Migdal Investments Ltd v Secretary of State for the Environment and another

Housing CPO including added lands–Reference made to new plans of highway authority promulgated after confirmation of order–‘No mere technicality’ to say that such material is irrelevant when the question is the material before the Secretary of State at the date of confirmation–Proposals before Secretary of State firm enough to justify his decision, not merely ‘pie in the sky’–Reference to King v Minister of Housing and Local Government (1970) 214 Estates Gazette 414 This was an application by Migdal Investments Ltd for an order quashing the City of Manchester (Hyde Road, Ardwick) Housing Compulsory Purchase Order 1972, made on April 16 1973 by the predecessors of the second respondents, City of Manchester District Council, and confirmed on July 9 1974 by the first respondent, the Secretary of State for the Environment. Mr G Dobry QC and Mr C J Lockhart-Mummery (instructed by Herbert Oppenheimer, Nathan & Vandyk) appeared for the applicants, and Mr A McCowan QC and Mr H K Woolf (instructed by the Treasury Solicitor) represented the first respondent. The second respondents took no part in the proceedings. Giving judgment, BRISTOW J said: This is an application to quash the City of Manchester (Hyde Road, Ardwick) Housing Compulsory Purchase Order 1972, made pursuant to section 43 of the Housing Act 1957 on April 16 1973 and confirmed by the Secretary of State on July 9 1974. The order relates to six clearance areas along the north side of Hyde Road from number 101 in the west to number 217 in the east, 0.54 of an acre in all comprising 30 houses unfit for human habitation. The order includes 0.84-acre of ‘added lands’ coloured grey on the plan and included under the provisions of section 43 (2) on the basis that their inclusion was reasonably necessary for the satisfactory development or use of the clearance areas when cleared. The applicants, Migdal Investments Ltd, own 16 houses included in this way and one house in a clearance area. They say that the order, at least in so far as it includes their 16 ‘added lands’ houses, is ultra vires because there was no material before the Secretary of State to justify him in confirming the order as recommended by his inspector, Joan Naish, in her report on the public inquiry held on December 4 1973. I take it to be clear law that if there is no material on which the Secretary of State can come to the conclusion that the inclusion of the ‘added lands’ is reasonably necessary for satisfactory development or use of the clearance areas when cleared, the court must quash the order, because it has not been made within the powers granted by section 43 (2) of the Act. I take it also to be clear law that in considering whether or not the inclusion of the ‘added lands’ is reasonably necessary the Secretary of State is not bound to look only at the clearance area to which they are adjacent, but is entitled to look at the problem sensibly in its geographical and planning context as that appears from the evidence before him: see Burgesses of Sheffield v The Minister of Health (1935) 52 TLR 171; 154 LJ 183 and Coleen Properties Ltd v Minister of Housing and Local Government [1971] 1 WLR 433. What, then, was the evidence available to the inspector and her Secretary of State when she recommended confirmation of and he confirmed this order?  Mr Allan, a senior planning officer, who holds the degree of bachelor of arts with honours in town and country planning and is a member of the Royal Town Planning Institute and senior planning officer in the service of Manchester Corporation, gave evidence at the inquiry, and his proof was annexed to the inspector’s report. He produced certain plans. A 1/500 plan shows the pink and grey lands and the existing council-owned premises uncoloured. To adopt the imagery used at the inquiry, when you have taken the teeth which are now rotten from the jaw, the grey lands will remain as isolated fangs sticking up here and there. So much is obvious from looking at the plan alone. A 1/1250 plan shows the compulsory purchase order boundaries. It shows how they related to road-making proposals for Hyde Road. The land to the north of Hyde Road is zoned for industrial use, and that was in evidence. The land immediately to the south of Hyde Road has already been cleared and that was in evidence. The houses on the north of Hyde Road, east of the compulsory purchase order boundary, already belong to16 the council. In paragraph 6 of Mr Allan’s proof, and no doubt he gave evidence in accordance to his proof and was available to be cross-examined on it at the public inquiry, there appears this: Development proposals. In the City of Manchester approved development plan the land within the compulsory purchase order is allocated for industrial use and is located in the West Gorton area for which outline planning proposals had been prepared. Most of the area [of the compulsory purchase order] will be required for the Hyde Road motorway and associated landscaping programmed to start after 1977. A small area will be available for industrial purposes and could be used in association with the Hyde Road bus garage which adjoins the area. This can be clearly seen if you look at the 1/500 plan. Then passing to paragraphs 8 and 9, Mr Allan’s proof reads: I do not consider it practicable to redevelop satisfactorily the land within the clearance area coloured pink on [the 1/500 plan] without acquiring the land and buildings coloured grey included within the compulsory purchase order . . . I am satisfied that the acquisition of the grey area is reasonably necessary in order to secure a satisfactory development or use of the cleared