwaite's human rights under Article 1 of the First Protocol to the European Convention on Human Rights and also Article 8 of the Convention. Interference, as a last resort, can in this case be justifiably regarded as being outweighed by the public interest of securing the return of the property to residential use within a reasonable period to meet a general housing need. In my opinion, such action can be considered to be necessary and proportionate."

22. The Inspector therefore recommended that the CPO should be confirmed without modification. The Defendant accepted the Inspector's recommendation and in the challenged decision of 13 October 2010 confirmed the CPO, substantially adopting and agreeing with the conclusions reached by the Inspector. The CPO as confirmed authorises Enfield to purchase compulsorily the property for the purpose of disposing of houses provided on the property or of disposing of it to a person who intends to provide housing accommodation on it.

The First Ground of Challenge

23. Mr Roger Bartlett, who appeared on this application (but not in the objection proceedings) on behalf of the Claimant, first submitted in essence that the Inspector, and the Defendant (who adopted the Inspector's reasons), failed to take into account, in determining whether the property was an "empty property" under the Housing Act 1985 in the light of Circular 06/2004 ("the CPO regime") that the property was not an "empty dwelling" for the purposes of the 2004 Housing Act and the 2006 Order ("the EDMO regime").
24. There was no serious dispute that the property was not "an empty dwelling" for the purposes of the EDMO regime, because it was accepted that one reason why the Claimant had left the property unoccupied was that he had been providing care to his elderly mother who was resident far from the property. Whether or not the property was an "empty dwelling" under the EDMO regime was, it was argued, a material consideration to decide whether it was an "empty property" under the CPO regime, and a failure to have regard to that material factor was, therefore, an error of law on the part of the Inspector and Defendant.
25. In my view, this first ground is fundamentally misconceived.
26. Whether, in a context such as the present, a matter is a relevant consideration in law was considered at length in Derbyshire Dales DC v Secretary of State for Communities and Local Government [2009] EWHC 1729 (Admin). After a detailed analysis of previous authority and reference to governing principles, Carnwath LJ, as he then was, sitting at first instance, stated unequivocally:

"28. It seems, therefore, that it is not enough that, in the judge's view, consideration of a particular matter might realistically have made a difference. Short of irrationality, the question is one of statutory construction. It is necessary to show that the matter was one which the statute expressly or impliedly (because "obviously material") requires to be taken into account "as a matter of legal obligation"."

27. There is nothing in the Housing Act 2004, providing for the EDMO regime, that expressly requires a decision maker under the Housing Act 1985 to consider, for the purpose of making or confirming a CPO, whether or not a relevant property is an "empty dwelling" under the EDMO regime. Nor was the Housing Act 1985 amended, at the time that the Housing Act 2004 was enacted or came into force, to impose any such obligation. Parliament could quite easily have made plain, either in the Housing Act 2004 itself or by amendment of the Housing Act 1985, that a decision maker under the CPO regime had to have regard to the EDMO regime. Parliament did not do so.
28. In these circumstances a court must be extremely cautious indeed before holding that any such obligation should be implied. That is true generally, but is particularly important in the context of social legislation, where reading in unexpressed statutory obligations by a process of judicial usurpation of the legislative function (to use a famous phrase) is fraught with danger, for obvious reasons. I do not see the glimmer of a compelling case for importing into the legislative framework of CPOs and EDMOs the obligation urged by Mr Bartlett. It is quite clear, from the legislative history that I have recited, that the EDMO regime was intended to create additional powers for bringing unoccupied property into residential use, powers that were to be hedged by important and specific safeguards. The additional powers were considered desirable because the CPO regime was lengthy, complex and costly. In my view, there is simply no discernible intention from that legislative history that the existing CPO regime should be in any way cut back, or qualified, by the EDMO regime. Indeed, Circular 06/2004 was left unamended both at the time that the Housing Act 2004 was enacted and also when it came into force, when appropriate amendment might have been contemplated to reflect Mr Bartlett's obligation. I would, however, query (it is unnecessary to decide in the present case) whether such an amendment would have been permissible, given that Parliament intended the EDMO regime to be additional rather than to reduce the scope of the CPO regime.
29. A very strong policy consideration against the importation of Mr Bartlett's obligation is, of course, the fact that, if a CPO were permissible only if a property was an "empty dwelling" under the EDMO regime, an acquiring authority would be powerless to acquire by CPO property that had been left unoccupied and in continuing unacceptable disrepair and neglect, so long as the owner had an EDMO reason for leaving the property unoccupied.
30. It is notable that, on the best view of the existing evidence, the EDMO argument was not advanced in the proceedings before the Inspector. I agree with Mr Bartlett that that fact is not decisive – if the relevant obligation existed, the Inspector had to take the matter into consideration in any event – but my conclusion on the first ground does bear out the wisdom of Mr Edwards QC, who did not pursue the EDMO argument, and the good sense of the Inspector, who did not deal, on his own motion, with any such argument.

