Compulsory purchase order — Application to quash order on ground of alleged breach of rules of natural justice — Negotiations between applicants and acquiring authority before inquiry with a view to the compulsory purchase order being withdrawn in respect of applicants’ property — Applicants believed until day when inquiry opened that they had satisfied conditions for withdrawal and that the inquiry would not take place — On the morning when the inquiry opened a solicitor employed by the authority telephoned one of the applicants, on the instructions of the inspector, to ask whether he proposed to attend the inquiry — There was a conflict of evidence as to the telephone conversation, but it was made clear to the applicants that the inquiry was taking place — The applicants did not attend, the inquiry proceeded, the inspector recommended confirmation of the order and this was done subsequently — The judge held that even if there was a reasonable basis for the applicants believing up to the opening day that the inquiry would not take place, there was no such basis after the telephone conversation — The applicants had only themselves to blame for the case being heard in absentia — It was not reasonable for the applicants or one of them to fail to attend the inquiry if they wished to be heard — Held, upholding the decision of Willis J, that there had been no denial of natural justice and that the appeal must be dismissed
This was an
appeal from a decision of Willis J rejecting an application by Jack Pesach
Ackerman and Joseph Ackerman to quash a compulsory purchase order made by the
second respondents, the London Borough of Camden and confirmed by the first
respondent, the Secretary of State for the Environment. The order was in
respect of premises at 72 Messina Avenue, London NW6.
Matthew Horton
(instructed by Joseph Ackerman) appeared on behalf of the appellants; Simon
Brown (instructed by the Treasury Solicitor) represented the first respondent;
J Sullivan (instructed by F Nickson, Solicitor to the London Borough of Camden)
represented the second respondents.
Giving the
first judgment at the invitation of Megaw LJ, EVELEIGH LJ said: This is an
appeal from the judgment of Willis J when he refused the appellants’
application to quash a compulsory purchase order made by the second
respondents, the London Borough of Camden.
A compulsory
order was made under section 32 of the Housing Act of 1969 in relation to
premises, 72 Messina Avenue, London NW6, owned by the two appellants, one of
whom is a solicitor. There were negotiations between the council that made the
order and the appellants, and finally the council indicated that they would be
willing to cancel the compulsory purchase order if these appellants agreed to
take as tenants three people nominated by the council after necessary work had
been done to improve the premises. Reference was made in the course of these
negotiations to a housing grant in respect of the alterations or improvements.
The council intimated that they would be prepared to arrange for the
postponement of a public inquiry into the question whether or not the
compulsory purchase order should be confirmed by the Minister.
The inquiry
was ultimately held. The appellants did not attend. There was some conversation
over the telephone between them and the solicitor for the second respondents
who was asked to telephone the appellants by the inspector, and as a result of
a report being made back to the inspector of the nature of that conversation on
the telephone the inspector decided to carry on with the inquiry. It is said on
behalf of the appellants that this the inspector ought not to have done, and
his decision to proceed was in breach of the rules of natural justice.
It is
necessary to look at the facts and the negotiations between the parties in
rather greater detail. On October 27 1976, following the oral negotiations
between the parties, the council wrote as follows:
Further to
your telephone conversation of Thursday 21st October 1976 I would confirm that
you wish to proceed with the conversion of the premises into four
self-contained units of accommodation and further that you are now prepared to
accept that the council rehouse three tenants and in return is entitled to
nominate tenants to three of the units after completion of the works.
Then there
came this passage:
In the
meantime, I have asked the Town Clerk to have their Public Inquiry adjourned
for six months pending the completion of the necessary documents etc. As soon
as the necessary paper work has been completed and suitable proposals approved
by the council, the C.P.O. can be formally withdrawn.
Then on March
1 1977 there came the appellants’ reply to that letter: ‘Further to your recent
letter, after consultations with our surveyors and legal representatives, we
return the draft agreement with our slight amendment in blue which we trust
will be acceptable in view of the extensive work to be carried out at the
premises.’
