Compulsory purchase — Compulsory purchase order — Validity — Acquisition under section 17 of the Housing Act 1985 for housing purposes — Property containing ground-floor commercial use — Commercial use remaining after acquisition and refurbishment — Whether lawful to acquire commercial part — Whether order made as last resort — Whether evidence and reasons supporting need for commercial part to avoid tenure problems in relation to future repairs — Whether violation of European Convention on Human Rights
The claimant was the owner of a property in Soho, London W1. Part of the property was used for commercial purposes and part was believed to be used for, or in connection with, prostitution. The second defendant council, which was concerned to increase and improve the provision of housing accommodation in the area, made a number of attempts to persuade the claimant to refurbish the property, on a voluntary basis, for that purpose. This failed, and the council made a compulsory purchase order under section 17 of the Housing Act 1985 with a view to the compulsory acquisition of the entire property. The order was confirmed by the first defendant Secretary of State. The claimant challenged that decision, contending that: (i) section 17 did not empower the council to acquire the commercial part of the property, since this part was not required in order to provide housing accommodation; (ii) the order had not been made as a last resort; (iii) there was no, or no adequate, evidential basis concerning tenure problems if the commercial part were to be excluded; (iv) there was a lack of any, or any adequate, reasons in respect of these tenurial problems; and (v) the order amounted to a violation of the claimant’s rights under Article 1 of the First Protocol to the European Convention on Human Rights, and a violation of the Article 8 rights of two women who occupied the upper parts.
Held: The application was dismissed.
(1) The inclusion of the commercial part of the property was authorised by section 17 of the 1985 Act because the inspector had found that it was incidental to the acquisition of the residential parts. In any event, the property, as a whole, constituted a “house” within the meaning of section 17, notwithstanding that it contained a commercial part. Section 17(1)(b) authorised the acquisition of a house for housing purposes; the test was therefore whether the house as a whole was required for housing purposes, not whether each individual part was so required. (2) In the light of the history of the council’s endeavours to secure voluntary improvement of the property, the inspector had been entitled to conclude that the claimant did not genuinely intend to carry out the necessary works. (3) He was entitled to conclude, on the evidence before him of the building’s state of repair, that it was necessary to acquire the commercial element to prevent the tenure problems in respect of repairs that were inherent in a flying freehold. (4) The inspector had properly addressed the problems of tenure that would arise if the non-commercial parts of the property were acquired without the commercial parts. (5) There had been no violation of the Convention on Human Rights. The Secretary of State had been entitled to strike a fair balance between the interests of the claimant and the wider public interest.
The following case is referred to in this report.
Re Butler; sub nom Camberwell (Wingfield Mews) No 2 Clearance Order 1936, Re [1939] 1 KB 570, CA
This was the hearing of an application by the claimant, Ainsdale Investments Ltd, under section 23 of the Acquisition of Land Act 1981, challenging the decision of the first defendant, the First Secretary of State, to confirm a compulsory purchase order made by the second defendants, Westminster City Council.
Stephen Cottle (instructed by Stephen Hendeles & Co) appeared for the claimant; Robert Palmer (instructed by the Treasury Solicitor) represented the first defendant; Romie Tager QC and Jonathan Ferris (instructed by the solicitor to Westminster City Council) represented the second defendants.
Giving judgment,
[1] The claimant, a company registered in the British Virgin Islands, is the owner of a property known as 2 Peter Street, Soho, London W1 (the property). By a decision letter dated 20 August 2003, the first defendant confirmed a compulsory purchase order (CPO) relating to the property that had been made by the second defendants on 30 July 2002. In confirming the order, the Secretary of State accepted the recommendation of an inspector, who had held a public local inquiry into the order on 11 February 2003 and reported to the first defendant on 23 April 2003. The claimant now seeks to challenge both the making of the CPO by the second defendants, and its confirmation by the first defendant, by statutory appeal under sections 23 and 24 of the Acquisition of Land Act 1981.