The Second Ground of Challenge

31. As a second ground of challenge, Mr Bartlett criticises paragraph 101 of the Inspector's report where the Inspector concluded that Enfield had demonstrated that its intentions were preferable to any proposals advanced by the existing owner. Mr Bartlett submits that the Inspector should not have addressed that issue.
32. This ground is wholly without merit. The Claimant had contended that, if the property (contrary to his primary submission) were deemed empty property, the owner was capable of returning it to housing use (paragraphs 60-66 of the report). As already explained, the Inspector rejected that contention (paragraph 94). Furthermore, the Claimant expressly contended that Enfield had not demonstrated reliable proposals to bring the property back to residential use, in the following terms:

"67. The Council is required, by virtue of Appendix E, paragraph 6, to Circular 06/2004, to provide certain information about its intentions and to demonstrate that these would be preferable to those of the owner. In this regard the Council's options are either disposal to a Registered Social Landlord or sale on the open market."

33. That, in my view, was an impeccable statement of the Council's obligation and of its proposals.
34. The Inspector then carefully considered the Council's proposals at length (paragraphs 98-100), and concluded, on balance, that more reliance should be placed on the Council's well-defined intentions than on the Claimant's unsupported proposition. In other words, the Inspector carried out precisely the analysis and comparison that the Claimant had forcefully contended the Inspector had to carry out, arising from a mandatory obligation on the proper construction of Circular 06/2004 as a whole.

The Third Ground of Challenge

35. As the third ground of challenge, Mr Bartlett contends that the making of the CPO engaged the Claimant's rights, both under ECHR Article 1 Protocol 1 and under Article 8 (family and private life), and that the making of the CPO was not proportionate. Mr Bartlett referred in this context, in particular, to Maley v Secretary of State for Communities and Local Government [2008] EWHC 2652 (Admin) at paragraphs 47 and 75.
36. It is plain that the making of the CPO engaged Article 1 Protocol 1, but Mr Bartlett recognised that it would be very difficult indeed, in the light of Strasbourg and domestic authority, to show that the CPO did not strike a fair balance between his rights as a property owner and the public interest in securing that empty properties should be brought, if feasible, into residential use. Realistically he placed greater weight on Article 8, relying on the particular circumstances that the reason or motive for the Claimant's having left the property empty was that he had gone to care for his elderly mother.
37. I would accept that it is well arguable that the CPO regime potentially engages Article 8 in these circumstances. A person in the general position of the Claimant would be placed by reason of the CPO regime on a Morton's fork: either he chooses to remain in the property and not to provide the relevant care, or he becomes exposed, by leaving the property empty and providing the care, to the making of a CPO, under which he would lose the property. Such a person may well feel forced to remain and not to face the risk, with potential adverse consequences to his own family or private life and to the family or private life of the family member who has been denied his care and support. As Mr Bartlett pointed out, that Morton's fork could itself impact on the public interest (an external social cost, in the jargon of public choice economists), for the denial of such care could throw the burden of support on the state with consequences for general welfare.
38. However, even if Article 8 were engaged as a matter of principle on that basis, each case would require careful scrutiny. In this case the Inspector made unchallengeable findings of fact that the property had been left empty for a substantial period and, worse, had been left in a lamentable and unremedied state of disrepair. Under the Claimant's continuing ownership there was, on the Inspector's clear findings, no realistic prospect that the property would be restored for use as a residential dwelling. Enfield had shown beyond doubt the acute need for more residential dwellings, and had satisfied the Inspector that Enfield's proposal, unlike that of the Claimant, was realistic and likely to secure a result strongly conducive to promoting the public welfare. In these circumstances, although I admire the manner in which the Claimant cared for and supported his elderly mother, I am in no doubt that the compelling social need outweighed any Article 8 right of the Claimant, and that the CPO was proportionate having regard to the content of that right in the present context and the wider public interest which the CPO regime seeks to advance.

The Fourth Ground of Challenge

39. As to the fourth ground of challenge, Mr Bartlett submitted that nowhere did the Inspector address the EDMO argument. However, for the reasons already explained, first, the EDMO argument was not advanced before the Inspector and, secondly and more importantly, the EDMO argument is in any event misconceived. It follows that the Inspector was not legally required to give reasons for rejecting an argument that was never put, a fortiori when the argument was in any event without merit.

Conclusion

40. For these reasons, the application is dismissed.