Brinklow and another v Secretary of State for the Environment and another

Compulsory acquisition of small site with non-conforming uses–If housing need exists, secondary motive to extinguish uses irrelevant–Existence of other powers to extinguish uses also irrelevant–But Secretary of State erred in law in not taking into account effects of absence of alternative sites for relocation–Order quashed This was an application by C D Brinklow and Croft Bros (London) Ltd for an order to quash the London Borough of Haringey. (Land and Buildings adjoining 41 Lynmouth Road N2) Compulsory Purchase Order 1973, made by the second respondents, the London Borough of Haringey, and confirmed by the first respondent, the Secretary of State for the Environment, on June 23 1975. C J Lockhart-Mummery (instructed by Stevensons) appeared for the applicant Croft Bros (London) Ltd; G R G Roots (instructed by C N Frere-Smith) for the applicant Mr Brinklow; and H K Woolf (instructed by the Treasury Solicitor) represented the respondents. Giving judgment, DOUGLAS FRANK said: The order was made under Part V of the Housing Act 1957 and relates to an area of 0.33-acre on which stands a single-storeyed warehouse with access from Lynmouth Road and an area of land with access from Fortis Green. The warehouse is used for the storage of flooring and wall tiles and the open land is used for the storage of crashed motor vehicles awaiting repair at a garage situated about 90 ft to the west. Mr Brinklow holds both areas on a 21-year lease from September 30 1975 but has sublet the warehouse to Croft Brothers Ltd. The applicants objected to the compulsory purchase order on the grounds that: (a)  the council’s principal object was to liquidate two alleged non-conforming uses; the provision of housing accommodation was a secondary motive and this order, made under Part V of the Housing Act 1957 was, therefore, ultra vires; (b)  the cost, inclusive of compensation, for the acquisition of this site for the provision of housing accommodation would be excessively high whereas the proposed housing gain would be minimal; and (c)  there would be no alternative accommodation for these two displaced uses. The Secretary of State caused a local inquiry to be held and the inspector in his report submitted on September 6 1974 found as follows: 4. The council state as their reasons for making the order that the present uses are non-conforming to the zoning in the initial development plan and have given rise to complaints from local residents. There was an overwhelming housing need in the borough and the seven 4-person houses that could be built on this site would contribute a valuable housing gain. 5. The objectors claim that acquisition of the site would result in total extinguishment of these two uses. The total site cost of such acquisition would be about £5,500 per habitable room of the proposed redevelopment, exclusive of building cost. This was about five times the normal rate for site acquisition in this area; the council did not contradict this estimate. 6. The objectors made the following points on the making of the order: a. The council’s case had been principally made by the planning witness who had stated in cross-examination that the action of the council in making the Part V compulsory purchase order had been prompted by complaints from local residents about noise, obstruction and loss of visual amenity. b. In the report to the Development Control Panel of July 4 1973 it was evident that the motivation behind the making of the Part V order was on planning grounds (document no 5). c. Evidence of complaints mostly turned on a bundle of letters, mainly from one person. d. The weight of the council’s planning case for this Part V order rested largely on the use of the front part of the site for the storage of damaged vehicles, to which the letters of complaint mainly related. e. The real purpose of the council should have been approached through the provisions of section 51 of the Town and Country Planning Act 1971. This Part V order was ultra vires. The inspector concluded: 1. The council have a pressing housing need and even a small site providing 100 per cent housing gain would make a valuable contribution towards the borough’s housing requirements. 2. It is reasonable to expect an environmental gain from housing redevelopment on Part V compulsory purchase order lands. Such environmental improvement is, however, secondary to the primary purpose of the acquisition of land and buildings under Part V of the Housing Act 1957. This purpose is primarily the provision of housing accommodation. 3. The primary motivation for the making of this Part V compulsory purchase order seems to have been for the extinguishment of the two non-conforming uses on this site because of complaints received by letters from several local residents. 4. No action has been taken by the council under the provisions of section 51 of the Town and Country Planning Act 1971 by the making of a discontinuance order. Under these provisions objections might well have been heard at a joint inquiry within the complete framework of applicable housing and planning legislation. Local residents who complained could have appeared as witnesses and in turn been cross-examined by the objectors. 