1. MR JUSTICE OUSELEY: In December 2004 Stoke-on-Trent City Council (the second defendant) gave notice of its intention to declare a clearance area under Part 9 of the Housing Act 1985 in respect of a block of terraced housing in Northwood, Hanley.
2. A number of residents of the terraced block made representations against that notice. But after they had been considered, a clearance area was declared on 21st February 2006. A CPO (compulsory purchase order) was made in respect of the properties in that area not owned by the council.
3. The City of
4. Eleven objections were made by owners of 7 of the 15 dwellings and because those objections were not withdrawn, a public inquiry was held into them, under section 13A(3) of the Acquisition of Land Act 1981. Some properties were purchased by agreement and some owners of properties within the order lands did not object.
5. The inspector recommended that the CPO be confirmed and the Secretary of State, in a decision letter dated 21st February 2007, accepted his recommendation and confirmed the CPO. Some 12 or 13 properties appear to have been purchased to date from within the order lands.
6. This claim is brought under sections 23 and 24 of the Acquisition of Land Act by those unsuccessful objectors. They say that the decision to confirm the CPO is not empowered under the Acquisition of Land Act or the Housing Act, or that relevant procedural requirements have not been complied with.
7. In essence the grounds are, first, that the Council failed to consider and investigate the human rights of those objectors under Article 8 and Article 1 Protocol 1 of the European Convention on Human Rights and that the Secretary of State also failed to investigate those human rights so as to enable her to reach a lawful conclusion on the effect of the order on the human rights of the objectors.
8. The second ground is that the inspector’s conclusion that confirmation of the CPO was the only realistic option, was contrary to the evidence, irrational and failed to follow the option which interfered least with human rights while remedying the unfitness of the houses.
9. Thirdly, it is contended that the decision to declare a clearance area and to make a CPO was taken by a group of officers, the chief officer’s meeting in the Council, which had no delegated authority to take those decisions, which should instead have been taken by the Director of Community and Adult Services.
10. Section 289 of the Housing Act 1985 defines a clearance area as an area which is to be cleared of all buildings in accordance with Part IX of the Housing Act. By subsection (2), there is a duty on a housing authority to declare a clearance area if they are satisfied that the buildings in the area which are dwelling houses are unfit for human habitation and, in accordance with section 604A, that the most satisfactory course of action is the demolition of all the buildings in the area. “Most satisfactory course of action” is often found abbreviated in the documents to MSCA.
11. By section 291, an housing authority which has declared an area to be a clearance area, is under a duty to proceed to secure its clearance by purchasing the land comprising the area and undertaking or securing the demolition of the buildings. Subsection (3) contains the powers which enable a compulsory purchase order to be made.
12. Section 604 defines “fitness” by reference to certain criteria. Here, the criterion of general significance was that the dwellings were unfit for the most part because of structural instability.
13. Section 604A provides for the Secretary of State to give guidance about these powers. It is not necessary to deal further with that guidance; it is not suggested that that guidance was unlawful or was not followed.
14. There is also policy guidance about the use of compulsory purchase powers, both generally and in relation to clearance areas; it is contained in Circular 06 of 2004, from the Office of the Deputy Prime Minister. Paragraph 17, which is general policy guidance, says that a CPO 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.”
Attention is directed particularly to Articles 8 and Article 1 of Protocol 1.
15. For a substantial period, between the original decision in October 2004 to proceed down the clearance area route until shortly before the start of the public inquiry in December 2006, the objectors’ contention had been that their houses were not unfit for human habitation. It had come as a real shock to them to discover in 2004 that, following complaints to the council about the condition of a privately rented property in the terrace, and an internal inspection, serious damage was being caused by ongoing ground movement which affected the rest of the terrace and that their houses were said to be unfit for so serious a reason. However, by the time the inquiry began that was no longer an issue. The objectors had accepted that their dwellings were unfit for human habitation within the scope of the statute, and unfit for human habitation because of the structural instability of the ground upon which they had been built.
16. The major contention on the merits which they therefore put forward to the inquiry was that demolition was not the most satisfactory course of action, although the argument was put with greater emphasis on the human rights aspects.
17. The objectors called no engineering evidence or financial evidence to rebut the City Council’s contention. Only one objector, Mrs Maley, gave oral evidence, dealing with the impact of the CPO on the community in which she lived and, to a degree, on the personal impact which the loss of her home would cause her. There was no written evidence from any other objector. The case for the objectors was thus essentially mounted by reference to the Council’s own evidence and cross-examination by Mr Lewis, who appeared for the objectors at the inquiry, as he does here, and by his submissions.
18. The order properties are late Victorian, two storey terraced houses with external walls and solid 9-inch brick work, roof tiles and two storey out riggers to the rear, typically with two living rooms, kitchen and bathroom on the ground floor and two or three bedrooms on the first floor, with short front gardens and access from a rear alleyway.
19. The inspector set out the uncontested evidence from the City Council as to the degree of ground instability and the effect which that had had and would have in the future on the fitness for habitation of the terraced dwellings. At paragraph 47 he said this:
“47. It is evident both from the Council’s investigations and from my site inspection that the terrace is suffering from serious structural problems and that, although the extent of the damage varies, all fifteen of the houses in the Clearance Areas are unfit for human habitation by reason of structural instability and disrepair. There is also overwhelming evidence to show that the underlying cause of the structural problems is the nature of the ground – the depth of unconsolidated fill and the presence of voids in old mine workings – on which the properties were built. Although some of the residents initially doubted whether the properties were unfit the Council’s evidence on these matters is no longer questioned.”
20. Various options had been considered by the Council in order to deal with the instability of the ground, which caused the unfitness. It had considered (1) stabilising the ground whilst retaining the terraced block on top of it; (2) a minimal repair option now, and at approximately 5 yearly intervals over the course of 30 years after which the dwellings would need to be cleared any way; and (3) immediate wholesale clearance and redevelopment for residential purposes. I note that all the objectors’ houses are owner occupied.