[2] The property, which is used for mixed residential/commercial purposes, is situated in the Soho conservation area. It consists of two buildings linked by a courtyard. The front building has four storeys, including a basement, and the rear building has three storeys. The ground floor and basement of the front building are used as an unlicensed sex shop, selling pornographic videos. The remainder of the property has been used for many years by prostitutes and their “maids”. Access to the first and second storeys of the front building is by an external staircase from the courtyard.
[3] The freehold of the property was purchased by the claimant in 1996. Inspection of the property by officers of the second defendants in 1999 revealed it to be in a poor state of repair, with extensive structural problems. The defects included substandard electrical installations and inadequate fire precautions. Between July and December 1999, the second defendants wrote to the claimant on three occasions expressing concern as to the dilapidated state of the property, and contending that it was not making a proper contribution to the housing stock of the City of Westminster because the residential parts were being used for |page:10| prostitution. The claimant was asked whether any proposals existed for the refurbishment of the property and the return of the residential parts to proper residential use. On 4 February 2000, the first defendant again wrote to the claimant’s solicitor stating, inter alia, that:
In case you and your client are unaware, the first and second floors are being used for prostitution. This information can be verified by the police who have visited the property regularly over the past year.
As mentioned in my original letter to your client’s dated 9th July 1999 (copy enclosed), the City Council is committed to increasing the supply of permanent residential accommodation in Westminster for both owner occupation and renting. Clearly because the first and second floors of 2 Peter Street are being used for prostitution they are not available for residential purposes and therefore represent a waste of potential housing accommodation.
I should be grateful therefore if, in the first instance, you will confirm whether or not your client is prepared to take action to remove the prostitutes from the first and second floors and return this accommodation to permanent residential use.
I would emphasise that the City Council would much prefer to see this happen as a result of voluntary action and co-operation on the part of your client. However if your client proves unwilling or unable to return the upper floors to permanent residential use, the City Council will not hesitate to invoke its powers of compulsory purchase as a last resort.
[4] The claimant’s solicitor replied by fax on the following day in the following terms:
We are obviously taking instructions and our client’s manager will be visiting the premises. Having spoken with our client’s manager today, they are of the view that they would far prefer to see the upper part of the premises refurbished and let on proper assured short-hold tenancies in the private sector at market rents so as to maximise their investment in the property. We are of the view that our clients would be very shocked by what you have to say in your letter as to the current user.
We hope to revert to you very shortly after there has been an inspection of the property and then a meeting.
[5] On 10 February 2000, the second defendants wrote again asking specifically whether the claimant had “any definite proposals for the comprehensive refurbishment of the above mentioned property and the return of the upper floors to permanent residential use”. The letter went on to say that unless there was a response to the contrary within 40 days, it would be assumed that no such proposals existed, and that, in those circumstances, there would be a report to the housing committee recommending that the property be made the subject of a CPO. The claimant’s solicitor responded immediately saying that the claimant would attempt to obtain vacant possession of the upper parts of the premises and that “once vacant possession is obtained intend to carry out considerable refurbishment to the flat”. They wrote again on 14 February 2000 saying that any attempt compulsorily to acquire the premises would be vigorously fought.
[6] On 12 April 2000, the second defendants wrote saying that if there was no evidence of firm progress towards establishing the status of the occupiers and the preparation of proposals for the refurbishment of the property and the return of the upper floors to proper and permanent residential use by 22 May, the recommendation that the property be made the subject of a CPO would be put to the housing committee.
[7] That recommendation was duly put before the housing committee on 6 June 2000. The committee decided to recommend that the second defendants make such an order, and the second defendants duly resolved to make the order in November 2000. When notified of the resolution, the claimant’s solicitor responded by letter dated 24 November, stating that it was no longer instructed by the claimant to deal with any correspondence relating to the property and adding “we have no instructions to forward your correspondence to the company either”.
[8] Shortly after resolving to make the CPO, the second defendants wrote to the two women, a Ms Mardlin and a Ms Cromack, who claimed to have been tenants of flats within the residential part of the property for some years, asking for copies of their tenancy agreements. There was no response.