5. In my opinion this inquiry was incomplete. The true purpose of Part V of the Housing Act 1957 is being used as a means to achieve an end not primarily intended under the provisions of Part V of the Act. Confirmation of this order, if unchallenged, would set a dangerous precedent. The inspector recommended that the order should be not confirmed. The Secretary of State’s letter of decision dated June 23 1975 stated that he accepted the findings of facts but did not accept the conclusion that the purpose of the order was one not primarily intended under the provisions of Part V of the Housing Act 1957. The letter then went on: 13 9. In the view of the Secretary of State the question for decision is whether the council have established a need to acquire the order lands for housing purposes and considerations relating to the extinguishment of non-conforming uses are not relevant to this decision. The overwhelming housing need in the borough has been clearly established and the Secretary of State accepts that the acquisition of even a small site providing maximum housing gain would make a valuable contribution to the borough’s housing requirements. He is therefore satisfied that the council’s need to acquire the order lands for housing purposes has been established. 10. The estimates of the cost of acquiring the order lands, including compensation, presented in support of one of the objections to the order have been noted, but it is not considered that they demonstrate that the acquisition cost would be unacceptably high for housing development in the borough. With regard to the absence of alternative sites for the relocation of the dispossessed uses, the view is held that this is not a factor which is relevant to the consideration of the confirmation of the order. It was then stated that the Secretary of State had decided to confirm the order subject only to an unimportant modification. The applicants’ grounds are that the confirmation of the order is not within the powers conferred by the Acts under which it was made and confirmed and further or in the alternative that the interests of the applicants have been substantially prejudiced by failure to comply with the Compulsory Purchase by Local Authorities (Inquiries Procedure) Rules 1962. I will deal first with the allegation that there was a breach of the rules. The submission here, put succinctly, was that the inspector found as a fact that the purpose in making the compulsory purchase order was to extinguish the non-conforming uses, that the Secretary of State differed from the inspector in those findings of fact, that he came to his decision without affording the applicants an opportunity of making representations in writing and, accordingly, that he was in breach of rule 9 of the 1962 rules. If in truth the Secretary of State differed from the inspector on a finding of fact there can be no doubt as to a breach of the rules, and Mr Woolf conceded that the order would have to be quashed. It had been an important part of the applicants’ case that the council’s motive for the making of the order was not for housing but to terminate the non-conforming uses and was therefore ultra vires. It was submitted for the applicants that in paragraph 9 of his decision letter the Secretary of State had differed from his inspector on the question of motivation. However, as I construe that paragraph, the Secretary of State in effect agreed with the submission that an order made under the Housing Act 1957 must be made for housing purposes, and in so far as there was any other motive it could not be relevant; further, the Secretary of State, having disregarded the non-conforming uses, applied his mind to the question of housing and found that there was an overwhelming need, and he was satisfied that the council’s need to acquire the order lands for housing purposes had been established. The fact that the council may have had two motives for the acquisition of the land, one for extinguishing the uses and the other for housing, does not prevent them acquiring the land under the Housing Act provided that one of the purposes is for housing; that there were other powers to extinguish the uses is not relevant: see Westminster Bank Ltd v Minister of Housing and Local Government [1971] AC 508. Counsel for the applicants conceded that, if para 10 of the decision letter is to be construed in the way that I have just explained, his point is a false one. In my judgment motivation is irrelevant if the circumstances for confirmation of a compulsory purchase order exist. In my view the Secretary of State in para 9 put his finger upon the logical error into which the inspector fell, disregarded motivation and satisfied himself that the circumstances for confirmation, namely housing needs, exist. Accordingly, the applicants’ submission fails in this respect. I should add that, had the council no intention of using the land for housing, different