21. The inspector discussed the remedial measures in paragraphs 48 and 49 as follows:
“Given the need to stabilise the ground beneath the buildings so as to prevent further movement I see no reason to disagree with the Council’s conclusion that carrying out the necessary ground stabilisation works while retaining the buildings – the renovation and repair option – would be prohibitively expensive as would partial demolition. Moreover, partial demolition would be of no benefit to the Objectors because only five of the nineteen properties – the added lands – are presently fit for habitation and they are unoccupied and in Council ownership.
49. The NRA established that the cheapest option would be minimal repair and this is the option favoured by the Objectors. However, that option would fail altogether to resolve the underlying problem and it is therefore likely that settlement and differential movement would continue, leading to further disrepair and instability as has happened in the past. This would, as the Council points out, have implications for the heath and safety of occupants of the houses. The evidence clearly shows that the only realistic way of dealing with the unfitness is to clear the site and to carry out remedial work to the ground so as to render it suitable for redevelopment.”
Because the CPO had human rights implications, he dealt further with that aspect in paragraphs 51 to 53. I set out paragraph 52:
“The Objectors argue, firstly, that minimal repair would be an acceptable and less intrusive solution to the problem and that the Council should have balanced this option against their human rights. The evidence shows that the structural instability is due to ground conditions and that settlement and differential movement is continuing. The cracks, sloping floors and other defects and new ones as they occurred over the next 30 years would provide only symptomatic relief and would not affect the underlying cause of the instability. The properties would, therefore, continue to suffer from structural instability throughout that period. In my view minimal repair is not a realistic option and the Council was right to reject it. I agree with the Council that the only feasible option is clearance and that the effect on the human rights should be considered in that context. It seems to me that the Council has given proper consideration to the human rights of the residents and I am satisfied that the action proposed would be proportionate having regard to those rights.”
In her decision letter the Secretary of State accepted the recommendations of the inspector. She said in paragraph 7 that she had carefully considered whether the purposes for which the order was made sufficiently justified interfering with the human rights of the owners and occupants; and that she was satisfied that such interference was justified because there was a compelling need in the public interest for the land to be acquired compulsorily. She had considered in particular Article 8 of and Article 1 of the First Protocol to the Convention and was satisfied that in confirming the order, a fair balance had been struck between the use of compulsory purchase powers, the relevant order and the rights of the objectors and occupants.
22. The first ground raised by Mr Lewis on behalf of the claimants is that the failure by the Council to investigate and to consider the human rights of the objectors and the failure of the Secretary of State, through her inspector, to investigate the real impact of the order on the claimants’ human rights meant that the order was unlawful and should not be confirmed.
23. Before I turn to the detail of that submission, it is necessary to recount a little further history. Over the period from 2004 to 2006 the process of deciding that a clearance area should be declared and the making of a compulsory purchase order had involved considerable consultation with the residents. There had been, among other matters, a questionnaire for each householder which in part, although not in terms, covered certain aspects relevant to human rights: it asked questions about the home, the community and some of the needs of the owner or occupier. There had been an informal meeting with the residents in November 2004, in a format which also permitted private conversations with individuals. There had been offers subsequently for officers to visit residents in their own homes to discuss the issues that might arise, opportunities for correspondence and a degree of local councillor involvement. All this preceded the declaration of the clearance area and the making of the CPO.
24. After the making of the CPO, the objectors made their objections in letters of May 2006 in virtually identical terms. Each contended that demolition was not the most satisfactory course of action and urged repair to a minimum standard instead. Each said that repair to a minimum standard was the most satisfactiory course of action in the short term, followed possibly by renovation as the housing conditions and property values in the surrounding area improved:
“Any or all of these options give full effect to the claimants’ human rights under Article 8 of the Convention and Article 1 of the first protocol.”
A further paragraph making a like point then followed. The letter contended that there was no compelling case to make the order, interference with human rights was unjustified and in any event the Council had given no real consideration to the human rights of the owners and occupiers. That letter shows an awareness of the human rights which were engaged by the process incepted by the Council. But none provided any individual detail as to the impact on them of the orders beyond that invocation of Article 8 and Article 1 Protocol 1.
25. However, in about September 2006 the claimant started judicial review proceedings in order to quash the resolution of February 2006 to declare a clearance area, and to obtain a declaration that the claimants’ Article 8 and Article 1 First Protocol rights were being unlawfully interfered with.
26. An oral application for permission came before Her Honour Judge Hamilton QC on 13th September 2006. She was sitting as a Deputy High Court Judge. Counsel for the claimants, not Mr Lewis, argued that the public inquiry process would not enable them to raise the issues which they wanted to raise. The judge, in her judgment at paragraphs 12 and 13, she said that where the national government had laid down the statutory procedure before any such rights could be interfered with, this was not the stage nor the place to argue there had been an unlawful interference with such rights. The inquiry procedure set out fully the opportunity to make representations all round. Similarly, in relation to Article 8, she said that if the confirmation of the CPO conformed to the statute, then it would not involve a breach of Article 8 rights. The claimants had to exhaust the statutory procedure before they could come to court. Judicial review would not lie because there was a proper alternative statutory remedy. The application was premature because no interference would occur until the CPO was made and confirmed.
27. I note, in passing, that she was also asked to quash the resolution because of an irregularity in the way in which the clearance order resolution and compulsory purchase order were made. There was no evidence to support the contentions put before her; they did not raise the issue of delegated authority raised before the inspector which forms the third ground of challenge.
28. The importance of that judgment is that it would have told the claimants, if they were not alert to it already, that the inquiry provided the opportunity for them to ventilate the impact on them and on their human rights which it was said confirmation of the CPO would cause.
29. At the inquiry the objectors complained, through Mr Lewis, that the Council’s consideration of their human rights had been cursory or formulaic. He referred to two very similar paragraphs in reports to the chief officer’s meeting, on 19th October 2004 and 21st February 2006, at which the clearance area and CPO were considered. In those paragraphs the Council said it had considered the relevant statutes which included the Human Rights Act 1998 and the pertinent criteria. It concluded it was acting in a proportionate manner.
