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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 2835 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| CHARLES JAMES BRAITHWAITE
|- and -
|THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
|LONDON BOROUGH OF ENFIELD
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 D Forsdick (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 11 October 2012
Crown Copyright ©
Mr Justice Kenneth Parker :
Relevant Legislation and Policy
"(1) A local housing authority may for the purposes of this part
(b) Acquire houses, or buildings which may be made suitable as houses, together with any land occupied with the houses or buildings,
(3) Land may be acquired by a local housing authority for the purposes of this Part by agreement, or they may be authorised by the Secretary of State to acquire it compulsorily."
"17. A compulsory purchase order should only be made where there is a compelling case in the public interest. An acquiring authority should be sure that the purposes for which it is making a compulsory purchase order sufficiently justify interfering with the human rights of those with an interest in the land affected. Regard should be had, in particular, to the provisions of Article 1 of the First Protocol to the European Convention on Human Rights and, in the case of a dwelling, Article 8 of the Convention.
18. The confirming Minister has to be able to take a balanced view between the intentions of the acquiring authority and the concerns of those whose interest in land it is proposed to acquire compulsorily. The more comprehensive the justification which the acquiring authority can present, the stronger its case is likely to be. But each case has to be considered on its own merits and the advice in this Part is not intended to imply that the confirming Minister will require any particular degree of justification for any specific order. Nor will a confirming Minister make any general presumption that, in order to show that there is a compelling case in the public interest, an acquiring authority must be able to demonstrate that the land is required immediately in order to secure the purpose for which it is to be acquired.
19. If an acquiring authority does not have a clear idea of how it intends to use the land which it is proposing to acquire, and cannot show that all the necessary resources are likely to be available to achieve that end within a reasonable time-scale, it will be difficult to show conclusively that the compulsory acquisition of the land included in the order is justified in the public interest, at any rate at the time of its making. Parliament has always taken the view that land should only be taken compulsorily where there is clear evidence that the public benefit will outweigh the private loss. The Human Rights Act reinforces that basic requirement."
"The main uses of this power have been to assemble land for housing and ancillary development, including the provision of access roads; to bring empty properties into housing use; and to improve sub-standard or defective properties. Current practice is for authorities acquiring land or property compulsorily to dispose of it to the private sector, Housing Associations or owner-occupiers."
"The authority should also provide information about its proposals for the land or property it is seeking to acquire. Where, as will normally be the case, it proposes to dispose of the land or property concerned, the authority should submit where possible information regarding the prospective purchaser; the purchaser's proposals regarding the provision of housing accommodation; and when these will materialise. Information regarding any other statutory consents required for the proposals will also be relevant. It is recognised that in some cases it may not be possible to identify a prospective purchaser at the time a compulsory purchase order is made. Negotiations may be proceeding or the authority may propose to sell on the open market. In such cases the authority should submit information about its proposals to dispose of the land or property; its grounds for considering that this will achieve the provision of housing accommodation; and when the provision will materialise. Where the authority has alternative proposals, it will need to demonstrate that each alternative is preferable to any proposals advanced by the existing owner."
"An empty home is a wasted asset from the point of view of:
The owner who could receive income from selling or letting it;
People in need of housing; and
Local residents who have to put up with any problems that it creates.
The Government considers that:
It is vital to minimise the number of empty homes in order to ease pressure on the housing stock and reduce the necessity to develop on greenfield land.
Reducing the number of empty homes reduces opportunities for petty crime and vandalism, arson and anti-social behaviour.
The number of empty homes in England has declined steadily since a high point of 869,000 in 1993 to 732,000 in 2002. Despite this trend, there remains a significant and long-standing problem of empty homes, particularly those in the private sector, which accounts for over 80 per cent of all empty homes. About half of these have been vacant for more than 6 months.
The need to reduce the number of empty homes has been widely recognised in recent years, mainly through the campaigning of organisations such as the Empty Homes Agency. In response, the Government has introduced, or is in the process of introducing, a series of measures aimed at encouraging the reuse of empty homes."