[9] The second defendants then sought confirmation of the CPO from the first defendant, the reasons for making the order being set out in a statement dated 30 July 2002. On 9 December 2002, the first defendant gave notice that there would be a public local inquiry into the matter.
[10] The public inquiry was held on 11 February 2003. The claimant was represented by counsel. Ms Mardlin and Ms Cromack also objected to the order. They were not present at the inquiry, but were represented by counsel on a noting brief and were present at the property when the inspector carried out an inspection on the following day. The claimant adduced the evidence of an expert building surveyor, Mr Stephen Hicks, as to the condition of the building.
[11] In his decision letter dated 23 April 2003, the inspector recommended that the CPO be confirmed. In arriving at that conclusion he found that:
93. Ainsdale Ltd have owned the Order Property since 1996, and yet the property still remains in poor condition. The company says that they would be happy to enter into an undertaking to carry out works on the Order Property and have set out a framework for that. However, its production just days before the start of the enquiry, the scant information, and the lack of any completion date, gives me little confidence that this shows a genuine intention to improve the property.
95. The council estimate that the Order Property would be refurbished within 15 months of the Compulsory Purchase Order, and again no evidence was given to contradict that. Given the extent of housing need in Westminster and the council’s empty property strategy I have no reason to doubt that the council would expedite the improvement of the property.
…
96. I conclude that confirming the Compulsory Purchase Order would result in a qualitative housing gain.
…
101. … I consider that the balance of the evidence points towards it being more likely than not that Ms Cromack and Ms Mardlin do not reside at the Order Property.
…
103. In my view the evidence given by those who inspected the property clearly show it being used by a variety of women for prostitution. However there is no clear indication notwithstanding the rating of the upper floors of 2 Peter Street as a business unit, that the maids and prostitutes did not also reside at the Order Property to some extent as well as carrying on the business of prostitution. Equally however, there is no clear evidence to support the case for residential occupation made on behalf of Ainsdale. Their case is based upon the assertion of their counsel at the inquiry, and no substantial evidence was provided in support of this.
…
105. Moreover, whilst my inspection of the Order Property showed the kind of facilities in place that are potentially signs of residential occupation, they could just as easily have solely served the needs of prostitutes and maids working from the premises but not living at them.
106. I conclude that evidence on whether or not there would be a quantative gain from the Compulsory Purchase Order is inconclusive.
…
108. … I am entirely satisfied that the Compulsory Purchase Order is being promoted as a measure of last resort, and that the council has done all that it reasonably could in difficult circumstances to seek a voluntary improvement of the property.
109. Section 17(1) of the Housing Act 1985 gives councils the power to “acquire houses or buildings which may be made suitable as houses, together with any land occupied with houses or buildings.” From the council’s legal submissions on Ashbridge Investments Ltd v Minister of Housing and Local Government (1965), Re Hammersmith (Bergham Mews) Clearances Order (1936) and Re Butler (1939), I am satisfied that “house” may be defined so that it is open for the acquiring authority to purchase the Order Property notwithstanding the commercial shop use of part of the building and regardless of whether or not the residential accommodation is actually used for living purposes.
110. These cases, do not appear, however, to apply directly to whether a Compulsory Purchase Order is appropriate in a case where part of the property to be purchased would not be retained for residential use. The objector alleges that a Compulsory Purchase Order is not appropriate in these circumstances, and refers to Meravale Builders v Secretary of State for the Environment and Another (1978), and Municipal Council of Sydney v Campbell and Others (1924). Those cases held that compulsory purchase powers should not be used |page:11| to acquire land compulsory for purposes not granted in those powers. However the primary purpose in this case is the Purchase Order of the Order Property for housing purposes, and the need to purchase the commercial element of it is to prevent problems regarding tenure and repair. Thus the purchase of the commercial part of the property, even if it is to be retained in commercial use, is incidental to the purchase of the property for residential purposes. In my view it is therefore within the powers conferred by the Housing Act.
[12] In its decision letter dated 20 August 2003, the first defendant accepted the inspector’s recommendation and confirmed the CPO.
