Burnley Borough Council v First Secretary of State and others; Rowe v First Secretary of State and another

Clearance area — Compulsory purchase order to secure demolition of unfit housing — Section 290 of Housing Act 1985 — Whether proper to exclude houses already demolished by date of order — Whether further exclusion appropriate for houses under renovation — Claims dismissed The claimantm in the first action (Burnley) declared a clearance area, pursuant to section 289 of the Housing Act 1985, in respect of housing that they considered unfit for human habitation. In order to implement the clearance area and demolish the housing, they made a compulsory purchase order (CPO) pursuant to section 290 of the 1985 Act. The claimant in the second action, (Rowe) who owned some of the affected properties, objected to the CPO. A public inquiry was aborted owing to the retirement of the inspector. By the time a second public inquiry was held, some of the affected properties had already been demolished. The inspector found, as a consequence, that there was no longer any compelling need for compulsory acquisition of those properties, and they should be excluded from the ambit of the CPO. He did, however, include other properties belonging to Rowe, notwithstanding that the second claimant had begun to renovate them. The inspector found that the renovation works were unlikely to be completed to a satisfactory standard and within a reasonable time. The first defendant secretary of state accepted the inspector’s recommendations and confirmed the order as being modified. Burnley and Rowe brought proceedings to challenge the first defendant’s decision under section 23 of the 1985 Act. Burnley challenged the exclusion from the CPO of the demolished properties. They contended that the inspector had misinterpreted section 290(4), under which they were entitled to exercise the power of compulsory acquisition provided that the buildings had existed at the time at which when the clearance area was declared. Rowe challenged the inclusion of the properties under renovation, contending, inter alia, that the inspector should have excluded the properties in the light of the strong economic case for renovation, and that the first defendant had inadequately considered the human rights implications under Article 8 of the European Convention on Human Rights. Held: The claims were dismissed. (1) Although section 290(4) made it possible to acquire, under a CPO, properties that had been demolished, it said nothing about the circumstances in which that could be done. In deciding that, the inspector had been entitled to take account of the purpose of the compulsory purchase power as set out in section 290(1), namely to secure the clearance area by ensuring the demolition of the buildings on the land. The inspector had been entitled to find that, where buildings had already been demolished, it was unnecessary to include those properties within the CPO. Section 290(4) could be used to prevent owners from forestalling the legitimate exercise of the local authority’s power by demolishing some of the properties in a clearance area. It should not be used to limit the inspector’s discretion, as contended for by Burnley, in a way that was not warranted by the wording of the statute and might prevent him from carrying out the required balancing exercise when, for example, deciding whether a particular measure was compatible with the Convention. (2) As to the second claim, in determining what was the best course of action, the inspector had been entitled to take account of the area as a whole, the relevant factors under Circular 17/96 and the socio-environmental study carried out by the local authority in accordance with the circular. Although issues relating to individual houses were relevant, they were not determinative. Moreover, the inspector had been entitled to find, and to regard as a relevant matter, that Rowe could not be relied upon to complete the renovation himself. With regard to the human rights issues, as a general rule domestic planning law, including its procedural rules, constituted the necessary balancing exercise required by the Convention: Lough v First Secretary of State [2004] EWCA Civ 905; [2004] 1 WLR 2557 applied. Where, as in the instant case, the inspector had undertaken the necessary balancing exercise, and it was contained a decision not susceptible to challenge on public law grounds, there was no need for the first defendant to duplicate that reasoning in his decision. Eric Owen (instructed by the legal department of Burnley Borough Council) appeared for the claimants in the first action/defendants in the second action; Lisa Busch (instructed by the Treasury Solicitor) appeared for the first defendant; the claimant in the second action/first defendant in the first action appeared in person; the second defendant in the second action did not appear and was not represented. Sally Dobson, barrister