area. That proof and the evidence given by Mr Allan at the inquiry was material before the inspector and was summarised in her report to the Secretary of State. Unlike the situation in Coleen’s case, this material is not an ipse dixit of the local authority. It is expert evidence of fact and opinion given by a qualified expert witness. The inspector herself is a qualified professional person. She is a bachelor of science (estate management) and an associate of the Royal Institution of Chartered Surveyors. Once again I take it to be clear law that what an inspector says by way of expressing an opinion upon the evidence put before the inspector at a public local inquiry is material which the Secretary of State is entitled to take into account in coming to his decision. That is what you have qualified inspectors for, and that in my judgment appears from Coleen’s case. If we turn to paragraph 21 of the inspector’s report, the inspector is there summarising the general case for the council. She says: Most of the land would be required for the Hyde Road motorway and associated landscaping. This was programmed to start after 1977. Plan C was submitted showing the boundary of the total road works with the district road alongside. No detailed plans of these road proposals were available. A small area of land at the rear of the Hyde Road Hotel would be available for industrial purposes and could be used for the adjoining Hyde Road bus garage. Then passing to paragraph 23: Acquisition of the 0.84 of an acre of ‘added lands’ was reasonably necessary for satisfactory development or use of the cleared areas. If any ‘added lands’ were excluded and the unfit houses demolished the area would give the effect of broken teeth and become a dumping ground beside one of the city’s principal roads and overlooked by several hundred flats. A number of the properties were vacant. At the eastern end only one shop was thriving and that was by the pedestrian crossing. That is her summary of the relevant parts of the local authority’s case as presented before her in the inquiry. There was also before the inspector a summary which was provided by the present applicants of what had passed between Mr Clegg, their surveyor, and Mr Read, the city engineer and surveyor. That can be seen at paragraphs 78 and 79 of the report, and in a letter which was attached to the report dated November 28 1973. I will read the paragraphs of the report. This is a summary of the case made by the applicants: Inquiries had been made of the city engineer regarding the road proposals from which it seemed that the width of the motorway could not be specified. It was not known when the work would be carried out but it would not commence before 1978 and the line of the road might be altered as alternatives were under consideration. There was no approved plan. It seemed likely that the motorway would be constructed to the south of the present road and the bridge would restrict the width of the road. There was no compelling reason for the motorway to be constructed on any part of the objectors’ land and no justification for early acquisition. On the council’s own evidence there was no need to acquire this land now. It was probable that the road would not affect the order land which would be used for a slip road at most. That is a summary of Mr Clegg’s evidence and the argument based upon it. The letter of November 28 1973 is as follows. It is from the city engineer and surveyor to Mr Clegg: Referring to your letter of November 20 1973, details of the improvement of Hyde Road are still in preparation and have yet to be considered by the council. From preliminary outlines, however, it appears that the widening of Hyde Road over the lengths in which you are interested could be largely on the south side varying between possible extents of 20 to 50 metres or even more. But it is still possible that properties on the north side could be affected by secondary roads and other ancillary works. If there are any specific properties in which you are interested, perhaps you would let me know the addresses and I will endeavour to assess whether the properties are likely to be affected by any future development. There are no proposals being considered which would involve demolition of the frontage of the bus depot. The road scheme is not expected to be carried out before 1978, and will from April next year become the responsibility of the Greater Manchester Council. And it did. The reply by the local authority to the applicants’ case is summarised in paragraph 88 of the report, and there the inspector deals with submissions based upon the Coleen case made on behalf of the applicants. She says: In this case the council had produced evidence and a plan. It was not possible to say with certainty when the proposals would be carried out, only that it would not be before 1977. This was the foreseeable future. Preparatory works were necessary in the form of slip roads and distributor roads. In the meantime landscaping would be carried out. It will be noted that that reply is strictly limited to the road plan proposals. The next paragraph that is important is 92. The inspector says: The order land is zoned for industrial purposes and even if there were no road proposals it would be impossible to develop satisfactorily the scattered parcels of unfit properties. However, with the exception of the rear part of the Hyde Road Hotel the whole of the order land is affected by the road proposal which is programmed before 1984 but not before 1977 and for which no detailed plans have yet been prepared. Those are expressions of opinion, or the first part is an expression of opinion, by the professionally qualified