Statutory framework
[13] By section 9(1) of the Housing Act 1985 (the 1985 Act), a local housing authority may “provide” housing accommodation, either: (a) by erecting houses, or converting buildings into houses, on land acquired by them for the purposes of Part II of the 1985 Act; or (b) by acquiring houses.
[14] Under section 15(1) of the Act, “a London Borough Council may provide and maintain in connection with housing accommodation provided by them under this Part buildings or parts of buildings adapted for use for any commercial purpose”.
[15] The power compulsorily to acquire land for housing purposes and the duties that arise in relation to buildings acquired for such purposes are contained in section 17 and 18 of the 1985 Act.
ACQUISITION OF LAND FOR HOUSING PURPOSES
17.—-(1) A local housing authority may for the purposes of this part
(a) acquire land as a site for the erection of houses,
(b) acquire houses, or buildings, which may be made suitable as houses, together with any land occupied with the houses or buildings,
(c) acquire land proposed to be used for any purpose authorised by sections 11, 12 and 15 (1) (facilities provided in connection with housing accommodation), and
(d) acquire land in order to carry on it works for the purposes of, or connected with, the alteration, enlarging, repair or improvement of an adjoining house.
(2) The power conferred by sub-section (1) includes power to acquire land for the purpose of disposing of houses provided, or to be provided, on the land, or of disposing of the land to a person who intends to provide housing accommodation on it…
(3) Land may be acquired by a local housing authority for the purposes of this Part by agreement, or they may be authorised by the Secretary of State to acquire it compulsorily.
(4)…
DUTIES WITH RESPECT TO BUILDINGS ACQUIRED FOR HOUSING PURPOSES
18. —-(1) Where a local housing authority acquire a building which may be made suitable as a house, they shall forthwith proceed to secure that the building is so made suitable either by themselves executing any necessary works or by leasing it or by selling it to some person subject to conditions for securing that he will so make it suitable.
(2) Where a local housing authority –
(a) acquire a house, or
(b) acquire a building which may be made suitable as a house and themselves carry out any necessary work as mentioned in sub-section (1),
they shall, as soon as practicable after the acquisition or, as the case may be, after the completion of the necessary works, secure that the house or building is used as housing accommodation.
[16] The first defendant’s policy with regard to CPOs is contained in Circular 02/2003. Paragraphs 13 and 14 are in the following terms:
JUSTIFICATION FOR MAKING A COMPULSORY PURCHASE ORDER
13. It is for the acquiring authority to determine how best to justify its proposals for the compulsory acquisition of any land and to be ready to defend such proposals at any inquiry and, if necessary, in the courts. It is not the role of government to interpret the law as it applies to acquiring authorities. The following guidance is offered to give an indication of the factors to which a confirming Secretary of State may have regard in deciding whether or not to confirm an order, and which acquiring authorities might therefore find it useful to take into account.
14. A compulsory purchase order should only be made where there is a compelling case in the public interest. An acquiring authority should be sure that the purposes for which it is making a compulsory purchase order sufficiently justify interfering with the human rights of those with an interest in the land affected, having regard, in particular, to the provisions of Article 1 of the First Protocol to the European Convention on Human Rights and, in the case of a dwelling, Article 8 of the Convention.
15. The confirming Secretary of State has to be able to take a balanced view between the intentions of the acquiring authority and the concerns of those whose land is to be expropriated. The more comprehensive the justification which the acquiring authority can present, the stronger its case is likely to be. But each case has to be considered on its own merits and the advice in this Circular is not intended to imply that the confirming Secretary of State will require any particular degree of justification for any specific order. Nor will a confirming Secretary of State make any general presumption that, in order to show that there is a compelling case in the public interest, an acquiring authority must be able to demonstrate that the land is required immediately in order to secure the purpose for which it is to be acquired.
Appendix D to the circular provides the following guidance as to the circumstances in which the powers conferred by Part II of the 1985 Act may be used. Paragraphs 3 and 4 are in the following terms:
Section 17 of the Housing Act… empowers local housing authorities to compulsorily acquire land, houses or other properties for the provision of housing accommodation. Acquisition must achieve a quantative or qualitative housing gain.
