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||Neutral Citation Number:  EWCA Civ 1274
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE COLLINS)
||Royal Courts of Justice
Strand, London, WC2A 2LL
||29th October 2009
B e f o r e :
LORD JUSTICE MUMMERY
LORD JUSTICE ETHERTON
LORD JUSTICE SULLIVAN
|| The Queen on the Application of MORTELL
||- and -
SECRETARY OF STATE FOR COMMUNITY AND LOCAL GOVERNMENT and 7 Others
(DAR Transcript of
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Mr Robert McCracken QC and Mr Pavlos Eleftheriadis (instructed by Public Interest Lawyers) appeared on behalf of the Appellant.
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.
HTML VERSION OF JUDGMENT
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Lord Justice Sullivan:
- This is an appeal against the order dated 12 December 2008 of Collins J dismissing the appellant's application to quash the Oldham (Derker Area Phase 1 Regeneration) Compulsory Purchase Order 2006 ("the order").
- The order was made by the second respondent on 28 September 2005. The purposes of the order were "to acquire the Order lands in order to facilitate the replacement of low demand housing and poorly-located commercial buildings with more modern appropriate housing, commercial and community facilities, and the improvement to the infrastructure of the area". Some 257 plots of land, both residential and commercial, were included in the order.
- There were 55 statutory objectors to the order. The first respondent appointed an experienced inspector, Mr Cookson, to conduct a public inquiry and report to her. The inquiry, which also considered another compulsory purchase order, the "Werneth CPO", with which we are not concerned, was held on various dates between 6 February and 3 April 2007. The Inspector's undated report was received by the Government Office for the North West ("GONW") on 13 August 2007.
- By the end of the inquiry there were 52 statutory objectors, three having withdrawn, and ten non-statutory objections to the order. The appellant was one of the statutory objectors. The Inspector recommended that the order should be confirmed with modifications which removed from the order those properties which the second respondent had by that time acquired by agreement.
- In a decision letter dated 4 October 2007, signed on her behalf by Mr Morris, a senior planning officer in GONW, the first respondent agreed with the Inspector's findings and conclusions, concluded that there was a compelling need in the public interest for the order, and accepted the Inspector's recommendation that the order should be confirmed. Notice of confirmation of the order was published on 26 October 2007 and the appellant's claim form was filed on 5 December 2007.
- Before Collins J the first respondent's decision was challenged on a number of grounds, all of which were rejected in Collins J's reserved judgment dated 12 December 2008,  EWHC 3022 (Admin). Application for permission to appeal was made on three grounds. It was contended that Collins J had erred in holding that: 1) in assessing whether a fair balance had been struck in accordance with Article 8 and Article 1 of Protocol 1 to the ECHR when considering the compulsory acquisition of homes, it was not necessary to examine the effect on individuals of the terms of compensation for owner-occupiers where the compensation code applied; 2) the appellant had a fair hearing even though the 20 page written final submissions made by his counsel at the end of the hearing were a) not submitted to the Secretary of State by her Inspector, and b) neither accurately nor fully summarised in the Inspector's report; 3) it was too late after the conclusion of the oral hearing but 5 weeks before judgment to raise a point based upon facts set out in statements made by GONW exhibited to the claim at the outset of proceedings that no documents had been sent to the Secretary of State other than those listed at the end of the Inspector's report.
- Jacob LJ granted permission on grounds 2 and 3 but refused permission in respect of ground 1. Before this court Mr McCracken QC renewed the appellant's application for permission to appeal on that ground.
- The background facts are set out in paragraphs 1 to 8 of the judgment of Collins J and it is unnecessary to repeat them in this judgment. The Inspector's report follows the conventional format. Having dealt with procedural matters and briefly described the order lands, the Inspector summarised in paragraphs 7 to 68 of his report the second respondent's case in respect of both of the compulsory purchase orders. The Inspector summarised the cases for the statutory objectors to the order with which we are concerned in paragraphs 69 to 96 of his report.
- In paragraph 97 the Inspector summarised the oral evidence given by seven statutory objectors to the order as follows:
"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."
- Under the heading 'Written Representations' the Inspector summarised in paragraph 98 the written representations of 12 more statutory objectors to the order in a similar fashion:
"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."
