Burke v Secretary of State for the Environment and another

Acquisition — Housing purposes — Alleged defective order — Owner appealing against making of order — Control order in existence — Whether powers under control order exercisable only during 28-day period — Whether decision to make a CPO and consequent making of order constituting separate steps in law — Whether officer responsible acting within his powers — Whether compliance with relevant requirements — Whether order purporting to have been made on date on which it was not made — Owner’s appeal dismissedThe property, which was the subject-matter of the CPO, was a five-storey terraced house in multiple occupancy at 43 Fitzroy Street, London W1. B had bought it in 1983 and planning permission and listed building consent had been granted for proposals which would have resulted in the house being subdivided into one maisonette and three self-contained flats. That work was never carried out. A report prepared by the directors of housing and environmental health and consumer affairs for Camden London Borough Council in 1987 showed that the property was by then unfit for human habitation. The report was forwarded under cover of a memorandum seeking the making of a compulsory purchase order on the property. On February 13 1987, a control order was made under the powers granted to Camden by section 379(1)(a) of the Housing Act 1985. Following the report, on March 11, approval was given to the making of the order, which was endorsed on that date, so that the process of making the resolution was complete within the provisions of standing order 58(2)(b). It was in the contemplation of the officers that the compulsory purchase order should be made within the next three days to comply with para 22 of Schedule 13 to the 1985 Act. In fact the documents were not properly assembled and were sealed only on July 1 1987. When B discovered that the order was not sealed until July 1 1987, he advanced arguments under section 23(1) and (2) of the Acquisition of Land Act 1981 to challenge the order on the ground that the authorisation was “not empowered to be granted”. Where an order had been made on the decision of an officer in the purported exercise of delegated powers then a deficiency in the officer’s powers would render the order liable to be quashed for want of empowerment. B argued that the application of that general proposition to the instant case required the court to ask, first, whether there was any occasion for the exercise of a delegated power and, if there was, whether the making of the order on July 1 was an exercise of a delegated authority which had the approval of the chairman of the housing development subcommittee. He also alleged that the CPO was a “civil” forgery in that it purported to have been made on a date on which it had not been made. His application to quash the order was dismissed by Mr Justice Brooke on May 5 1991. B appealed. Held The appeal was dismissed. 1. The authority to act was delegated by standing order 58(2)(b) in regard to any function which, in the officer’s opinion, “does not admit of delay”. The opinion of the director of housing was plainly that the decision to make an order did not admit of delay. The bona fides of that opinion could not be challenged on the evidence and its rationality was defensible by reference to the desirability of securing the exemption conferred by para 22 of Schedule 13 to the Housing Act 1985 to a management scheme. Therefore, there was an occasion for the exercise of delegated power. 2. The decision to make a CPO and the consequent making of it were separate steps in law. On March 11 a decision was approved to make an order in the exercise of the powers conferred by section 17 of the 1985 Act. Much of the difficulty of the case had arisen out of a misunderstanding of the effect of para 22 of Schedule 13 of the 1985 Act. It was quite clear that those responsible for the CPO thought that the powers of compulsory acquisition granted to a local authority under section 17 were, if a control order was in existence, exercisable only during the period of 28 days after the making of the control order, after which the powers to make the order lapsed. 3. It was a question of construction. The words were not expressed as words of limitation. They were no more than a superfluous statement to the effect that the section 17 power was exercisable notwithstanding the making of the control order. To construe the words as meaning “and within 28 days of that order” was to do them a degree of violence which was unwarranted even though the officers thought (mistakenly) that in law an order should be made before the expiration of 28 days. 4. Section 23(2) enabled the applicant to challenge a compulsory purchase order on the ground that a relevant requirement had not been complied with in relation to it. It was common ground that a relevant requirement had not been complied with in relation to the 1987 order in that the correct date of making had not been placed upon it. However, relief could not be granted unless the failure to comply had resulted in the interests of the applicant having been substantially prejudiced (section 24(2)(b)). On the facts of this case, B had not established prejudice consequent upon non-compliance. 5. Even if it had been established that the making of the CPO was without empowerment and came within section 24(2), there was still a discretion in the court whether to quash the order. In this case the court would not have exercised the discretion to quash the CPO. 6. With regard to the submission that the wrong date of the CPO amounted to a civil forgery, the court could not accept that merely because a document had on its face a material error as to its date it was necessarily made without authority or was void. Barry Payton (instructed by Iqbal & Co) appeared for the appellant; and Alice Robinson (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; Camden London Borough Council did not appear and were not represented.