4. The main uses of this power have been to assemble land for housing and ancillary development, including the provision of access roads; to bring empty properties into housing use; and to improve sub-standard or defective properties. Current practices for authorities acquiring land or property compulsory to dispose of it to the private sector, Housing Associations or owner-occupiers…
No challenge is made to the policy contained in the circular.
Grounds of appeal
[17] In accepting the inspector’s recommendation that the CPO should be confirmed, the Secretary of State accepted his conclusions without qualification. In those circumstances, the challenge to the decision by the Secretary of State is essentially a challenge to the inspector’s report.
[18] The grounds of appeal can be considered under four heads:
1. The contention that the CPO made by the second defendants and the decision by the first defendant to confirm the order were not authorised by section 17 of the Act, or, alternatively, that both the first and second defendants had applied the wrong test when applying the section: the legality issue.
2. The contention that the CPO had not been made by the second defendants as a last resort, and ought not to have been confirmed by the first defendant: the last-resort issue.
3. The lack of any, or any adequate, evidential basis for the decision by the Secretary of State: the evidential issue.
4. The lack of any, or any adequate, reasons for the decision by the Secretary of State: the reasons issue.
Legality issue
[19] The challenge is essentially directed to para 110 of the inspector’s decision, in which he found that the primary purpose of the CPO was the purchase of the property for housing purposes, and that there was a need to purchase the commercial part of the property to prevent problems with regard to tenure and repair. He went on to conclude that the purchase of the commercial part, even if it were to be retained in commercial use, was incidental to the purchase of the property for residential purposes, and was therefore within the powers conferred by section 17.
[20] By ground 5 of the ground of appeal, the claimant contends that:
Section 17 of the Housing Act 1985 does not permit compulsory purchase of a shop to be retained as such. The CPO of the shop was not in accordance with the law. The first defendant adopted the wrong test for deciding that because the acquisition of a ground floor shop was incidental to the housing purpose it was within the powers of the Act to acquire the shop and retain it as such. The case law referred to in the inspector’s decision did not provide authority for the test that the first defendant has used and/or the case law is distinguishable and/or no longer binding in the light of the Human Rights Act 1998. The need to strictly construe the power to compulsory purchase meant that purchase of a flying |page:12| freehold or creation of a lease of the accommodation above the shop to be used for housing purposes was all that was permitted by the Act.
The argument was developed in the claimant’s skeleton argument in the following terms:
The power of compulsory purchase under section 17 of the 1985 Act does not authorise the acquisition of more land than might be absolutely necessary to effect the statutory purpose.
[21] This ground gives rise to two related issues: first as to whether the inspector had erred in law in his conclusion that section 17 gave the second defendants the power to acquire the commercial part of the property as incidental to the purchase of the property for residential purposes, and, second, whether he had applied the wrong test in deciding that the acquisition was incidental to the purpose for which the property was acquired.
[22] It is well established that a statutory power cannot be exercised for a purpose differing from that specified by the statute. But it is equally well established that although land that has been compulsorily acquired may be used only for the purpose for which the acquiring authority had been authorised to acquire it, the authorised purposes include any use that is ancillary or incidental to that use. The relevant principles were succinctly summarised by Willis J in Meravale Builders v Secretary of State for the Environment 77 LGR 365, at pp368-369:
There can be no doubt that a public authority should only be permitted to acquire land compulsorily if it does so for the purposes for which it has been granted compulsory powers. Galloway v London Corporation (1986) LR 1 HL 34.
If the purposes for which land is proposed to be acquired include purposes which in a material respect are outside the statutory purpose the Order will be quashed: Webb v Minister of Housing in Local Government [1965] 1 WLR 755; 63 LGR 250. But there is no basis for questioning the vires of the exercise of powers merely because an incidental benefit is conferred as a result of those powers being otherwise being properly exercised; Westminster Corporation v London and North Western Railways [1905] AC 426; 3 LGR 1120. If an acquiring authority uses their powers partly for their statutory purposes and partly to confer a benefit upon, for example, another authority, they are acting ultra vires in using their powers for a wrong purpose. JL Denman & Co. Ltd v Westminster Corporation [1906] 1 CH 464; 4 LGR 442. If the purposes do not prima facie do not appear to be authorised by the statute they are none the less not open to challenge if they are fairly and reasonably incidental to the declared statutory purpose. Loweth v Minister of Housing and Local Government (1971) 22 P&CR 125.
