Acquisition of land – Compulsory purchase order (CPO) – Empty dwelling management order (EDMO) – Local authority making CPO in respect of claimant’s empty property in disrepair – Secretary of State confirming CPO – Claimant applying for judicial review – Whether inspector erring in failing to consider whether property was empty dwelling under EDMO regime – Whether inspector erring in finding local authority’s proposals preferable – Whether making of CPO proportionate – Application dismissed
The claimant owned a property which he had used only sporadically from 2000 and which had fallen into disrepair as a result of lack of basic and routine maintenance. In November 2009 the local authority (the interested party) resolved to make a compulsory purchase order (CPO) in respect of the property pursuant to section 17 of the Housing Act 1985. The stated purpose of the CPO was to return the property to residential use and achieve a quantitative housing gain to the local authority by onward sale to a registered social landlord or offered for disposal to the private sector at auction.
The claimant objected to the CPO by a statement of case under rule 7 of the Compulsory Purchase (Inquiries Procedure) Rules 2007 but defendant secretary of state confirmed the CPO without modification on the recommendation of the inspector. The claimant applied for judicial review, seeking an order under section 23(1) of the Acquisition of Land Act 1981 to quash the defendant’s decision to confirm the CPO.
The claimant contended that: (i) The inspector and the defendant had erred in law in failing to take into account, in determining whether the property was a empty property under the 1985 Act, that the property was not an “empty dwelling” for the purpose of making an empty dwelling management Order (EDMO) under sections 132-134 of the Housing Act 2004 and the Housing (Empty Dwelling Management Orders) (Prescribed Exceptions and Requirements) (England) Order 2006, which was a material consideration in deciding whether it was an “empty property” under the CPO regime in Circular 06/2004; (ii) The inspector had erred in concluding that the interested party had demonstrated that their intentions were preferable to any proposals advanced by the claimant; and (iii) the making of the CPO engaged the claimant’s rights to family and private life under article 8 of the European Convention on Human Rights and the making of the CPO was not proportionate.
Held: The application was dismissed.
(1) There was no serious dispute that the property was not “an empty dwelling” for the purposes of the EDMO regime, because one reason why the claimant had left the property unoccupied was to provide care to his elderly mother who was resident far from the property. However, there was nothing that expressly required a decision maker under the Housing Act 1985 to consider, for the purpose of making or confirming a CPO, whether or not a relevant property was an “empty dwelling” under the EDMO regime. Parliament could have made plain, either in the Housing Act 2004 itself or by amendment of the Housing Act 1985, that a decision maker under the CPO regime had to have regard to the EDMO regime but had not done so.
In those circumstances a court had to be extremely cautious before holding that any such obligation should be implied, particularly in the context of social legislation, where reading in unexpressed statutory obligations by a process of judicial usurpation of the legislative function was fraught with danger. It was clear from the legislative history that the EDMO regime was intended to create additional powers for bringing unoccupied property into residential use, hedged by important and specific safeguards. The additional powers were considered desirable because the CPO regime was lengthy, complex and costly. There was no discernible intention that the existing CPO regime should be in any way cut back, or qualified, by the EDMO regime. Further, if a property was an “empty dwelling” under the EDMO regime, an acquiring authority would be powerless to acquire by CPO property that had been left unoccupied and in continuing unacceptable disrepair and neglect, so long as the owner had an EDMO reason for leaving the property unoccupied: Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2009] EWHC 1729 (Admin) considered.
(2) The claimant’s argument, that the inspector should not have considered whether the intentions of the interested party in respect of the property were preferable, was wholly without merit. The claimant had contended that, if the property were deemed an empty property, he was capable of returning it to housing use without any further explanation. By contrast, the interested party had made an impeccable statement of their obligation and of their proposals.
The inspector then carefully considered those proposals at length and concluded, on balance, that more reliance should be placed on the interested party’s well-defined intentions than on the claimant’s unsupported proposition. Accordingly, the inspector had carried out precisely the analysis and comparison that the claimant had forcefully contended for, arising from a mandatory obligation on the proper construction of Circular 06/2004 as a whole.
(3) It was well arguable that the CPO regime potentially engaged article 8 but, even if it was so engaged, each case would require careful scrutiny. The inspector had made unchallengeable findings of fact that the property had been left empty for a substantial period and in a lamentable and unremedied state of disrepair. Under the claimant’s continuing ownership there was, on the inspector’s clear findings, no realistic prospect that the property would be restored for use as a residential dwelling. The interested party had shown beyond doubt the acute need for more residential dwellings, and had satisfied the inspector that their proposal, unlike that of the claimant, was realistic and likely to secure a result strongly conducive to promoting the public welfare. Thus, the compelling social need outweighed any article 8 rights of the claimant, and the CPO was proportionate having regard to the content of that right in the present context and the wider public interest which the CPO regime sought to advance: R (on the application of Maley) v Secretary of State for Communities and Local Government [2008] EWHC 2652 (Admin); [2008] PLSCS 238 considered.
Roger Bartlett (instructed by Irwin Mitchell LLP) appeared for the claimant; David Forsdick (instructed by the Treasury Solicitor) appeared for the defendant.
Eileen O’Grady, barrister