30. Miss Patel, the Council’s housing standards manager, who gave evidence at the inquiry, was questioned about the Council’s investigation of human rights. She pointed out that it had considered some of the issues when considering the existing community. Her answer as to what constituted the relevant human rights, namely a right to live in fit property, as she put it, was seen by Mr Lewis as showing how little she and hence the Council understood about human rights. These failings, he submitted, meant that the Secretary of State was duty bound not to confirm the CPO and indeed was duty bound not to confirm it, even if all the information which she could possibly require had been provided to her by the objectors. The Council, he submitted, had a prior duty to inquire and investigate and this had simply not been fulfilled. The objectors were entitled to fairness at two stages and not just at the inquiry. In any event, he submitted, the public inquiry could not remedy the deficiency in an earlier investigation, because of its public and adversarial nature with cross-examination about private lives and personal details.
31. I reject these submissions. First, the suggestion that there was a duty on the Council to investigate human rights, put as simply as that, is wrong. Mr Lewis, to support that contention, relied on the very different case of Patterson v
32. That context is quite different. There was an express duty there to enquire about certain issues and a specific duty not to return someone, if she would face domestic violence, in circumstances where the applicant might not know that that might be relevant and helpful to her case.
33. Here, there is no express duty to enquire at all. Although there is a duty on the Council and the Secretary of State indeed not to breach anyone’s human rights, that is not a basis upon which a general duty to investigate can be implied. It is for the objectors to establish the facts which show that their human rights have been or would be interfered with and the degree of interference which that entails, such that the public authority then has to show justification sufficient to outweigh the interference demonstrated.
34. Even were there a duty to investigate, the Council was well aware from the very fact of declaring a clearance area and making a CPO that Article 1 Protocol 1 was engaged, and was very well aware from the fact that homes were to be acquired, that Article 8 was engaged and that that would involve disruption to home and family life. It could not know the full degree of interference because neither it nor the residents knew where they might move to.
35. What the Council did not know were personal details which could bear on the degree of interference, beyond those which the answers to the questionnaire revealed. Those personal details which Mr Lewis said the Council should have enquired about included matters such as schools and some very personal details, such as the medical conditions of the residents. However, the residents knew well that Article 8 and Article 1 of the First Protocol were engaged and were well able to raise the facts and personal details which could give rise to a breach of those provisions. They were given the opportunity to put those points forward before the CPO was made. If there were details of such relevance and weight, the Council was entitled to expect that the residents would reveal them in the course of the consultation process or correspondence at an earlier stage. None were. I do not think it right that the local authority should have a duty imposed on it to ask details of such a personal nature and certainly not in these circumstances.
36. Second, I reject entirely Mr Lewis’s suggestion that the public inquiry was not an appropriate forum for issues of personal sensitivity to be raised and that they therefore had to be investigated by the Council. This is completely illogical. It supposes that material can be provided in private to the local authority, that no issues of fact arise from that information and that the local authority is persuaded by it not to proceed with its order. Otherwise there would inevitably be a public inquiry at which those disputed facts and the weight to be attached to them would have to be raised for consideration by the inspector. If what Mr Lewis says is right, it is difficult to see how a human rights issue of a personal nature could ever be raised at a public inquiry. Besides, where human rights are said to impact on local authority decision making in the public interest, there is no other way in which the issues can be resolved without them being discussed in public and, if necessary, being the subject matter of cross-examination. That is a common place where issues, for example, of provision for gipsy caravan sites in the green belt are raised. An inspector, with the advocates, would of course be careful as to how evidence that was of a sensitive personal nature would be handled at the inquiry. But that is a very different point.
37. Third, had there been a failure of investigation by the Council in some respect, that would not have entitled the claimant to a decision from the Secretary of State refusing to confirm the CPO, if the Secretary of State were otherwise satisfied of its merits. The statutory procedure envisages that there will be a confirmation process for a local authority CPO, which gives the opportunity for objection over a wide range of issues, including the way in which the local authority has considered the facts or degree of unfitness, its cause, the costs of remedying it, and the impact on human rights. It is often the case that something will emerge at an inquiry or in the course of preparation for it, which can be said to be material to the local authority’s decision, which the local authority ought to have found out about earlier and which goes to the weight to be given to what it says about the merits. It is a common place that that could be said to show that the local authority has ignored a material consideration in a way which might make its decision legally flawed. But that does not require the Secretary of State to refuse to confirm a CPO, so that the decision to make it can be retaken in the light of that which emerged at the inquiry. The position is no different in the light of any failure to investigate, or as the grounds of challenge mistakenly put it, “to have regard to” human rights. Even if a decision of the local authority were unlawful, for example, if the Secretary of State concluded that on the material then known to the local authority it was disproportionate in its effect on human rights, the Secretary of State should still confirm the order, if on the material which she had it was proportionate for her to do so.
38. I formulate it that way because although Mr Lewis’s contention was that the failure to investigate had meant that human rights had been ignored, that is not the correct legal framework for a decision on the proportionality issue in human rights cases. The question simply is: is the decision proportionate? Mr Litton helpfully referred to
39. Fourth, therefore, I also reject Mr Lewis’s contention that I should hold that the local authority’s decision was flawed because Miss Patel’s answer in cross-examination showed that the local authority regarded the relevant right as the right to live in a fit home. That was obviously not the only right she and the Council thought to be engaged. If her analysis of that right is flawed in law, the error is not great. There are certainly circumstances in which the provision of unfit housing could be regarded as a breach of an Article 8 obligation, or even a breach of Article 3. Besides it is irrelevant to question whether the decision of the local authority was proportionate. The crucial question is whether the decision of the Secretary of State of State was proportionate.
40. Mr Lewis next contended that the Secretary of State herself, through her inspector, had failed to investigate adequately the human rights of the claimants and could not herself therefore reach a decision on the proportionality of the impact of the proposal on human rights. This was so whatever the failings of the City Council.
41. This is untenable. Even were some such general duty to exist, the Secretary of State knew all that the local authority knew about the inevitable engagement of Article 8 and Article 1 of the First Protocol. The inspector had objection letters which made it quite clear that the claimants were aware that those rights were engaged. Her Honour Judge Hamilton had told the claimants, in no uncertain terms, that the public inquiry was the place and opportunity for them to ventilate their human rights points. It is for the claimants to establish the facts which show an interference of such significance as to require justification, which it is then for the public authority to supply. That can and here does depend on the degree or intensity of the interference alleged, but that is material for the claimants to supply. The objectors put forward nothing beyond the evidence of the claimant, which raised little by way of personal detail and dwelt on the disruption to her life, her established life in the community and the convenience of the locality.