On March 3
1977 the appellants were notified that a date for the inquiry had been fixed,
namely May 3 1977. On March 9 the second respondents, the London Borough of
Camden, wrote acknowledging receipt of the amended agreement, which is called
in the corres-
appellants wrote: ‘With reference to your letter of 9th ultimo, on several
occasions we have spoken to you on the telephone and it was finally agreed last
week that we accepted amendments in the agreement and that you would be within
the course of the next few days from our conversation sending an agreement for
signature.’ Then there came this
sentence:
We would ask
you if you would submit this to us by return of post so that it may be fully
tied up and that the pending compulsory purchase hearing may be postponed.
On April 6 the
appellants returned the agreement signed, and said ‘Please confirm to us that
the pending compulsory purchase hearing is now cancelled’.
On April 14
there is an important letter written by the council to the appellants:
With
reference to your letter of the 6th April 1977 I acknowledge receipt of the
nomination agreement which will be sent to the Town Clerk for stamping and
signature in the immediate future. I shall be glad to receive your full grant
application for the conversion of the premises into self-contained units when
it will be possible to deal with the second point in your letter.
In other words,
the council were saying ‘We will deal with the second point, that is to say the
cancellation of the hearing, when we receive your full grant application’.
The full grant
application was not sent by the time May 3 had arrived, and the inspector
appeared to conduct the inquiry, but there is a contemporaneous letter of that
date, May 3 1977, written by the appellants to the house improvements manager,
London Borough of Camden: ‘Further to our letter of the 27th ultimo, we now
enclose the completed Form no 1, application for improvement grant, together
also with a copy of the plans and a specification. The builders’ cost will
follow fairly shortly.’ Then there is a
postscript: ‘Since dictating this letter, we have received the sealed copy of
the nomination agreement dated April 26 1977’, that is to say the finally
agreed document bearing the council’s signature.
So that at
that stage the nomination agreement had been accepted and formally signed. The
grant had not yet been decided and application for the grant was not in the
council’s hands.
The facts that
I shall now recite are taken from the affidavit of Mr Jack Ackerman, and in
that affidavit he says in paragraph 8, at the end: ‘It was understood by my
brother and myself that once this agreement’ — that is to say, the nomination
agreement — ‘was executed by both parties the said compulsory purchase order
would be withdrawn.’ By paragraph 10 he
says: ‘So far as my brother and I were concerned, upon the receipt at the end
of April 1977 of Camden’s part of the nomination agreement duly sealed, we
assumed that the compulsory purchase order would be withdrawn, and that the May
3 1977 hearing would not be effective.’
That sentence in the affidavit leads me to think that Mr Ackerman is
there asserting that he had received the council’s completed and engrossed
agreement at the end of April, and so substantially before May 3 was entitled
to the view, which was in fact held, that the inquiry would not take place on
May 3, which date had not yet arrived. It is difficult to reconcile that sentence
with the postscript of the letter of May 3.
Be that as it
may, the affidavit continues: ‘On May 3 1977 I received a telephone call at
about 10 am at my office, from a person who did not identify himself but whom I
took to be a clerk or other person in the employ of Camden. He asked me if it
was my intention to attend the public inquiry which he told me was taking place
that day. I expressed surprise at this, and pointed out that it had been my
understanding that upon the nomination agreement being executed and exchanged
the compulsory purchase order would be withdrawn. This had been the clear
impression given to me both from the correspondence and from my various
conversations from time to time with Mr Dawkins.’
In paragraph
17 he says: ‘I dispute that I informed the representative of Camden who
telephoned me that it was not our intention to appear but that we wished to
sustain our objection. I have deposed to the terms of this telephone
conversation in paragraph 12 hereinabove, and I repeat that I was left with the
clear impression and understanding that the public inquiry would not be
proceeded with on that day.’
I now turn to
the affidavit of Mr Dawkins, who is the house improvements manager in the
housing department of the council. Mr Dawkins refers to the letter of October
27 and to the particular sentence ‘I have asked the Town Clerk to have the
Public Inquiry adjourned for six months pending the completion of the necessary
documents, etc. As soon as the necessary paper work has been completed and suitable
proposals approved by the council the CPO can be formally withdrawn’, and he
then deposes: ‘I therefore expected both the signing of a nomination agreement and
a grant application to be made and approved in this six month period’, and in
his affidavit he emphasised the point that that second requirement was also
expected.
