Acquisition of land — Compulsory purchase order — Property used for mixed residential and commercial purposes — Whether local authority having power to acquire commercial part for residential purposes — Whether property used for commercial and residential purposes constituting “house” — Appeal dismissed
The claimant owned a property in a conservation area that was used for mixed residential and commercial purposes. Part of the property was used as an unlicensed sex shop selling pornographic videos. The remainder of the property had been used for many years by prostitutes and their “maids”.
An inspection of the property by officers of the second defendant local authority revealed it to be in a poor state of repair, with extensive structural problems, including sub-standard electrical installations and inadequate fire precautions. Following correspondence with the claimant, the second defendants applied for a compulsory purchase order (CPO) under section 17(1)(b) of the Housing Act 1985, which authorised the purchase of a house or building for housing purposes. In its decision letter of 20 August 2003, the first defendant accepted the inspector’s recommendation and confirmed the CPO.
The claimant appealed, under sections 23 and 24 of the Acquisition of Land Act 1981, against both the making of the CPO and its confirmation. It argued, inter alia, that a CPO was limited to that part of the property that was absolutely necessary to effect the statutory purpose, and that the proper application of that test, in this instance, would have excluded the commercial part of the premises. The claimant contended that the inspector had erred in law in concluding that the second defendants had the power to acquire the commercial part of the property for residential purposes and that he had applied the wrong test in deciding that the acquisition was incidental to the purpose for which the property was acquired. Furthermore, the inspector had also applied the wrong test in determining whether the property constituted a “house”.
Held: The appeal was dismissed.
Although compulsorily acquired land could be used only for the purpose for which the authority were authorised to acquire it, authorised purposes included any use that was ancillary, or incidental, to that use. There was no basis in law for the proposition that a CPO was limited to the property absolutely necessary to effect the statutory purpose. The inclusion of the commercial part of the property in the CPO was authorised by section 17, since it was incidental to the acquisition of the residential part. The inspector had not erred in the application of section 17 and had been entitled, on the evidence before him, to conclude that the acquisition of the commercial part of the property was incidental: Meravale Builders Ltd v Secretary of State for the Environment 77 LGR 365 applied.
For the purposes of section 17, the word “house” could include a part of a property used for commercial rather than for residential purposes. Accordingly, the test was whether the property was a house within the meaning of section 17, and, if so, whether it was required for housing purposes, rather than whether each individual part was required for such purposes. The inspector’s analysis of both the law and the facts was correct and he had been entitled to conclude that the second defendants could purchase the property for use partly as a house and partly for commercial purposes: Re Butler [1939] 1 KB 570 considered.
Stephen Cottle (instructed by Stephen Hendeles & Co) appeared for the claimant; Robert Palmer (instructed by the Treasury Solicitor) appeared for the first defendant; Romie Tager QC and Jonathan Ferris (instructed by the solicitor to Westminster City Council) appeared for the second defendants, Westminster City Council.
Eileen O’Grady, barrister