- In paragraph 99 the Inspector listed those statutory objectors who relied on their original objections. His summary of their objections was as follows:
"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."
- In paragraph 100 the Inspector summarised the cases of seven non-statutory objectors to the order:
"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 …"
- The Inspector then set out his conclusions in respect of both orders in paragraphs 108 to 148 of his report. In paragraphs 149 and 150 he recommended that both orders be confirmed with modifications.
- It is convenient to deal with ground 3 at the outset. This ground was advanced because of a conflict between what the Inspector said in paragraphs 97, 98 and 100 of his report -- that for the sake of completeness and fairness he had attached to the report the objectors' short proofs and statements as documents DSO1-19 and DNSO1-7 -- and the fact that those documents were not listed in the lengthy lists of general documents and core documents that were appended to his report.
- Since the decision letter specifically referred to the fact that "A substantial number of objections were also submitted by residents and persons affected by the order on grounds described by the Inspector as 'of an overriding personal nature' (I/R 97 – 101)" it might have been thought that the omission of the documents referred to in those paragraphs in the Inspector's report from the lists of documents appended to the report, while unfortunate, was unlikely to be of particular significance. However, on receipt of the Inspector's report, Public Interest Lawyers, who had instructed Mr McCracken on behalf of some of the objectors at the inquiry, wrote on 29 October 2007 to GONW asking why the report was undated and when it was submitted and further asking:
"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"
- Mr Walsh, the case officer at GONW, replied on 14 November 2007. Having explained that the fact that the Inspector's report was undated was an oversight and that it had been submitted to GONW on 13 August 2007, Mr Walsh said:
"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."
- It will be noted that the letter to GONW did not mention the documents referred to by the Inspector in paragraphs 97, 98 and 100 in the decision letter and did not ask the straightforward question: the Inspector says in his report that he is attaching these documents but they are not listed at the end of his report -- did you receive them at GONW? The matter was not raised because at that time the appellant's concern was that the Inspector had not sent Mr McCracken's written closing submissions with his report to GONW [see ground 2 below].
- On 3 November 2008, after the hearing before Collins J had concluded on 29 October but before he had given judgment on 12 December, Mr McCracken in a written submission contended that on the basis of GONW's letter dated 14 November 2007 the first respondent must have failed to take into account the documents referred to in paragraphs 97, 98 and 100 of the Inspector's report, so that she had therefore failed to take account of all relevant matters when carrying out the balancing exercise, particularly in respect of Article 8 as to whether compulsory acquisition was a proportionate interference with the objectors' right to respect for their homes and their private and family lives.
- Collins J responded to this submission in paragraph 22 of his judgment as follows:
"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."
- Permission to appeal having been given on ground 3, further evidence was filed on behalf of the first respondent: a second witness statement from the Inspector, Mr Cookson, and a witness statement from Mr Morris, who was the decision officer on behalf of the first respondent. In his witness statement the Inspector explains that he compiled the documents in question, labelled them, filed them in an A4 ring binder and included them in the boxes of documents that accompanied the file containing his report which he sent to the planning Inspectorate [PINS] for onward transmission to GONW. Mr McCracken accepted that there was no reason to doubt the Inspector's account of what he had done, but he submitted that it did not follow that the documents had been received by Mr Walsh, the case officer at GONW. They could have been mislaid in transit to GONW and/or mislaid at GONW. The former is unlikely if, as the Inspector said, the A4 ring binder containing the documents was included in the boxes that accompanied the file containing the report, since those boxes were clearly received by GONW and there would have been no reason whatsoever for PINS to have removed the A4 file from the boxes that it sent to GONW.
- The suggestion that the documents in the A4 ring file were somehow mislaid in GONW and therefore not seen by Mr Walsh when he was preparing a draft decision letter for Mr Morris to sign on behalf of the first respondent is based on a passage in the latter's witness statement, which explains that in accordance with the Government Offices' Compulsory Purchase Order Processing Manual ["the manual"] the report and accompanying documents were checked, and it was noted that four labelled court documents were returned in the boxes but they were not included in the list of core documents appended to the report. Mr McCracken submitted that if the A4 file had been present in the boxes it too would have been noted as one of the documents that had not been included in the lists appended to the report.