Mr Cunliffe,
the senior assistant solicitor to the London Borough of Camden, in his
affidavit in paragraph 5, having referred to the request of the inspector to
telephone the appellant, says: ‘I am certain that I identified myself to Mr
Ackerman, said that I was telephoning from the inquiry chamber, or possibly
‘from the inquiry’, and that I asked him if he intended to appear at the
inquiry. He stated that he did not intend to appear. I asked him whether he
wished to withdraw his objection to the order and he replied that he did not. I
therefore told the inspector that the objector wished to sustain his objection.
I am positive that I did not state that the inquiry would not proceed on that
date although I do not remember saying in terms that the inquiry would proceed
in his absence.’
Mr Cunliffe
reported back to the inspector, and the inspector records that fact in
paragraph 11 of his report in these words: ‘In the absence of the objectors the
council’s representative telephoned Mr J P Ackerman, and stated that the
objectors did not intend to appear but that they wished to sustain their
objection. I announced that I would take into account in my report the written
submissions that had been made.’ The
inspector in fact held the inquiry and recommended that the compulsory purchase
order should be confirmed, and it was in July 1977.
Now as there
was a conflict in these two affidavits in relation to what took place on the
telephone conversation, the learned judge allowed cross-examination of the two
deponents in relation to that matter, and reading from his judgment he said
this:
As a result
— that is to
say, as a result of the cross-examination —
it is
apparent that Mr Ackerman was very surprised and agitated to learn that the
inquiry was taking place. There was reference both to the nomination agreements
and to the grant applications, and to Mr Dawkins as the person who could
confirm Mr Ackerman’s understanding of the position. I am satisfied that Mr
Cunliffe did not tell Mr Ackerman that the inquiry would not proceed on that
day, nor did he tell him that it would proceed in his absence if he did not
appear. In his evidence Mr Cunliffe remained clear that Mr Ackerman did say he
was not proposing to attend, although he did not say that the objections could
be dealt with on the basis of the written representation. That was the way the
inspector expressed himself on being told that the applicants were not
attending, but did not wish to withdraw their objections. Mr Ackerman, while
agreeing that he did not answer directly the questions put to him as to his
attendance, was at a loss to understand how Mr Cunliffe could have got the
impression that he was not coming to the inquiry but wished to sustain his
objections. I have, therefore, to resolve this important matter of dispute as
best I can and it is right that I should say that both counsel expressly
disclaim any suggestion that either Mr Cunliffe or Mr Ackerman was not giving
his honest recollection of what occurred during this telephone conversation.
The learned
judge went on to say later in his judgment: ‘Even if there was a genuine
misunderstanding, there was no reasonable basis for it, viewed objectively, and
therefore they failed to attend the inquiry without reasonable cause.’ That was the gist of the judge’s finding in
this case which he specifically made later, that there was no reasonable basis
for the failure to attend the inquiry without reasonable cause.
The learned
judge then said that he accepted Mr Cunliffe’s evidence that Mr Ackerman was
astonished that the inquiry was being held, and then went on to say that in a
conversation which was largely one-sided Mr Ackerman spoke of the various
matters relat-
believed that he had done all that was necessary to meet the council’s
condition for adjourning or cancelling the inquiry.
Later the
learned judge says:
I regret to
say that I can find no reasonable basis for Mr Ackerman’s non-attendance at the
inquiry: it had originally been postponed for 6 months in order to help him and
in accordance with council policy. He was aware that May 3 had been fixed by
the ministry. He had received no intimation from either the ministry or the
council that that date had been vacated, either temporarily or permanently. He
had made no enquiry following the equivocal letter of April 14, in answer to
his letter of April 6. If he did believe, up to May 3, that the inquiry would
not take place following the nomination agreement, and I find it unnecessary to
make a finding as to that, such a belief had, in my view, no reasonable basis.
But even if it had, after the telephone conversation on May 3 it seems to me
impossible to find any reasonable basis for his non-attendance. I am afraid
that I must conclude that the applicants have only themselves to blame for the
case being heard in absentia.
So that the
learned judge was saying that while Mr Ackerman contended that the letters were
in such terms as to lead him to believe that all he had to do was to complete
the nomination agreement and the compulsory purchase order would be cancelled
and the inquiry cancelled or postponed, the learned judge did not regard that
as a reasonable interpretation of the letters. But on the basis that Mr
Ackerman so understood it, none the less, in view of the telephone call of May
3, it was not reasonable for Mr Ackerman to fail to attend the inquiry if he
wished to be heard.
