Land – Compulsory purchase – Defendant local authority making compulsory purchase order in respect of claimant’s property – Claimant challenging order under section 23 of Acquisition of Land Act 1981 – Whether defendant in breach of duties under Equality Act 2010 – Whether decision to make order irrational and disproportionate – Whether decision procedurally unfair and/or in breach of claimant’s human rights — Claim dismissed
The claimant owned a house at 1 Cyril Crescent, Roath, Cardiff, an end-of-terrace two-storey property in a popular location about one mile from the city centre and close to local amenities. The property had stood empty and in a state of disrepair since 1994.
The claimant had suffered from chronic depression and anxiety for many years and had been unable to carry out the repairs necessary to make it habitable. In 2009, the defendant local authority expressed concern about the state of the property and encouraged the claimant to return it to a habitable condition. However, the claimant was unable to obtain funding and the property remained empty and uninhabitable.
In 2016, the defendant adopted Housing Strategy 2016-2021, which indicated that there were about 5,000 local people in urgent, high, or medium need for accommodation. It stated that where a co-operative approach to bringing empty dwellings back into beneficial ownership failed, consideration would be given to compulsory purchase.
In 2019, despite the defendant’s efforts to assist the claimant, the property remained uninhabitable and the defendant made a compulsory purchase order pursuant to statutory powers under parts I and II of the Acquisition of Land Act 1981 and section 17 of the Housing Act 1985.
The claimant challenged the order under section 23 of the 1981 Act. The essence of the challenge was that in deciding to make the order, the defendant did not properly take into account his chronic depression and anxiety which amounted to protected characteristics within sections 4 and 6 of the Equality Act 2010. Therefore, the defendant was in breach of its duties under the 2010 Act, the decision to make the order was irrational and disproportionate, was procedurally unfair and/or in breach of the claimant’s human rights.
Held: The claim was dismissed.
(1) The court was not satisfied that the making of the order was because of something arising in consequence of the claimant’s disabilities so as to amount to discrimination within section 15 of the 2010 Act. Even if it was, it was proportionate to achieve the legitimate aim of bringing a dwelling, which had stood empty since 1994, back into beneficial occupation for much-needed accommodation.
(2) Having regard to the dealings between the parties between 2009 and the making of the order, on the evidence, the defendant had made reasonable adjustments for the claimant as a person with protected characteristics pursuant to sections 20 and 21 of the 2010 Act. In all the circumstances, there is no breach of the duty under section 20(3) of the 2010 Act.
(3) Section 149(1) of the 2010 Act required the defendant, in the exercise of its functions, to have due regard to the need to eliminate discrimination, harassment, victimisation and other conduct prohibited by the 2010 Act; advance equality of opportunity and foster good relations between persons who were disabled and those who were not disabled.
The decision makers had to be made aware of the duty. An incomplete or erroneous appreciation of the duty would mean that due regard had not been paid. The duty had to be fulfilled before and at the time that a particular policy that would or might affect disabled people was being considered; and exercised in substance, with rigour and with an open mind. However, the fact that an authority had not mentioned specifically the duty was not determinative of whether it had been performed, although it was good practice to do so. The duty was non-delegable and continuing. It was good practice to keep records showing the duty had been considered and relevant questions pondered: R (on the application of Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 followed.
(4) The scope for action in this particular case was very limited. The defendant was entitled to come to the conclusion after many years of attempting a cooperative approach that the real reason for lack of progress was the lack of funds and that that was unlikely to be resolved within a reasonable time. This was not a case where possession was being sought of the claimant’s home, but of an investment property which had stood empty without producing any income for over 25 years in respect of which the market value would be paid. The defendant had taken into account the claimant’s disabilities in its approach to the case and discussed those matters with him in correspondence and in meetings. In the circumstances, there was no breach of the duty under section 149: Luton Community Housing Ltd v Durdana [2020] EWCA Civ 445; [2020] PLSCS 57 considered.
(5) The court had a discretion whether or not to quash the order, even if a breach of duty had been established. For the reasons set out in the statement of reasons accompanying the order and having regard to the exceptionally long time which the property had stood empty it is highly likely that the outcome would have been the same had no breach occurred. The court would in any event decline to exercise its discretion to quash the order: Aldwyck Housing Group Ltd v Forward Ltd [2019] EWCA Civ 1334; [2019] PLSCS 165 considered.
A fair reading of the statement of reasons accompanying the order, and appended documentation as a whole, showed a balanced consideration of the public interest against the claimant’s interest. Given the stringent requirements before such an order was made, and the reasons given for making the decision leading to the order, the court was not persuaded that the reference to deduction of costs in the report was sufficient to vitiate the decision.
(6) The order had been made in the public interest and in accordance with the stringent requirements for making such an order. The defendant was entitled to deem it necessary to make the order to control the use of the property in accordance with the general interest and there had been no breach of the claimant’s rights under article 1, protocol 1 of the European Convention on Human Rights.
Adam Corbin (instructed by Michelmores LLP) appeared for the claimant; Robin Green (instructed by Direct Access) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Foley v County Council of City and County of Cardiff
