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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mortell, R (on the application of) v Secretary of State for Community and Local Government & Ors [2009] EWCA Civ 1274 (29 October 2009) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2009/1274.html Cite as: [2009] EWCA Civ 1274 |
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C1/2008/3147 (Z) |
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE COLLINS)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE ETHERTON
and
LORD JUSTICE SULLIVAN
____________________
The Queen on the Application of MORTELL |
Appellant |
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- and - |
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SECRETARY OF STATE FOR COMMUNITY AND LOCAL GOVERNMENT and 7 Others |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr John Litton (instructed by the Treasury Solicitor) appeared on behalf of the First Respondent.
Mr Stephen Savain (instructed by the Oldham Metropolitan Borough Council Chief Executive's Directorate) appeared on behalf of the Second Respondent.
____________________
Crown Copyright ©
Lord Justice Sullivan:
Background facts
"The evidence given by these objectors is of an overriding personal nature and contained in short proofs. For the sake of completeness and fairness I have attached these proofs as Documents DSO1-7 respectively."
"The written representations of these objectors are additional to the original letters of objection. The objections are very personal in nature and contained in short statements. For the sake of completeness and fairness I have attached these statements as Documents DSO8-19 respectively."
"The objections contained statements that are personal in nature. Other matters reflect the nature of the objections reported above and cover such matters as the question of renovation and refurbishment of properties and the good state of the properties; community cohesion; criticism of the Council's consultation procedures; and the loss of local facilities."
"The evidence given by these objectors is of an overriding personal nature and contained in relatively short proofs. For the sake of completeness and fairness I have attached these proofs as Documents DNSO1-7 respectively …"
Ground 3
"Please could you also confirm whether any other documents were submitted for your consideration other than those which are listed at the back of the Inspector's Report. If so, please could you provide details and/or copies of the additional documents"
"I can confirm that no documents and/or material other than that itemised at the end of the Inspector's Report were submitted to the Secretary of State for consideration."
"I am not prepared to assume that the defendant, having referred to the paragraphs in the inspector's report which said in terms that the proofs were attached, had not had an opportunity of reading them. The inspector said they were attached and the defendant would surely have asked for them if they were not. If the point had any validity, it should have been raised much earlier since evidence would have been given to deal with it. It is too late to raise it now and, as I have indicated, it has no merit in any event."
Ground 1
"The statutory provisions governing the compulsory acquisition of property require the payment of compensation, including where necessary the provision of alternative accommodation. The courts have indicated that in these circumstances no human rights violation can be said to have occurred under Article 8 of the Human Rights Act 1998. Any objections relating to the level of compensation are outside the remit of this inquiry."
"The failure to offer a key for a key replacement home within the area in a similarly-sized property on the same tenure without expense has not been justified and may be incompatible with Article 8 of the European Convention on Human Rights."
"To help those people who want to stay in the area in a similar sort of property a property exchange scheme provides a mechanism for people living in property that the Council wishes to acquire, to move into a similar property elsewhere in the town. Home Xchange was launched in November 2006. Many people have sold their property to the Council by agreement and have moved to dwellings in close proximity to their former home. And those people living in owner-occupied properties who have levels of debt have and who found that the option of clearing their debt and moving into socially rented accommodation was attractive, they were made a priority for re-housing within the socially-rented sector. There is also a relocation equity loan package whereby people affected by demolition are able to buy a property more expensive than the one that they [are] leaving, with the help of an interest-free loan in the form of an equity share in the new property."
"The views of these objectors are strongly held and genuinely and emotively expressed. They tell of their distress of the prospect of being required to leave their homes that they own, mostly outright without mortgages, from within a community where they are settled. I would not seek to counter their views, but I note that a large number of residents in Derker have negotiated the voluntary sale of their property to the Council and the majority of these residents have been able to remain in the general area. The Council has also introduced various schemes and measures aimed at helping people bridge the gap between house prices in Derker and elsewhere in Oldham and to stay in the neighbourhood as far as possible. These schemes and measures have also been given wide publicity. [98-100]"
Paragraphs 98 to 100 of the report are referred to in parentheses after this paragraph. On reading the report it is clear that the Inspector intended to refer to paragraphs 97 to 100 rather than 98 to 100, because in the earlier paragraph 135 dealing with the Pacific Valve Company he referred to the passages dealing with its objection as paragraphs 91 to 97, when in fact they were 91 to 96. Paragraph 97 was one of the paragraphs which dealt with the personal objections. Mr McCracken submitted that the Inspector, having said that he would not seek to counter the views of these objectors, had then proceeded to do just that. However, the report must be read in a common sense and not a legalistic or a pedantic way, and if that is done it is clear that while the Inspector accepted that the views of these objectors were entirely genuinely held, he was not persuaded that they were well founded, and he was not so persuaded because of the large number of residents in Derker who had been able to stay in Derker and because of the second respondent's schemes and measures which were aimed at enabling those who wished to stay in Derker to do so.