Now the
procedure in these inquiries, so far as is relevant for the present case, is
governed by the Compulsory Purchase by Local Authorities (Inquiry Procedure)
Rules 1962, SI 1962 no 1424, and the particular rule that is relevant to the
present argument is rule 7, subrule 6:
If any
statutory objector does not appear at the inquiry, the appointed person may at
his discretion proceed with the inquiry, and, if he does so, shall (subject to
disclosure thereof at the inquiry) take into account any previous written
representations of such objector in so far as the same appear to him to be
proper and relevant to the matters in issue.
and it was no
doubt by virtue of that rule that the inspector continued with the inquiry.
Counsel
neither here nor below have been able to sustain, and indeed here have not presented,
any argument to the effect that the inspector was in breach of specific rules;
but it is said that compliance with the rules is not an end of the matter, and
that the principles of natural justice must be observed. So far I would not
quarrel with counsel’s submission. He said that no breach was alleged, but the
rule does not lay down how the inspector’s decision to proceed should be
arrived at, and there is, he submits, a general principle that the inspector
must be satisfied that the party concerned is requesting him to continue in his
absence; and in the course of developing the argument to sustain that principle
Mr Horton went on to say that in the case of doubt (I am not sure that he was
not saying as a routine anyway) the inspector himself should phone the party to
satisfy himself that the party was requesting him to proceed in his absence.
Alternatively, if he should not himself phone, he should have a formula to be
used by someone on his behalf, so that the question could be specifically put to
the party concerned, and thus the inspector could be assured that he was being
requested to continue in his absence.
He referred to
the case of Priddle v Fisher & Sons [1968] 1 WLR 1478, and he
relied particularly upon a passage in the judgment of Lord Parker CJ, at p
1481, which reads as follows:
The matter
can be put in many ways, but the way in which it appeals to me is that a
tribunal is acting wrongly in law if, knowing that an appellant has all along
intended to attend and give evidence in support of his claim, and being
satisfied, as they must have been, that he was unable for one reason or another
to attend, they refuse to adjourn merely because he had not asked expressly for
an adjournment. Before deciding to continue the tribunal should be satisfied
that he was inviting them to continue in his absence.
That was an
industrial tribunal case, a claim by an employee against an employer, but the
principle would be applicable to other hearings also.
It seems to me
that in considering the present case we are concerned to consider one question
only, namely: Was the inspector acting in a way that denied natural justice to
the appellant? This case has centred
upon that very narrow point. We have not been concerned to decide what would be
the proper answer if an application had been made to reopen the inquiry. We are
not concerned with a case where the court has received a request to postpone an
inquiry where the very request would of itself indicate that the party was not
willing for the hearing to proceed and where the very request may, in certain
circumstances, require investigation into the facts in order for the president
of the tribunal, whatever that tribunal might be, to conclude whether or not it
would be right to continue with the inquiry. As I said, we are concerned with
that straightforward question as to whether or not the rules of natural justice
had been broken by the inspector.
It seems to
me, as the argument progressed, that Mr Horton was constrained to bring his
argument to that very narrow point and say ‘The rules of natural justice in a
case like this require the inspector to take more steps than the inspector here
took’. In the quotation from Priddle v Fisher, which I have just
read, I would emphasise those words ‘knowing that an appellant has all along
intended to attend and give evidence in support of his claim, and’ — and here
are the important words — ‘being satisfied, as they must have been, that he was
unable for one reason or another to attend’.
In the present
case I think it is right to say that the inspector had been under the
impression that the appellants would attend, and it was for that reason that he
asked the solicitor to make the telephone call. But after that call had been
made and after there had been no positive approach by the appellants to anyone
or in any way whatsoever to postpone the hearing, it seems to me that it cannot
be said that thereafter the inspector was satisfied that they wanted to attend
or were unable to attend for one reason or another. Certainly as to their
ability to attend it is nowhere contended that they were unable to attend.
Reference was
also made to the case of Maxwell v Keun [1928] 1 KB 645 and to
various dicta in that case; but that case was dealing with a request for an
adjournment and on that basis, if no other, is to be distinguished from the
present case.