42. The objectors could each have put in written evidence but did not to do so. They could have asked for private details to be raised in a way which minimised their public exposure, but they did not do so. Mr Lewis suggested that this absence of evidence was because the objectors had little time to prepare that aspect of the case, since until recently they had been focussing on unfitness. That may be so, but it is a poor explanation.
43. Mr Lewis said the inspector should have adjourned to obtain more information, presumably the self-same sensitive material, which the objectors did not wish to disclose in public, but he was never asked to do so. Indeed, even now, there is nothing before this court to indicate that there was anything more of significance to go into the decision on proportionality on the claimant’s side, which such an adjournment might have helped to produce. There is no evidence to support Mr Lewis’s submission that there were sensitive personal details such as medical matters which the objectors would have revealed if only someone had asked them, and which they are entitled to say had been ignored because they had not been asked about them. There is nothing in ground 1.
44. Ground 2 alleges that the Secretary of State should have rejected the compulsory purchase order because the minimal repair option was less intrusive to human rights and should therefore, as a matter of law, been adopted. This would not have involved acquisition and demolition. However, Mr Lewis accepted that if the conclusions of the inspector in paragraphs 48, 49 and 52 and accepted by the Secretary of State were unchallengeable, the contention that the confirmation of the CPO was disproportionate was bound to fail.
45. It is useful here to note what Lord Hoffmann said in the Belfast City Council case about the approach which the court should adopt when considering an allegation that a local authority or other administrative body’s decision involved a disproportionate interference in human rights. In paragraphs 16 he said, and although the context there was licensing of sex shops, his comments are equally apposite for this point:
“This is an area of social control in which the
Lord Rodger, at paragraph 26, said that where the public authority had carefully weighed the various competing considerations and concluded that interference with a Convention right was justified, the court would attribute due weight to that conclusion in deciding whether the action in question was proportionate and lawful. In so doing he drew on what Lord Bingham had said in the SB case. Baroness Hale at paragraph 37 commented to the like effect. She was dealing with a case as here, where the legislation leaves it to the local authority or the Secretary of State to strike the balance in each individual case. The court had to decide whether the authority had violated Convention rights but in doing so was bound to acknowledge that the local authority was much better placed than the court to decide, in that instance, the balance between the rights of sex shop owners and the public interest in restricting the presentation of such images. The same point would apply here to both local authority and Secretary of State. Baroness Hale pointed out that where the local authority had made no attempt to address the question the court had no alternative but to strike the balance for itself, giving due weight to the judgements made by those in much closer touch with the people.
46. So, in the light of Mr Lewis’s acceptance that his challenge was bound to fail if the inspector’s conclusions were unchallengeable, his challenge became one that those conclusions were not open to the inspector or Secretary of State on the evidence. His challenge had not been couched in those terms. I must say a little more about the legal framework within which to consider his revised submissions.
47. His challenge is to the conclusion on proportionality. But it starts, now, with a challenge to the evidential basis for the conclusion that the minimal repair option was not realistic. In my judgment, the assessment of the evidence which underlies that conclusion can only be challenged on traditional public law grounds. Nothing in the Belfast City Council case suggests that the assessment or evaluation of those factors is for this court, albeit giving weight to the considered view of an expert Tribunal which has heard the evidence. The contrary was not suggested. If however the facts thus found, or the evaluation thus arrived at lawfully, show that in the judgment of the court the decision was disproportionate, it is for the court to say so and not to hold that, disproportionate though it was, nonetheless it was a reasonable view for the Secretary of State to reach on proportionality.
48. As Mr Lewis’s submission on this ground developed it became clear he was contending, first, that the inspector’s report itself showed a misdirection as to the legitimate aim of public policy. He submitted that the inspector, in paragraphs 48, 49 and 52, had focused on the costs of making the ground stable and not on ways of making the houses fit. They could be made fit on the evidence without the ground being stabilised or at least could be made fit for a sufficiently long time to satisfy the statutory objectives. Although that was the same point in many ways as his point that the minimum repair option interfered least with human rights, this first way of putting his case drew solely on the domestic statutory framework. His second and related contention was that the City Council’s own evidence was that the minimum repair option was a viable way of making the houses fit and in effect the inspector had ignored that evidence in his conclusions. That may have been, suggested Mr Lewis, because he focused on ground stability rather than fitness itself.
49. It is necessary, now, to consider some of the evidence before the inspector. But I make it clear that this point rather developed away from the grounds as originally formulated. I have not been shown what might have been shown to me had the point been clearly made in the grounds, namely all the engineering evidence about the degree and expected rate of development of further ground instability and the evidence of Councillor Breeze which was clearly influential with the inspector.
50. The evidence in relation to the various options was given by Miss Patel, who said in her proof of evidence that three options had been identified for consideration, minimal repair, comprehensive renovation and wholesale clearance. Of minimal repair she said this:
“… this option looked at the minimum level of remedial action to make the properties fit. In order to secure a long time life of the properties, this would need be followed by further works at regular intervals during a 30 year period to ensure the properties maintained the fitness standard. The cost of remedying the effect of the structural defects and dealing with issues of disrepair made this option viable. However, it would not address the necessary ground trimmings that would arrest any future movement of the properties. Even though in economic terms, this option was most favourable, it does not address the structural stability of the terrace and the practical impact on personal and public health and safety.”
After considering the other two options, she said in the next paragraph that:
“Through this exercise, the Most Satisfactory Course of Action was determined to be clearance of the terrace. I was of the opinion that the extent of the work required to remedy the damage and render the properties stable in both financial and practical terms was not a viable option. Therefore I considered that the wholesale demolition of the properties was the only acceptable course of action available.”
That paragraph is clearly a summary paragraph and not related just to the comprehensive renovation option.