[23] Accordingly, the inclusion of the commercial part in the CPO would be authorised by section 17 if incidental to the acquisition of the residential parts.
[24] As to the second issue, it is the claimant’s case that a CPO must be limited to the property “absolutely necessary” to effect the statutory purpose. It is submitted that the proper application of that test would have excluded the commercial part of the premises.
[25] That is a higher test than the test of whether the acquisition of the commercial part is incidental to the purchase of the residential part, and is a test for which I can find no basis in law.
[26] In my judgment, the inspector did not err in the application of section 17, and was fully entitled, on the evidence before him, to conclude that the acquisition of the commercial part of the property was incidental to the purchase of the residential part.
[27] The defendants deployed a further argument to meet the claimant’s contention that the inspector had erred in the application of section 17. The CPO was made under section 17(1)(b), which authorises the purchase of a house or building for housing purposes. It is submitted that, in the context of section 17, the word “house” may include a part of the structure used for commercial rather than for residential purposes, and that, accordingly, the test was whether the property was a “house” within the meaning of section 17, and, if so, whether it was required for housing purposes, and not whether each individual part of it was required for such purposes. In support of that submission, I was referred to a number of authorities, and, in particular, to the decision of the Court of Appeal in In Re Butler [1939] 1 KB 570, in which it was held that a structure consisting of a garage or workshop with a dwelling above it was a “house” within the meaning of the Housing Act 1936.
[28] Having referred to the same line of authority, the inspector concluded:
38. Given the above, it is open to the acquiring authority in this case to conclude that the Order Property consisting of one or two floors of commercial uses with additional floors of residential accommodation above and behind, whether or not actually used for living purposes, is a house for the purposes of Section 17 of the 1985 Act. It is also open to the council to purchase the Order Property for it to be used partly as a house and partly for commercial purposes.
[29] In my judgment, the inspector’s analysis of both the law and the facts was correct. It follows that the defendants’ submission, that the proper construction of the word “house” in section 17 provides a further reason as to why the challenge to the inspector’s decision fails, is well founded.
“Last-resort” issue
[30] The “last-resort issue” is raised by grounds 3, 4 and 6 of the grounds of appeal. By ground 3, it is submitted that there was no basis for dismissing “seemingly out of hand” the claimant’s case that the offer to carry out works obviated the necessity for a CPO. The building surveyor who was called on behalf of the claimant detailed the work that was required to bring the property up to a reasonable standard, and indicated that it would cost between £40,000-50,000. But the inspector was not satisfied that there was any genuine intention on the part of the claimant to carry out the necessary works: see para 93 of his report in [11].
[31] In the light of the history of the endeavours made by the second defendants to secure the voluntary improvement of the property by the claimant summarised in paras 28 to 31 of his report, that was a conclusion that was plainly open to him. Furthermore, no evidence had been given at the inquiry by a director of the claimant’s, or any other individual with management responsibility, as to the claimant’s alleged intention to remedy the serious and long-standing dilapidations and structural defects affecting the property, or as to when such work would be carried out, or how it would be financed.
[32] Ground 4 is, in essence, the same point directed at the second defendants. By ground 6, the claimant contends that there were other powers available to the second defendants to achieve the purposes for which the CPO had been made, in particular management powers for houses in multiple occupation or the appointment of a manager and receiver of the residential parts of the building. As to that, there are two points to be made. First, no such argument had been advanced before the inspector. Second, such powers were not available to the second defendants for the reasons set out in para 10 of the written evidence of Mr Jake Mathias to the inquiry dated 5 February 2003, in particular that:
A subsequent cursory inspection of the property by an Environmental Health Officer in February 2000 revealed that the property had inadequate fire precautions and that a detailed survey would result in a finding that the property, if used for residential purposes, would be found to be unfit for human habitation under section 601 of the Housing Act 1985. It was decided that it would be inappropriate for the City Council to serve statutory notices under Housing Act provisions requiring the residential accommodation to be brought up to a satisfactory standard because it was clear that the accommodation was not being used for proper residential purposes.