considerations would arise. The compulsory purchase order would have been made in bad faith and might then have been void ab initio. The next ground of complaint against the Secretary of State’s decision is that he reached the conclusion which, on the evidence and as a reasonable person, he could not have come to. Mr Roots submitted that the court can interfere if the Secretary of State has come to a conclusion to which, on the evidence, he could not reasonably come, and referred to Ashbridge Investments Ltd v Ministry of Housing and Local Government [1965] 3 All ER 371 at 374. He again stressed, by reference to the inspector’s report, that the motivation for the making of the order was to terminate the existing uses and that housing was only introduced as a method of dealing with the land after the termination of those uses, and he referred to para 5 of the inspector’s conclusions. However, in my judgment, the same considerations apply here as in considering the previous submission, namely, whether there was evidence before the Secretary of State on which he could conclude that there was a need for the land for housing purposes. In concluding that there was such need he had the evidence set out before him in the body of the report and in the first paragraph of the inspector’s conclusions. Accordingly, the appeal fails on this ground also. Finally, it is contended that the Secretary of State erred in law in deciding that the absence of alternative sites for the relocation of the dispossessed uses was not relevant to the consideration of the confirmation of the order. Mr Woolf submits that the Secretary of State can disregard considerations other than housing, that is to say, that he can attach no weight to them on the ground that housing considerations are paramount. He refers to and adopts the judgment at p 374 D in the case of Ashbridge Investments Ltd v Ministry of Housing and Local Government (supra) and submits that the Secretary of State can decide whether to attach relevance to a matter or not and that in the context no relevance is synonymous with no weight. He referred to Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, in which Lord Pearce at p 195 said that the court’s jurisdiction over inferior tribunals is supervision and not review and if the tribunal directs itself to the right inquiry, asking the right questions, the court will not intervene merely because the tribunal has or may have come to the wrong answer, provided that it is an answer which lies within the jurisdiction. It is necessary, I think, first to examine some of the statutory provisions relating to this matter. Section 96 (a) of the Housing Act 1957 empowers a local authority to acquire any land as a site for the erection of houses. Under section 97 (1) land for that purpose may be acquired by agreement or the local authority may be authorised to purchase land compulsorily and the Seventh Schedule to the Act then applies. By para 1 of the Seventh Schedule, the Acquisition of Land (Authorisation Procedure) Act 1946 applies to a compulsory purchase order under Part V of the Act as if the 1957 Act had been in force immediately before the commencement of the 1946 Act. Under paras 1, 2 and 3 of the First Schedule to the 1946 Act the local authority are required in this case to make a compulsory purchase order for confirmation by the Secretary of State, but before doing so they are required to take the specified steps to ensure that any owner, lessee or occupier is aware of the making of the order and of the right of objection. If no objection is made the confirming authority may confirm the order, but if there is objection, as in this case, then subparagraphs (2) to (4) of paragraph 4 apply, and they provide: 14 (2)  If any objection duly made as aforesaid is not withdrawn, the confirming authority shall, before confirming the order, either cause a public local inquiry to be held or afford to any person by whom any objection has been duly made as aforesaid and not withdrawn an opportunity of appearing before and being heard by a person appointed by the confirming authority for the purpose, and, after considering the objection and the report of the person who held the inquiry or the person appointed as aforesaid, may confirm the order either with or without modifications. (3)  If any person by whom an objection has been made avails himself of the opportunity of being heard, the confirming authority shall afford to the acquiring authority, and to any other persons to whom it appears to the confirming authority expedient to afford it, an opportunity of being heard on the same occasion. (4)  Notwithstanding anything in the two last foregoing subparagraphs, the confirming authority may require any person who has made an objection to state in writing the grounds thereof, and may disregard the objection for the purposes of this paragraph if the confirming authority is satisfied that the objection relates exclusively to matters which can be dealt with by the tribunal by whom the compensation is to be assessed. Mr Roots submits that the proper conclusion