"Despite these measures, there remains significant public concern about the impact of empty homes on local communities and the waste they entail in terms of housing supply.
This consultation paper considers the scale and impact of empty homes in England. It considers existing approaches to tackling the problem and considers the case for giving local authorities new statutory powers to take over the management of some private sector empty homes. The Government is keen to seek views on these issues from a wide cross-section."
"48. There are a number of enforcement powers that local authorities can use where it is not possible to secure the co-operation of owners. Various powers can be used to address an immediate problem associated with an unoccupied dwelling. These powers are summarised in annex 6. These powers alone may not result in the property actually being brought back into use, but may help to address any immediate risk posed.
49. There are two principal statutory powers that can be used to achieve re-occupation. These are compulsory purchase and enforced sale. They work by forcing owners to sell their property either to the authority itself or to someone else who is in a position to bring it back into occupation. The use of these procedures is considered in annex 7.
50. There is anecdotal evidence to suggest that these powers at present do not provide an effective means of securing the reuse of empty homes. They involve complicated legal procedures that are resource intensive and time consuming for local authorities to invoke. It can be a long period of time before a property is returned to occupation. For example, a compulsory purchase can take up to two years or longer where an appeal is entered. In addition, the fact that these powers require a change of ownership may result in further delays before a property becomes occupied.
51. The Government is of the view that forcing a change of ownership may not always be the best means of securing re-use of empty homes. But where voluntary measures have failed, at present, compulsory purchase or enforced sale are the only enforcement powers available to local authorities. The Government believes that these powers may be over-prescriptive in circumstances where a permanent change of ownership is not essential."
Empty Dwelling Management Orders ("EDMOs")
i) The case does not fall within a prescribed exception from the EDMO regime.
ii) The dwelling has been wholly unoccupied for at least six months.
iii) There is no reasonable prospect that it will become occupied in the near future.
iv) If an order is made there is a reasonable prospect that it will become occupied.
v) The authority has made reasonable efforts to notify the proprietor that they are considering making an order and to ascertain what steps he has taken or proposes to take to bring the property into occupation.
vi) Any other prescribed requirements have been complied with.
The Proceedings in This Case
"The purpose of seeking this CPO is to facilitate the return of the Property to residential use and therefore achieve a quantitative housing gain to the local authority by onward sale to a Registered Social Landlord (RSL) or offered for disposal to the private sector at auction."
"19. Mr Braithwaite contends that the council should take into account the statutory provisions applying to "empty homes" under sections 132-134 of the Housing Act 2004 and the Housing (Empty Dwelling Management Orders) (Prescribed Exceptions and Requirements) (England) Order 2006. His case on this point appears to be that 22 Lakeside could not lawfully be made subject to an EMDO and so should not be subject to compulsory purchase.
The Council firstly observes that the statutory provisions relating to compulsory purchase orders and EDMOs are not interchangeable. Secondly, there is clear evidence the land has been unoccupied for a period of well over 6 months, which is the minimum period for making an interim EDMO."
"75. Section 17 of the Housing Act 1985 empowers local housing authorities to compulsorily acquire land, houses or other properties for the provision of housing accommodation. Acquisition must achieve a quantitative or qualitative housing gain. Here the Order is pursued on the basis that confirmation would provide a quantitative housing gain.
76. The history of the property before 2000 is unknown with only circumstantial indication that the owner had not been seen for some two years. It is, however, known that Mr Braithwaite did not live in the property for three years, between 2000 and 2002, and he did not even visit the property to pick up mail.
77. During 2003 and for the first half of 2004 Mr Braithwaite says that he resided at 22 Lakeside before spending most of his time at his late mother's house in Norwich until business interests required him to return to Enfield between April 2005 and May 2006. However, that has not been corroborated in any meaningful way and a neighbouring resident's recollection is materially different. Thereafter Mr Braithwaite's principal residence has been in Norwich with intermittent and short duration visits to the Order property.