- It will be noted that this information that there were indeed core documents sent to GONW which were not listed at the end of the report demonstrates that the foundation of this ground of challenge, namely in the statement in the letter of 14 November 2007 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, was plainly wrong. Since the decision letter specifically refers to the objections and to paragraphs 97 to 100 of the Inspector's report, the proper inference in my judgment, unless there is powerful evidence to the contrary, is that the documents referred to by the Inspector in those numbered paragraphs were considered by Mr Walsh when he prepared the draft decision letter. Mr McCracken relied on the fact that the relevant passage in the decision letter refers to the substantial number of objections and says that they are "on grounds described by the Inspector" as of "an overriding personal nature". That is indeed how the Inspector described those objections and the use of this particular phraseology is no basis for inferring that Mr Walsh did not consider the objections.
- Given the fact that the decision letter specifically refers to the objections and to the relevant paragraphs, I do not consider that the fact that there is no reference in the file to the finding of the A4 ring binder is a proper basis for drawing the inference that the A4 ring binder was not before Mr Walsh and that its contents were not taken into consideration by him when preparing the draft decision letter for approval by Mr Morris.
- It might be wondered why it is necessary to be drawing inferences at all. Why not simply ask Mr Walsh, who, although he might not immediately recollect seeing these particular documents (given the number of documents that must have passed across his desk even in respect of this one compulsory purchase order, it would not be surprising if he was not able to recall a particular document unaided) nevertheless would be able to refresh his memory by checking the contents of the boxes of documents accompanying the report? If the A4 file was not there then indeed there would be a likelihood that he had not seen it. If on the other hand the file was there he would have been able to read it and that would have helped him to recall whether or not he had read those particular documents when preparing the Draft Decision letter.
- Alas, this simple course of enquiry is not open to us. Mr Walsh retired in March 2008 and the boxes containing the documents relating to the order were destroyed as part of a general "clearing out" exercise at GONW in September 2008. The documents should have been retained because of the legal challenge to the order in accordance with the advice in the manual, but perhaps because Mr Walsh took some of his detailed knowledge of the status of this particular order with him when he retired, they were not.
- This case is therefore a good example of the very real prejudice that can be caused if the grounds for challenge to a compulsory purchase order are not articulated within the six week period for challenging the confirmation of the order. In the present case this ground of challenge was not raised until over a year after the decision letter was received by the appellants, and it was not raised until after the relevant witness had retired and the documents had been destroyed. In my judgment the further evidence filed by the first respondent confirms the correctness of Collins J's view a) that it was far too late to raise this point, and b) that the point has no merit in any event.
- Owner-occupiers of properties which are acquired under the order will be paid the market value of their homes and an additional home loss payment of 10 percent of that market value up to a maximum of £47,000, and they will also be entitled to be paid compensation for disturbance to include such matters as, for example, removal expenses, solicitors fees, costs of notifying change of address etc.
- Under Section 39 of the Land Compensation Act 1973 the second respondent is under a duty to provide suitable alternative residential accommodation to those who are displaced by the order if "Suitable alternative residential accommodation on reasonable terms is not otherwise available to them".
- Mr McCracken made it clear that he was not submitting that the compensation regime was as a matter of principle not compliant with Articles 8 of and Article 1 of the first protocol to the European Convention on Human Rights ("the Convention"). He submitted that the fact that there was a compensation scheme which was in principle Convention-compliant was not sufficient because in each individual case it was necessary to consider whether an "excessive burden" was imposed on the individual whose property was to be compulsorily acquired, thus resulting in a disproportionate interference with that particular individual's Convention rights; see for example James v United Kingdom  8 EHRR 123 at paragraphs 50 and 54. Mr McCracken submitted that the Inspector had erred in assuming that the existence of the compensation code was a complete and conclusive answer to the submission made on behalf of the objectors that the burden imposed on them as individuals would be excessive and/or disproportionate. That submission was based on paragraph 145 of the Inspector's report where, under the heading 'Human Rights', the Inspector said:
"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."