to draw from those provisions is that any matter raised by an objector and which is a direct consequence of the compulsory purchase order is relevant, except the assessment of compensation, which falls to be dealt with by the Lands Tribunal, and that the purpose of the hearing was to enable the Secretary of State to decide whether it was expedient to confirm the order and that in doing so he must make a balance, that is to say, he must weigh the need for housing against the effect on the objectors. He referred to the well-known case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, where at p 228 Lord Greene MR said: If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. So, in the case of Hanks v Ministry of Housing and Local Government [1963] 1 QB 999 the learned judge said: If the authority fails to take into account as a relevant factor something which is relevant, and which is or ought to be known to it, and which it ought to have taken into account, the exercise of the power is normally bad. I say ‘normally’ because I can conceive that there may be cases where the factor wrongly taken into account, or omitted, is insignificant, or where the wrong taking into account, or omission, actually operated in favour of the person who later claims to be aggrieved by the decision. In my judgment, thus far Mr Roots’ submission is amply supported by the express terms of subpara (2) of para 4 of the First Schedule to the Act of 1946 and by the authorities. Thus, where a person entitled to object raises a matter relevant to the effect of the proposed compulsory purchase upon him, he is entitled to have that matter considered and taken into account by the confirming authority. I should only add that how much weight is given to that matter is entirely within the discretion of the confirming authority, provided that that discretion is not exercised in such a way as no reasonable man would exercise it. However, that is not the end of the matter. I now have to consider whether the Secretary of State took into account that there were no alternative sites for the relocation of the uses carried out by the objectors. This matter was not dealt with by the inspector either in his findings of fact or in his conclusion, but in the decision letter it was dealt with in one sentence, which I repeat: With regard to the absence of alternative sites for the relocation of the dispossessed uses, the view is held that this is not a factor which is relevant to the consideration of the confirmation of the order. Thus the issue resolves itself into the question of the correct construction of that sentence. On the one hand, the applicants say that in effect the Secretary of State took no account of the relocation question, whereas Mr Woolf says that he took it into account and then said it carried no weight. My approach to this question is this: if, notwithstanding the words used, I am confident that the Secretary of State took the relocation matter into account then I should find in his favour. On the other hand, if there is reasonable doubt, this being a compulsory purchase case, the order should be quashed so that he should have a further opportunity of considering that matter. I find it difficult to equate the words ‘no relevance’ with the words ‘no weight.’  I prefer to adopt the words of Lord Greene MR in Tomkins v Tomkins [1948] P 170 at 175, namely: When I say relevant I mean this, so nearly touching the matter in issue as to be such that a judicial mind ought to regard it as a proper thing to be taken into consideration. Ex hypothesi a factor which is not relevant is one which ought not to be regarded as a proper thing to be taken into consideration. It follows, by applying that test in the instant case, that the Secretary of State regarded the relocation issue as irrelevant, as a question which he ought not to take into account, and not one which he took into account and then dismissed as having no weight. I feel fortified in that conclusion by a reference, first, to para 9 of the decision letter, in which he used very similar language and in particular the word ‘relevant,’ but there showed that in effect he was agreeing with the objectors that he considered that the question was not one which ought to be taken into account at all rather than that he had taken it into account but attached no weight to it. I further think that the dispossession of two businesses, taking into account the consequent effect upon those who rely upon them for employment and their families, and those who rely upon them for the services they provide, could not be considered by a reasonable man as a matter of no weight. Accordingly, I have reached the conclusion that, on the balance of probabilities, the Secretary of State used the word ‘relevant’ in the sense that I have described and did not take into account and put into the balance the absence of alternative sites for the relocation of the dispossessed uses. Accordingly, in my judgment, the applicants have established a ground on which they are entitled to succeed and the compulsory purchase order must be quashed.