Local authority – Compulsory purchase order — Validity – section 23 of the Acquisition of Land Act 1981 — Appellant seeking to challenge CPO under incorrect procedure – Claimant seeking to treat letter notifying court of application as applying under correct statute – Whether statutory limitation barring application – Whether court correctly upholding CPO — Appeal dismissed
The appellant was, until 15 February 2010, the owner of a two-storey mid-terrace house, which he had purchased on 4 June 1975, and was within the area of the second respondent local authority. The second respondents had tried unsuccessfully to compel the appellant to renovate his property, which was in a very bad state of repair, before recommending the compulsory purchase of the property under section 17 of the Housing Act 1985.
The appellant sought to challenge the CPO on the grounds that he was living in the property (even though its windows had been boarded up); and that, despite his lack of personal means and his previous failures to effect repairs, he proposed with financial help from his brother to undertake improvements. If the CPO was confirmed, his compensation would not be sufficient to enable him to buy another flat and he would be made homeless and dependent on the state.
A planning inspector concluded that the CPO was justified and that, although it interfered with the appellant’s rights under article 8 of the European Convention on Human Rights, the result was proportionate and in the public interest. The appellant commenced judicial review proceedings to challenge the decision to make the CPO on 12 November 2009. He was subsequently advised that his challenge should have been made under section 23 of the Acquisition of Land Act 1981, and that the last date for making such an application was 11 December. On 10 December, the appellant advised the court in writing that his application for judicial review was made pursuant to his entitlement under section 23 of the 1981 Act. However he failed to attach any grounds of challenge.
The court refused his application for judicial review on the grounds that it was misconceived and an abuse of process. The judge also refused to order that the judicial review proceedings be treated as an application under section 23 and adjourned pending an investigation into the appellant’s mental capacity. The court took the view that the appellant’s prospects of success if an adjournment were granted were poor, and the six-week time limit laid down in section 23 was absolute. The appellant appealed.
Held: The appeal was dismissed.
(1) The question whether, in any given case, a form of claim might sensibly be described as a proper application for the purposes of section 23 was one of fact and degree. The mere fact that the application was so described was not definitive if it otherwise had none of the indicia of a valid application. The correct and purposeful interpretation of the requirements of section 23 was that, if a claimant failed to identify, refer to or otherwise indicate the grounds upon which his challenge was based, the mere self-description or label that the application was made pursuant to section 23 was inadequate in itself to make it an application for the purposes of the 1981 Act. A valid application under section 23 had to make some reference to the grounds on which relief was being sought, as set out in section 23(2): Burton v Secretary of State for Transport [1988] 2 EGLR 35 applied; Okolo v Secretary of State for the Environment [1997] 4 All ER 242 considered.
In the instant case, the judge had been right to find that the letter of 10 December was not a valid application under section 23 of the 1981 Act since it gave no indication of the statutory grounds on which the CPO was being challenged. The grounds advanced at the hearing had been wholly new and well outside the six week time limit specified in section 23.
(2) In considering whether the inspector had applied the correct proportionality test, the inspector had to decide whether, by the time of the inquiry, there were substantial and/or practicable reasons to suppose that the necessary repairs and restoration of the property to full residential use which had been long outstanding could be achieved within any reasonable timescale if the order was not made. In that respect he had considered the matter carefully and concluded that there were not. Whilst the inspector did not refer to the decision in Daly or put any formal structure on his findings by reference to the requirements of that decision, in striking the fair balance between the public interest and the appellant’s article 8 rights, it was clear from his reasoning that he had fully considered the question of whether less intrusive means were available to accomplish the second respondents’ objective and was entitled to conclude that they were not: R (on the application of Daly) v Secretary of State for the Home Department [2001] 2 AC 532 applied.
The intensity of review called for in a public law case depended on the subject matter in hand but, whatever that intensity, it did not amount to a full merits review. In this case the finding of the inspector that less intrusive means than the making of the CPO were not practicably available if the second respondents’ objective were to be achieved, was essentially fact-based as a result of the evidence which he had heard at great length and thus effectively unamenable to review.
Parishil Patel (instructed by Irwin Mitchell LLP) appeared for the appellant; Rupert Warren and David Blundell (instructed by the Treasury Solicitor) appeared for the first respondent; Matthew Reed (instructed by ASB Law) appeared for the second respondents.
Eileen O’Grady, barrister