- It seems to me that the final sentence in that paragraph is probably a reference to the provisions of Section 13 subsection (4) of the Acquisition of Land Act 1981, which makes it clear that objections based on valuation matters which can be dealt with by the Lands Tribunal can be disregarded as objections to a compulsory purchase order. However, I would accept that if paragraph 145 had stood alone there would have been some force in Mr McCracken's complaint.
- On behalf of the first respondent, Mr Litton readily accepted that there will be matters which are relevant for the purposes of Article 8 which are not entirely answered by the proposition 'you will be entitled to financial compensation under a compensation code which is itself Convention-compliant'. The fact that a property has been in a family's ownership for many generations, that an elderly person has lived all his life in his home, that relatives and friends live nearby, all of these are examples of matters that are capable of being relevant for the purposes of considering whether in any particular case a compulsory purchase order, even making due allowance for the right to financial compensation, would be a disproportionate interference with an objector's Article 8 rights.
- The question is whether, on a fair reading of the Inspector's report and the decision letter as a whole, the first respondent in adopting the Inspector's conclusions did ignore the Article 8 arguments that had been advanced by the objectors. In my judgment she did not. Under the heading "Fairness and Human Rights" the Inspector recorded in paragraph 82 of the report the objectors' contention that:
"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."
- The emphasis on the "same tenure without expense" was a response to a point that had been made by the second respondent which had said that it did give help to those who wished to stay in the area. The Inspector summarised that aspect of the second respondent's case in paragraph 37 of the report:
"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 Inspector had referred to the evidence which he described as being of a personal nature from a number of the objectors; see paragraphs 97 to 100 of the report cited above. Of course the personal circumstances of each individual objector differed in detail, but in my judgment the Inspector fairly summarised the thrust of those objections when he said in paragraph 136 of the report:
"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.
- Paragraph 136 is under a subheading listing the names of particular objectors, but the references in parentheses to the earlier paragraphs in the report make it clear that in paragraph 136 the Inspector was responding to the main thrust of what he had called the personal objections that had been raised by the objectors at the inquiry. He referred to those objections as personal objections not because he was discounting them, as Mr McCracken submitted, but because he thought it inappropriate to record in a public document, the Inspector's report, personal details such as explanations of individual objectors' financial circumstances, their ages and in some instances the fact that they were suffering from illness and/or some form of disability. Mr McCracken submitted that the Inspector had failed to consider whether there was a difference in the age or tenure profile between those persons who had been able to remain in the Derker area and the objectors. If detailed evidence had been given to him on this point, the Inspector would have been able to consider it but it was not suggested that anyone had sought to place that kind of analysis of age/tenure before the inquiry.
- Mr McCracken submitted that the Inspector had failed to consider the age of the objectors, the proximity of their families and other matters of a similar kind, but again on a common sense reading of paragraph 136 of the report it would suggest that the Inspector must have had these personal factors well in mind. After all, those who own their own homes outright without mortgages and who are settled in their communities will tend to be somewhat older than those who do not share those characteristics.
- In the decision letter the first respondent specifically referred to the appellant's assertion in paragraph 82 of the Inspector's report (see above) and to the "personal" objections in paragraphs 97 to 100 (see above). Having agreed with the Inspector's conclusions which in respect of this issue were not limited to paragraph 145 but included paragraph 136 of the report and said that there was a compelling need in the public interest for the order, the first respondent said:
"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".
- I do not consider that it is proper to draw the inference that, merely because in a decision letter a form of words is used that accords with the guidance in the manual, no genuine consideration has been given to the matters that are referred to in the decision letter. I would be prepared to accept that there might be extreme cases, for example if human rights were not addressed at all by the Inspector and/or were not referred to anywhere else in a decision letter where the ritual incantation might not in those circumstances be sufficient to save the decision letter, but where the relevant matters are dealt with in an Inspector's report, as they were in my judgment in paragraph 136 of this report, and the Secretary of State adopts the Inspector's conclusions in that respect, then there is no reason to dismiss as an incantation the first respondent's statement that she did consider the appellant's rights under Article 8 and Article 1 of protocol 1 to the Convention when deciding that a proper balance had been struck between their rights and the public interest.