51. This passage drew upon the economic assessment which had been before the Chief Officers in October 2004, as an appendix to the then Director of Housing’s report. This described option 1 as necessarily including the demolition of the worst buildings, those approaching the unsafe, or which were the source of serious environmental nuisance and for which renovation to any degree would be extremely expensive. It involved just making fit all the remaining unfit houses, and thus after 5 years the renovation of the currently fit properties which would have become unfit. This process would continue for about 30 years by which time the majority would have become unfit for repair and the area would then be cleared. The net present value of the cost and benefit in economic terms of that option was marginally less negative than the net present value of the clearance option.
52. The economic appraisal did not stand alone however; it had to be read with the socio-environmental assessment in appendix 6, to decide what was the most satisfactory course of action.
53. Taking all of those together (and for the purposes of the socio-environmental assessment, it had been assumed that after 15 years the area would be cleared and there were errors of arithmetic in the exercise), it was clear that the clearance and development option outshone the minimal repair option considerably.
54. This was then discussed in the report to the chief officer’s meeting in October 2004 which led to the notice of intention to declare a clearance area. The decision on the most satisfactory course of action, which involved these two assessments, noted that option 1 looked at minimal works at regular intervals just to make properties fit as they became unfit over time. A few houses were so poor that immediate clearance was necessary; and with restricted work on the others, clearance was probable in year 30. This option was unlikely to instil confidence into the area and would do little to arrest any further decline. Paragraph 7.7 of the report said:
“Those options which include renovation to a greater or lesser degree, require any funding that may be available from the local authority for grants and environmental works to be more than matched by finance from owner occupiers and private landlords. This requires an ability and commitment on their behalf now and in the future to a level which would reverse the decline in the area. Historic trends in the terraced market in the city indicate that this would be extremely difficulty or virtually impossible to achieve.”
55. Miss Patel, in cross-examination at the inquiry, said that this minimal repair option was viable in the sense that it would have been possible to keep the properties going in a fit state for 30 years, but subject to a cyclical routine of investment in these properties. I am told that this is all the oral evidence there was directly before the inspector on the specific issue of the viability of this option.
56. There was no evidence or questions about the availability of local authority grants for the repair of houses in these circumstances. More importantly, in the light of that paragraph, 7.7, which I have just set out, there was no evidence that any objector had the private funds or could raise sufficient private funds to match and more any local authority funding of the necessary routine cyclical investment and repair. This would be crucial to the realisation of this option in practice.
57. Neither objector nor advocate sought at the inquiry to address that point. Only one objector gave evidence. Mrs Maley provided a statement in which she said that she and her husband were pensioners. She did not suggest that she was able or willing to raise, on even one occasion let alone repeatedly, funds to repair her house, which would remain on unstable ground. The objection letters, which were all essentially the same, made no reference either to any ability to fund such repairs. A relevant question was asked in the questionnaire circulated to residents in August 2004. Only one copy of one response has been produced. In it the resident said that he could not afford the necessary repairs.
58. It was submitted by Mr Lewis that the inspector had accepted the City Council’s evidence, including that of Miss Patel, but that if he had understood it properly, he could not have concluded other than that minimal repair was a viable way of dealing with unfitness. Alternatively, if he had rejected that evidence, and he records Mr Young’s submissions for the Council as being that only the route chosen by the Council was viable, he had no basis upon which to do so. Thus, Mr Lewis submits that the inspector may have been right about the viability of the ways of dealing with ground instability but ignored or misunderstood Miss Patel’s evidence about ways of dealing with unfitness, albeit leaving ground instability untouched. It is that unfitness which Mr Lewis says should have been the target of the inspector’s consideration.
59. Mr Lewis said that financial considerations such as the ability of residents to pay their share of the repair costs were not being raised at that stage and, if they had been, his clients, he told me, would have been able to say they had private insurance.
60. I do not accept Mr Lewis’s suggestion that the inspector took his eye off the statutory test which requires demolition to be the most satisfactory course of action for dealing with the unfitness of the houses. Here the cause of the unfitness is admitted to be the ground instability. The last sentence of paragraph 49 of his report shows no such misdirection. The conclusion in paragraph 52 was that minimal repair would provide only symptomatic relief because it did not affect the underlying continuing causes of instability. That would mean that the properties continued to suffer from the structural instability which was the very cause of their unfitness.
61. I have not seen the evidence of the two structural engineers nor of the consulting engineers called by the Council. But the inspector’s summary of the City Council’s case in this respect, which was uncontested, shows a serious and continuing situation for the terrace block as a whole, with movement also creating differential settlement between the properties.
62. The inspector could not possibly come to a conclusion about how to deal with unfitness caused by ground movement without considering the implications of that movement and how it was to be dealt with. In the light of all the engineering evidence which he had, the conclusions at paragraphs 49 and 52 speak for themselves. Minimal repair does not address the cause of unfitness. The cause of unfitness will therefore continue. The inspector did not address the wrong issue: how to stabilise the ground; he addressed the right one: how to deal with unfitness created by unstable ground. The two, in reality, were wholly interdependent as he was entitled to hold.
63. The inspector ignored or misunderstood Miss Patel’s evidence. I turn to the suggestion that Mr Lewis’s argument would involve the inspector concluding or having to conclude, on Miss Patel’s evidence, that the houses could be made fit for 30 years on a practical and economic basis, and yet concluding that there was a compelling need in the public interest, overriding the rights of the residents, for them to be acquired and demolished. I agree, if that is what he concluded, that is irrational and disproportionate. But that is a hugely improbable thought process.
64. I accept that he did not reject what Miss Patel had to say and accept some other version of the City Council’s case. There is no indication in the report that he thought he was rejecting her evidence but nonetheless accepting the City Council’s case.
65. In my judgment, however, Mr Lewis’s interpretation of the evidence of Miss Patel is altogether too narrow, focusing on one passage and ignoring the rest of it and the council’s case as a whole. “Viability”, as she used that word, as the outcome of the economic assessment of the net present value of assumed expenditure, was not by itself an assessment of the realism or practical value of that option. Therefore, in her proof and in her answers Miss Patel always made two related and very important qualifications to the “viability” of the minimal repair option. Those qualifications reflect what the report to the chief officer’s meeting and the economic assessment appendix said. Minimal repair could not address the underlying cause of the instability and unfitness. That then meant that the minimal repair option required ongoing work, cyclical investment, at regular 5 yearly intervals for about 30 years, after which the severity of unfitness would require demolition of all the houses. Some would already have had to be demolished.