So, I approach
this problem by asking myself: Did the inspector do anything he ought not to
have done, or did he omit to do anything which he ought not to have done in
pursuance of the basic principle which governs this case, namely affording the
party the right to be heard? The court
cannot compel a party to be heard, or is under no obligation to. In the
circumstances of this case the tribunal certainly had no positive duty to
persuade the party to be heard; its duty was to afford an opportunity to be
heard. It seems to me that by asking the solicitor in effect to ensure that Mr
Ackerman knew that the inquiry was being held that day, and he, the inspector,
was there to hold it, was granting the opportunity to Mr Ackerman. If there had
been a request for an adjournment, or something like that, that had been
communicated to the inspector and he had refused, it may be in all the
circumstances of the case — and I do not say it must be — that there would be
ground for complaint. But that is not the position in this case. The position
here was that Mr Ackerman, not knowing precisely who was making the call to
him, and certainly from his affidavit not assuming that this was a person in
high authority, did not take any further step to see that the inquiry was
postponed, if postponed it had to be for some inability on the part of Mr
Ackerman to attend, or to approach the person on the council with whom he had
been dealing to see that steps were taken by the council to cancel the order. I
cannot, for myself, see in this case that the learned judge’s conclusion can be
faulted when he says that ‘I am afraid that I must conclude that the applicants
have only themselves to blame for the case being heard in absentia‘.
That being the
position, I see no breach of the rules of natural justice here. I agree with
the conclusion at which the learned judge arrived, and I would dismiss this
appeal in relation to that ground.
There is one
further ground of appeal which ought to be dealt with specifically, and that
has been put before the court by a notice of further grounds of appeal. There
it is said the learned judge erred in law in holding that there was a heavy
burden on the appellants to establish a breach of the rules of natural justice.
That ground results
rules could be established, the learned judge said this: ‘No doubt an applicant
who cannot establish a breach of the procedural rules, which are designed to
ensure the fairness of local inquiry proceedings, faces a heavy burden when
claiming a denial of natural justice in relation to the procedure at an inquiry
governed by such rules.’ He referred to
the Lake District Special Planning Board v Secretary of State for the
Environment (1975) 236 EG 417, [1975] 2 EGLR 50. But I do not understand
the learned judge to be approaching this case upon the basis that there is some
special test that he is by law compelled to apply. He went on to say: ‘But
notwithstanding that there was no breach of the rules in this case, Mr Sales
submits that Mr Ackerman’s absence from the inquiry is capable of a reasonable
explanation and he should be allowed the chance therefore of putting his case
to the minister for decision after hearing both sides: Grimshaw v Dunbar
[1953] 1 QB 408′. The learned judge then considered all of the arguments in
relation to the natural justice point.
I regard the
learned judge in the passage just referred to as stating what is in truth the
common sense of the matter. Where it is necessary to prove that a person is
unfair, he has in the very nature of things a somewhat difficult task when
elaborate rules have been laid down and followed to ensure fairness. It just is
a matter of fact that it is, and must be, in such a circumstance, a difficult
task. It does not mean, and I do not read the learned judge as saying so, that
there is some special kind of burden of proof attaching to the appellants in
this case.
I, therefore,
would reject that ground of appeal also and would dismiss this appeal.
Agreeing,
OLIVER LJ said: I am prepared to accept, for my part, that up to the time of
the telephone call on May 3 1977 the applicants believed, whether reasonably or
not, that the inquiry was to be postponed or cancelled; but that picture
changed entirely, in my judgment, on May 3 when the applicants were told of the
inspector’s presence at the town hall for the very purpose of holding the
inquiry. Mr Ackerman’s own evidence was that this information was retailed to
him by an informant of whose identity and status he was unaware, and I am bound
to say that I share in full measure the difficulty which the learned judge felt
about this. I do not think that the rules of natural justice require an
assumption that people of full age and understanding are going to behave
otherwise than in a reasonable manner, and in the last analysis, in my
judgment, the appellants’ absence from the inquiry was due not to any
non-observance by the inspector of the rules of natural justice but to the
failure of the applicants to behave as reasonable people once they had been
told that the inspector had arrived to hold the inquiry.