78. Although the owner's periods of absence can be explained, and it is not uncommon for individuals to be absent from their home, perhaps for lengthy spells, due to work or family commitments, Mr Braithwaite has done little or nothing over a period of ten years to maintain the property and to arrange for its supervision or management in any tangible way.
79. During the same period the house has fallen into disrepair as a result of lack of basic and routine maintenance. Externally, it exhibits general disrepair to window and door frames and several windows are broken and boarded. Internally, despite intermittent occupancy, the house does not provide a safe and healthy environment for day-to-day living.
80. The overgrown gardens have been subject to periodic statutory notices in 2002 and 2008 with the Council carrying out the works in default. Although formal action was avoided in the early part of 2009, following the owner's co-operation, the condition of the gardens had reverted to an over-grown and untidy state which necessitated formal action in May 2010.
81. Whilst my site visit showed progress in clearing operations, the pace has been slow, much remains to be tackled and weeds are returning in some of the cleared areas. Notwithstanding Mr Braithwaite's intentions to undertake the works required by the Council, very significant efforts will be needed in order to achieve the necessary improvements by 30 September 2010 and within the extended period for compliance with the notice.
82. Mr Braithwaite maintains that 22 Lakeside is his home; but that is not proof as to whether the property is occupied. To my mind his use of the property over the last ten years has been sporadic and intermittent; and more in the nature of circumstances or convenience as opposed to his usual place of residence. The appearance of the house, and its internal condition, has deteriorated and it does not come close to providing a reasonable standard for day-to-day living. The condition of its gardens also contributes towards its atmosphere of neglect and its appearance of vacancy.
83. Appendix E, paragraph 9, to Circular 06/2004 does not define an "empty property". However, it uses the language of encouraging "the owner to restore the property to full occupation"; "to bring it to acceptable use"; and asks "what works have been carried out by the owner towards its re-use for housing purposes".
84. It is clear that the property is not in "full occupation"; there are material defects in the property and its current condition is inconsistent with "acceptable use"; and the owner has not undertaken any works which would provide "re-use for housing purposes" in the everyday sense of what constitutes a dwelling.
85. Against this background, I conclude that the Order property is, as a matter of fact and degree, an "empty property" for the purposes of section 17 of the Housing Act 1985."
"94. Mr Braithwaite was slow to co-operate with the Council in providing details of his intentions and his overall position appears to have become more deep-rooted. In my view, very little confidence can be attached to his proposals given that little effort has been made, even under the threat of the potentially serious implications of a Compulsory Purchase Order, and with the offer of a cross-undertaking agreement, to take reasonable steps to return the property to appropriate residential use."
"101. The test to be applied in accordance with Appendix E, paragraph 6, to Circular 06/2004 is whether the authority has demonstrated that its intentions are preferable to any proposals advanced by the existing owner. In acknowledging that there is no reasonable prospect of any interest from a Registered Social Landlord, the comparison rests on open market disposal. Whilst fully acknowledging the uncertainties that would introduce, I consider that significantly more reliance should be placed on the Council's well-defined intentions than on Mr Braithwaite's unsupported proposition."
"107. Compulsory purchase would interfere with Mr Braithwaite's human rights under Article 1 of the First Protocol to the European Convention on Human Rights and also Article 8 of the Convention. Interference, as a last resort, can in this case be justifiably regarded as being outweighed by the public interest of securing the return of the property to residential use within a reasonable period to meet a general housing need. In my opinion, such action can be considered to be necessary and proportionate."
The First Ground of Challenge
"28. It seems, therefore, that it is not enough that, in the judge's view, consideration of a particular matter might realistically have made a difference. Short of irrationality, the question is one of statutory construction. It is necessary to show that the matter was one which the statute expressly or impliedly (because "obviously material") requires to be taken into account "as a matter of legal obligation"."
The Second Ground of Challenge
"67. The Council is required, by virtue of Appendix E, paragraph 6, to Circular 06/2004, to provide certain information about its intentions and to demonstrate that these would be preferable to those of the owner. In this regard the Council's options are either disposal to a Registered Social Landlord or sale on the open market."
The Third Ground of Challenge
The Fourth Ground of Challenge