inspector upon the material before her. Indeed, even an amateur might think that you have only to look at the 1/500 plan to come to a conclusion that it would really be quite out of the question to have any satisfactory development or use for industrial purposes, which is what the area is zoned for, of the cleared areas unless the grey land is taken as well. At any rate, whether the amateur would be right or wrong in that, that is the view expressed by the inspector and by Mr Allan, neither of whom is amateur. And at paragraph 93 the inspector expresses herself satisfied that the acquisition of the grey lands is reasonably necessary for satisfactory development or use of the cleared areas. Her conclusions are expressed in paragraphs 102 to 104: 102  With the exception of reference nos 7, 8, 9, 15 and 20 the clearance areas are properly declared and the most satisfactory method of dealing with the conditions in the modified clearance areas is the demolition of the buildings in those areas. 103  Having regard to the terraced construction of the properties and the various ownerships involved acquisition of the properties within the modified clearance area is justified to ensure satisfactory demolition and redevelopment. So far, of course, the applicants are unaffected. Then: 104 Although the area of ‘added lands’ in reference nos 7, 8, 9, 15 and 20 is considerably larger than that of the clearance17 areas, the properties adjoin the clearance areas or adjoin properties in the ownership of the council which in turn adjoin clearance areas. The properties are terraced and many are in a poor state of repair with signs of instability. Acquisition of added lands and of reference nos 7, 8, 9, 15 and 20 is reasonably necessary for satisfactory development or use of the cleared areas. That was, as far as is relevant to this application, the material before the Secretary of State when he had to perform his function of deciding whether the compulsory purchase order should be confirmed or not. Mr Dobry on behalf of the applicants submits that I should also look at what has happened since the order was made, and he tendered evidence that the Greater Manchester Council which succeeded the city council as highway authority intended after review of its inherited commitments to complete only five roads to motorway standards, and Hyde Road was not one of them. He submits on the authority of Grice v Dudley Corporation [1958] 1 Ch 329 that the court has jurisdiction to interfere if it sees that although an order had been made and confirmed intra vires, it is to be used for a purpose other than that for which it was made and confirmed. But Grice’s case was an action for a declaration and an injunction to prevent the abuse of an order lawfully made, not an application under schedule 4, paragraph 2, to the Housing Act 1957, as this is, to quash an order on the grounds that it was not lawfully made. It is in my judgment impossible usefully to consider what has happened after the confirmation of the order when the question for the court is, as it is on this application, was there material before the Secretary of State when he confirmed the order which enabled him to do so within the powers conferred by section 43 (2)?  It would no doubt be right to consider what happened after the confirmation of the order if the applicants were inviting the court to infer from that that the minister had not acted bona fide in confirming the order, but that is not the applicants’ case. In my judgment, if an applicant wishes the court to interfere on the grounds that although the order was intra vires there is going to be no road, and that to enforce it would therefore be an abuse, he cannot do so by this procedure. This is no mere technicality. The evidence tendered under this procedure is quite inadequate to enable the court to decide whether there is going to be a road or not, and if so when, and in this case at least that question could not in my judgment be satisfactorily investigated on affidavit without discovery and without oral evidence. So although I admitted the affidavit it was sought to put in, this submission fails. Mr Dobry’s main submission is this. As section 43 (2) has been interpreted in the authorities, in order to show that the acquisition of ‘added lands’ is reasonably necessary for the satisfactory development or use of the clearance areas when cleared, you must produce your redevelopment proposals not necessarily as a cut and dried plan but at least in a reasonably positive form. His proposition really comes to this, that if what you intend or say you intend when examined turns out to be no more than pie in the sky it will not do: see Coleen’s case, and King v Minister of Housing and Local Government (1970) reported at 214 ESTATES GAZETTE 414. Mr Dobry submits that it is not enough to fulfil the requirements of section 43 (2) just to look at the ground and say, ‘No satisfactory development or use of the cleared area is possible unless you acquire the adjoining land.’  