The learned
judge in his judgment put it in this way:
Mr Ackerman’s
surprise and agitation was, in the circumstances, understandable: but would not
a reasonable man in his position, realising that his understanding was
evidently not shared by the department or the council and that the inquiry was
under way, have taken positive steps to protect his position? Would he not have asked to speak to the
inspector if possible, or asked for an adjournment, or go at once to the town
hall and explain the situation in relation to himself and his expert, and do
his best to ensure that he was given a hearing then or on some other day? He did none of those things. He did not know
who was speaking on the telephone, or with what authority he spoke. And yet he
says, having asked his unknown interlocutor to speak to Mr Dawkins and sort
things out, he assumed that that would be an end of the matter: in other words,
that the council would drop the order, the inspector would pack up and go home,
and he need not therefore attend.
The learned
judge stated his conclusion in the words which my Lord Eveleigh LJ has already
read: ‘I am afraid that I must conclude that the applicants have only
themselves to blame for the case being heard in absentia.’
With every
word of that I agree, and I therefore agree that this appeal must be dismissed.
Also agreeing
MEGAW LJ said: In a recent decision of the House of Lords, Bushell v Secretary
of State for the Environment [1980] 3 WLR 22, Lord Diplock, in the course
of his speech dealing with the duties of an inspector in an inquiry held under
the orders of the Secretary of State for the Environment in respect of schemes
for motorways, said this in relation to the discretion of the minister or the
inspector appointed by him, at p 27 letter G:
In exercising
that discretion, as in exercising any other administrative function, they owe a
constitutional duty to perform it fairly and honestly and to the best of their
ability, as Lord Greene MR pointed out in his neglected but luminous analysis
of the quasi-judicial and administrative functions of a minister as confirming
authority of a compulsory purchase order made by a local authority which is to
be found in B Johnson & Co (Builders) Ltd v Minister of Health
[1947] 2 All ER 395, at pp 399 to 400.
I break off
from the citation of Lord Diplock’s speech there to say that one of the matters
stressed by Lord Greene in that judgment was that in matters of this sort there
is a public interest which is an interest that has to be taken into account
independent of the interest of those who might be described as being the
parties to a particular list or law suit.
Lord Diplock
goes on:
That judgment
contains a salutary warning against applying to procedures involved in the
making of administrative decisions concepts that are appropriate to the conduct
of ordinary civil litigation between private parties. So rather than use such
phrases as ‘natural justice’ which may suggest that the prototype is only to be
found in procedures followed by English courts of law, I prefer to put it that
in the absence of any rules made under the Tribunals and Inquiries Act 1971,
the only requirement . . . as to the procedure to be followed at a local
inquiry . . . is that it must be fair to all those who have an interest in the
decision that will follow it.
I am quite
unable to see, despite Mr Horton’s interesting and ingenious submissions, that
it can possibly be said that the inspector in the present case failed in any
way in a duty of fairness in what he did in relation to this inquiry and the
absence of the applicant when the inspector came to open the inquiry.
There is
another possible aspect of this appeal, even though any charge of unfairness
against the inspector is wholly misconceived, as in my judgment it is. It might
still be possible to submit that this court would have jurisdiction to
interfere and should interfere if the true view were that the absence of the
applicant from the inspector’s inquiry was caused by some fault, some negligent
act or omission, on the part of a representative of the local authority. We do
not, as I see it, need to consider further what the position would be in those
circumstances. It may well be that there would be difficulties even so in the
way of the applicant; but it does not fall to be considered in this case
because it is clear from the conclusions which the learned judge reached on the
facts — and his conclusions on facts included his consideration of oral
evidence which he had heard and which we have not seen — that it is impossible
to say that the absence of the applicant from the inquiry was due to any fault
on the part of the representative of the local authority. The most that can be
said in favour of the applicant on the facts as found by the judge is that the
representative of the local authority who telephoned and spoke to Mr Ackerman
may have misunderstood what Mr Ackerman intended to say. But on the judge’s
findings it is clear that that was not due to any fault on the part of the
representative of the local authority. If the position were that Mr Ackerman
intended to make it clear that he thought that the local inquiry was not going
to proceed, he failed to do so. As his failure to do so was a failure on his
own part and was not due to any mistake or misunderstanding for which the other
party to the conversation was responsible, this cannot be a case in which that
misunderstanding by him could entitle this court to interfere. I agree that the
appeal must be dismissed.
The appeal
was dismissed with costs.