66. The inspector could accept the first part, namely that the option was in that narrow NPV sense “viable” but also accept the two related qualifications to that viability. The option did not address the underlying cause of instability. Even with regular repair, if it happened, this option left problems of personal health and safety unresolved, as the inspector accepted. The inspector did not elaborate on those latter points but I have not seen the detailed reports on house condition and ground stability which he had. This is what made the minimum repair option not viable in the broader sense in which Mr Young for the council and the inspector used the word, taking account of the real effect of the qualifications identified in the economic assessment and by Miss Patel in her proof. This covers all the practical implications of such an option.
67. Mr Young is recorded, in paragraph 12 of the inspector’s report, as saying that neither of the other two options was viable and clearance was the only satisfactory course of action. The inspector concluded that although the minimal repair was the cheapest option, it was simply not realistic as a way of making the houses fit because the underlying problem would always be there. He was simply saying that the gravity of the problem is such that minimal repair, make do and mend, would still lead to significant problems. It was unrealistic to suppose that unfitness would be cured for any significant period because the structural instability which caused the unfitness would always be there, whatever might be done to address the symptoms of movement, and even if repairs were done as and when they needed to be done.
68. The inspector highlighted the earlier passages in his report, which go to this conclusion. This clearly included all the engineering evidence (which I have not been taken to), but it also included the evidence of Councillor Breeze, who spoke of other residents in the area who had gone through the same experience: repair was unrealistic and far too costly, clearance alone was realistic. That view is simply not irrational, given the evidence he had about the extent of the instability, its continuing unresolved nature and evidence which related to the personal safety of the occupants.
69. But related to the evidence of Councillor Breeze and the two qualifications to the economic assessment of viability was another issue which the inspector was fully entitled to take into account, although it may not have played a part in the debate by way of being contested or as the subject of specific witness evidence. On the inspector’s reasoning he may well have had this point in mind without being explicit about it as I come to explain. (If he did not take it into account, it was a legal error in the objectors’ favour.)
70. The consequence of the minimum repair option not addressing ground instability, was that the money for the cyclical investment and repair had to be found. As Miss Patel said, there had to be routine cyclical investment for the minimum repair to be “viable”. The economic assessment said what was obvious: that money would be part public and would have to be more than matched by the house owner’s own investment. There had never been any evidence or any suggestion that they could fund their share and the only questionnaire produced to me denied that the owner could fund the costs. Their case, until very shortly before the inquiry, had been that the houses were not unfit. Their objection then became, in essence, that the minimum repair option was “viable” in theory, seizing on Miss Patel’s language. The inability of that option to address the underlying problem of ground instability required the objectors to address, in their objection, how the ongoing cycle of investment was going to occur.
71. The availability of finance was not an issue that the inspector had to address in his report explicitly, because the objectors had not contended they had any money. His reasoning could stop at the point where the underlying cause had not been addressed by minimum repair because there was no solution to the problems which that created, whether of safety or finding private and public money to be spent routinely over many years. The problems of the house owner raising money routinely to repair a wasting asset over 30 years, with all the problems of transfer on death, moving away, council ownership of and liability for the repair costs of some of the houses and demolition of some within the block and so on are obvious. It may very well be what lay behind the evidence of Councillor Breeze that the minimal repair option was far too costly.
72. If either or both of those analyses of the inspector’s report are correct, Mr Lewis accepted that he could not argue that minimal repair was an option which should have been followed as the least intrusive, because it was not a realistic option within the statutory framework. That is sufficient to dispose of ground 2.
73. I do not need therefore to enter into the debate about whether what Maurice Kay LJ said in R (On the application of Clays Lane Housing Co-operative Limited) v The Housing Corporation [2005] 1 WLR 2229 [2004] EWCA Civ 1658, to the effect that a compelling case in the public interest and a reasonable necessity to interfere in a particular way with human rights, sufficed for proportionality in relation to a statutory administrative or regulatory function, is applicable here. I do not have to decide whether the least intrusive approach must always be adopted, whatever advantages in the public interest a different approach may bring when balanced against the extra intrusion. That is what Mr Lewis suggested. I should apply, taking the approach in R (Samaroo) v the Secretary of State for the Home Department [2002] INLR 55, [2001] EWCA Civ 1139.
74. Nonetheless, having heard the argument, I would venture that the approach of Maurice Kay LJ is plainly applicable in this context and what Dyson LJ said in Samaroo is applicable in that sort of context. The degree of intrusion was plainly relevant and the greater the intrusion, the greater the justification required. But the avoidance of much greater costs for minor increases in intrusion, or obtaining significantly greater advantage for minor degrees of increased intrusion, all seem to me to be relevant to the mix of considerations required in a decision of this nature. The practical realism of an approach, the degree of risk run, the cost and benefit of making do and mend are examples, in my view, of why the sort of balance which Maurice Kay LJ spoke of is clearly applicable in this case. An iteration of aim, benefit and interference should not be prevented by a rigid two or three stage process.
75. I agree with Mr Litton, supported as he is by respectable authority, that the language of the Circular with its test of a compelling need in the public interest is apt to protect the human rights of those whose property is acquired compulsorily. It also follows, on what Maurice Kay LJ said, that the test of the most satisfactory course of action in relation to demolition in a clearance area should suffice as well, provided the necessity for demolition is established. It would not be easy to show that the level of interference with human rights which such action inevitably brings is disproportionate.
76. Indeed, were it to fall for me to decide whether the decision was disproportionate in the light of the Belfast City Council case, I would give some weight to the conclusion of the Council and greater weight to the considered view of the inspector who heard all of the objectors and all they wished to put before him on human rights and I would conclude the decision was proportionate. The evidence showed that that was no realistic alternative. The real inadequacy of minimal repair to deal with the ground instability which caused the unfitness was obvious, so the problem about unfitness would never really be solved. There could only be symptomatic relief from time to time. Even if in theory minimal repair was a potentially less intrusive alternative, there was no basis on which the inspector or a court could conclude that it would ever implemented and sustained over any worthwhile period of time. Nothing prevented the householders from saying they could repair the houses with help from some grant, turning theory into reality. They did not do so. I appreciate the stress, distress and anxiety which house owners experience when their homes are compulsorily acquired and their lives are disrupted, but here the case in the public interest is quite clear and the necessary degree of need has been shown. Their alternative solution, their least intrusive course, is really a non starter.