"The Secretary of State has carefully considered whether the purposes for which the Compulsory Purchase Orders were made sufficiently justify interfering with the human rights of the objectors and she is satisfied that such interference is justified since, for the reasons given above, she is satisfied that there is a compelling need in the public interest for the land, the subject of the Compulsory
Purchase Orders, to be compulsorily acquired. She is satisfied that the purposes of the Orders could not be achieved by other means. In particular she has considered the provisions of Article 8 of and Article 1 of the First Protocol to the European Convention on Human Rights. In this respect the Secretary of State is satisfied that in confirming the Compulsory Purchase Order a fair balance has been struck between the use of compulsory purchase powers, the relevant Orders and the rights of the objectors"
Mr McCracken submitted that no weight should be given to this statement because it followed the format advised in paragraph 10.3.32 of the manual and was therefore simply to be treated as a "ritual incantation".
Ground 2
"It is evident that beneficial changes have taken place in Derker since the housing market renewal initiatives have started to take effect. The policy of voluntary acquisition of properties has resulted in a decline in the number [of] private landlords owning property. The demolition of council-owned property has had a beneficial effect also, as has the new housing that has been constructed. This, I consider, vindicates the actions taken by the authority in the area."
In paragraph 131 the Inspector said:
"The rise in prices in the London Road area is attributable to the work undertaken already to improve the area. This is a prominent site and I consider that a comprehensive development here would make a considerable impact on the image of Derker. Piecemeal improvement and refurbishment of dwellings would not achieve this aim."
"…the Derker postcode area is much wider in extent than the Master Plan area, covering semi-rural and non-Pathfinder locations. This will tend to push the average price data upwards. More localised evidence of values can be gained from the acquisition values within the Master Plan area …"
Values are then given and the point is made:
"These values are approximately 13% lower still than the average value in the wider postcode area and almost three-fifths of the average value across Oldham."
"A comprehensive approach to housing renewal, clearance and urban regeneration, particularly in Regeneration Priority Areas … In order to bring this about, the NWDA's Regional (Economic) Strategy, sub-regional strategies, development plans, neighbourhood renewal and housing strategies should ….
- consider designating substantial local areas for comprehensive regeneration, possibly including demolition and clearance, as part of a broader course of action to regenerate local communities, improve the environment and increase numbers of and access to local jobs;"
Pausing there, it is important also to note that the policy states that housing strategy should "give high priority to making the best use of existing dwellings to minimise the need to develop new housing on green field sites". Thus, as one would expect, the more detailed policy UR6 reflects the broader policy containing the sequential approach. Policy UR 6 explains that:
"The approach to be adopted, whether clearance, or renewal and refurbishment, or a mix of these, will depend on local circumstances. There will be a particular need for clearance in areas where there are problems with housing that is: …
- in areas of extremely low demand; and
- … to assist the better functioning of local housing markets or the overall improvement and regeneration of an area.
Clearance will also be necessary in some parts of the Region in order to assist the better functioning of local housing markets or to bring about the overall improvement and regeneration of an area."
"Options have been put forward as a means of achieving the improvements in housing in the areas. It has been suggested that vacant land and land not used for residential purposes in Derker could be developed for housing, whilst existing houses should be refurbished. As part of the wider scheme in the area, on sites not the subject of the CPO, it is apparent from the master plan that vacant sites are planned for use and that commercial premises will be used for residential purposes. Such an approach does not preclude the use of the Order lands, as they are part of the overall scheme. And with refurbishment to carry out the radical works deemed important, it is necessary to acquire properties on a comprehensive basis rather than on the piecemeal, incremental basis that seems to be promoted … I conclude, therefore, in the absence of agreements being reached to acquire properties voluntarily, the principle of using compulsory purchase powers is the most appropriate way forward."
In paragraph 132, dealing with a particular road, the Inspector said:
"Refurbishing the properties would be cheaper than demolition and rebuilding, but would not produce the same long-term benefits to the housing market in the area. Besides, refurbishing and remodelling to a high standard in order to achieve the objective of reviving the housing market in Derker would involve intervention and work on such a scale that could only be achieved by the compulsory purchase of properties."
In short, the Inspector considered the practical implications of the sequential approach urged upon him by the objectors and rejected their submissions.
"In housing terms this means addressing the problems that have been inherited from the past, in particular the concentration of Victorian terraced housing constructed over a relatively short time to house the rapidly growing population that worked in the copper mills. This history has left Oldham with large areas of terraced housing on a scale that is no longer sustainable …"
In paragraph 21 the council is recorded as saying:
"There are a large number of old, small terraced houses built to house the workers who used to work in the adjacent mills. There is very little newer or larger housing and very little diversity of house type. Private housing is mostly small terraced houses. There are a few detached, semi-detached, townhouses, bungalows or apartments. Yet demand for those house types is projected to grow, and demand for smaller terraced housing is projected to decline."
"Accordingly, I note that the aim of the two Orders is to secure the revitalisation of the housing market in the two areas, with the objective of creating long-term sustainable communities. The elements of the changes to the areas are a reduction in the overall numbers of terraced houses, new building in prominent locations in the areas, a greater choice of house type and size …"
"In urban areas experiencing market renewal problems, the outcome may be fewer homes in total."
Lord Justice Mummery:
Lord Justice Etherton:
Order: Appeal dismissed