[33] In short, there is no substance to the “last-resort” argument.
“Evidential” issue
[34] The “evidential” issue is raised by grounds 1(i) and 2(i) of the amended grounds. By ground 1(i), the claimant asserts that there was no evidence before the inspector and the first defendant to support the conclusion that it was necessary to acquire the commercial part of the building to prevent problems regarding tenure, and, by ground 2(ii), that the evidence as to the necessity to acquire the commercial part in order to prevent problems with regard to repair was not compelling. |page:13|
[35] As to tenure, the problems that the inspector must have had in mind were those raised on behalf of the second defendants at the inquiry, namely the problems inherent in the concept of a flying freehold, and the problem of the requisite repairing covenant in relation to the ground floor and basement were a leasehold interest compulsorily to be acquired. That was not a matter that required evidence.
[36] As to repair, the inspector had heard detailed evidence from the claimant’s building surveyor as to the condition of the property. His conclusion was plainly open to him on the basis of such evidence.
“Reasons” issue
[37] The “reasons” point is taken in ground 1(ii) and (iii) and 2(ii). The complaint under 1(ii) and (iii) is that the conclusions with regard to the problems of tenure were not adequately explained or reasoned, and, at (ii), that the inspector and first defendant had failed to give reasons for the conclusion that it was not practicable to refurbish the upper floors without also attending to disrepair affecting the basement and ground floors.
[38] The first point is that the arguments that the claimant now seeks to advance in relation to tenure and repair had not been advanced before the inspector. The inspector cannot fairly be criticised for failing to deal in detail with matters that were not put in issue before him. Second, the reasoning that lay behind his conclusions was, in each case, essentially a matter of common sense. In those circumstances, the failure to set out the detailed reasoning that led him to his conclusions does not invalidate them. These grounds are also without substance.
[39] Furthermore, the premise upon which ground 1(i) is based, namely that, by tenure, the inspector and first defendant were adopting the position taken by the second defendants in their officers’ report, which stated “It was not acceptable… to provide… accommodation to be occupied by families above an unlicensed video shop selling sexually explicit material”, is without foundation. There is nothing in the inspector’s report to indicate that he based his conclusion as to tenure upon that proposition, whereas the term “tenure” plainly embraces the problems inherent in acquiring a flying freehold or a leasehold interest.
[40] Finally, it is submitted by the claimant that the CPO amounted to a violation of the claimant’s rights under Article 1 of the First Protocol, of protection of property and, in relation to Ms Cromack and Ms Mardlin, that there would be a violation of Article 8. So far as the latter are concerned, the inspector concluded that it was more likely than not that they do not reside at the order property. So far as the claimant is concerned, the Secretary of State concluded, in para 9 of the decision letter:
The Secretary of State has also carefully considered the objectors’ submissions put forward at the inquiry on whether the purposes for which the Compulsory Purchase Order is required sufficiently justify interfering with the Human Rights of the owners and alleged occupiers and he is satisfied that they do so. In particular he has considered the provisions of Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol of that Convention. In this respect the Secretary of State agrees with the inspector’s conclusion that confirmation of the Compulsory Purchase Order is necessary in the wider public interest and he is therefore satisfied that, in the use of compulsory purchase powers of this case, a fair balance has been struck between the need to protect the fundamental rights of the owners and alleged occupiers and the public interest.
[41] In my judgment, that approach cannot be faulted. Furthermore, the claimant will receive full compensation for the loss of the property in question.
[42] Finally, by its respondent’s notice, the second defendants contend that the inspector ought to have concluded that the CPO would result in a quantative gain to the housing stock. But as the first defendant observed in the course of argument, if the claimant’s challenge fails, the point is academic. It is therefore unnecessary for me to address it.
Application dismissed.