- For these reasons I would refuse the renewed application to grant permission on ground 1.
- The submission is put in two ways. First, it is submitted that whether or not the Inspector's report accurately summarised the objector's submissions, there was a duty on the Inspector as a matter of fairness to send with the Inspector's report a copy of the objectors' written final submissions to the first respondent. Second, it is submitted that there was unfairness because the report did not "accurately or fully" summarise those final submissions.
- I have no hesitation in rejecting the first of those submissions. Neither the Town and County Planning Act 1990 nor the Acquisition of Land Act 1981 nor the relevant inquiry procedure rules imposes any statutory duty on the Inspector to send copies of the parties' final written submissions to the Secretary of State. I accept that the absence of such a requirement in the procedural rules is not conclusive and that an Inspector is always under an overarching duty to act fairly. However, Mr McCracken was not able to produce any authority which suggested that it might be unfair for an Inspector to send a copy of a final written submission to the Secretary of State. Nor is there any evidence of any established practice or procedure under which Inspectors are recommended to, or do in fact, submit such copies of such final submissions. That is not to say that there will not be certain circumstances, for example where submissions deal with questions of law, where it might well be of assistance to send a copy of the final submissions to the Secretary of State, but that is a very far cry from the proposition that there is some general duty in fairness to do so. In my judgment the lack of any such authority, practice or procedure is not in the least surprising bearing in mind a) the Inspector's function in preparing a report for the Secretary of State and b) the nature of the material which it is said should be sent with the report to the Secretary of State.
- Looking at the first of those considerations, it is not the function of an Inspector's report to give the Secretary of State a blow by blow account of every piece of evidence given and every submission made during the course of what may well be a lengthy inquiry. The purpose of an Inspector's report is to assist the Secretary of State by separating the wheat from the chaff, identifying the important points that are in contention and giving the Secretary of State the benefit of the Inspector's professional judgment on those important points. Analogies with jury trials as urged upon us by Mr McCracken are inappropriate. The Inspector is appointed precisely because he is an experienced professional in the field. In the present case Mr Cookson is a chartered town planner with at the time of the inquiry some 24 years' experience as an Inspector. As an experienced town planner it was part of the Inspector's function to identify the main issues. I realise that in South Bucks District Council v Porter (No 2)  1 WLR 1953 Lord Brown was considering an Inspector's decision letter, and we are considering a report to the Secretary of State which will tend to go into somewhat greater detail for the benefit of a decision taker who will not have been present at the inquiry. However, there is still a need, if an Inspector's report is to be of any real assistance to the Secretary of State, for the Inspector to use his professional judgment to identify the main issues in dispute and to seek to resolve those issues in his conclusions, and not to present the Secretary of State with a lengthy and discursive report mentioning each and every matter that was raised at the inquiry which will only make it more difficult for the Secretary of State to see the wood for the trees.
- The second factor is the nature of the final submissions. They are just that: an advocate's submissions, not evidence. Mr McCracken submitted that fairness required his submissions in the present case to be submitted to the Secretary of State because the objectors, due to lack of resources, had called only two professional witnesses; whereas the second respondent had been able to call 16 professional witnesses and all of their proofs had been sent to the Secretary of State. While it is certainly clear from Mr Morris's witness statement that the proofs together with all of the other documents relating to the inquiry were returned by PINS to GONW, there is nothing to suggest that the case officer would have regarded it as part of his function to read the proofs of evidence if they were not listed in the documents at the end of the Inspector's report or, as in the case of the objectors' statements and proofs, specifically referred to in the Inspector's report in paragraphs 97 to 100.
- Indeed the manner in which the Inspector dealt with the objectors' statements and proofs is instructive. He specifically said that he would list them as inquiry documents, although through an oversight he failed to do so. The other proofs were not listed as inquiry documents and the Inspector gave no indication that he intended to list them as such, although certain of the documents produced by the witnesses were listed as general documents in the list at the end of the report. The evidence thus suggests that the case officer would have based the draft decision letter on his reading of the Inspector's report together with the documents listed at the end of the report, and in addition in the present case the A4 file containing the objectors' statements that had been omitted from that list but which the Inspector had specifically said he would append to his report. The case officer would not on the evidence before the court have thought it necessary to read all of the proofs of evidence of the other witnesses which the Inspector had not said it was necessary in fairness to append to his report and which were not listed as documents at the end of the report, although for obvious reasons of convenience PINS would return the proofs to GONW.