77. Ground 3: Mr Lewis argued that the decision to make a CPO should have been taken by the Director of Community and Adult Services (as it now is), the Director of Housing and Community Services (as it was). He submits the decision in fact was taken by a group of chief officers in the chief officers’ meeting. In any event, he says the meeting authorised the Director of Law to make the CPO and not the Director of Community and Adult Services. As the argument developed, he appeared to be saying that the decision to declare a clearance area also lacked authority because it had too been made by the chief officers’ meeting and not by the Director of Community and Adult Services as it should have been.
78. For that submission, Mr Lewis drew on material, without making any distinction between whether it went to the decision in relation to the clearance area or to the CPO, notwithstanding that his grounds were confined to the CPO. He contended that the wrong person had taken the decisions; each decision was therefore a nullity because it could not be attributed to the Council and the inspector should have so concluded and refused to confirm the CPO. The inspector said this:
“As the Order involved a number of Council Departments it seems reasonable to me that it should at some stage have been considered collectively by Chief Officers. It is quite clear from the reports to the Chief Officers Meeting, however, that the necessary decisions were to be taken by individual Chief Officers and there is nothing to indicate that the officers concerned lacked the necessary delegated powers to take these decisions.”
79. The legal framework for the consideration of this issue is this. It is not for me to resolve the disputes of primary fact as if I were sitting as a trial judge. I reject Mr Lewis’s unwarranted supposition that in these proceedings he can simply assert, as the grounds do, that the inspector is wrong or adduce evidence not before him and invite me to take the decision on whether the resolution and CPO were authorised.
80. As this issue has been litigated before an inspector, my only powers on appeal are under the Acquisition of Land Act. I can overturn the Secretary of State’s decision if it is beyond her powers. That means that the inspector’s decisions on fact are only to be overturned if they are irrational or suffer from some other public law failing. Nonetheless, the objectors were entitled to take the point before the inspector, and if it is a good point on the facts he found, that the clearance area was declared without authority or that the CPO was made without authority, the Secretary of State ought to have refused to confirm the CPO, as she would not in reality have had a CPO before her.
81. There was some debate about whether this was a point which the claimant could now take, as objectors had tried to take some point about authority before Her Honour Judge Hamilton. She had said there was nothing in it, but as I have said she did not have the argument addressed to her which has been addressed to me. The fact that such a point might have been taken by judicial review does not prevent it being taken now, in my view. In reality the preclusive provision in section 25 of the Acquisition of Land Act, preventing legal proceedings questioning a CPO after it has been made but before it has been confirmed, would be a hurdle but not a complete bar to such judicial review proceedings. (It would not however affect a challenge to the decision to declare a clearance area.) As the decision in the R v
82. If the inspector’s conclusion on the facts was open to him on the evidence, the claimant’s case must fail. The burden of proof before the inspector was on the claimant. Both Mr Lewis and Mr Young, for the City Council, have taken me to parts of the evidence placed before the court regardless of whether they were or not before the inspector. I shall focus in judging the sustainability of the inspector’s conclusion on those parts of the evidence which I am clear were before him.
83. The first report of 19th October 2004 to the chief officer’s meeting by the Director of Housing and Consumer Protection says that its purpose is to relate the condition of the housing and to “seek authorisation to serve notice of intention to declare clearance areas.” It was prepared in full consideration with the Director of Regeneration and Community, the Director of Corporate Resources and the City Secretary. The report recommended that the City Secretary be authorised to take relevant action, that the Director of Corporate Resources be authorised to take relevant action from his perspective negotiating the purchase of properties, and that the Director of Housing be authorised to provide rehousing for occupants and to consider the availability of the relocation grants.
84. The second report to the chief officer meeting, as it is described, of 21st February 2006, was a joint report by the Director of Community and Adult Services and the Assistant Chief Executive for Regeneration and Heritage. Its purpose was “to seek approval for the declaration” of the clearance area and the making of the CPO. The executive summary said:
“Following the report to the chief officers to the city council of 19th October 2004, it was resolved to serve notice of intention to include the properties in the above clearance areas.”
It recommended that the Director of Community and Adult Services be authorised to declare the clearance area, and that the Director of Law and Probity be authorised to make the CPO. The report said that in October 2004, “the chief officers’ meeting resolved to authorise the City Secretary to serve the relevant notices.”
85. Miss Patel gave evidence about the decision-making process. In her proof of evidence she said that a report was drafted “putting forward the recommendation to the City Council’s chief officer meeting held on 19th October 2004,” and later that she had drafted the second report, “to obtain authority from the City Council’s chief officer group to proceed with the next stage of the legal process.” The recommendation was supported by the chief officer group. She was asked questions by Mr Lewis about this and said, according to the claimant’s notes of evidence, that if the chief officers’ meeting had not approved the recommendation, she would have had to return to the chief officers’ meeting with further evidence. Later, when asked whether it was the chief officers’ decision to declare the clearance area and make the CPO, she answered that it was their decision, and that the recommendation had been approved by the chief officer group.
86. There are a number of documents which were before the inspector to like effect. I assume that the inspector had evidence of the scheme of delegation, although he would not have had the witness statement of Miss Parker from the City Council because that postdates the public inquiry.
87. It is clear, in my view, that the Director of Community and Adult Services as a chief officer, actively promoted the clearance area and CPO process. It was his department’s view and his view as Director that such a procedure was necessary and, whoever took the decision, it was the decision he wanted taken; it was the decision he recommended be taken. It was his decision to make that recommendation, and left to his own devices it is the decision he would have taken. This is not on any view a case where the officer with the decision-making power was bypassed by another body which took the decision, or one where he was forced to go ahead against his better judgment or prevented from going ahead despite his better judgment.