He submits that the Secretary of State must look at the proposed development and use of the cleared area to see if the acquisition of the adjoining land is reasonably necessary, and that the road operation which is the only proposed use put forward here never got to a sufficiently positive stage to enable this to be done. He says that the 1/1250 map is no more than the roughest possible sketch on which no reliance can be placed, especially in view of Mr Read’s letter, which suggests that the north side of Hyde Road may not be affected anyway and no work will start before 1978. Mr McCowan for the Secretary of State submits that what will be needed by way of material to enable the Minister to meet the requirement of section 43 (2) must depend on the circumstances. In Coleen’s case, for example, before you could judge whether it was reasonably necessary for the corner house to be acquired, a pretty precise formulation of what was going to happen to the cleared land was obviously essential. But in a plain case, reasonable necessity might well be so obvious that you have only to look at the site to see it. He submits that this is such a plain case. The inspector did look at the site and see it, as appears from paragraph 92 of her report. That alone was sufficient, irrespective of the road proposals. The Secretary of State was entitled to and did act upon the material she put before him in this respect: see paragraph 7 of his decision letter, which reads as follows: The arguments put forward both by the objectors and the council have been considered. The inspector’s findings and conclusions regarding the lands included in the clearance areas are accepted. The number of properties recommended for acquisition as ‘added lands’ may seem high in comparison to the number of properties which would then remain in the order as unfit houses, but regard has been had to the provisions of section 43 (2) of the Act and to the Appeal Court judgment in the Coleen Properties case. It is accepted that in view of the fragmentation of the clearance areas, the lands therein could not be developed satisfactorily in isolation. It is considered that a satisfactory development could take place if the whole of the lands included in the order were acquired by the council. The council have indicated in outline how the lands could be redeveloped for highway purposes. Such proposals are not programmed to commence until after 1977, but in view of the intermediate procedures involved including valuation, rehousing and demolition, it is not considered that acquisition at this date would be premature. It is concluded accordingly that acquisition of the ‘added lands’ is reasonably necessary for the satisfactory development or use of the cleared area. The inspector’s findings, conclusions and recommendation have accordingly been accepted. So it is clear that the inspector and the Secretary of State took into consideration, in addition to their view that you could not do anything by way of sensible development or use of the clearance areas unless you took the grey land as well, the highway proposals. Their conclusion was that although the highway proposals would in any case not take effect before 1978 and were only in the broadest outline, they, quite apart from anything else, showed that it was necessary in order to make sense of the compulsory purchase order as a whole to acquire the ‘added lands.’  Now if there is material before the Secretary of State on which it is possible for him to come to the conclusion that the ‘added lands’ are reasonably necessary for the satisfactory development or use of the cleared areas, the weight that is to be attached to that material in arriving at his decision is for him, not for the court. The court can only interfere if he confirms the order without any material which would enable him to do so in the genuine application of the powers which he is given by section 43 (2). That subsection requires him to be satisfied quite simply that the acquisition of the adjoining land is reasonably necessary for the satisfactory development or use of the cleared areas. There is no statement in the statute of the nature of the material by which he is to be so satisfied. There is nothing in the statute to say there must be put before him some plan of some degree of precision. Read out of their true context, some of the observations of the Court of Appeal in Coleen’s case might be taken as adding a gloss to the terms of the statute, that some such requirement was there. But if you read them in the context of the facts of the Coleen case, in my judgment it is quite clear that no such gloss was intended. In this case, looking at the 1/500 plan and the white and pink bits of land, you will be left, when the buildings on them have18 gone, with a couple of terraces along the north side of Hyde Road whether it is turned into a motorway or not, demolished but for the grey teeth, and this on land zoned for industrial use and backed by the bus depot. In my judgment this alone, supported as it was by the professional opinion of Mr Allan and the inspector, was material for consideration of the Secretary of State on the question before him. He acted on it, and his confirmation of the order was therefore intra vires. That is enough to dispose of this application. So far as the road proposals go, thin though the evidence was that the Secretary of State had to go upon, I cannot find that there was no evidence relating to those proposals so as to make the confirmation of the order ultra vires even if it had been on that basis alone. In my judgment in this case the Secretary of State took into consideration matter which was properly before him and which he was entitled to consider. The weight to be attributed to that matter was for him, and his confirmation of the order is therefore, as I have said, intra vires, and this application fails. The application was dismissed with costs. His Lordship said that in his opinion he had no power to stay action upon the order pending an appeal, and these were not circumstances in which he could suspend the order’s operation under schedule 4 to the Act of 1957, paragraph 2 (1), which he thought was concerned with the pendency of the proceedings before his court only. He assumed, however, that the Department of the Environment and the corporation would do nothing to render the applicants’ right of appeal illusory.