- There was therefore no need to send the objectors' final written submissions to the Secretary of State provided that the report fairly summarised the main issues raised by the objectors and resolved them in the Inspector's conclusions. Did the report do so? Mr McCracken submitted that it did not, by reference to six matters. The first of those matters was the fact that he had elicited from the corporation's witnesses in cross examination that house prices in the Derker area had virtually tripled between 2000 and 2006. What the Inspector had said in paragraph 69 of the report when summarising the case for the statutory objectors was that "Over the last three years there have been many changes in Derker. Average house prices have doubled". Thus the Secretary of State had been made aware by the report that house prices had doubled over three years and the complaint is that she was not made aware of the fact that they had tripled over six years. I should add in fairness to the Inspector that the reference to the doubling of the house prices was a reference to the evidence that had been adduced by the expert witness on behalf of the objectors, so it was an entirely accurate reflection of the evidence that they had given.
- Was this a main or an important issue to which the Secretary of State's attention should have been drawn by the Inspector? In my judgment it was not. Whether house prices had doubled over the last three years as the objectors' witness had said, or had virtually tripled over the last six years as the council witness had accepted in cross examination, was not the issue given the general increase in house prices nationally over both periods. The Inspector concluded that the rise in prices was at least in part attributable to the work that had been undertaken by the council to improve the area, thus in paragraph 129 of the report he said:
"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."
- Perhaps more importantly, the issue was not so much the absolute level of house prices in Derker but their relative level by comparison with other parts of the second respondent's area. It was the second respondent's case that average prices in the Derker postcode area had remained constantly below that of the Oldham average. Percentage figures were given; see paragraph 43 of the report. Paragraph 44 specifically referred to the sale of terraced properties and in paragraph 45 the second respondent is recorded as saying as part of its case that:
"…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."
- Mr McCracken submitted that that was nothing to the point. The fact that prices in Kentish Town are less than those in Hampstead village does not mean that property in Kentish Town should be demolished. The difficulty with that analogy is that it does not compare like with like: the second respondent in the present case was not comparing the prices of terraced properties in Derker with the prices of houses in the most exclusive parts of the north west, it was comparing prices in Derker, as the short extracts that I have just read demonstrate, with average prices in Oldham.
- I turn therefore to the second matter that is said to have been omitted from the Inspector's summary of the appellant's case: that there is no reference to policy DP1 in the Draft Regional Spatial Strategy for the North-West ("the Draft RSS"). It is said that this policy incorporated an unambiguous sequential hierarchy in which better use of existing buildings was to be preferred to demolition and rebuilding, and while the Inspector referred to other policies in the RSS he did not refer to this policy.
- In fact policy DP1 in the Draft RSS was essentially the same as policy DP1 in Regional Planning Guidance 13 (RPG13). The important point to note is that the sequential approach advocated in both of those policies was a general policy that applied across the north-west region as a whole, whereas policy UR6 to which the Inspector specifically referred was particularly concerned with "existing housing stock and housing renewal". Policy UR 6 advocated:
"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.
Thus it seems to me that the Inspector was fully entitled to refer to what was plainly the more relevant policy. But in any event, as Mr Litten submitted, the criticism is academic because the Inspector was not writing a treatise on regional policy. He was having to consider the merits of the objections as they were presented to him at the inquiry. The sequential approach was not being urged upon him in some abstract terms. In practical terms what was being said was that refurbishment of the dwellings in the order was to be preferred to demolition and redevelopment. Did the Inspector consider the practical implications of the sequential approach that was being urged upon him by the objectors? Plainly he did in paragraph 128 of the report, in which he considered "Whether the Developments could be achieved by Other Means", saying:
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.
Next, it is said that the Inspector should have told the Secretary of State that there would be a reduction in the overall number of homes, variously estimated at 100 in oral evidence or 149 dwellings in written evidence.