88. It is also clear, and Mr Lewis did not disagree, that a chief officer is entitled, indeed I would say obliged, to discuss the issues arising in connection with a clearance area and CPO, with the other chief officers whose delegated areas of competence are affected by such a proposal. There are financial, planning and legal implications. It would be a foolish process which required the Director of Community and Adult Services to take decisions, which affected other departments and required their co-operation for implementation, without consulting them and, if necessary modifying his view in consequence. Indeed, it would not be open to him to make a decision which forced other chief officers to take decisions in their area of authority which they did not want to take. He in his turn, were that to happen, would be usurping their authority.
89. Such discussions as are obviously necessary for the process of declaring a clearance area, making a compulsory purchase order and implementing it effectively, can properly take place at a chief officers’ meeting, even if others are present who had no interest in that particular topic. There is no evidence that those who may have been in that category participated in any discussion or any decision making by the chief officers’ meeting on this particular clearance area and CPO.
90. I consider, as the inspector in effect concluded, that the more probable reading of the two reports and Miss Patel’s evidence is that the Director of Community and Adult Services decided what he wanted to do, recommended that it be done, and sought the agreement of his fellow chief officers because of the implications of what he wanted done for their departments and because of his need for their co-operative action, if his recommendation was to be made effective. The chief officers’ meeting then agreed upon their co-operative action and authorised him or in the case of the CPO, the Director of Law, to proceed with the course of action, that is to say that which the Director had decided he wanted to pursue.
91. So, because the other departments needed to be willing to play their part as necessary for his decision to be effective, they had to meet and agree to that effect. The decision-making process, as recorded, certainly does not suggest that the Director of Community and Adult Services simply made a decision on his own and merely reported that fact to the chief officers’ meeting. It would indeed have been rather odd if he had done so, given the impact which his decision would have on the duties and powers of others. As I have said, he could easily have been seen as interfering in their competences.
92. The process, as I have described it, however can perfectly properly be said to involve a decision by the Director of Community and Adult Services, in circumstances where the co-operation and involvement of others was necessary to give effect to his decision and where their refusal of co-operation would make his decision pointless, because he could not proceed alone. A process of discussion with those, whose involvement was necessary can properly be described either as a single joint decision or as several harmonious separate decisions.
93. On that basis, I do not consider it can be said that the inspector’s decision was erroneous in law. The distinction between a joint decision and several harmonious single decisions is of no consequence. The difference between the chief officers’ meeting taking a decision on the recommendation of the relevant officer and that officer taking the decision on his own, in the light of the necessary agreement of others to play their part, is of no consequence. The reality is that the director reached a decision as to what to do. It was reflected in the recommendation which was accepted. The chief officers’ meeting decided that he could do what he had already decided he wanted to do. If he had sought authority wrongly, the decision being implemented was still the decision he recommended, wanted made and would have taken any way. An additional unnecessary authority does not show that the decision actually made was made without authority.
94. If, however, that amounts to an error of law by the inspector, I would refuse to quash the decision of the Secretary of State in the exercise of my residual discretion.
95. I have treated the decision to make the CPO and to declare a clearance area compendiously, even though the grounds related to the CPO and it was only later that the argument ranged indifferently between the two. In reality Mr Lewis has made the same point in respect of each, namely that it was made by a chief officer meeting and not by the individual director.
96. I should just add that whether the CPO should have been made by the Director of Community and Adult Services or the Director of Law was not the real issue before me. The issue as argued was whichever officer should have done it, in fact it was wrongly done by the chief officers’ meeting. I have dealt with that issue.
97. There was no basis for the submission, in any event, that the Director of Law was not the right person to make the CPO, in the light of the decision of the Director of Community Adult Services. There is nothing in the schedule of delegated powers to support that notion. The evidence about how the decisions were taken did not seek to address such a distinction, nor so far, as I can see, was such a point taken before the inspector.
98. The second defendant did provide me with evidence which was not before the inspector, namely the evidence of Miss Parker and certain minutes. I have not placed reliance on those in coming to my decision in this case. This, in my judgment, is a case that has to be dismissed.
99. MISS LEAN: My Lord, I have an application for the Secretary of State’s costs.
100. MR JUSTICE OUSELEY: Is there a schedule, or do you want them to be assessed?
101. MISS LEAN: The costs be assessed if not agreed.
102. MR JUSTICE OUSELEY: It is agreed they should be assessed if not agreed.
103. MR CHRISTIE: We do not oppose the application of the claimants.
104. MR JUSTICE OUSELEY: Order for costs to be subject to detailed assessment if not agreed.
105. MR CHRISTIE: I do also have an application for an appeal. My Lord, on the subject of the proportionality exercise that the inspector went into, as you know it was our case he was required to weigh up the different methods of dealing with the unfitness in the houses. My Lord, you found that the cause of the unfitness is the same thing essentially as the unfitness of the houses, if I may characterise your judgment in that way. With the greatest of respect, my Lord, it is our case that they are not quite the same thing and we would ask for permission to appeal on that point.
106. MR JUSTICE OUSELEY: Do you want to say anything,
107. MISS LEAN: May I submit that the matter was dealt with comprehensively in your Lordship’s judgement and we see no reason why there is a real prospect of that succeeding on appeal.
108. MR JUSTICE OUSELEY: I am not going to grant permission to appeal. I do not think there is a realistic prospect of success. The problem in the claimant’s arguments is, I think, two-fold. If you are right that on the inspector’s decision, he focused on ground stability and not on fitness, it does follow that he has reached the very remarkable conclusion that these houses have 30 years life in them with some care and attention and has said they should be demolished. It is quite clear that is not what he said. He is looking at the overall reality of implementing his minimal repair option. I think the case turns on the rather legalistic discussion of what was meant in what I think are two slightly different uses of the word “viability”, one overall and one economic. I refuse you permission to appeal.
109. I am prepared, however, to grant you an extension of time for seeking permission to appeal until after you have the transcript of the judgment.
110. MR CHRISTIE: I am grateful, I was about to ask for an extension of time, also because Mr Lewis is away until 26th August and there are issues.
111. MR JUSTICE OUSELEY: I think to be fair to until you have the transcript and Mr Lewis can review it, as he is on top of the case, if I can put it that way. I certainly will not approve the transcript before late September. I will extend time until the end of October, so I have had time to approve and amend it. Or I will put it another way, I will extend time until two weeks after you have been sent the approved transcript.