Those figures as to the loss of dwellings were contained in the council's evidence. The significant decrease was in two-bedroom terrace houses. However, it was part of the second respondent's case, and a significant part, that there were too many terraced houses in Derker; thus, in paragraphs 20 and 21 of the report, the council's case is recorded as:
"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:
The Inspector clearly recognised that there would be a reduction in the overall number of terraced houses because he said so in paragraph 124 of the report:
"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."
As Mr Litten pointed out, the fact that there will be a reduction in the overall number of houses is not in the least inconsistent with the advice that is given in Circular 6 of 2004 appendix A, which deals with compulsory purchase orders made as was this order under Section 226 of the Town and Country Planning Act 1990. In paragraph 11 of annex A the final sentence makes it clear that:
"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 …"
I turn therefore to the fourth matter. It was said that the Inspector should have made the Secretary of State aware of the fact that there was a great increase in demand for social housing in the area. It is difficult to see why an increase in demand for social housing was a relevant, much less the main, issue when one bears in mind that the second respondent's basic contention, which the Inspector accepted as he was entitled to do, was that there was a mismatch between supply and demand in terms of the size and type of housing available in the area; see paragraph 21 of the Inspector's report to which I have already referred.
"In urban areas experiencing market renewal problems, the outcome may be fewer homes in total."
Then it was said that it was a key policy objective of the government that affordable housing should be available to everyone to live in the community that they chose, and it was noted that in terms of cost per unit and relative return unit demolition would be more expensive and give less of a return than refurbishing the existing buildings.
Again it is difficult to see why the Inspector should specifically have referred to this policy because there appears to have been no issue that in principle it was desirable that affordable housing should be available to everyone to live in the community that they chose to live in. The question for the Inspector was whether this wholly laudable aim was more likely to be achieved by the second respondent's CPO or by the objectors' proposals. It is plain from paragraph 128 of the Inspector's report to which I have already referred that the Inspector concluded that the use of compulsory purchase powers was the most appropriate way forward, not least because with refurbishment it would be necessary to carry out radical works and to do that it would be necessary to acquire properties on a comprehensive basis rather than on the piecemeal incremental basis that seemed to the Inspector to be being promoted by the objectors. Moreover it is clear again from the passage in paragraph 132 to which I have referred that the Inspector recognised that refurbishing the properties would be cheaper than demolition and rebuilding. The question was not so much which would be the cheaper of the two options but which would be the best means of achieving the improvements in housing in the areas that both parties, the second respondent and the objectors, desired.
I turn to the last matter which it was said the Inspector should have drawn to the Secretary of State's attention: a statement that was made to the House of Commons by Mr Prescott, then the deputy Prime Minister, when introducing the pathfinder programme in 2002. In a video he is shown as saying: "No one is asking members of the public to change their existing home". It is difficult to see how it could sensibly be argued that this short statement, taken wholly out of context at the commencement of the programme, could be said to be in some way an inhibition on the use of compulsory purchase order powers as part of the pathfinder programme if and when appropriate. Plainly the initial statement in whatever context it was made was overtaken by the later written explanations of policy and indeed by the Government's financial support for the second respondent's pathfinder proposals. Whatever it was that Mr Prescott may have said, he plainly did not intend to rule out the use of compulsory purchase powers in support of the pathfinder programme which, as Mr Litten pointed out, would necessarily be concerned with very extensive areas of land where if it was impossible to use compulsory powers against an individual owner it might be wholly impractical to achieve any sort of comprehensive improvement.
In summary, if one considers the six matters relied upon by Mr McCracken in support of his submission that the Inspector did not accurately nor fully summarise the objectors' case, the short answer is that the Inspector accurately summarised the main points in the objectors' case and that is all that he was required to do. Many of the points referred to by Mr McCracken are in fact dealt with in the Inspector's report, the Inspector has reached adverse conclusions which he was entitled to do and insofar as specifics are not referred to they cannot sensibly be described as main issues which the Inspector was as a matter of law required to draw to the first respondent's attention.
For those reasons I consider that there is no substance in the second ground of challenge, and it follows that for my part I would dismiss this appeal.
Lord Justice Mummery:
Lord Justice Etherton:
I also agree.
Order: Appeal dismissed
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